6. With the consent of defendant, a photograph representing the place where the homicide was committed, was put in evidence. W., a witness for the prosecution, who was present when the photograph was taken and who had seen part of the affair from a window near by, placed three persons in the highway to represent the positions, which, according to his recollection the deceased, the defendant and another person present at the homicide occupied. W.'s testimony as to that fact was received under objection and exception. Held, no error. Id.

7. Defendant's counsel, under an offer to show that he carried the revolver with which the crime was committed to protect himself from a threatened assault by one W., offered proof of threats made by W. against defendant; there was no suggestion that these threats had come to defendant's knowledge. Held, that the offer was properly rejected. Id.

8. Upon a criminal trial S., a witness for the prosecution, testified to a conversation with one of defendant's witnesses who had been previously examined and had testified that he had no conversation with S. on the subject. This was objected to on the ground that

previously particularly interrogated as to the time, place, etc., and it was received under objection. Defendant thereafter recalled his witness and interrogated him particularly as to the alleged conversation, and he contradicted the version of it testified to by S. Held, that while the objection was well taken and would have been fatal to the conviction if defendant had rested upon his exception, he waived the objection by recalling and examining his witness. People v. Weldon. 569

DAMAGES.

While the innocent purchaser of a usurious security, when the purchase was induced by fraud, may enforce the security against the maker if he is privy to the fraud, to the extent of the money paid by such purchaser, or may rescind and recover back that sum, with interest, the policy of the usury laws requires a limitation to that amount, and he cannot in any form of action recover more. Miller v. Zeimer.

441

Where, therefore, a bond and mortgage was executed without consideration, and M., plaintiffs' testator, purchased the same for less than its face, but in good faith and in reliance upon representations on the part of the mortgagor and mortgagee that the securities were valid, given upon a full consideration and free from usury, and where, in an action to foreclose the mortgage the judgment decreed a sale but only to satisfy the sum actually advanced, held, that an action was not maintainable against the mortgagor and mortgagee to recover, because of the fraud, the difference between the value of the mortgage as represented, and its actual value to the assignee. Id.

to share in the estate of a deceased
member of the firm in the hands of
his administrator, where there is no
joint estate and the surviving part-
ner is insolvent, is governed by the
rules by which courts of equity are
guided in distributing the separate
estate of an insolvent as between
his separate creditors and those of
a copartnership of which he was a
member. In re Gray.
404

2. While, as a general rule in such
cases, the separate creditors are
entitled to be first paid, where a
creditor at the time a debt is con-
tracted for the benefit of the firm,
requires therefor and receives the
joint and several obligation of the
copartners individually, it thereby
becomes the several debt of each
of them; the holder is entitled to
the benefit of the security according
to its terms, and has the right to
prove it against the separate estate
of the decedent, and to share
equally with the other separate
creditors in the distribution.

Id.

3. In an action to recover possession
of property alleged to have been
wrongfully detained, plaintiff
claimed under bill of sale which
the evidence showed was intended
as a mortgage. The instrument
was not filed as a chattel mortgage.
The property was at the time in
store, and was subsequently levied
on by defendant's intestate by vir-
tue of an attachment. There was
sufficient evidence to justify a
finding that it never went into
plaintiff's possession prior to the
levy under the attachment. Held,
that as against the attaching cred-
itor the mortgage was void under
the statute (Chap. 279, Laws of
1833); that a mere constructive
possession would not answer the
requirements of the statute. Sieden-
bach v. Riley.

560

the absence of proof that it was
made in good faith and without
intent to defraud, as the sale not
having been accompanied by im-
mediate delivery and followed by
a continued change of possession
was presumptively fraudulent as
against creditors of the vendor.
(2 R. S. 136, § 5.)
Id.

See CREDITOR'S SUIT.

DEEDS.

In the absence of a covenant or agree
ment to that effect, contained in
the instrument of conveyance, the
grantee of lands does not assume a
personal obligation to pay existing
incumbrances. Smith v. Cornell.
554

See GRANT.

DEFENSES.

1. In an action to recover back a pro-
portionate part of moneys paid
upon an assessment for a local im-
provement in the city of New York,
prima facie valid, and which
created an apparent lien upon the
lands assessed, where the facts
rendering a portion of the assess-
ment invalid were all de hors the
record, it is no defense that the
assessment has not been vacated or
reduced under and in pursuance
of said act. Diefenthaler v. Mayor,

2.

A decree of a surrogate setting
aside, on the ground of fraud, a
decree rendered on the final ac-
counting of an administrator, which
by its terms discharged the sureties,
and ordering a further accounting,
is binding on the sureties, although
they were not served with notice of
the application; and the omission
to give notice is no defense to an
action brought pursuant to an order
of the surrogate directing the prose-
cution of the bond because of the
failure of the administrator to pay
over a sum directed, on a further
accounting, to be paid by him to
one of the next of kin. Ďeobold v.
Oppermann.

531

widow accepted the provisions.
Subsequently the mortgage was
foreclosed, resulting in a deficiency.
In an action for a construction of
the will, held, that the widow was
not entitled to be allowed the
value of the real estate; that under
the statute (1 R. S. 749, § 4), she
simply took the equity of redemp-
tion and was required as devisee,
to pay and satisfy the mortgage.
Meyer v. Cahen.
270

See WILLS.

EJECTMENT.

In

The will of G. gave to his wife, so
long as she remained his widow,
"for her own use and occupation,
and none other," one-third of his
"mansion house." The other two-
thirds the will declared were to be
for the use of such of the testator's
children by his said wife as might
choose to occupy the same.
case none of them so chose, the
wife was to have the use of the
whole. The provisions made in
the will for the wife were declared
to be in lieu of dower. His resi-
duary estate the testator gave to
his children. Upon the death of
the testator the widow waived the
provisions for her in the will and
claimed dower, and provision was
made for her by a court of com
petent jurisdiction. Defendant, a
son of G. by a former wife, took
possession of three rooms in the
mansion: another heir occupied a
fourth and the remainder was un-
occupied. In an action of eject-
ment, brought by the children of
the testator by his second wife, it
appeared that they made a formal
demand of defendant for possession
of the whole house, and required
him to move out at once. He
offered to leave as soon as he could
find another place, and expressed
a willingness for them to move in
without delay, and it did not
appear that at any time he denied
plaintiffs' right to any part of the
premises; about two months after
the demand he did move out.
The court charged the jury that
the plaintiffs were entitled to re-
cover possession of two-thirds of

the premises, with damages. Held,
error; that the portion the widow
refused became part of the residue
and vested under the will in his
heirs, and, among them, the de-
fendant, and so the parties were
tenants in common; that plaintiffs
failed to prove that they had been
actually ousted, or that there had
been any denial of their rights as
co-tenants, in the absence of which
proof they were not entitled to
recover. (Code of Civ. Pro. § 1515.)
Gilman v. Gilman.

265

3.

defined and limited by the act, it
was bound to exercise that privi-
lege, if at all, according to the
terms in which it was conferred;
it could not take part and reject
the rest. In re Met. Transit Co.
588

2. In an action for the wrongful de-
tention and conversion of personal
property, defendant's answer de-
nied the conversion and alleged
that plaintiff placed the property
with him under an arrangement
and with power to use and invest
it in transactions on joint account,
and that heavy losses were incurred
in the course of defendants man-
agement of the estate, of all of
which plaintiff had knowledge and
was furnished with statements.
No affirmative relief was asked by
defendant. An application for a
bill of particulars of the losses,
referred to in defendant's answer,
was granted Held, no error; that
defendant by setting up the losses
in his answer was estopped from
denying their materiality on the
motion. Cunard v. Francklyn.

511