Partition.

through false representations made by an agent of the defendant, and to enforce a lien on the land conveyed by the plaintiff and received by the defendant, the principal, in consideration thereof, it is not necessary to make the agent a party. (Newbery, agt. Garland, 32 Barb., 121.)

See MARRIED WOMEN. (Newbery agt. Garland, 32 Barb., 121.) 14. The right of a defendant to object to the non-joinder of parties, cannot be available under the Code, unless he pleads or gives notice of the defect, except upon the question of damages. So held in an action of tort brought by two partners, where one of them assigned his right and interest in the claim to the other, who brought the action in his own name. (Abbe agt. Clark, 32 Barb., 238.)

15. The 399th section of the Code, does not exclude a party from being a witness, when the opposite party is a corporation. (Johnson agt. McIntosh, 32 Barb., 267.)

See DEMURRER.

(Goelet agt. Gori, 32 Barb., 314.)

See WITNESSES. (McCray agt. McCray, 12 Abb., 1.

See ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. (Reed agt. Stryker, 12 Abb., 47.)

PARTITION.

1. In cases of partition by action, the court must, in a regular way, acquire jurisdiction of the party to be affected by its judgment, as well as of the subject matter of the action. Where a guardian appointed and residing in another state, held, that he was not authorized to appear for an idiot infant ward in an action of partition here, and could give our courts no jurisdiction of such person, or his real property situated here. (Rogers agt. McLean, 32 Barb., 304.)

See SHERIFF. (Van Tassel agt. Van Tassel, 32 Barb., 439.)

PARTNERS.

1. J., T. & S. were partners owing debts: J, sold out to T. & S. in good faith, and received from them upon the sale their note, endorsed by B. for their accommodation. T. & S. continued the business awhile as partners, and then failed, and made a general

Partners.

assignment in trust for their creditors, preferring this note, and providing for the payment, pro rata, of the debts of the old and new firms;

Held, that the creditors of the old firm had no equity against the partnership property of the old firm in the hands of the new firm or their assignee; that the preference of the note was not fraudulent; that while partners are administering their own affairs their creditors have no lien upon or equity against the partnership effects. (Smith agt. Howard, Ante, 121.)

2. The right of partnership creditors to have partnership effects applied in equity to their debts, is a right derived through the partners, and if they have no such right their creditors have

none;

Held, also, that the appropriation of the individual property of the partners to the payment of the partnership debts in preference to the individual debts is not fraudulent or illegal. (Id.) 3. A provision in such an assignment authorizing the property of an insolvent debtor to be applied in part to the payment of the debt of another person, for which neither he nor his property is bound, in preference to his own debts, affords a conclusive presumption of an actual fraudulent intent. A creditor provided for by a prior clause in the assignment may avoid it by reason of such fraudulent intent. (Id.)

See IRRELEVANCY AND REDUNDANCY. (Doran agt. Dinsmore, Ante, 503.)

See JOINT DEBTORS. (Pruyn agt. Black, 21 N. Y. R., 300.) 4. The appropriation by an insolvent firm, of partnership property, to the payment of the individual debts of one of the partners, is fraudulent and void; consequently, it avoids the deed of assignment. (Wilson agt. Robertson, 21 N. Y. R., 587; S. C., 19 How., 350.)

5. A partner to whom a balance is due, has a lien upon the partnership property, and upon other property into which it may have been converted by the debtor partner; and not only as against the latter, but as against all assignees of it who are not bona fide purchasers for value. (Wade agt. Rusher, 4 Bosw., 537.) See TRIAL. (O' Brien agt. Bower, 4 Bosw., 657.)

6. Where a judgment is confessed by two partners in a firm consisting of three, for the purpose of securing a partnership debt,

Place of trial.

it will be a lien upon the interest of the two in the partnership property, and is entitled to payment to that extent (two-thirds) out of the surplus moneys arising upon the sale of partnership property on a mortgage, in preference to junior judgments recovered against all the members of the firm (Stevens agt. Bank of Central New York, 32 Barb., 290.)

:

Held, that the partnership agreement in this case, contemplated a friendly dissolution, and a sale at auction of the trade mark, &c., by mutual consent, and that the parties should bid therefor among themselves, but that no authority was given to either party to fix the time or place of sale, or to select an agent to make it; and a sale made at auction where one of the partners refused to concur in the sale, gave the plaintiffs no title: held, also, that a court of equity could enforce a performance of that part of the contract, and compel a sale, and, if necessary, order the pleadings to be amended to that end. (Comstock agt. White, 32 Barb., 301.)

PLACE OF TRIAL.

1. The place of trial of a cause may be changed, on the ground of public excitement, although there has been no effort made to try the cause, or even to empannel a jury in the county where the venue is laid. (Budge agt. Northam, Ante, 248.)

2. Held, in this case, which is an action for libel imputing to the plaintiff the murder of his wife, that from the facts amd circumstances disclosed on the motion of an extensive public excitement existing in the county, "there is reason to believe that a fair and impartial trial cannot be had" (Code, § 126) in the county of Lewis, where the trial was ordered on the demand of the defendant. (ld.)

3. It seems that the effort of the defendant, made throughout the county, in opposing the motion and to retain the venue, resulting in procuring more than two hundred affidavits, would, of itself, almost create an excitement unfavorable to that repose and equanimity, and absence of bias, with which all jurors should be summoned and courts of justice held. (Id.)

4. Place of trial changed from the county of Lewis to the county of Herkimer. (Id.)

Principal and agent.

PRINCIPAL AND AGENT.

1. Where there is a question of fraud presented between the parties, who are principal and agent, and the evidence tends to establish circumstances by which it might be considered that the defendant acted as trustee of the plaintiff, in retaining the property in question, procured by his agency, the plaintiff has the right to go for the fraud alone; and the verdict of the jury on that question is conclusive, especially where the act of conversion by the defendant is clearly proved. (Ward agt. Forrest, Ante, 465.)

2. A deviation by the agent from the course marked out by the principal, which is rendered necessary by the circumstances of the case, and which were not foreseen by the principal, is justifiable, if the agent exercises the requisite care and skill which his agency calls for, unless the instructions of the principal amount to a prohibition of the act in any other than the prescribed method. But as a general rule, any unnecessary deviation or departure from the instructions, is at the peril of the agent, and renders him liable for any loss resulting from it. Warehousemen and forwarders are like other agents bound by these rules. (Johnson agt. N. Y. Cent. R. R. Co., 32 Barb., 196.) 3. If a contract for the sale and purchase of property has been executed by a delivery of the property to the purchaser, the latter becomes vested with the title to it, so far as an agent of the latter to sell it on commission, is concerned. And the agent is bound by the legal restrictions and regulations imposed by the purchaser in reference to the sale thereof; and his liability is not affected by the question whether the original vendor acquired it under an illegal contract or not. (Alvord agt. Latham, 32 Barb., 294.)

4. Where the wife delivers to a person money belonging to her husband, to be applied to a particular purpose, in payment of the husband's debt, and a receipt is given stating the money to have been received of the wife for such purpose, held, that the wife was acting as the agent of the husband, and the latter was the proper person to sue for the money. (Brouer agt. Vandenburgh, 32 Barb., 648.)

Publication.

PUBLICATION.

1. The name of a party omitted by inadvertence in a copy of the summons filed for publication, is such an error as may be corrected by amendment (Van Wyck agt. Hardy, Ante, 222.) 2. An affidavit of the plaintiff, for the purpose of procuring an order of publication, which stated" that after due and dilligent search and inquiry by this deponent, the said defendants named in the body of the affidavit, cannot be found in the state of New York, as he is informed and verily believes," held, sufficient to satisfy the judge legally of their non-residence, and to confer jurisdiction upon him to make the order. (Id.)

3. The purchaser of premises at a sale in a suit where publication has been ordered, must be deemed to know that he purchases subject to the power of the court to relieve parties, against whom publication is ordered, upon good cause shown, both before and after judgment, within seven years after the rendition thereof. (Id.)

4. Where the summons as published in the Evening Post, omitted the words, "in said city of New York," after the words, "number 13 Chambers street," designating the office of the plaintiff's attorney, held, not such a defect as to make it void. (Id.) 5. Where the order for publication, in conformity to the statute, requires the summons and complaint to be served upon non-residents, by depositing the same forthwith in the post office, directed to such persons, some little time may elapse, (in this case four days, which was excused,) without forfeiting jurisdiction over the persons of the defendants. The word "forthwith" in this connection, should be construed as synonymous with all reasonable dispatch. (Id.)

6. The courts of this state have no jurisdiction to order service of a summons on a non-resident defendant by publication, unless the defendant has property within the state when the order was made. The jurisdiction of the courts to make the order of publication, depends upon the evidence in point of fact, of one of the five different cases or contingencies on which alone publication can be ordered. And § 135 of the Code makes the jurisdiction depend, not upon the judge who grants the order being