ing absolute and the machine being experimental. The referee did not err in excluding evidence of a witness' understanding of a conversation. The point that the referee resided out of the jurisdiction of the court is unavailing, it not appearing that the decision and report was not made within the jurisdiction. Judgment affirmed. Blake v. Lyon & Fellow Manufacturing Co. Opinion by Miller, J.

[Decided June 10, 1879.]

EMINENT DOMAIN - RAILWAY COMPANY - STREETS AND DOCKS - PROSPECTIVE NECESSITY.— - Proceedings to acquire land in the city of New York for the purposes of a railroad company. The owner of the soil objected that the premises were intersected by streets and avenues, without the control of which the plans of petitioners could not be carried out, and that the order of condemnation did not give them such control, but was expressly made subject to the rights of the city. Held, that the objection was untenable. The right to the use of the streets might be afterward acquired. There is no rule requiring that when the acquisition of different rights is essential, one should precede the other or that both should be acquired at once. Laws of 1876, chap. 198, sec. 2, has no application, but applies only to proceedings to acquire land for a roadway, as authorized by Laws of 1854, chap. 282, sec. 4, distinct from proceedings to acquire land for purposes of the incorporation, under Laws of 1850, ch. 140, sec. 13. By chapter 237 of Laws of 1869, streets in a city or village may be taken by a corporation for the construction of the road, as provided in section 28, sub. 5, of the Law of 1850. The present proceeding is under section 14, upon personal notice. The act of 1876, ch. 198, sec. 2, requires publication, and applies only when owners of adjoining lands have the fee, and this right is sought to be extinguished. Title to the streets could not be extinguished nor acquired, as they are held for public use. People v. Kerr, 27 N. Y. 188; Towle v. Remsen, 70 N. Y. 303; Laws of 1865, 551. The grants of lands under water, being subject to the condition that they shall remain public streets forever, the grantees have no interest to be protected, as the petitioner's acquisition would be subject to the provisions of such grants. The proceeding is not for a change of terminus, requiring consent of two-thirds of the common council, by Laws of 1876, ch. 77, but merely for the acquisition of increased facilities. But at all events there is no necessity first to obtain such consent. The right of the adjacent land-owner may be first adjudicated without reference to the rights of the city. The right of eminent domain does not embrace property already dedicated to public use. Matter of B. & A. R. R. Co., 53 N. Y. 574; Matter of City of Buffalo, 68 id. 168; Matter of Water Commissioners, 66 id. 413. But this rule does not prohibit railroad corporations from acquiring a right in public streets. Such a prohibition would be embarrassing to the transportation of the products of the country and detrimental to public interests. The public use of the streets may be lawfully circumscribed by the partial use of the same by the railway and its purposes. The same principle applies to the use of the water front and the adjacent lands under water. The petitioners can acquire the use of the bulkhead lying between the piers. The piers are mere extensions of the street and the title to them is in the city for public use. Marshall v. Guion, 11 N. Y. 461; Taylor v. Atlantic Mut. Ins. Co., 37 id. 275; Railway v. Briggs, id. 256; Com'r of Pilots v. Clark, 33 id. 251; People v. Lambier, 5 Den. 9. The question of the exclusive use of the piers is not before the court. The railway company may acquire land for necessary additional piers. The objection, that land under water cannot be considered land within the meaning of the law for such proceedings, is untenable. Such a rule would be prohibitory and em

barrassing. Piers, wharves, and docks are as essential to railway purposes as other facilities. The R. & S. R. R. Co. v. Davis, 43 N. Y. 137, distinguished, on the ground that the purposes contemplated then were speculative; The N. Y. & H. R. R. R. Co. v. Kip, 46 N. Y. 546; The People v. Vanderbilt, 28 id. 396, distinguished. It is not intended to hold that an exclusive right to use streets, avenues, piers and wharves. may be acquired. The objection that the storing of property is one of the objects for which the acquisition of the land is sought, is unavailing. A place for temporary deposit or storage of freight is necessary and proper. In re N. Y. C. & H. R. R. R. Co. v. Kip, 46 N. Y. 552, 553; Redmond v. L., N. Y. & P. S. Co., 46 id. 578; McAndrew v. Whitlock, 52 id. 40. Nor is there any legal objection to the use for such temporary storage of elevators now belonging to the company, under a contract with the Produce Exchange, intended to facilitate the transfer of grain, and to enable the company to compete with other lines of transportation and thus prevent an unnatural diversion of commerce to other centers of trade to the detriment of the company's terminus. There is no objection to the company's receiving freight for delivery to steamers and vessels rather than other lines of railway. Such enterprise is legitimate and commendable, the petitioners having no interest in the shipping freight or lighterage. The only limit to the power to acquire land in such proceedings is the reasonable necessity of the corporation in the discharge of its public duty. Where the necessity exists and a reasonable discretion is exercised, the courts will not interfere. The company now have a depot extending from Fifty-ninth to Sixty-fifth streets, between its roadway and the Hudson river, comprising docks mostly under water. The evidence showing that greater facilities are needed, and that the present have been rendered insufficient by the increase of business, the determination that the area of land now proposed to be taken is necessary will not be reviewed on the ground that it is against the weight of evidence. Nor will the fact that the proposed area is demanded partly with reference to prospective increase rather than to present need be allowed to avail, when the prospective increase is reasonably certain, from experience of the past, to occur immediately. The erection of piers being within the exclusive control of the dock department, the owner of the upland has no right to object to the increase of their number, nor to urge that the present number is adequate. The evidence showing that all the area proposed is reasonably likely to be necessary, no portion thereof will be disallowed in the absence of any reason for special discrimination. The river front asked for being in proportion to the area of territory demanded, and to the apparent needs of a great thoroughfare terminating at the largest city on the continent, will not be deemed excessive, although very much extended. The fact of the present low value of the real estate sought to be taken in comparison with former or prospective prices, cannot be considered in the absence of evidence of want of good faith in making the application. Order affirmed. In the Matter of the Application of the New York Central and Hudson River R. R. Co. Opinion by Miller, J. Earl and Rapallo, JJ., concur, Church, C. J., in result; Danforth, Folger, and Andrews, JJ., dissent. [Decided May 20, 1879.]

an equitable assignment of the debt, and a mere acceptance and promise by the debtor to comply with the terms of the order, being made without any new consideration, imposes no new or additional liability upon him, either to the creditor or to the third party. Ford v. Adams, 2 Barb. 349. Mere intention of the creditor that the order should operate as an assignment will not make it so. Hutter v. Ellwanger, 4 Lans. 13. Reid v. Pryor. Opinion by Beckwith, J.

COLLATERAL SECURITY -LIABILITY OF CREDITOR FOR LOSS OF BANKS.-A creditor who receives from his debtor the promissory note of a third party, past due, as collateral security for the payment of the debt, is bound to the exercise of such diligence as is required of a bailee for hire, or of an agent or attorney employed to collect a claim, and is liable to the debtor for any loss or deterioration in the value of the security which may occur or result through his neglect to enforce the collection of the paper with proper diligence. And it makes no difference in the application of this principle, that the maker of a note so pledged as security to a bank was also the president of the bank, and that the note was delivered to him personally. G. was the president of a banking corporation, and had the sole and exclusive control and management of its financial affairs, and, being individually indebted to defendant upon a promissory note, he proposed that defendant should make his promissory note payable to the bank; that the bank should discount it and take

his (G.'s) note as collateral security for its payment. Defendant accordingly made his note; it was discounted by the bank and the proceeds paid to him, who, at the same time, delivered to G., as president of the bank, his said note to defendant, to hold as collateral security. Defendant never paid his note, and was not requested to pay it until after the plaintiff was appointed receiver of the bank. Defendant often requested G. to pay his note, but he neglected so to do, and said that defendant had nothing to do with it, that the bank would take care of it. At the time defendant's note was discounted and long after it became due, G. was perfectly solvent, but afterward became wholly insolvent. Held, that the bank was negligent in not enforcing the collection of G.'s note, and was liable to defendant for its value. Ex parte Mure, 2 Cox, 63; Wakeman v. Gowdy, 10 Bosw. 208; Buckingham v. Payne, 36 Barb. 81; Hoard v. Gardner, 6 Seld. 261; Smith v. Miller, 43 N. Y. 174; Lawrence v. McCalmert, 2 How. (U. S.) 426; Kephart v. Butcher, 17 Iowa, 240. Hazard v. Wells. Opinion by Smith, J. CONVEYANCE OF PROPERTY HELD ADVERSELY.— Where owners of adjoining lands claim under a common source of title, and one party, through mistake as to the location of the boundary between the two lots, enters upon and takes possession of a portion of the land belonging to the other, claiming and supposing that such portion is within the boundary of his own lot, he does not "claim under a title adverse to that of the " other party, so as to render void a conveyance by the latter of the land in dispute. Code, § 111; Crary v. Goodman, 22 N. Y. 171; Halles v. Bell, 53 Barb. 247. man v. Birmingham. Opinion by Smith, J.

Gor

COMMISSIONERS OF HIGHWAYS-PLEDGEE OF TOLLS MAY SUE THEREFOR.-Commissioners of highways, being authorized to borrow money and to pledge the prospective tolls of the road for the payment thereof (Laws 1865, chap. 525), entered into an agreement with the lender, by which he was to take possession of the road, erect gates and toll-houses, appoint gate-keepers, collect and receive all the tolls, and apply the same, first, to the expense of keeping the road in repair, and, second, to the payment of the sum loaned, with interest. Provision was made for an annual accounting and settlement between the parties. This agree

ment was carried into effect. The lender was also appointed superintendent of the road. While this agreement continued in force, the pledgee gave credit to defendant for tolls, and assigned the claim therefor to plaintiff. Held, that the pledgee was the real party in interest, and could have maintained the action in his own name, and that the claim was assignable. Chapman v. Brooks, 31 N. Y. 75; Nelson v. Eaton, 26 id. 413; Wheeler v. Newbould, 16 id. 392; Flagg v. Munger, 9 id. 483, 492. Long v. Fox. Opinions by Smith and Beckwith, JJ.

FIRE INSURANCE - VACANCY OF PREMISES.-A policy of insurance contained the condition that if the premises "should become vacant and unoccupied and so remain with the knowledge of the assured, without notice to and consent of this company, this policy shall be void." The premises were vacant and unoccupied at the time of the issuing of the policy, and so remained, to plaintiff's knowledge, till the destruction of the premises by fire, which occurred about twentytwo days thereafter. The policy contained no warranty that the premises were occupied, and it is assumed there was no representation to that effect. Held, that the assured could not recover Short v. Home Ins. Co. Opinion by Sheldon, C. J.; Beckwith, J., dissenting. GUARANTY NOTICE OF ACCEPTANCE.- Notice of the acceptance of an absolute guaranty is not necessary unless it be made a condition of the guaranty. When the guarantee acts on the faith of the guaranty and performs the condition upon which the promise is made, the promise attaches to the consideration so performed and renders the guarantor liable. Whitney v. Groat, 24 Wend. 82; Smith v. Dann, 6 Hill, 543; Union Bank v. Coster, 3 Comst. 204; White v. Baxter, 71 N. Y. 254. Pennsylvania Coal Co. v. Blake. Opinion by Smith, J.

MORTGAGE FORECLOSURE SURPLUS MONEYS HUSBAND AND WIFE.- Where husband and wife own land in common, and mortgage it to secure a loan to the husband, she becomes his surety for the payment of the mortgage debt to the extent of her one-half of the mortgaged premises; and, therefore, upon a foreclosure of the mortgage and the sale of the whole of the premises to satisfy the debt, she is entitled to be paid from the surplus arising upon such sale a sum equal to one-half of the gross proceeds of the sale, before any part of such surplus is paid to her husband. And her assignees or grantees succeed to her rights. Fitch v. Cotheal, 2 Sandf. Ch. 29; Loomer v. Wheelwright, 3 id. 135; Van Horn v. Everson, 13 Barb. 526; Vastie v. Underwood, 18 id. 561; Smith v. Townsend, 25 N. Y. 479; Bank of Albion v. Burns, 46 id. 170. The fact that the husband used and applied the money so loaned to the payment and discharge of a previous mortgage upon the premises, executed by both when the wife was the sole owner thereof, does not take the case out of this principle, where it appears that this mortgag was also given as security for a loan to her husband. When he paid that debt he simply discharged his own equitable obligation, and created no claim against her or her estate. Where the wife had paid one-half of the taxes, and relieved her half of the premises from the lien created by them, and the premises were sold subject to the taxes unpaid, held, that the amount so paid should be refunded from the surplus proceeds of the sale. Her half of the premises, relieved of the taxes, was worth more than her husband's half incumbered by them, to the amount of the tax liens, and would, of course, sell for as much more, and, on a sale of the whole of the premises, the proceeds would be enhanced by so much. She would, therefore, be entitled to so much more of the surplus proceeds of the sale as the value of her half exceeds the value of his half. Erie County Savings Bunk v. Roop. Opinion by Smith, J.

MUNICIPAL CHARTER-PRESENTMENT OF CLAIM TO COUNCIL. A provision in a city charter, that no action to recover or enforce a claim against the city shall be brought until the expiration of forty days after it shall have been presented to the common council, is a condition precedent to the right to maintain an action, and the plaintiff must aver and prove a compliance with the provision, even though the council has approved the report of a committee adverse to the claim. Miller v. Buffalo, 1 Sheld. 490. Murphy v. Buffalo. Opinion by Smith, J.

MUNICIPAL CORPORATIONS CONSTRUCTION OF CHARTER-DIFFERENCE BETWEEN WORKING AND RE

PAIRING" STREETS.-A city charter provided, that the city may lay out, enlarge and alter public streets (§ 1); that the grade of the streets shall be established and described, and the description of such grade and of all alterations thereof shall be recorded by the city clerk, but no street shall be worked until the grade thereof is established and recorded" (§ 2). "It may cause streets and alleys to be opened, levelled, graded, repaired," etc. (§ 6). Held, that the restriction as to "working a street has exclusive reference to those streets which should be laid out, enlarged or altered under the power conferred by section 1; that the power to repair is applicable, not only to streets laid out under that section, but also to those which for many years, and before those sections had been enacted, had been used as public highways and legally established as such, either by dedication, long user, or otherwise. The word "worked," as here used, has a specific meaning, and refers to those operations which usually follow upon the laying out of a new street, and which consist of throwing up and fitting the carriageway for travel, opening ditches, laying a sidewalk, etc. But when a street has been long in use as a public highway, but from continual wear, or other causes, has become unfit for safe and convenient travel, we say it must be repaired not worked. It is the duty of the city to keep its streets in ordinary repair and safe for travel. Read v. Buffalo. Opinion by Smith, J.

STATUTE OF FRAUDS-SALE OF GROWING FRUIT.A contract for the sale of all the growing fruit in a certain orchard, the vendor to pick the fruit and deliver it in barrels to be furnished by the vendee, at a certain price per barrel, is not a contract for the sale of an interest in land, within the statute of frauds. Killmore v. Howlett, 48 N. Y. 569. Brown v. Stanclift. Opinion by Smith, J.

IOWA SUPREME COURT ABSTRACT.

APRIL TERM, 1879.

BAIL BOND-EXONERATION OF SURETY.-It is the duty of the bail to arrest and deliver up his principal in order to exonerate him. Under the Code, §§ 4593, 4594, the bail at any time before forfeiture may arrest and surrender the party to the sheriff upon producing him with copy of the bond. These statutes do not impose on the sheriff the duty of arrest. His duty is to receive and detain in custody the party delivered to him. State v. Kramer. Opinion by Beck, C. J.

- OFFER TO SURRENDER.-It is within the sound discretion of the court, when the bail offers to surrender his principal at the trial, to order said principal into custody, and when the court below does not, this court cannot presume that discretion was abused. Ib.

NEGLIGENCE NON-FEASANCE.-The neglect of the sheriff to perform his duty is no excuse, nor can it exonerate the bail when he is derelict in the performance of his duty, and compliance with the statutory requirements in cases of exoneration. Ib.

CONTRIBUTORY NEGLIGENCE.-Where the negligence of the plaintiff as well as that of the defendant operates directly to produce the injury complained of, the plaintiff is not entitled to recover, but in case of mutual negligence the plaintiff is entitled to recover unless by exercising ordinary precaution he could have avoided the consequence of the defendant's negligence. Webster v. Chicago, Rock Island and Pacific R. R. Opinion by Day, J.

CORRECTION OF RECORD.-A motion was made to correct an error of the clerk of the court, made in entering judgment against the defendant. The defendant with his wife executed a mortgage to plaintiff; default being made in the payment, mortgage was foreclosed and judgment was taken against defendant. No personal judgment was asked against defendant's. wife; nor was service made upon her. The clerk in making the record entry wrote the word defendants where he should have used the singular, and inserted the name of Marion Smith in the payment docket, and the mortgaged property not selling for enough to satisfy the judgment indebtedness, general execution was issued against Marion Smith as well as against her husband. Held, that the record should be corrected so as to exclude Marion Smith. Shelly v. Smith et al. Opinion by Adams, J.

STATUTE OF LIMITATIONS.-Code, § 3156, which provides, that "proceedings to correct mistakes and omissions of the clerk, or irregularities in obtaining a judgment, shall be by motion and within one year," is not applicable to a case where the party is not served with notice, and against whom no personal judgment is asked. Ib.

COVENANT OF DEED.-Where a covenant by a grantor is made merely "for his heirs, executors and administrators and not for himself, he is not personally liable on the covenant. Such covenant is to be construed as binding on his legal representatives. One may be willing to bind his estate and unwilling to bind himself personally. Croft v. Day. Opinion by Seevers, J.

CRIMINAL LAW-PRACTICE.- An information stands upon different grounds from an indictment, inasmuch as the public officer, by whom it is drawn, being always in court, the information may be amended to any extent to which the judge in his discretion may deem consistent with the orderly conduct of judicial business and the public interest. State v. Johnson. Opiuion by Rothrock, J.

INSURANCE-PROOF OF LOSs.-A provision in a policy of insurance, that in case of loss "proof of loss" must be made before the nearest magistrate or notary public, must receive a liberal construction, as the object of such provision is intended to prevent the assured from selecting the magistrate, a short distance is not material. Williams v. Niagara Ins. Co. Opinion by See

vers, J.

PAROL AGREEMENT WITH AGENT-WAIVER OF

CONDITIONS.-In an insurance policy which stipulates that the consent of the company must be obtained to let the premises remain or become unoccupied, and where at the time of the making of the application for insurance the agent agreed with the assured that the building might remain unoccupied for thirty days is a contract binding on the company, in the absence of any limitation on the power of the agent known to the assured. Ib.

— EVIDENCE-EXPERT TESTIMONY.-The question of custom in the adjustment of losses cannot affect the rights of the assured unless knowledge is had of the custom at the time of the issuance of the policy, and in the absence of such knowledge, the testimony of experts is incompetent. Ib.

INTOXICATING LIQUORS-CIVIL DAMAGES. In an action for damages caused by the sale of intoxicating liquors to the husband of the plaintiff by the defendants. In order to enable the jury to ascertain what damages the defendants were liable for, it is competent for them to show a settlement made with the plaintiff by other parties, of whom her husband had bought liquors, and on which he became intoxicated, for two years previous. Ennis v. Shirley et al. Opinion by Adams, J.

MORTGAGE - FRAUD IN OBTAINING SIGNATURE.Where a mortgage was given and the wife's signature thereto was obtained by threats of prosecution against her husband for embezzlement. The foreclosure of said mortgage was resisted on these grounds. It was heid that the mortgage was void, and it was immaterial whether subsequently to the signing of the mortgage she admitted she had signed it voluntarily if this voluntary act was induced by false and fraudulent charges and threats. Singer Manufacturing Co. v. Rawson et al. Opinion by Adams, J.

PRACTICE. A motion for a new trial on the ground of newly-discovered evidence, which alleges that the mortgaged property was bought with plaintiff's money and fraudulently conveyed to the wife, co-defendant in this action, cannot be sustained for the reason that that would not render valid the mortgage fraudulently obtained. Ib.

MUNICIPAL CORPORATION-EXCAVATIONS.-Regarding cities of the second class, Code, § 561, provides: "As against the adjoining lot-owner or original dedicator, the city has full control over the whole street, and not simply over the surface, and it can maintain an action against any person who, without its permission, removes any material from the body of the street, whether that material be superficial or subterraneous; under such a provision when the city authorities have permitted, by their silence, excavations by other parties, it cannot authorize another party to make such excavation when forbidden by the proper city authorities. Davis v. City of Clinton. Opinion by Rothrock, J. NUISANCE-LIVERY STABLE in a city is not necessarily a nuisance; but may be declared a nuisance if it is built in close proximity to existing residences, and becomes seriously detrimental to the health and comfort of the occupants. Shiras v. Olinger et al. Opinion by Adams, J.

ABATEMENT OF — INJUNCTION.-Where a livery stable is built in close proximity to a residence and suffered to remain there until consumed by fire, aud afterward the owner of the dwelling-house shows that the re-building of the stable and its use as formerly used will seriously impair the health and comfort of bis family, the use of the stable as formerly will be enjoined, but the court can go no farther, it cannot enjoin the re-building of the stable. Ib

SUCCESSION

INHERITANCE BY ADOPTION. -The daughter of B died in 1864, leaving two children who are wards of the plaintiff who survives her. In the same year B adopted said children as provided by law, and died in 1876 intestate. Mahala was the daughter of the intestate, who left other children surviving him. Plaintiff claims that his wards are entitled to inherit a share of the estate of B as his children by adoption, and also the share their mother would have inherited had she outlived them. Held, under Code, § 2310, which provides that "the rights, duties and relations between the parent and child by adoption, shall thereafter in all respects, including the right of inheritance, be the same that exist by law between the parent and child by lawful birth." And § 2453 provides that if a child of the deceased be dead the heir of such child shall inherit his share, *** in the same

manner as though such child had outlived his parents: the children should inherit as heirs of the deceased mother and as adopted children of the intestate. Wagner v. Varner. Opinion by Seevers, J.

TAXES- -DUTY OF MORTGAGOR TO PAY.-Where at a tax sale, and after foreclosure sale, but before the execution of a sheriff's deed, the mortgagor bids the property in for the taxes, he cannot take under the tax deed, but it will be held as a discharge of his obligation to redeem. Dayton v. Rice. Opinion by Day, J.

USE OF DEADLY WEAPONS-INTENT.-Where one person assaults another with a deadly weapon in such a manner that the ordinary and probable result of the use of the weapon would, on the person assaulted, be death, the law will not presume that the person using the weapon used it in self-defense, but will presume that he intended to take life. State v. Benham, 23 Iowa, 163 followed. State v. Sullivan. Opinion by Beck, C. J.

PRIOR HOSTILITY OF PARTIES cannot authorize the use of a deadly weapon in a present quarrel. However hostile deceased may have been, and however many quarrels they may have had, if the deceased did not with acts and arms threaten the peril of the defendant, he would not be authorized to infer danger on account of ill-will or of prior quarrels. Ib.

EVIDENCE-DYING DECLARATIONS.-Testimony based upon a memorandum made by a witness purporting to be the dying declarations of the deceased, said memorandum was not produced nor accounted for, nor was it signed by the deceased, was properly rejected as incompetent. Ib.

Threats or conversation previous to the homicide made by the deceased are not competent unless shown to have been made in presence of the defendant; for if defendant had no knowledge of the acts previously made, they could not have influenced his conduct. Ib.

CHARACTER OF DECEASED.-Evidence tending to show the desperation of the character of the deceased, such as setting his dogs on the wife and daughters of the defendant some weeks previous to the homicide, is not competent, as it would not tend to show that defendant had reason to fear the result of a personal encounter with him. Nor is evidence of quarrels of deceased with other persons competent for the same reason. Ib.

MASSACHUSETTS SUPREME JUDICIAL COURT ABSTRACT.

MAY TERM, 1879.

CANCELLATION OF WRITTEN INSTRUMENTS — PARTNERSHIP-FRAUD OF ONE PARTNER IN ISSUING FIRM

NOTES.- Bill in equity by the administrator of Fuller against Percival, surviving member of a firm composed of Fuller and Percival, to cancel two notes executed by Percival in the firm name, and delivered by him to J. S., on the ground that said notes were made and delivered by Percival for his own private purposes, without authority or knowledge of the other partner, and in fraud of his rights, and that J. S. knew that they were so issued without authority and for Percival's own private benefit, and in fraud of the partnership. It was alleged that said J. S. still held the notes; that the partnership had been dissolved, a receiver had been appointed, and that its affairs were in process of settlement. The defendant demurred, the demurrer was overruled and the defendant appealed. Held, that the demurrer was properly overruled. The court said: "The weight of modern authority supports the jurisdiction in equity of suits for the cancellation of written instruments obtained by fraud. It is exercised for