The Albany Law Journal: A Weekly Record of the Law and the Lawyers

a character as to dominate the will of the testator, and substitute the will of another in its stead. There must be such importunity or coercion as could not be resisted, so that the motive impelling the testator is tantamount to force or fear. Leeper v. Taylor.

2. The unsoundness of mind which incapacitates one to make a valid will is not mere impairment or weakness of intellect, which sometimes attends old age and disease, but the mind must be so prostrated as to lose the government of reason and common sense. Ib.

WITNESS.

The reason, whether good or bad, for the positive knowledge expressed by a witness of a fact about which he is examined, may be stated by him, as it only affects the credibility of his testimony. Blackwell v. Hamilton.

SUPREME COURT OF NEW YORK.*

ATTACHMENT.

1. Undertaking upon. -No consideration is necessary to uphold an undertaking given upon the release of an attachment. Bildersee v. Aden et al.

2. The release of the property levied on is a sufficient consideration if any is necessary; but where an attachment is issued, and an undertaking is given to discharge it, under the provisions of the statute, no consideration is necessary either to be inserted therein, or to be proven on the trial. Ib.

3. Where the affidavit on which an attachment is issued is sufficient to call upon the officer to whom it is presented to exercise his judgment in granting it, and the subsequent proceedings to set it aside do not raise the jurisdictional question, the bond or undertaking given remains valid, although the attachment is set aside, unless the court expressly orders the undertaking, also, to be canceled. Ib.

4. The party giving an undertaking cannot set up, as matter of defense to an action upon it, that the grounds on which the attachment was issued were not true. The giving of the undertaking concludes the parties on that point. Ib.

BANKRUPT.

1. Creditors, when chargeable: confession of judgment.-In order to charge the creditors of a bankrupt with the amount of a debt collected by them out of his property, in fraud of the bankrupt act, by means of a judgment confessed by him, it is necessary to show that such creditors had knowledge that the debtor was acting in view of insolvency, and with intent to give them a preference. Hoover, assignee, v. Greenbaum.

2. The mere non-payment, bythe debtor, of the claim against him and the collection thereof upon a judgment, is not sufficient to charge the creditors with the knowledge required by the bankrupt act. Ib.

DIVORCE.

1. Proof of adultery by confessions: collusion: corroborative evidence.-Confessions are not, alone, sufficient to establish a charge of adultery. A sentence of divorce will not be given upon the sole confessions of the parties. Lyon v. Lyon.

2. The foundation of the rule which forbids the granting of a decree of divorce on the unsupported confessions of a party, is the fear of collusion and imposition on the court. When, however, the reason of the rule fails, the rule itself ceases. Hence, when the

* Barbour's Reports, vol. 26.

confessions are made under circumstances which entirely preclude suspicion of collusion or imposition, the confessions will be received, and a decree granted thereon, without other evidence. Ib.

3. Those facts must be such as tend to prove the adultery charged in the complaint, not unimportant facts having no direct connection with or bearing on the issue between the parties. Ib.

FOREIGN INSURANCE COMPANIES.

1. How affected by a state of war. A foreign insurance company, which has issued a policy upon the life of a citizen of this country, is to be considered as not affected by the state of war which existed between the different sections of the United States from 1860 to 1864, but is to be deemed a neutral; and the contract of life insurance is not impaired by the war. Martine v. The International Life Assurance Society of London et al.

2. When bound by payments made to agents. — And where such a company had agents at Fayetteville (N. C.) during the war, who were agents for the purpose of receiving premiums, held, that all payments of premiums, made to them by persons insured, were valid, and bound the insurers. Ib.

3. Held, also, that payments to such agents, made in the currency then in use, if so received, would constitute valid payments. Ib.

4. When an agency of an insurance company is given to two persons, not as individuals but as partners, both are liable for the acts of either, and the principal has the right to suppose that the joint action of both will be invoked in the discharge of the agency, and the agency of the firm ceases with the death of one member of it and cannot be exercised by the survivor, either in the name of the firm or of himself, individually. Ib.

5. Payment to surviving agent. After the insured has notice of the death of one of such firm, payments made to the survivor are not to be deemed as made to any agent of the insurer, so as to make such payments valid. Ib.

FOREIGN LAWS.

1. Judicial notice of: presumption respecting. — If a court has no means of information as to what the law of another State or country is, it will act upon its own laws. But if such country once constituted a part of the same kingdom or government with that where the court sits, and they were governed by the same laws, the court will take judicial notice of the laws which prevailed in both before their separation, as matter of public history, and presume them unchanged till the contrary be shown. Stokes v. Macken.

2. The United States, having been once a part of the British Empire, our courts take judicial notice that the common law was in force within her dominions, at the time of our separation; and, in the absence of proof to the contrary, they presume, also, that that law remains unchanged. Ib.

MARRIAGE

1. Solemnized abroad: rights of property, how affected by. Where a marriage was solemnized in England, between parties who were citizens of that country at the time, held, that the rights of the husband in the property of the wife, at and after the marriage, were regulated by the common law. Stokes v. Macken.

2. And that upon such marriage the husband becomes the owner of the property then owned by the wife; and, although he may have permitted her to

retain possession of it, or to invest it in trade or in other property, his right to the property or that into which it had been converted by the wife as his agent, still continued, and was the subject of levy and sale on execution issued against him. Ib.

MORTGAGE.

1. Foreclosure by advertisement: form of notice.-Where a mortgage, foreclosed under the statute, by its terms, was not to be a security for over $3,000 "at any one time," but, in the notice of sale. $4,845.35 was claimed to be due, held, that the foreclosure proceedings were not rendered void by the claiming of a larger sum, as due in the notice, than was or could have been due on the mortgage. Mowry et al. v. Sanborn.

2. What mortgages may be foreclosed under the statute. -The statute authorizes the foreclosure, by advertisement, of any mortgage that contains a power of sale, upon default being made in any condition of such mortgage. Hence, whether the amount which the mortgagor is liable to pay, by the mortgage, can be ascertained by computation, or not, is immaterial. If too much is claimed to be due by the notice, or if nothing is due on the mortgage, the mortgagor has a remedy. Ib.

3. A mortgage, given to secure the payment of commercial paper of the mortgagor, then held or owned by the mortgagee, and of any notes, drafts, etc., of the mortgagor which shall be thereafter discounted, held or owned by the mortgagee, but containing a provision that it shall "not be security for over $3,000 at any one time," and shall not extend to any paper received or discounted after three years from the date of the mortgage, can be foreclosed by advertisement under the statute. Ib.

4. Affidavit of service of notice.- A foreclosure and sale are not void because the affidavit of service of notices on the mortgagors by mail was, on information and belief, only, as to their place of residence, where it is not proved that the mortgagors failed to receive such notices, or that they did not reside at the place mentioned. Ib.

5. Affidavits of foreclosure are only presumptive evidence of the facts, and any person, unless it be the mortgagee or those claiming under him, may controvert them by parol evidence. Ib.

NEGLIGENCE.

1. What is knowledge of duty.-Negligence consists in omitting to do what one ought to do. It is of the essence of negligence that the party charged should have knowledge that there was a duty for him to perform; or he must have omitted to inform himself as to what his duty was, in a given case. Sherman v. The Western Transportation Co.

2. In a great number of cases, knowledge is presumed and the party will not be permitted to prove that he had not knowledge of his duty. Ib.

3. When the law imposes a duty on a man, it presumes that he knew of it; and it will not permit him to prove that he did not. Ib.

4. When the specific duty is not imposed by either the statute or the common law, the party alleging negligence must show that the accused was cognizant with the duty he is charged with having neglected. Ib.

5. It is not necessary that this should be established by direct evidence; it may be inferred from the nature of the duty, or the facts and circumstances of the case. Ib. 6. Although there be no statute requiring persons navigating boats on the canals to have the bottoms of such

boats so made as to permit tow-lines to pass under them without obstruction, yet the duty is obvious; and an individual omitting to keep the bottom of his boat in the condition required to permit the free passage of the tow-line of another boat under her, is responsible for whatever damages naturally and necessarily flow from his neglect. Ib.

7. But to render him liable in such a case, it must be shown that he knew of the defect in his boat a sufficient length of time before the injury caused by it occurred to have enabled him to avoid the injury; or the defect must have continued so long as to satisfy a court or jury that if he had paid proper attention to his boat he must have discovered it. Ib.

8. In the absence of any proof when, or how, the defect in the bottom of the boat causing the injury originated, or how long it had existed, the court will not presume that such boat was known to the owner, lessee or master to be in a condition not to allow the free passage of towing-lines, for such a length of time as to have made it his duty to put it in proper order. Ib. 9. Negligence is never presumed. Ib.

PROMISSORY NOTES.

1. Legality and validity.— A promissory note, made payable to a corporation organized for an illegal purpose, and given to it upon a settlement between the maker and the corporation, of dealings growing out of the illegal operations of such corporation is, as between the original parties to such note, illegal and void. Burton v. Stewart.

2. When the plaintiff, being the president of such corporation, became the payee and indorser of such a note, without any request and without the knowledge of the maker, and as agent of the corporation he settled with the maker, and had knowledge of the consideration of the note. Held that, as between the plaintiff and the maker, the note was without any consideration to support it. But that when such note was transferred to a bank, and by it discounted before maturity, and without notice for value paid, it became in the hands of the bank valid and operative against all the parties to it. Ib.

3. And that, while the note was in the hands of the bank or of any other parties deriving title by, through or under it, the maker could not avail himself of the defense which, as against the plaintiff or other holder, not bona fide, he had to the note. Ib.

4. Held, also, that the maker being liable upon such note, when it matured, for the full amount, and the debt being valid against all the parties to the paper, a new note, given by the maker in renewal of and to take up the former was, as between the bank, then the holder and the parties to the new note, founded upon a good consideration. Ib.

5. Accommodation indorser: his rights.- It is optional with an accommodation indorser or surety to sue his principal either upon the note or for the money paid upon it. If he sues upon the note he can recover no more than the face of the note, with interest, whereas, by suing for the money, he becomes not only entitled to the amount of the note and interest, but also to the costs paid by him in the suit upon it. Ib.

RAILROAD COMPANY.

1. Liability to an employee for misplacement of switch. -A railroad company is not liable to a fireman, in its employ, for an injury occasioned by the misplacement of a switch, in consequence of which misplacement the

locomotive runs off the track, instead of running upon another track, where such misplacement is not traced to the company or either of its employees. Tinney, Adm'x, v. The Boston and Albany Railroad Company. 2. There is no rule in this State holding that a railroad company is bound to furnish a safe road-bed, or, in default thereof, that it is liable for an injury to one of its employees occasioned by such default. Ib.

RAILROAD COMPANIES.

Liability as carriers of freight. -Where a railroad company in Georgia, whose road terminated at Atlanta, where it connected with the Western and Atlantic railroad, received, at one of its stations, fifty-eight bales of cotton, consigned to parties in New York, and gave the consignors a receipt specifying that the cotton was "to be transported in turn to K. and C., New York;" it was held, this was a special contract on the part of such company to carry the property to New York; and made it liable not only for its own default, but for that of the other carriers on the line, and accountable for the value of a portion of the cotton, destroyed by fire while in the possession of the Western and Atlantic railroad company, to whom it had been delivered for transportation. King et al. v. The Macon and Western Railroad Company.

TRESPASS.

Action by riparian owner. — The owner of the soil in flat-lands, adjoining the shore of a navigable stream, over which the tide ebbs and flows, may maintain an action of trespass against one who, without his consent, enters upon and uses the same for fishing purposes, driving stakes therein and mooring his boats there, and occupying the soil in drawing in seines and nets, so as to interfere with the rights of the plaintiff therein. Whittaker v. Burhans.

VENDOR AND PURCHASER.

Where vendors refuse to deliver to the purchasers the property sold, and sell the same to other persons, this renders it unnecessary for the purchasers to offer to pay the unpaid portion of the purchase price, before suing for damages. Hawley et al. v. Keeler et al.

GENERAL TERM ABSTRACT.

THIRD DEPARTMENT.

MARCH, MAY AND JUNE TERMS, 1872. (Continued.)

INTERPLEADER.

Action on a promissory note against makers tried by the court, the answer sets up the following, "that E. S. Newton was the owner and holder of United States bonds and other property to the amount in value of $14,000; that said bonds and property were stolen and converted into money, which came to the hands of Warner with notice; and that the avails of said larceny were, by said Warner, loaned to defendants to the amount of $100, and defendants were by said Warner fraudulently induced to believe said money so loaned was the money of said Warner, whereas in truth and in fact the same was the money of E. S. Newton, and relying upon the false representations of the said Warner, and being induced by the fraudulent concealments of the said Warner, these defendants believing the money by them borrowed to be the money of said Warner, and relying thereon,

gave the note aforesaid; and afterward said E. S. Newton notified defendants of the facts aforesaid, and commenced an action in the supreme court of this State, which is still pending undetermined against these defendants and said Warner, to compel these defendants to pay said money so borrowed to the said E. S. Newton, and obtained from the court an injunction in said action, restraining these defendants from paying said money to said Warner, or to any other person, until the further order of this court, and, as these defendants are informed and believe, the said E. S. Newton has agreed and undertaken to indemnify these defendants against the claim set forth in the complaint.' At the trial the proof of these facts was excluded by the court, and the plaintiff had judgment.

Held, by the general term, that the decision was right. There is no process at law or in equity by which two parties can be compelled to try their title to a thing, debt or duty, due a third person, unless all parties are in court. By the ancient proceedings of garnishment and interpleader, allowed in detinue and some other actions, but not in assumpsit, defendant must have brought the garnishee, or the persons who had sued him, into court, to try their titles between themselves, 2 Reeve's Hist. (Finlaison's ed.) p. 635. Upon filing a bill in equity the stakeholder must have made all claimants parties, and under section 122 of the Code the adverse claimant must be substituted in the defendant's place. There is no authority that a defendant can defeat an action by the holder of the legal title to a promissory note, upon proof of a claim and indemnity from some one else. A judgment in plaintiff's favor upon such an issue would not bind Newton. The injunction could not bind plaintiff. Sage v. Quay, Clarke, 347; Edmonston v. McLeod, 19 Barb. 359, judgment affirmed, with cost. Warren v. Haight et al. Opinion by Potter, J.; Miller, P. J., concurring in the result. Balcom, J., dissenting.

JUSTICE'S COURT. See Notice of Appeal. Appeal from a judgment of a county court affirming a judgment of the court of a justice of the peace. The justice's return set forth the following Summons personally served the 20th day of May, 1870, on defendant, by Wm. H. Rall, constable. Defendant claimed that the justice had not acquired jurisdiction because it did not appear that the constable had returned the service. The notice of appeal did not set this forth as a ground of error, unless as follows, "that the said proceedings and judgment, and every part thereof, is against law."

Held, that, by omitting to state the want of jurisdiction in his notice of appeal, defendant had waived it. Where a justice's return shows that he had not jurisdiction, his judgment is a nullity. Where the want of jurisdiction is made a ground of error, and the return fails to show that it had been acquired, the judgment will be reversed. But where it is not made a ground of error the failure to show it will not avail the judgment. The failure to state the objection in the notice of appeal waives it. The Code, section 353, requires the notice to state "the ground upon which the appeal is founded." What is implied in a statute is as much a part of it as what is expressed. United States v. Babbitt, 1 Black, 61; Gelpcke v. City of Dubuque, 1 Wall. 221, and the maxim Expressio unius est exclusio alterius, applies. The policy of the statute is that the party claiming to be aggrieved should set forth his cause of grievance. Had he done so in this case, perhaps the

justice might have returned facts showing jurisdiction. This notice has been held to be a substitute for the affidavit formerly used; but the court would then only examine errors set forth in the affidavit. People v. Suffolk Com. Pl., 18 Wend. 551; 2 Sand. 632. And this construction has the authority of Derby v. Harmon, 15 How. 83; Bush v. Dennison, 14 id. 310; Potter v. Whittaker, 27 id. 10, where, though it does not appear that this objection was taken in the notice of appeal, it was taken on the argument. Cole v. Bell, 48 Barb. 194, and Ferman v. Ferman, 17 How. 255, are not in conflict. In the first case the objection was taken before the justice, and distinctly appeared in his return. In the second case the question of jurisdiction was not involved at all. It simply held that the court may examine the return to see if any error has been committed. Judgment affirmed, with costs. Avery v. Woodbeck. Opinion by Potter, J.; Miller, P. J., and Parker, J., concurring in the result.

NEW TRIAL.

Appeal from an order denying a motion for a new trial on the ground of newly discovered evidence. The action was for the foreclosure of a mortgage, tried by the court; and the question at issue was as to the amount due. At the trial defendant swore that plaintiff had given him a receipt for $519 which he had lost; and was corroborated by his sons. Plaintiff, on the contrary, swore that he had never given such a receipt; that defendant was mistaken, and there had been no such transaction as he testified to. The court found in favor of the defendant. A few days after the trial defendant found the receipt in question and moved upon it, at special term, for a new trial; plaintiff opposed the motion upon an affidavit admitting the giving of the receipt, but explaining it by saying that he gave it to defendant to show to his wife to satisfy her. The court held that the receipt was a good one, but that it was of no higher grade than oral evidence, and, therefore, cumulative; and denied the motion. Held, by the general term, that a new trial would be in furtherance of justice, and fully authorized by Platt v. Monroe, 34 Barb. 291; and Adams v. Bush, 2 Abb. Pr., N. S. 106. Order reversed, new trial granted. Hodge v. Denny. Opinion by Potter, J.

PRACTICE. See Equity Jurisdiction, 1. PRESUMPTIONS. See Evidence, 1 and 2, and Railroads, 4.

RAILROADS.

1. Measure of damages for land taken.-Appeal from a report of commissioners assessing compensation for appellant's real estate sought to be taken by respondent, and from an order confirming that report. Appellant was the owner of an iron mine, and of a railroad four and one-quarter miles long, leading from his mine to the Harlem railroad. This proceeding was brought by the respondent to acquire title to two and one-half miles of appellant's railroad. There was evidence that with the railroad there was a profit of one dollar per ton upon the ore taken from appellant's mine; that without the railroad there would be no profit at all; and that appellant, if the proposed portion of his road were taken, could not get his ore to market except by the highway, or by building a new railroad, or by sending it over respondent's road. The commissioners allowed compensation for the value of appellant's roadbed, and of his trade in its actual condition, and they allowed nothing for the depreciation in value of the

rest of his road, or of his mine, or for the delay caused by respondent's using his road, or the time required for him to build another road, or for any consideration except the two mentioned; it appeared that it would cost him more than the sum awarded to build another road.

Held, by the general term, that appellant should have been allowed for the depreciation in value of the remainder of his road, and of his mine; that he should have been allowed for all the damage which he would sustain. Report set aside. Re-appraisal by new commissioners ordered, with ten dollars costs. Matter of the Poughkeepsie and Eastern R. R. Co. Opinion by Potter, J.

2. Application to change route. The petitioner applied at special term for the appointment of commissioners under section 22 of the general railroad act as amended by chapter 560, Laws of 1871, and the appointment was made. 61 Barb. 477. After hearing, the commissioners ordered a change of route in conformity with the petition. It appeared by the evidence taken before them, that by the change the lands of one Keator would be taken and the case did not show that any notice had been served upon him; the railroad company appealed.

Held, by the general term, that the commissioners had not acquired jurisdiction, if notice had not been given to Keator, and that the service must be shown affirmatively. Proceedings reversed. In the matter of the petition of Norton against the Wallkill Valley Railroad Co. Opinion by Potter, J.; Balcom, J., concurring.

3. Proceedings to bond towns: what necessary to give county judge jurisdiction. - Certiorari to the county judge of Tompkins county, to review his order appointing commissioners to bond the town of Lansing, with the usual preliminary adjudications as to the sufficiency of the petition, and the number of the petitioners, etc. The petition asked that the town of Lansing should issue its bonds, and invest them, or their proceeds, "in the stock or bonds or both of the Cayuga Lake Railroad Co. under chapter 907, Laws of 1869. The order directed the commissioners to cause the bonds of said town of Lansing to be made and executed "to the amount and for the purposes set forth in said petition, and whose further duty it shall be to discharge all such further and other duties as shall by law be required of them as such commissioners." By section 1 of chapter 907, Laws of 1869, it is made the duty of the county judge to order, etc., upon a petition that the bonds to be issued, or the proceeds thereof, be invested "in the stock or bonds (as said petition may direct) of such railroad company." Sections 2, 3 and 4 prescribe the subsequent proceedings to the appointment of the commissioners. Section 5 provides that "such commissioners are further empowered and directed to subscribe, in the name of the municipal corporation which they represent, to the stock or bonds of the railroad company, named in such petition (as the petition may direct), to an amount equal to the amount of bonds so created by them, and to pay for the same by exchanging the said bonds therefor at par; or they may at their discretion sell and dispose of the said municipal corporation bonds so created by them at rates not less than par, and invest the proceeds thereof in such stock or bonds of such railroad company as may be directed in said petition." At the hearing before the county judge, the articles of incorporation of the Cayuga Lake Railroad were put in evi

dence. They provided that "the said railroad is to be constructed from the New York Central Railroad to Ithaca, the length of said road to be thirty-seven miles." Nor did they contain any thing else in regard to the location of the road.

Held, by the general term, that the statute contemplates that the direction as to whether the investment should be made in the bonds or the stock of the railroad should be given by the petitioners. That by pointing out that this direction is to be made by them, it excludes its exercise by any other power or party. This is an important power, for the bonds may be valuable while the stock is worthless. But the petition in this case does not give any direction. Neither does the order. The power has not been exercised, nor can it be, unless by the commissioners. But the commissioners have no such power conferred upon them by the statute. The petition was therefore defective and rregular; not a compliance with the statute, and did not confer jurisdiction on the county judge.

Held also, that it is necessary to the validity of these proceedings that there be a legal corporation capable of receiving aid in the manner offered (People v. Adirondack Co., 57 Barb. 661); that it does not appear from the articles that the Cayuga Lake Railroad is to run through the county of Cayuga; that the lengths given does not help the matter, because it might consistently with that be run through the county of Seneca. But, if it were otherwise, the court cannot take judicial notice of distances. And, if it could, it would not be sufficient, the statute requires a positive statement. The articles do not therefore state the name of each county through which the road is to be made, and are invalid under the general railroad act, chapter 140, Laws 1 and 50, section 1. And this fact is material to the county judge's jurisdiction, and must be proved affirmatively. People v. White, 4 Albany Law Jour. 159; People v. Smith, id. 64; 3 Lans. 291. Proceedings reversed. People ex rel. Beardsley v. Van Valkenburgh. Opinion by Potter, J.; Miller, P. J., and Balcom, J., concurring. Ib.

That an

Held also, that in such a case as this there is no presumption that public officers have done their duty, but every step in the proceeding must be proved to be within the powers conferred by the statute. People v. Hulbert, 46 N. Y. 110; 59 Barb: 486. executor of a proxy cannot sign such a petition without proof of authority, nor is the signature of one whose petition was not before the judge until the day of leaving sufficient.

4. What agent has power to modify written contract by. - Action for services in grading and excavating defendant's road-bed, under a contract prescribing a scale of prices for each kind of work, and a provision that defendant's chief engineer should be the sole judge of "the quality and the quantity of the work," and his "decision and admeasurement " of the same should be final and conclusive." The contract also contained a provision that its terms and provisions could not be dispensed with or rendered null and void without the written consent of the defendant attached, or indorsed on the contract, and specifying what modifications may have been agreed upon. The plaintiff had a verdict.

Held, that a charge, that, if the engineer failed to report the excavation, the plaintiff could recover what it was worth, was erroneous. The neglect of the engineer could not alter the scale of prices prescribed by the contract.

Held also, that a modification of the contract could not be proved by conversations of the chief engineer and the individual directors of the defendant, and that the admission of such conversations for that purpose was error. Bonesteel v. Mayor of New York, 22 N. Y. 162, 167; Soper v. B. R. R. Co., 19 Barb. 310. Judgment reversed, new trial ordered, costs to abide event. Keenholts v. Cooperstown and Sus. Valley R. R. Opinion by Potter, J.; Parker, J., concurring in the result; Miller, P. J., dissenting.

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The Albany Law Journal: A Weekly Record of the Law and the Lawyers, Volume 6