ered by the jury and taken as en-
hancing plaintiff's damages.

Id.

of six years therefrom, an action
upon it is barred by the statute of
limitations. Sands v. Lilienthal.
541

LIEN.

-

MANDAMUS.

1. In an action brought after a
debtor's discharge in bankruptcy,
to enforce a lien upon property
held by the debtor's wife, claimed
to have existed at the time of the
discharge, under the provisions of
sections 51 and 52 of the statute
of uses and trusts (1 R. S., Ed-
monds' ed., 677, §§ 51 and 52). –
Held, that those sections do not
give a specific lien upon the pro-
perty, but an equitable right to be
enforced by suit in equity, after all
available legal remedies are ex-
hausted; that the commencement
of the equitable action and filing
of lis pendens is necessary to con- 2.
stitute a lien, and that as in this
case, before the commencement of
such action, the judgment or debt,
which is the foundation thereof,
was extinguished, the relation of
debtor and creditor did not exist,
and the action would not lie.
The Ocean National Bank v. Olcott.

LIMITATION OF ACTIONS.

12

1. Under the provisions of the act of
1853, to provide for the incorpora-
tion of fire insurance companies
(chap. 466, Laws of 1853), a per-
sonal demand of the maker of a
premium note, given to a mutual
fire insurance company, is only
made necessary where it is sought
to recover a judgment for the
entire note, as a penalty for neg-
lecting to pay a partial assessment
thereon. Assessments upon notes
given prior to the passage of the
act, were unaffected by it, and
could be recovered without such
demand. Where, therefore, a pre-
mium note given prior to 1853
was regularly assessed to its full
amount, the time of payment fixed,
and notice of the assessment duly
published, as required by the char-
ter and by the laws of said com-
pany, the whole note became due
and payable upon the day fixed
for its payment, and after the lapse

9

4.

Under the provisions of chapter
905 of the Laws of 1869 (authoriz-
ing the construction of a highway
in the towns of Jamaica and New-
town, in the county of Queens), as
amended by chapter 750, of the
Laws of 1870, the supervisor of the
town of Jamaica is required to pay
over the moneys raised for the pur-
poses of the act to the commission-
ers therein appointed. The position
of commissioner under that act is
an office, and under section 1, of
article 10, of the State Constitution,
it is vacated by the acceptance of
the office of sheriff by one of the
commissioners. When a person sets
up a title to property by virtue of
an office, and comes into court to
recover it, he must be an officer
de jure, as well as de facto, particu-
larly where he acts against the

1. A master is responsible civiliter
for the wrongful act of a servant,
if such act was committed in the
business of the master, and with-
in the scope of the servant's em-
ployment; and this, though in
doing it, he departed from the
instructions of the master. There-
fore, where the employe of a
railroad company (a conductor),
under a mistake of facts, or of
judgment, ejected a person from
the car in which he was a passen-
ger, which act was not justified
by the passenger's misconduct.-
Held, that the company was liable.
So, also, where there was justifi-
able cause for ejection, but exces-
sive force was used (not wantonly
or maliciously). Higgins v. The
W. T. & R. Co.

MEASURE OF DAMAGES.

See DAMAGES, 3.

23

MORTGAGE.

1. Where the real estate of a wife is
mortgaged to secure the debt of
her husband, she occupies the posi-
tion of a surety, and she and those
claiming under her, are entitled to
the benefit of the rules, prohibit-
ing the dealing of the creditor
with the principal debtor, to the
prejudice of the surety. An ex-
tension of the time of payment,
without her assent, is such a deal-
ing, and discharges the mortgage.
Bank of Albion v. Burns.

170

5. H. had negotiated with S. for the
purchase of certain real estate; not
being able to complete the pur-
chase, he induced the defendant G.
to become the purchaser. At the
time of the purchase defendant G.
stated, that if H. would make cer-
tain payments, at a specified time,
she would convey the property to
him.-Held, that the transaction
was an absolute purchase by defen-
dant G., and a parol conditional
agreement of sale, and not a mort-
gage; and that H. was not en-
titled to redeem. Hill v. Grant.
496

6. E. W. S. being seized of certain
premises, conveyed them to B., in
trust, to receive the rents, issues
and profits for the use and benefit
of L. C. S., wife of the grantor,
the same to be appropriated ac-
cording to her directions, and upon
her death, in case the husband
survived, the same to be conveyed
to her children or descendants, if
any survive her, if none, then to
him, and in further trust to sell or
mortgage the premises conveyed,
or any part thereof, whenever de-
sired by the wife, "separate and
apart from her husband," and pay
over the proceeds to her or rein-
vest the same according to her
directions. B. joined in the deed
and accepted the trusts; the wife
did not join. Subsequently hus-
band and wife joined in a mort-
gage of the premises in the ordi-
nary form to plaintiff, to secure_a
precedent debt of the husband. L.
C. S. survived her husband. In an
action brought to foreclose the
mortgage,- Held, 1st. That the
trust was valid and the deed vested
the whole estate in the trustee,
subject to the execution of the
trust and to the wife's contingent
right of dower, that the power of
sale was irrevocable by the grantor,
who had, at the time of the execu-
tion of the mortgage, no estate,
legal or equitable, in the premises
capable of being transferred. 2d.
That the wife's inchoate right of
dower, was incapable of being
transferred or released by her dur-
ing coverture, except to one who
already had or who by the same
instrument received an indepen-
dent interest in the estate, nor

could she bind herself personally
by a covenant or contract affect-
ing her dower right. She was not
estopped, therefore, by any such
covenant from setting up a subse-
quently acquired title, and the
plaintiff took no interest under his
mortgage. Marvin v. Smith. 571

7. The rule that a deed absolute
upon its face can, in equity, be
shown by parol or other extrinsic
evidence, to have been intended as
a mortgage has been, upon the
fullest consideration, deliberately
established in this State, and will
not be departed from. Horn v.
Keteltas.
605

8.

A. S. entered into a written con-
tract with the owner for the pur-
chase of a parcel of land, and
under it went into possession. Not
being able to pay the purchase-
money at the time fixed by the
contract, he made a parol agree-
ment with defendant, by which the
latter agreed to and did pay a por-
tion of the purchase-price, took the
title and gave his bond, secured by
a mortgage upon the land, out of
the avails of which the balance
was paid. It was agreed that de-
fendant was to hold the title as
security for the money advanced,.
the liability incurred, and certain
other claims against A. S. A. S.
continued in possession for two
years. Defendant then entered
into possession, no portion of the
money advanced or secured hav-
ing been paid him.-Held, that by
the contract with the vendor, A.
S. became vested with the equit-
able title to the land, which inter-
est was capable of being mort-
gaged; and that under the agree-
ment with defendant the latter
took and held the title as mortga
gee, subject to the right of A. S.
to redeem. Stoddard v. Whiting.

MOTIONS AND ORDERS.

627

1. Upon an application to remove
a cause to the Circuit Court of the
United States, under the provisions
of the act of Congress of 1789, it is
necessary for defendant to show as

2. Religious corporations have no
common-law rights to alienate their
real estate, and to constitute a sale
within the meaning of section 11;
there must be a valuable conside-
ration inuring to the corporation
as such. Therefore, an order of
the Supreme Court, authorizing a 1.
conveyance founded upon a peti-
tion, showing the only considera-
tion for the contemplated transfer
to be a benefit to the individual
corporators, is without jurisdiction,
and a deed executed in pursuance
thereof is void. The M. A. Bap-
tist Church v. The Baptist Church
in O. St.
131

making it dangerous, is entitled to
take advantage of a favorable tide
as well as of a wind; and in a tem-
porary calm, or when the wind is
baffling to keep in condition, to
profit by any breeze which may
spring up. Under such circum-
stances, it is not required to anchor
or take other measures to avoid
collision with an approaching
steamer. The steamer should cal-
culate the course of the drifting
vessel, by noting the course of the
current, and should avoid it. Par-
rott v. K. and N. Y. Ice Co. 361

NEGLIGENCE.

When the duty is imposed by law
upon a public officer or municipal
corporation, of keeping a structure
in repair, it involves the exercise
of a reasonable degree of watch-
fulness, in ascertaining the condi-
tion of such structure from time
to time; and where this is omitted,
such officer or corporation is liable
for damages, resulting from a di-
lapidation of the structure, which
is an ordinary result of its use, and
which would have been disclosed
by an examination. No notice of
the defect is necessary in such a
case to fix the liability. McCarthy
194
v. The City of Syracuse.

See COMMON CARRIER, 1.

NEW TRIAL.

See APPEAL, 9, 10, 11, 14, 16.

NEW YORK CITY.

certain resolutions by the common
council, until two days after the
publication thereof, in all the
newspapers employed by the cor-
poration, is mandatory; and an
ordinance or resolution, not so
published, is void, and an assess-
ment in pursuance thereof invalid.
In re Douglas.
42

2. A resolution of the common
council of the city of New York,
directed that certain streets be
paved with Nicolson pavement,
and that cross-walks be laid or
relaid at intersecting streets, under
the directions of the Croton
aqueduct department." - Held,
that said resolution did not require
a cross-walk at every street inter-
section; but that the department
could omit such as it deemed
unnecessary or improper.
Eager et al.

In re
100

chapter 383 of the Laws of 1870,
authorizing a deduction from an
assessment of the sum erroneously
included, is not retroactive, and
does not affect proceedings had
before the passage of the act. Id.

8. The act of April 12th, 1865
(chapter 381, Laws of 1865), pro-
hibiting the construction of a
sewer in the city of New York,
unless in accordance with a
general plan, applies to cases
where proposals had been adver-
tised for and bids opened before
the passage of the act. In re P.
E. Public School.
178

10. The provision of section 178, of
the "act to reduce several laws
relating particularly to the city of
New York into one act" (Revised
Laws of 1813, chap. 86, Davies'
Laws of N. Y., 534), which
declares that upon the confirma-
tion of the report of the commis-
sioners of estimate and assess-
ment, the mayor, etc., shall be
seized in fee of the lands required
for the opening or widening of
streets, and the provision of sec-
tion 181, of the same act, which
declares all leases of lands thus
taken void after such confirma-
tion, is so modified by the provis-
ions of chapter 210, Laws of 1818,
which authorizes the city to sus-
pend the opening, etc., of any
street for a period not exceeding
fifteen months, that the title of
the city does not become absolute
until the corporation takes posses-
sion, or until the time fixed for
the suspension of the work, or the
fifteen months expires, and until
the title of the owner is thus fully
divested, he can recover for the
use and occupation of the premi-

ses.

Under the construction thus
given, these statutes are constitu-
tional, at least, the owner has the
right to waive the constitutional
objection, and accept the use of
the premises, as a compensation
for the postponement of the pay-