Digest. Traders' Bank agt. Hazard, 30 N. Y. R. 226). See ARBITRATION, 3, 4. EVIDENCE. 1. After a witness has stated what he has seen and heard, which tended to establish the existence of a copartnership, it is competent to prove by him, negatively, that he has no knowledge or information to the contrary (Conklin agt. Barton, 43 Barb. 435). 2. Where individuals are sued as partners, for goods sold to them in their business as hotel keepers, and the partnership is denied, a bond, purporting to have been executed by both defendants for the purpose of obtaining a tavern keeper's license, is admissible in evidence to establish a partnership (Id). 3. A charter of a private corporation, enacted by the legislature of another state, is a law within the meaning of section 426 of the Code, which declares that "printed copies in volumes of statutes, Code or other written law" of other states, shall be admissible in evidence in the courts of this state (Persse & Brooks' Paper Works agt. Willett, 19 Abb. 416). 4. In an action to recover damages for bodily injuries sustained by the plaintiff, his declarations as to his sufferings, made within a few hours after the commission of the injury, and before he had fully recovered from the shock and pain, are competent to go to the jury; other evidence as to the fact of the injury being also presented (Baker agt. Griffin, 10 Bosw. 140). 5. Upon all the testimony in this case as to whether the chattels in question were delivered in satisfaction of such a debt, pursuant to a previous agreement to that effect; held, that there was such a conflict of evidence that the verdict of a jury should not be set aside (Fowler agt. Moller, 10 Bosw. 374). 6. In an action to recover for work done, and materials furnished, in various parts of a building, under a special contract requiring the plaintiff to conform to plans and specifications which formed part of the contract, other plans, as well as maps and drawings, exhibiting the various parts of the building and premises on which the work was to be done, are admisssible in evidence, as introduc tory to testimony; and a question to a witness whether such plan is correct, though leading, is still proper, as mere inducement (Stuart agt. Binsse et al. 10 Bosw. 436). 7. The fact that work alleged to have been done by the plaintiff is delineated on the plan exhibited, does not render such evidence improper where no objection is taken to a general question as to the correctness of the plan, and a witness had testified that he could supply the lines representing the plaintiff's work, in court, if they were not laid down on the plan (Id). 8. In an action for an assault and battery, the plaintiff's complaints of pain and sorenesss, made to other persons at the time and soon after the commission of the assault, are competent evidence in his own behalf, in respect to the extent of the injury, in connection with other testimony (Werely agt. Persons, 28 N. Y. R. 344). 9. Circumstantial evidence is proper on the hypothesis that certain things are usual concomitants of each other; therefore, one set of the facts must be proved, that the other may be reasonably inferred therefrom. If circumstantial evidence is introduced to connect the defendant with the criminal act, the circumstantial facts themselves must be connected with * the defendant, or they will be incompetent as evidence (The People agt. Kennedy, 32 N. Y. R. 141). 10. Where the direct evidence is insuffi cient, collateral circumstances may be adduced in aid thereof; but if the same defect attach alike to the collateral circumstances, they will be incompetent as'evidence (Id). See WITNESS. See CRIMINAL LAW, 10. See LIBEL AND SLANDER, 3, 4, 5, 6, 7, 8, 9. See CONTRACT, 10, 21, 22. See WILL, 8. See MORTGAGE AND CHATTELS, 6. See ACCOUNT, 2. See DEED, 2. See MALICIOUS PROSECUTION, 2,3. EXCEPTIONS. Digest. 1. Where a party relies upon erroneous! 4. It is not a ground of exception to 5. Where there are no exceptions contained in the case, as settled, nor any allusion to any, as having been taken at any time, there is nothing for this court to review. Where the only exceptions taken relate exclusively to the finding of the referee upon matters of fact, no exceptions being taken to the decision upon the law, they present no question which this court can review, according to the settled practice (Weed agt. The N. Y. & Harlem R. R. Co. 29 N. Y. R. 616). An exception to a part of the charge of a judge, presents for consideration only the legal proposition which the part excepted to affirms. Where the part excepted to, consists of a statement of the position taken by the counsel of one of the parties, and states evidence which it affirms was given, a general exception to it will not, on an appeal from the judgment, enable the excepting party to insist that in truth no such evidence was given, especially when the case does not state that it was not given; and 7. 8. 9. the only ground for insisting that it was not given, is the fact that it is not contained in the case and exceptions (Varnum agt Taylor, 10 Bosw. 148). If the excepting party desired to call the attention of the judge to the fact that he was mistaken, as to such evidence having been given, he should have done so directly, and in a way to inform the judge thereof, and have requested him to admonish the jury that, in fact, no such evidence had been given; and if the judge had, from misapprehension, refused to correct the error, the party prejudiced thereby would be entitled to relief, on his motion for a new trial on a case (Id). Exceptions to findings of fact, on an appeal from a judgment on the report of a referee, are not required. And where exceptions to the conclusions of law, found by the referee, are not taken by the making of a case, or by the filing of written exceptions, within ten days after judgment, none can be entertained upon an appeal, but the case is to be heard solely upon the exceptions taken at the trial (Mayor &c., of N. Y. agt. Erben, 10 Bosw. 189). Where a cause is submitted to the court at general term, upon printed points pursuant to rule 43 of court, which requires the appellant to furnish to the court, with the papers, a printed copy of the points on which he intends to rely, an omission to allude, in such points, to an exception which had been taken on the trial, is a waiver of such exception. (Per BoswORTH, Ch. J). (Mayor &c., of N. Y. agt. The Hamilton Fire Ins. Co., 10 Bosw. 537). 10. The court will not entertain an application for judgment on a verdict taken subject to the opinion of the court at general term, upon a case where there is a disputed question of fact, and exceptions were taken to the exclusion of evidence. Such trial is a mistrial (Purchase agt. N. Y. Exchange Bank, 10 Bosw. 564). 11. The court below should, in such case, have directed the cause to be heard upon the exceptions in the first instance at general term, if the questions ought first to have been determined there (Id). 12. The onus is upon the party who alleges error in the decision of a referee, or of a judge without a jury, Digest. to show that an erroneous legal conclusion has been deduced from the facts found, or that some error of law has been committed in the interlocutory proceedings by which such conclusion was reached (Mead agt. Bunn, 32 N. Y. R. 275). See CASE and EXCEPTION. See APPEAL, 14. EXECUTION. 1. The goods of the defendant in an execution within the jurisdiction of the sheriff, as against the defendant, are by the Revised Statutes bound from the time of the delivery of the execution to the sheriff to be executed; and the reason upon which this rule is founded must extend the lien to all goods acquired by the defendant, within the jurisdiction of the sheriff, during the life of the execution (Roth agt. Wells, 29 N. Y. R. 471). 2. A stipulation to postpone an execution which has been issued on a judgment fraudulently entered, on condition that a motion shall not be made to set aside the judgment, is founded upon a good consideration (Read agt. French, 28 N. Y. R. 285). See CREDITOR'S ACTION, 1. See EXECUTORS and ADMINISTRA TORS, 2, 3, 4, 5. See ATTORNEY, 5, 6. See SALE, 4, 5, 6, 7. See SHERIFF, 12, 13. EXECUTORS AND ADMINISTRA- 1. No guardian of an infant who is not 2. A judgment not perfected until after the death of the debtor is not entitled to preference of payment under the statute. The provisions last above referred to, which direct that upon an application for leave to issue execution, the surrogate shall require the executor or administrator to appear and account, do not contemplate a settled or liquidated account, but only requires such an accounting of thei condition of the assets as will enable the surrogate to determine whether there is any property applicable to the debt in question (Mitchell agt. Mount, 19 Abb. 1). 3. Under the provisions of 2 Revised Statutes, 116, which authorises the surrogate, upon application of a judgment creditor of an executor or administrator, to require an accounting and to allow an execution to be issued, it is erroneous to proceed by an order to show cause without the issue of a citation. But the defect of omitting such citation is waived by the executor or administrator appearing and proceeding without objection (St. John agt. Voorhies, 19 Abb. 53). 4. If on the accounting there appear to be no assets in the hands of the executor or administrator, the surrogate cannot grant leave to issue execution. An order granting leave cannot be sustained on the ground that the executor or administrator had paid other claims of inferior right, or had neglected to reduce to possession certain assets to which he ought to have resorted (Id). 5. It is erroneous for the surrogate to grant leave to issue execution, unless the administrator apply for a sale of the real estate, especially if it does not appear that the time to make such application has elapsed (Id). 6. In an action upon an administration bond, to recover upon the administrators disobedience of an order of the surrogate, requiring payment of a debt, &c., of the intestate, the plaintiff must show that an application was made by the creditor, and that a citation was issued thereupon, and either the fact of the service of such citation or the proof of its service which was presented before the surrogate (Behrle agt. Sherman, 10 Bosw. 292). 7. If the surrogate's jurisdiction of the person be thus shown, his decree must be treated, in such a collateral action, as valid, though no evidence be given that he, in fact, received proof of the claim of the creditor applying, and of the condition and applicability of the assets (Id). 8. Where the complaint in such an action did not state that any application was made, and simply averred that "the administratrix was duly cited," &c., to show cause on the 8th of March, &c., setting forth the purport of the citation; and that "on Digest. or about that day, upon reading and filing proof of the due service of said citation upon said administratrix personally," &e., and on due proof of the claim, &c., it was adjudged, &c.; and the answer denied that the administratrix was duly cited, and that the surrogate duly or pursuant to the statute adjudged, &c., and there was no evidence, except the recitals in the decree, that proof of due service had been read and filed: Held, that jurisdiction was not admitted nor shown (Id). 9. To sustain such an action it must also appear that the execution issued on the docketed certificate of the decree conformed, in substance, with the requirements of the statute (Id). 10. Whenever any real estate, subject to a mortgage executed by an ancestor or testator, shall descend to an heir, or pass to a devisee, such heir or devisee shall satisfy and discharge such mortgage out of his own property, without resorting to the executor or administrator, unless there be an express direction in the will of such testator that such mortgage be otherwise paid" (1 R. S. p. 749, § 4). The object of this statute was to change the rule of the common law under which the heir or devisee had the right to call upon the representative of the decedent to pay off the mortgage. This statute does not apply to an equitable lien growing out of a contract of purchase of real estate (Wright agt. Holbrook, 32 N. Y. R. 587). 11. Where there is a personal liability by contract to which the mortgage is a collateral security, this statute does not deprive the party of his right of action upon the contract (Id). 12. In case of unpaid purchase money of real estate, the heir or devisee has a right to have the same paid out of the personal estate of the decedent (Id). See STATUTE OF LIMITATIONS, 1, 2, 3. See APPEAL, 11. See WILL, 10. FACTORS. 1. Goods consigned to factors for sale, and by them stored in the custody of a warehouse keeper who is employed by them, and is ignorant as to the ownership of the goods, are still in the possession of the factors within the meaning of section 3 of the factors' act (Pegram agt. Carson et al. 10 Bosw. 505). 2. The word "possession" in that act means such control of or dominion over merchandise, as to enable a fac tor rightfully to take possession of it without the aid of any new authority or document furnished by the owners, in contradistinction to a right derived from documentary evidence furnished by the owners, or obtained by factors, by means of their right of possession of the goods (Id). 3. Hence, where factors to whom merchandise is consigned by the owner, for sale, with bills of lading making it deliverable to them, receive the merchandise and store it according to the usage of business, with a storekeeper employed by themselves, taking his receipts in their own name, both the virtual control of the merchandise in question, by the factors, and the documentary evidence of such control, title or right of possession held by them with the owners' assent, are such as to enable them to make a valid pledge of such merchandise (Id). 4. The defendants consigned and shipped to the plaintiffs a cargo of corn, to be sold on commission, at the same time drawing upon the plaintiffs, on account of the shipment, a draft at fifteen days, for $3,300, which the plaintiffs accepted and paid. The corn being subsequently sold, by the plaintiffs, under the directions of the defendant, and the proceeds credited to the account of the acceptance, there remained a balance of $556.29 due to the plaintiffs which the defendant promised to pay. Held, that the plaintiffs as factors, having advanced money on account of the goods, had a right to sell the same for their reimbursement, without any special instructions from their principal; and that for the amount of the deficiency, an action would lie, without any averment of a certain balance due, of an express promise to pay the same, and of a breach of such promise (Blackman agt. Thomas, 28 N. Y. R. 67). FIRE DEPARTMENT. 1. The act of March 30, 1865, entitled "An act to create a metropolitan fire district, and to establish a fire department therein," is constitutional Digest. and valid. The officers created by said act are new and public; and the legislature, under the constitution, is left free to provide for the election or appointment of the officers therein named (The People agt. Pinckney, et al, 32 N. Y. R. 377). 2. The foremen, engineers, and other officers of the fire department of New York were not, in 1816, officers in the sense of the constitution (art. 10, sec. 2). Therefore the legislature could, in their discretion, direct the mode of their appointment (Id). 3. The firemen in cities and villages, and their various grades of officials, are not to be regarded as civil and public officers, within such provision of the constitution (Id). 4. The legislature may, at its discretion, recall to itself and exercise so! much of the powers it has conferred upon municipal corporations as are not secured to such corporation by the constitution. The corporation of a city is not an officer within the meaning of such article (art. 10, sec. 2) (Id). FRAUDULENT REPRESENTA TIONS. an action to recover money obtained from him by means of the fraudulent representations, he is not entitled to credit when he alleges that upon the reiteration of the truth of the same statements, by the same party, he was induced to enter into an agreement to settle the suit, and was thereby defrauded (Id). 4. In an action to recover the possession of property, on the ground that it was obtained from the plaintiff, by the defendant's vendor, by a purchase thereof on credit, upon false and fraudulent representations, and with the design to dispose of it for cash and then abscond, leaving the purchase price unpaid, evidence tending to show other purchases of property made by the defendant's vendor from other parties, under similar circumstances, and that he left the price unpaid when he ran away, is competent (Hathorne agt. Hodges, 28 N. Y. R. 486). 5. Where property is obtained from the owner by means of a fraudulent purchase thereof on credit, the purchaser giving his notes for the purchase money, payable at a future day; and before the maturity of the notes the purchaser absconds, after having transferred the property to a third person, the original vendor is not bound to proceed in disaffirmance of the contract, by seizing or replevying the goods immediately after the purchaser has absconded; but is justified in waiting until the maturity of the notes; and such delay will not be deemed a ratification of the sale (Id). 6. Where a purchaser has absconded, leaving the purchase money unpaid, the vendor is not bound to offer to return to him the notes given for the purchase money, before bringing an action to disaffirm the sale. It is sufficient if he produce the notes on the trial (Id). 1. A deceit practised by one of several See ARREST, 3, 4. See FRAUDULENT TRANSFER, 3. FRAUDULENT TRANSfer. If one undertakes to sell land, knowing that he has no authority to convey, the question of good faith cannot arise, and he cannot claim, and is not entitled to any protection upon that ground. If, under such circumstances, he assumes to sell |