..id

verbal agreement, made before or at the plaintiff to the defendant during
the time of issuing the policy, that periods ending on the same day, and
the reinsuring Company would not claims the same sum to be due, fur-
require the payment of the full pre nishes prima facie evidence of the
mium stipulated, but would abate truth of the defense. Agate v. Rich-
therefrom fifteen per cent of the ards,

.456
gross amount of premiums earned.
The St. Nicholas Insurance Company 11. Identity of name in connection
v. The Mercantile Mutual Insurance with the same or the like subject
Company,

.238 matter is presumptive evidence of

identity of person.
6. To allow such proof to operate
would violate the rule which makes 12. In an action against two defend-
the writing conclusive proof of the ants to set aside a deed of land from
actual agreement between the par one to the other as a fraud upon the
ties, and forbids that the operation plaintiffs as creditors of the vendor;
and legal effect of a written instru the record of a judgment by the
ment shall be varied, altered or af plaintiffs against such grantor, is
fected by proof of a prior or co conclusive evidence against him that
temporaneous parol agreement rela he owed the amount of it when the
ting to the same subject matter. .id suit was brought in which it was

recorered. The New York and Har-
7. A written instrument may some iem Railroad Company V. Kyle et
times be reformed on proof that by al.,

.587
mistake it was so drawn as not to
express the actual agreement of the 13. It is also prima facie evidence of
parties.

.id the same fact against such vendee,

upon proof being made of the facts
8. The force and legal effect of an stated in the complaint in such ac-
unequivocal and unambiguous agree tion, as the cause of action therein;
ment between Insurance Companies and an admission in the answer of
cannot be altered by proof that there the vendee in the suit against him
is a usage and custom not to require and his grantor of the facts consti-
its performance....

.id tuting such cause of action is suffi-

cient evidence thereof. .... .....id
9. On a question of due diligence on

the part of a notary in endeavoring 14. The record of such recovery
to find the makers of a note to make against such vendor, although re-
presentment, the replies he received covered in an action in which said
to inquiries made of third persons vendee was named as defendant in
and his acts thereupon are com the summons and complaint therein,
petent evidence. Adams v. Leland, and although the complaint therein
et al., ..

.411 stated the same facts to impeach the

good faith and validity of said deed
10. Where, in an action on contract as the complaint in the last action,

for the sale of goods, wares and is of no effect as evidence for either
merchandise, a former recovery up party upon the question of the va-
on the same cause of action in a Îidity of such deed, such vendee not
suit between the same parties is set having been served with the sum-
up as a defense, a record of a reco mons, nor appeared in the first ac-
very in a former suit in favor of a tion.
plaintiff and against a defendant of
the same names, where the com- 15. Where a subscription is made in
plaint in each suit alleges, as the writing by which the subscribers
only cause of action stated, the sale agree to advance their notes to an
of goods, wares and merchandise by Insurance Company for premiums

..id

.id

2. R, in such a case, is not bound to his complaint or by supplemental
deliver his notes to B, unless the complaint.

...id
latter performs his contract accord-
ing to its terms.

5. A deed by one who at the time of

making it is largely in debt, made
3. C cannot, in such a case, extend with intent to defraud his creditors,
the time for B to perform such con is void as against them, when exe-
tract, without the consent of R,

cuted without consideration, though
without discharging R from liabili executed to a person ignorant of the
ty.....

.id fact that such grantor was insolvent

and unable to pay his debts. New
York and Harlem Railroad Com-

pany v. Kyle and Earle, .......587
FRAUDULENT CONVEYANCE
OR TRANSFER.

FREIGHT.
1. In an action against a Sheriff to
recover the possession of personal 1. Where a charter-party stipulated
property which the latter has seized

on the part of the charterers, that
under an attachment issued in an the master should be supplied by
action on contract, pursuant to the them with a sum not exceeding one-
Code, against the plaintiff's vendor, third of the freight “free of inte-
the Sheriff may allege in his answer, rest and commission, which is to
and show by way of defense, that be in part payment of the freight
the transfer to the plaintiff was made at the exchange of twelve per cent
with intent to defraud the creditors premium, together with the cost of
of his said vendor, having first shown insurance on such advance," and by
the existence of a debt by such ven further provisions any other advan-
dor, to the plaintiff in such attach ces they thought fit to make on the
ment, and that the attachment was credit of the freight should, with
duly and regularly issued and exe premium, interest, commission and
cuted. Thayer v. Willet, Sheriff,.344 insurance, be considered in part

payment of freight. Advances made
2. It is essential to the right of

under the first stipulation, where
plaintiffs in a judgment to maintain

the voyage is in part performed, are
an action to set aside a deed of real

at the risk of the charterers, volun-
estate made by the defendant in such

tarily placed by them at the hazard
judgment, as having been made with

of the voyage, and are to be deem-
intent to defraud creditors, that an

ed freight earned, and not liable to
execution should have been issued

be refunded, though the vessel is

afterwards lost. Kinsman v. The
on such judgment to the Sheriff be-

New York Mutual Insurance Com-
fore suit brought. Mc Cullough v.
Colby et al.,..
.477 pany,

.460

2. Where the service has been in
3. Unless the complaint avers the
fact of issuing such execution, it will

part performed, and the owner vol-
not state facts sufficient to consti-

untarily receives the goods at an in-

termediate port, to which the vessel
tute a cause of action.

id