from mortgages, judgments, recognizan agreement for the sale of real that are made and executed after the passage of this Act. Plaintiff has since August, 1861, been ces, or moneys owing upon articles of largely and continually engaged in the estate, or manufacture and sale of lead pencils, on before or which was stamped as a trade mark the Provided, device "Star," which device he had that nothing in this Act shall be consid-adopted a year or two previously as a ered to apply to mortgages, judgments, trade mark. This mark he has never or articles of agreement given by corpor- abandoned, nor has he consented that ations." It is very clear that the words, defendants should make use of it. "for the sale of real estate" are confined Subsequent to 1861, defendants have, in their application to agreements for the however, also employed this device on a sale thereof, and do not extend to mort- trade mark upon pencils made by them. The Court below after finding these gages, judgments, and recognizances. They were introduced to limit the exemp-facts referred the matter to David Hawtion of moneys due upon agreements. ley, Esq., to ascertain the amount of Otherwise, the exemption would extend damage sustained by plaintiff from this to agreements of all kinds upon which infringement. He found the damages to money might be due, many of which be a sum equal to the profit which plainwould be purely personal and have no tiff could have made from the manufacreference to the improvement of real es-ture and sale of the number of pencils tate, and thus conflict with the title of that defendants had sold. The profits the Act. Besides, recognizances are he estimated to be $1.62 per gross, and never given for the sale of real estate, fixed the total damages at $6,271.50. though often given for owelty in parti- On the coming in of the Referees' retion and upon judicial decrees. The port, judgment was entered restraining exemption of mortgages is general be- defendants in their use of the said trade cause they encumber real estate, and by mark, and awarding the damages found relieving the land from the tax, which by the Referee. the mortgagee may, by law, add to his interest without usury, the ability of the Held, That the findings of the court mortgagor to improve his real estate is below seem to be fully sustained by their increased. We think the Court commit- evidence. That there was no abandonted no error in deciding that the mort-ment of the trade mark by plaintiff, nor gage was free from taxation except for consent to defendants' use of it, and the State purposes. Per Curiam. Judgment affirmed. TRADE MARKS. On Appeal. legal conclusion follows. There was no error that we can discover in the Referees' assessment of plaintiffs' damages. Judgment affirmed. Opinion by Westbrook, J.; Davis, P. N. Y. SUPREME COURT, GENL. TERM. J., concurring. FIRST DEPT. Faber, respt. v. Hovey, et al. applts. Decided December 30, 1875. Infringement. Damages. Appeal from judgment of the Special Term enjoining defendants' use of the word "Star" on their lead pencils, and imposing damages for infringement. TRUSTEE. N. Y. COURT OF APPEALS. Doud, respt., v. Holmes, admrx., etc., applt. This was an action for an accounting as to certain money which had been placed in the hands of defendant's intestate for investment during the minority of plaintiff. It appeared that defendant's intestate received the money during plaintiff's infancy and mingled it with his own, and some belonging to a sister of the plaintiff, and with the entire sum purchased, by contract, a house and lot, taking the contract in his own name, and permitted plaintiff's mother, with her daughters, to reside in the house, rent free. There was no evidence or finding of the court that plaintiff regarded the investment as an execution of his trust. Plaintiff's name does not appear in the contract of purchase, and the intestate did not by any declaration of trust indicate an intention to set apart any portion of, or interest in, the property for plaintiff's benefit, or as representing the fund in his hands for investment. It also appeared that plaintiff, after she became of age, in ignorance of the facts and supposing the control had been formally assigned to her, and that a transfer by her was necessary to place the title where it belonged, executed an assignment of the contract. with his own and invest them in com mon, and claim that the cestui que trust shall accept an undivided interest in the investment. Judgment of General Term, affirming judgment in favor of plaintiff, affirmed. Opinion by Allen, J. VERDICT. N. Y. COURT OF APPEALS. Dalrymple, applt. v. Williams, respt. Decided December 7, 1875. On a motion to correct a verdict erroneously reported by the foreman, the affidavits of the jurors may be read to show what they intended to bring in. This was an appeal from a General Term order, reversing an order of Special Term, to correct the verdict as rendered by the foreman of the jury, and entered by the clerk. The motion was made at the same circuit where the cause was tried, and immediately after the entry of the verdict. It was based upon affidavits of the jurors tending to show that the foreman had made a mistake in announcing the verdict, not giving it as agreed upon. The material question was, as to whether the jurors' affidavits could be received to show the mistake. Held, That the affidavits were properly received; that it was not an infringement upon the rule forbidding jurors to impeach their verdicts, as the affidavits were presented not to impeach and set aside, but to give effect to their determination; that the motion was simply in the nature of an attempt to correct a cler Held, The investment by defendant's intestate was a breach of trust, and an appropriation of the fund to his own use, and that plaintiff was entitled to recover the amount received to her use, with in-ical mistake. 1 Bun., 383; 5 Cow., 106; terest; that plaintiff's acts after she became of age, having been done in ignorance of the facts, did not operate as a confirmation of the purchase as made in part with her money and for her benefit, and she did not thereby waive her right to call the intestate to account. A trustee cannot mingle trust funds 15 J., 309; 7 M. and W., 399; 4 How., (Miss.,) 90, and that as the affidavits clearly showed the alleged mistake was made, the motion was properly grante Order of General Term reversing order of Special Term, reversed, and that of Special Term affirmed. Opinion by Allen, J. N. Y. COURT OF APPEALS. Selover, applt. v. Coe, respt. [No. 24. An action against an heir at law cannot be maintained until the personal assets in the hands of the administrators have been disposed of. within two years after the death of the deceased. Held, That under the provisions of 2 R. S. 452, secs. 32, 33, plaintiff could not maintain this action against defendant, as heir at law, until the personal assets in the hands of the administrators had been disposed of. That the action was barred by 2 R. S. 109, sec. 64, which prescribes, that no suit shall be brought against heirs and devisees within three years from the time of the granting of letters. It was not necesThe statute prescribes that no suit can be sary for defendant to plead this. The brought against an heir at law and provisions of sec. 74 of the Code, are not devisees within three years from the applicable; they relate to the time within granting of letters. pleaded, for the plaintiff must establish which, and not to the time after which that his suit is brought after the three actions may be commenced, and do not affect the provisions of the revised statutes. years. This need not be One who brings an action against an heir at law, must make out a case affirmatively within the statute. He must show The only suits for which the statute provides are those in favor of creditors who have omitted to make their claims against the representatives of the estate. Where a claim has been presented to the administrators and rejected, suit there- everything the statute demands, and his failure to do so is a good and sufficient ground for preventing a recovery. He is on must be brought within six months thereafter, or the right is gone, not only as to the heir at law, but as to the representatives. That the claim was one which could not be enforced until after the death of the intestate did not take it out of the operation of the statute. bound to establish that his suit is brought after three years, as provided by the statute. in favor of creditors who have omitted to present their claims to the representatives of the estate; also that the claim having been rejected, and no action having been brought within six months, this was a defence as well to the next of kin, as to the administrators; that upon failure to prosecute within the time specified, the right of action was gone against anyone. That the action could not be sustained as one against next of kin, as the statute This action was brought against de-authorizing such a suit, is only applicable fendant as heir at law and next of kin of D., deceased, to recover a claim for services rendered the deceased. Plaintiff claimed that defendant had received more than the amount of the claim from the estate. It appeared on the trial that plaintiff notified the administrators of D., in writing, that she claimed the whole of the estate remaining after the payment of debts, and the administrators served a w itten notice rejecting said claim. The claim was not referred, and no action was brought upon it within six months after its rejection. It appeared that when this suit was brought, the administrators had in their hands, unadministered, about $50,000 of personal property, and that the suit was brought Also held, That the fact that the claim was one that could not be enforced until after the death of the intestate, did not take it out of the operation of the statute. Judgment of General Term, affirming judgment entered upon report of referee, affirmed. Opinion by Miller, J. APPRAISAL. pany, and claimed to show damages N. Y. SUPREME COURT-GEN'L TERM, ranging from $300,000 to $400,000. FIRST DEPT. In the matter of the petition of the N. Damages to land taken for public pur- Held, That we think the commissioners were clearly right in rejecting appellants mode of estimating damages. Each block must be considered as a distinct parcel, and no parcel can be properly regarded as incidentally injured except the one out of which the lots required were in fact taken. The rule which would allow consc quential damages to the other blocks, would extend such damages to all the blocks between 10th Avenue and the Park had they chanced to have been owned by appellants. The block between 11th and The appellants are owners of several 12th Avenues is sub-divided into two blocks of land in New York City, lying distinct parcels by the strip of land runbetween 65th and 66th streets, and ex-ning through it, owned by respondent, tending from 10th Avenue to the Hud-upon which its tracks are laid. As reson River. The blocks are separated spondent seeks to take land only on the by the 11th and 12th Avenues. The west side of its track, damages for the block between 11th and 12th Avenues is di- injury done to the parcel on the west vided by respondent's tracks, which occu-side alone should be estimated. py a space running across the block about sixty-seven feet in width. Respondent seeks to acquire title to an additional strip of land lying westward of that occupied by respondent's tracks, amounting to about six and twofifth city lots, for the purpose of an approach to certain of its lots lying below 65th street. The value of these strips and the consequential damages, which should be awarded for this taking, is the subject of the appraisal now under consideration. Under former proceedings commissioners were appointed to ascertain and appraise the compensation to be paid to appellants. They fixed the damages at $33,000, and from this valuation this appeal is taken. Appellants urged that they were entitled to show the value of their several blocks for their purposes, sub-divided into city lots, and the extent to which that value is diminished by the taking of the strip required by the railroad com We therefore think that the commissioners should consider: First, The value of the land actually taken; and this should be determined by considering the value for any purpose for which it could be used. Second, The consequential damages, if any, to that parcel of land lying west of the railroad track. The allowance in the commissioner's report tends strongly to show that nothing was allowed for consequential damages. We think that the order below should be reversed, and that the proceeding should be remanded to the same commissioners for a new appraisal, without costs to either party. Opinion by Davis, P. J.; Daniels J. concurring. ASSIGNMENT. N. Y. MARINE COURT.-CHAMBERS. Decided January 10, 1876. There is no requirement that an assign- The mere delivery of a writing which is A debt liquidated is a fund, and an or- Whatever can be assigned may be con- zance. Costs. Goepp, J.-The plaintiff has taken the trouble to pass up two briefs, the second expressly on the point that the order in favor of Bearup and Carraher did not amount to an assignment for want of consideration, but was a bill of exchange, which failed for want of acceptance. ment; and perhaps even the absence of such a delivery would not negative the fact of an assignment if the intention were established by other evidence. It follows inevitably that where the original claim stands not in writing an order to pay must, if so intended, operate as an assignment. Nothing can be more clear than that Bearup and Carraher did not receive this order from their debtor, whom they had been dunning, on the understanding that, if collected, they would do anything with the money except apply it to their long standing claim. All the stoutness of the plaintiff's contention to the contrary cannot invest it with a shadow of plausibility. That the pre-existing debt was a sufficient consideration for the assignment cannot be seriously questioned. (Peyton v. Hallett, 1 Cai., 363; McMenomy v. Ferren, 3 John, 71; Bradley v. Root, 5 Paige, 632). And the assignment creating an interest was irrevocable. (1 Cai., 15 and 363; Canfield v. Mayer, 12 John, 346). As a bill of exchange the order failed, and therefore any subsequent holder Nor is there anything in the supposed could bring no such action upon it as distinction between a debt and a fund, may be brought exclusively by holders of nor in the allegation that the subject in bills of exchange, nor could any such dispute is not sufficiently specific to be defence be cut off as is cut off by force the subject of an order such as is here of the peculiar efficacy of the law re-applied for. A debt liquidated and fixed specting negotiable paper. But no such is a fund, and an order on the whole action is attempted to be brought, and fund is an assignment of it. Whatever no such defence set up, and therefore is capable of being assigned is capable of the distinction is without application to being the subject of contending claims, the present question. Had the order and, therefore, of proceedings in interread exactly like a bill of exchange, it pleader. Had the order drawn called would have been no better than it is now, for only a part of the fund in the hands but it would have been equally good. If of defendants, there might have been made with intent to transfer the interest room for argument. In Atkinson v. in the subject matter, it would have con- Manks (1 Cowen, 692), however, the stituted, and the paper actually exe-order was but for a part of the debt cuted, if it satisfies that condition, does drawn upon, and this circumstance was constitute a good assignment of the not even urged as an objection. claim. There is absolutely no require- Must the defendants have known that ment of law that an assignment should they could run no hazard in paying be made in any particular form. Where Bearup & Carraher? This question is the original claim is evidenced by a writ-sufficiently answered by the fact that ing, the mere delivery of that writing, i Dalling had forbidden them to pay so intended, will operate as an assign- Bearup & Carraher. After that, defen |