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property of such consignor, issued
under the Code, and served by de-
livering a certified copy of it to such
factor on the 6th of April, 1854, will
attach and bind such surplus, and
such attaching creditor will hold it
in preference to, and to the exclu-
sion of, another creditor of such
consignor, who obtains an attach-
ment against the latter and serves
it in like manner on the 15th of
June, 1854. Patterson v. Perry et
al.,

.518
White et al. v. Milne,
3. This result will follow, although
enough of the consigned property,
to pay the factor's advances and
charges, had not only not been
received by the factor, but had not
arrived within the State of New
York when the first attachment was
issued and thus served..........id

.....id

4. Nor will it make any difference
that the creditor issuing the second
attachment became such creditor by
discounting for said consignor, at
the date and time of the last of said
shipments, two bills drawn by the
consignor against said shipment and
that the factor was advised, by the
consignor's letter inclosing the bill
of lading for that shipment, of the
drawing of said two bills against
said shipment, and was requested to
honor the same; and such letter
and bill of lading were received by
the factor on the 5th of April, 1854,
before the first attachment was
served or issued.

..id

B

the check to the person named in it
as payee, do not, of themselves, ope-
rate as an assignment to such payee
of the title to any of the moneys
thus standing to the credit of the
drawer of the check. Butterworth,
Receiver, v. Peck et al., . ....... 341

2. In an action by the payee of a
check against the drawer, it is no
defense that it was given by the
defendant for a debt owing by a
third person to one who was the
payee's principal; and that the
payee accepted it as agent for the
debt due to his principal, the payee
being expressly authorized to settle
such debt and receive payment of
it. Fish v. Jacobsohn, ...

....514

3. Such agent, on receipt of such
check, having credited his principal
with the amount of it, and having
subsequently, in consequence of
receiving it and before it was pro-
tested, paid other moneys to his
principal's said debtor which other-
wise he might retained and
applied upon the debt for which the
check was given, and such check,
being in terms payable to such
agent's order, he can maintain an
action on it, in his own name....id

BILLS OF EXCHANGE.

1. Where a person having an account
with a Bank, and being at the time
its creditor, remits to it a bill of
exchange “for his credit," such per-
son having prior thereto made
remittances to the Bank and drawn
drafts upon it, and by arrangement
between them, was to be allowed
interest at the rate of four per cent
on his average balances; such Bank
does not by the mere receipt of such
bill become the owner of it, in such
sense that it can divest the remitter's
title, by transferring it as security
for a precedent debt. Scott v. The
Ocean Bank, ..

..192

BANK CHECK.

1. The drawing of a check on a Bank
by one who keeps an account in it,
and has, at the time, moneys to the
same or a larger amount to his cre-
dit on its books, and a delivery of

a

2. Although, by making such
transfer of it, the Bank may be
charged by the remitter for its
amount, still he is at liberty to pur-
sue it and recover its proceeds from
any one to whom it has been paid,
and to whom it was transferred by
such Bank as mere security for a
precedent debt.

.id
3. Such a transferree is not a holder
for value within the commercial
meaning of that phrase, so as to have
a right to retain the proceeds against
the true owner, notwithstanding it
may have been taken without notice

any defect in the title of the
Bank.

...id

of Commissioners," &c., and the plan
is subsequently, without the consent
of the obligors, so changed that a
gore of land at the part of Canal
street, bounded

Centre, Walker
and Baxter streets, instead of being
taken and converted into a park, as
the original plan contemplated, is not
taken, but is left to be built upon,
and Canal street is extended an ad-
ditional distance, and the work is
completed according to the modified
plan, such obligors are not liable
upon said bond.

Giles v. Crosby
et al., ...

..389

2. The question of their liability on
such bond is not affected by the fact
that the change of plan made the
improvement less expensive than it
would have been if completed ac-
cording to the plan referred to in the
bond....

..id

4. An officer or manager of a manu-
facturing corporation, has no autho-
rity, by mere virtue of his office or
agency, to accept a bill for the ac
commodation of the drawer, drawn
and used to raise money for the use
of the latter. Farmers' & Mechanics'
Bank v. Empire Stone Dressing
Co.,

.275

BOOKS OF ACCOUNT.

5. One who discounts a bill of ex-
change before acceptance by the
drawee, does so on the credit of the
drawer or indorser, or both, and is
not a holder for value paid on the
faith of the acceptance. ..... id

1. Entries in co-parternership books,
made by one partner after dissolu-
tion, not evidence against the other.
Boyd v. Foot & Cole, ...110

Vide PRACTICE, title DISCOVERY.

BROKER

6. Whether any or all the officers of
such a corporation can bind the cor-
poration by accepting bills for the
accommodation of third parties?
Quære.

..id

Vide Bank CHECK.

PROMISSORY Notes.

1. A real estate broker, employed by
the defendant to effect or negotiate
an exchange of certain of the de-
fendant's real estate for other spe-
cified property, at given prices, does
not become entitled to commissions
until he obtains a contract which
his employer accepts, or such a con-
tract as his employment authorizes
him to negotiate, made with some
third person, which the latter is able
and ready to perform, or the specific
performance of which can be com-
pelled. Barnes v. Roberts, .....73

BOND.

1. Where a bond is given by several
persons, by the terms of which they
obligate themselves to pay a sum
therein named, "on the completion
of the opening of Canal street and
the widening of Walker street, ac-
cording the plan now in the hands

2. Broker selling property by autho-
rity of the tortious or felonious pos-

sessor thereof, is liable to the true
owner for its value, although he acts
in good faith and has paid over the
proceeds. Anderson et al. v. Nicho-
las,

.121

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3. Where a broker is instructed to
purchase, as such broker, for the
plaintiff, a specified number of shares
of the stock of a corporation named,
and he accordingly contracts to buy
the specified number and receives a
certificate of stock regular in form
and issued by the proper officer of
the corporation for the specified
number of shares, receives payment
therefor from his principal and
makes payment to his vendor, and
such certificate proves to be value-
less and not to represent actual
stock, such broker, where he has
acted in good faith and according to
the customary course of business
among brokers in such cases, is not
liable to his employer for any dam-
age resulting to him from such trans-
action and purchase. Peckham v.
Ketchum et al.,

..506

4. It will not affect the question of
such broker's liability that the shares
he so bought were transferred to
him by the vendor on the books of
the Company, and by him trans-
ferred to his principal, and that he
did not disclose to the vendor his
agency in the transaction—that
being according to the established
and customary course of business
in such transactions..

..id

$$ 95–110. Limitation of actions;

Reciprocal demands; Payment
on account. Peck v. New York
and Liverpool United States

Mail Steamship Co., ......226
$ 122. Application by a third

person to be made a party.

Dayton v. Wilkes, .... .655
§ 157. Pleadings, how verified

when there are several parties
or persons. Gray et al. v. Ken-
dall et al.,

...666
§ 174. Relief from judgment so

as to permit an appeal after the
time to appeal has expired, on
the ground of mistake, inad-
vertence or excusable neglect.
Jellinghaus v. New York Insu-

rance Company, ...678
$ 220. Injunction order may be

signed by the Judge and be de-
livered to the officer, before the
actual service of the summons
on the defendant. Leffingwell,
Receiver, v. Chave et ux.,..703

BURDEN OF PROOF.

1. In an action on the covenant of
seizin.

...566

BY-LAWS.

1. Although the by-laws of a corpo-
ration require the officers and agents
to enter all the business of the Com-
pany in its books, their neglect to
do so (though it may subject them
to liability if the Company sustain

$220. It is sufficient to serve
with the injunction the papers
upon which it was granted,
whether they are technically
affidavits or not.

....id
$ 222. It it is not essential that

the plaintiff or his agent or
attorney, should sign the under-
taking, to be given on obtain-
ing an injunction.

..id

$$ 227231. Sheriff or attaching

creditor may justify the attach-
ment of property in the hands
of an assignee, by proof that
the assignment was fraudulent
as against creditors. Thayer |
v. Willet, Sheriff, ........344

may be liable, stipulating that the
latter shall have the benefit of any
insurance effected by the owner, is
a carrier of goods and not a forwar-
der merely, notwithstanding he em-
ploys the conveyances of third par-
ties only, (Railroad Companies, &c.,)
in the performance of his contract
Read et al. v. Spaulding, .......395

$8 227-231. Priority of lien ac-

quired by attachment-con-
signor and consignee. Patter-
son, Administrator, v. Perry et
al., ....................518

$268. Orders made on a trial by

the court-can an appeal be
brought therefrom before final
judgment? Griffin v. Cranston

......658

$ 281. The prevailing party can-
not be compelled by order to
file a judgment roll—and an
order, requiring him to do so,
is appealable and will be re-
versed. Heinemann v. Water-
bury, ....... .....686

3. Where goods in a railroad depot
near a river were injured by an ex-
traordinary flood, rising higher than
any flood had ever risen before, which
it was no negligence not to anticipate
and from which, when the rise of
the water became apparent, the goods
could not be delivered, if the carrier
in the due discharge of his duty had
the goods in the regular and usual
course of transportation so that their
being in the depot at the time was
proper, the injury is by the act of
God in such sense that the carrier is
excused.

.......... id
4. But it is the duty of the carrier to
carry and deliver within a reasona-
ble time, and if, when the goods
were in the depot and the food
came, he had violated his duty and
was under the actual pressure of
fault and neglect, without which the
goods would have been safe, he is
not excused.....

COMMISSIONS.
Vide BROKER, 1.

.....id

COMMON CARRIER.

1. Rule of damages where property
is lost or injured on the route of
carriers over only a portion of the
intended journey. Harris v. Pana-
ma R. R. Co., ...............312

5. A carrier is liable for injury to

goods caused by inevitable accident,
or what is termed the act of God,
if, by his culpable negligence or un-
excused and unreasonable delay in
the transportation, he unnecessarily
exposes the goods to the peril...id

2. A party doing business under the
name and style of “Spaulding's Ex-
press Freight Line,"and in that name
receiving goods at New York “to
be forwarded by Spaulding's Express
to” Louisville, without liability for
damage, “if delivered at Louisville
depot in good order," without lia-
bility “ for wrong delivery of goods
marked by initials," or "for wrong
carriage of goods that are imperfectly
marked," and, in case of loss or da-
mage for which Spaulding's Express

6. When goods were purchased in
Connecticut by persons doing busi-
ness at Liverpool, England, to be
delivered by the vendor on ship
board in New York, and were so
delivered on board the defendant's
ship, then bound for Liverpool, and
were received by the defendants for
transportation to Liverpool, and a
receipt given therefor specifying the
price of freight; but before bills of
lading were delivered or executed,

and before the ship sailed, she was | 10. A Railroad Company may limit
destroyed by an accidental fire at the their common law liability as car-
wharf without any actual negligence riers of passengers, by express con-
of the defendants, and the goods tract with the passenger upon suff-
were burned: Held, that the defend cient consideration, so as not to be
ants were liable as common carriers liable for casualties not arising from
for the loss of the goods. Lakeman fraud, willfulness, recklessness, or
et al. v. Grinnell et al., .... .625

gross neglect....

...id
7. The measure of damages where
goods are lost before the ship of the

COMPROMISE.
carrier leaves the port of lading, is
the value of the goods at that port,

Vide DEBTOR AND CREDITOR.
and the plaintiff is not entitled to
the value at the port of destination
less the cost of transportation....id CONSIGNOR AND CONSIGNEE.
8. Where goods intrusted to a com Vide ATTACHMENT, 2, 3, 4.
mon carrier for carriage, are lost by
accident without any actual negli-
gence on his part, the plaintiff is

CONTEMPT.
not entitled to recover interest on
the value of the goods, not even Vide PRACTICE, title CONTEMPT.
from the time of the commencement
of suit. .....

...id

CONTRACT.
9. To an action for an injury to the
person, sustained by one who was
riding in a car ot a Railroad Com-

1. A person who receives from one

party to an illegal contract, money
pany, through the alleged negligence
of the servants of the Company, it

paid in execution and satisfaction of

it to the use of the other party to
is a good defense that the person
injured was at the time riding by

such contract, on a promise to pay

it over to such other party, cannot
virtue of a special contract which

defend an action brought by the
was evidenced by a pass or free

latter to recover such money, on the
ticket accepted and used by him to

ground of such prior illegal contract,
enable him to take charge and care
of his live stock while on the rail-

where the person receiving such
road, and as part of the contract for

money and making such promise in

no way participated in or was a
transporting such stock, which con-
tained an express stipulation that

party to it, and did not know of it

when he received such money and
“by accepting or using it he ex-

made such promise. Merrit v. Mil-
pressly releases the Company, in

lard, ...

..645
consideration of this pass and the
reduction of price below the tariff
rates, from all liability for injury to

Vide Action, 1, 2.
said stock from suffocation, crowd-

Agent, 1, 2.

AGREEMENT.
ing, trampling, or delay in trans-
portation, or for injury to his

person
or stock arising from any cause
whatsoever," the answer also aver-

CONVERSION.
ring that the injury to the person
was not caused by any fraudulent, 1. One who sells stock without the
willful or reckless act or misconduct authority of the owner, but on the
or gross neglect. Boswell, Adm'r, v. employment of a thief or tortious
The Hudson River R. R. Co.,...699 possessor of the certificate, is liable

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