sustained by defendant's drawing a dredge over plaintiff's oyster bed, a witness was asked, against defendant's objection and exception, "What, in your opinion, would be the damages of dredging across a bed of the size of Newton's [plaintiff), planted with young oysters? Held, that it was error to allow the witness to answer the question. (Newton agt. Fordham, 7 Hun, 58.)

10. Where a contract is void under the statute of frauds because it provides for services to be rendered during one year and to commence at a future day, proof that the person agreeing to perform such services, commences so to do at such future day, does not take the contract out of the statute or constitute by implication a new contract between the parties or a renewal of the one theretofore made. (Turnow agt. Hochstadter, 7 Hun, 80.)

11. In an action of slander, proof of

a reiteration of the slander for which the action is brought, on an occasion other than that alleged in the complaint, is admissible as evidence of malice and to enhance the damages. Such evidence is admissible, though the slanderous words be actionable per se, for the purpose of enhancing the damages. (Distin agt. Rose, 7 Hun, 83.)

12. In an action brought upon a chose in action by an assignee holding an absolute assignment thereof, by virtue of a reassignment to him, the assignment and reassignment need not be shown on the trial. (Washoe Tool Manuf. Co. agt. Hibernia Fire Ins. Co., 7 Hun, 74.)

13. When different instruments are properly in evidence, for other purposes, the handwriting of such instruments may be compared by the jury, and the genuineness or simulation of the handwriting in question be inferred from such

comparison, but other instruments or signatures cannot be introduced for that purpose. Such being the rule, held, error to admit letters in evidence for the mere purpose of comparison of handwriting. (Glover agt. Mayor, 7 Hun, 232.)

14. A carrier having agreed with a shipper as to the price of transportation, on the following day delivered bills of lading in ordinary form, specifying the rates agreed upon, and containing certain conditions. On the next day the goods were shipped. Held, that the bills of lading, in the absence of fraud, must be taken as the evidence, and the sole evidence of the final agreement of the parties, and by it their rights and liabilities must be regulated. (Germania Fire Insurance Co. agt. Memphis & C. R. R. Co., 7 Hun, 233.)

15. The measure of damages for fraudulent representations made by an infant defendant, cannot be established by evidence of any action taken by the plaintiff in pursuance of a contract, void by reason of the infancy of the defendant. (Heath agt. Mahoney, 7 Hun, 100.)

16. On the trial of an action brought by plaintiff, as receiver, under supplementary proceedings,_ against the defendant, Gilbert Deshaw, to set aside the assignment of a contract for the purchase of a lot of land, executed by Gilbert to George Deshaw, on the ground that it was made to hinder and defraud creditors, the answer denying such fraudulent intent, the defendants offered to prove that at the time of the assignment Gilbert Deshaw believed that a note on which the judgment was obtained against him, and the supplementary proceedings were based, had been paid, which was excluded. Held, that the evidence was admissible; that the question of fraud is one of fact for the

jury. While his evidence on this point might not be conclusive, such belief might have some influence on the question whether he meant to defraud. (Stacy agt. Deshaw, 7 Hun, 449.)

17. The question was asked by defendants what the premises were worth, which was objected to and excluded, as also the offer to prove that at the time of the transfer they were not worth $400, although there was due upon them $468. Held, that it should have been admitted, as it might have been shown that Gilbert's interest in the premises was of little or no value; and the value of the assigned property is always important on the question of fraud. ~(Id.)

18. Defendants had given evidence that at the time of the assignment from Gilbert to George, the former was indebted to the latter in the sum of sixty dollars, and that, in consideration of the transfer of said contract, the debt was discharged. The judge charged the jury that there was no valuable consideration from George to Gilbert for the assignment. Held, erroneous; that the assignment of the contract to George was the payment of the debt, and such payment was a valuable consideration; that it was not unlawful for a debtor to pay a debt by a transfer of property, and the acceptance of property in payment of a debt was a valid transaction. (Id.)

19. In an action on a note, payable in 1868, brought in 1874, after the holder's death, evidence that the holder of the note was pressed for money, and that the indorser of it lived near him until the holder's death in 1873, and such indorser was responsible, held, not admissi

20. The act of 1832, chapter 276, allowing the maker to be sworn for the indorser, is subject to the restrictions contained in section 399 of the Code. (Id.)

21. Where two commissions have been issued to examine the same witness, and on the trial the defendant gave in evidence the evidence taken under the second commission, and then the plaintiff gave in evidence under objection, the evidence taken under the first: held, that the evidence under the first commission was not open to the objection that the witness could not be contradicted by previous statements made by him, without his attention being first called to them. (Becker agt. Winne, 7 Hun, 458.)

22. Where a party is invested with power to sell on such terms as he choose, in the case of a sale of seed by such party, the court is not bound to receive evidence of the custom of seed dealers, showing that such sales were not usually made with warranty, as such custom did not control the party selling in such case. (White agt. Miller, 7 Hun, 427.)

23. In an action for goods sold and delivered, when the answer is a general denial, the defendant can give evidence that the plaintiff had contracted to deliver certain merchandise, and had only delivered part thereof. (Manning agt. Winter, 7 Hun, 482.)

24. New matter, as the phrase is used in section 149 of the Code, means matter extrinsic to the matter set up in the complaint as the basis of the cause of action. (Id.) See NEW TRIAL.

Cole agt. Van Keuren, ante, 451.

may examine the adverse party,

on oath, before the service on him of a complaint, and for the purpose of obtaining the facts on which to frame a complaint. (Glenny agt. Stedwell, ante, 329.)

Of judgment debtor, in supplementary proceedings. (See Gaylord agt. Jones, 7 Hun, 480.)

EXCEPTION.

To conclusion of law, when allowed to be filed nunc pro tunc - after appeal. (See Douglas agt. Douglas, 7 Hun, 272)

EXECUTION.

1. The mere fact that the plaintiff in this case was boarding and that her goods were stored temporarily at the time of the levy, did not deprive her of the character of a housekeeper. (Cantrell agt. Conner, ante, 45.)

2. Besides, it is not only the householder whose property is entitled to exemption, but one "having a family for which he provides." (Id.)

3. The plaintiff and her infant son, who lives with and is dependent on her for support, may be deemed to constitute a family for which she provides. (Id.)

4. A sheriff levies upon and takes exempt property at his peril; no demand for a return of the property to the owner is necessary. (Id.)

5. All judgments for the payment of money, including judgments for the payment of alimony. can be enforced by execution. The remedy by execution must be exhausted upon all judgments for the recovery of money, both in legal and equitable actions, before a creditor's suit can be instituted. (Miller agt. Miller, 7 Hun, 208.)

6.

Where the owner of property consigns it to another under an agreement that when paid for it shall become the property of the consignee, the title does not pass to the latter until the condition is complied with, and it is not liable to levy and sale upon execution against him. (Cole agt. Mann, 62 N. Y., 1.)

7. Where, therefore, a sheriff, with notice of the arrangement, sells the property upon such execution, the owner can maintain an action against him for the conversion thereof. (Id.)

8. The fact that the consignee is a dealer in property of the kind, and has authority to sell, provided he remits the proceeds, or to make a similar conditional sale recognizing the title of the consignor, does not operate to pass the title to the former; and while it may have an important bearing upon the rights of a bona fide purchaser from the consignee without notice of the limitation upon the authority of the latter, it does not affect the question of title as between him or his creditors and the consignor. (Id.)

9. Upon the sale of certain premises of S., on execution against him, C. became the purchaser. P. had a judgment against S., which, prior to the sale, he assigned to B., who, in fact, acted as agent for and took the assignment in his own name at the request of S., the latter paying the consideration. B., without consideration, and without the knowledge of S., reassigned the judgment to P., who, by virtue thereof, claimed to redeem; the sheriff received from him the amount required for that purpose, which he paid to C., and at the expiration of the term allowed for redemption, deeded the premises to P. P. subsequently deeded to C., who had notice of the fact of B.'s agency. In an action brought by the gran

tee of S. to redeem the premises, held, that the P. judgment upon being assigned to B., was in law satisfied, and under it no valid redemption could be made; the sheriff's deed to P. was therefore void, and C. took nothing by his deed from P.; but that by taking it he did not waive or release his right as purchaser, and the title of S. or his grantee was not thereby relieved from the effect of the sale; that C. as such purchaser was the equitable owner; and that plaintiff, by omitting to redeem within the twelve months allowed to the judgment debtor or his grantee for that purpose, lost his right to retain the title. (Ten Eyck agt. Craig, 62 N. Y., 406.)

10. A mortgagee in possession does not stand in such a relation of trust or confidence to the mortgagor as that he is prohibited from purchasing, for his own benfit, the title of the latter on an execution sale against him made upon a judgment in favor of a third person; and he may set up a title so acquired as a defense to an action by the mortgagor or his grantee to redeem. (Id.)

11. C. held certain mortgages upon the premises in question; S., in order to secure him for becoming surety on an undertaking on appeal, executed to him another mortgage, and also assigned to him a lease of the premises, authorizing him to demand and receive the rents, and in case the tenant failed to pay rent or perform his covenants, and S. should be entitled to possession, to take possession and relet; out of the rents received C. was to pay the insurance and interest on the mortgages, holding the balance to meet any liability on the undertaking, and when discharged therefrom, to account, &c. Held, that the assignment did not impose upon C. any duty which prevented him from purchasing, for his own benefit, at the execution sale. (Id.)|

12. C. was the equitable owner of a judgment recovered by G. against S, which had not been assigned by G., he holding it as collateral for a claim against C. For a valuable consideration C. executed to S. a release of all claims against him, legal or equitable. Held, that the release extinguished all C.'s interest in the judgment upon a subsequent payment by him of the claim of G.; and that a subsequent sale upon execution issued thereon of lands of S. conferred no title. (Stilwell agt. Carpenter, 62 N. Y., 639.)

EXECUTORS.

1. The third clause of the will, which directs the division of the residuary estate of the testator, is as follows: "After paying or providing for the foregoing legacies I direct my executors to divide all the residue of my estate, both real and personal, into as many equal shares as will allow one share for my wife, if she shall survive me, and one share for each of my children," &c.

Held, that there is clearly no ambiguity in this language. The testator directs his executors, as soon as the legacies are paid, to divide the estate. If he had fixed any later period for the division it might have made all the limitations attached thereto void, as contravening the statute against perpetuities. (Furniss agt. Furniss, ante, 64.)

tion, but, as soon as the administration has been had- that is, debts and legacies have been paid they are bound to partition the estate. The directions in this will are in exact accordance with this principle of law. (Id.)

4. The legacies in this case are all paid, and, unless there is something to modify this direction contained in this clause of the will, the executors are bound now to make partition. (Id.)

5. The will further provides, after directing his estate to be divided as above mentioned, he gives each of said shares, by separate devises, to his executors, or some of them, in trust, to collect rents, &c. He then authorizes and empowers the trustees of every one of the trusts herein contained" to lease, sell or mortgage any of the real estate comprised in his trust; also authorizes his executors to partition his real estate as well as personal amongst the parties who may be entitled thereto, as previously expressed in his will.

He then authorizes them, until such partition has been effected, to collect the rents of all my real estate, and apply the same to the payment of debts he may owe, and also to payment of taxes, insurance and repairs, &c.

Then follows the clause which, the executors claim, gives them full discretionary powers in respect to the making of partition, to wit: "I hereby declare that all the powers herein given are intended to be discretionary, and to be exercised or not, as the said executors or trustees shall think proper, hereby authorizing a majority of trustees in any share to exercise such discretion, if there occur any difference of opinion between them."

Held, that a careful examination of this clause, in connection with the other provisions of the will, will show that it does not, nor was it intended by the testator

that it should, confer any discretion whatever upon the executors as such. The whole discretion is vested in them as trustees of the several trusts, and does not relate to a single act which the will requires them to do as executors. (Id.)

EXEMPTION.

1. The mere fact that the plaintiff in this case was boarding and that her goods were stored temporarily at the time of the levy, did not deprive her of the character of a housekeeper. (Cantrell agt. Conner, ante, 45.)

2.

Besides, it is not only the householder whose property is entitled to exemption, but one "having a family for which he provides." (Id.)

3. The plaintiff and her infant son, who lives with and is dependent on her for support, may be deemed to constitute a family for which she provides. (Id.)

4. A sheriff levies upon and takes exempt property at his peril; no demand for a return of the property to the owner is necessary. (Id.)