Reported in Full. 42 Hun, 557... .104 N. Y., 325. 13 Daly, 558. 13 Daly, 139...... 21 J. & S., 79. 41 Hun, 579 21 J. & S., 178. 41 Hun, 410.. 42 Hun, 374 .103 N. Y., 40. 41 Hun, 284.
21 J. & S., 436.
.102 N. Y., 410.
41 Hun, 545
21 J. & S., 91..
40 Hun., 184.
.103 N. Y., 329.
21 J. & S., 186.
43 Hun, 328..
41 Hun, 398
42 Hun, 77..
21 J. & S., 381.
42 Hun, 502.
21 J. & S., 237.
.103 N. Y., 630.
13 Daly, 564.
Yates Co. Nat. Bk. v. Blake..
Zeisler v. Steinmann et al..
3. In an action on an account and admission
of its correctness defendants testified
that each was induced to sign by the
false representation that the other had
looked over the account and agreed to
sign, and that they had not examined
Held, That the question
the account.
whether an account had been stated
should have been left to the jury, and
that a direction of a verdict for plaintiff
was error.-Id.
See EXECUTORS: SURROGATES, 2.
1. Where a parent makes an advancement
to a child and expressly charges it to her
portion of his estate, and afterwards
makes a will disposing of his entire es-
tate to and among his widow and chil-
dren, without mentioning said advance-
ment, it will be presumed that he took it
into consideration in determining the
amount of his bequests, and in such case
the amount of such advancement will
not be deducted from or charged to the
portion of such child.-Arnold v. Har-
oun, 22.
ADVERSE POSSESSION.
1. It is only needful that the party seeking
to make out an adverse possession for
twenty years should show that it was
under claim of title; it need not be under
a specific title.-Healy v. Steves, 463.
2. A practical location of land may be
made out by evidence which shows an
original consent, with acts and conduct
based thereon which imply an acquies-
cence and approbation of a practical lo-
cation of a boundary line.-Vauth v.
Landis, 502.
3. Evidence sufficient to authorize the sub-
mission of the question of adverse pos-
session.-Id.
See ATTACHMENT, 2, 3; OFFICERS; SERVICE.
1. An action to secure the rescission of a
contract of purchase and sale and for a
return of the consideration paid for the
article purchased, upon the ground that
the purchase was invalid by the fraudu-
lent representations of the defendant,
cannot be maintained against persons
who appear to have acted simply as
agents in effecting such sale without
proof that the proceeds of the sale still
remain in their possession. The princi-
pal is a necessary party to such an action
and a complaint which does not join him
as a party will be held bad upon demurrer.
-Cohen v. Ellis et al., 43.
2. The husband negotiated the purchase of
land for his wife and procured the deed
to be made to her, and, as a part of the
consideration for the conveyance, he as-
sumed and agreed to pay an outstanding
mortgage, which the mortgagee subse-
quently assigned (in equity) to plaintiff,
but no assignment was put upon record.
Afterward the husband, with knowledge
of plaintiff's rights, fraudulently induced
the mortgagee to satisfy the mortgage of
record, without plaintiff's knowledge,
and then procured his wife to convey the
premises to bona fide purchasers, receiv-
ing to himself the purchase money. Held,
That although the wife acted innocently
in making the conveyance, still as she ac-
quired the title upon the faith of her hus-
band's promise to pay the mortgage as a
part of the consideration, and therefore
reaped the fruits of his agreement, she
must be held to have ratified and adopted
the promise made for her benefit, and
thereby rendered herself bound to ful-
fill it.-Rush v. Dilks, 115.
3. When a contract not under seal is made
with an agent in his own name for an
undisclosed principal, whether he de-
scribes himself to be an agent or not,
either the agent or principal may sue
upon it, and a recovery by the agent and
payment of the judgment is a protection
against any claim of the principal.-Lud-
wig v. Gillespie, 177.
4. Where goods are purchased of one who
is presumed to be the owner, but is in
fact an agent, and before delivery the
principal is disclosed, the vendees may
refuse to carry out the contract or may
accept the goods with the consequence
that the price should become due to the
real owner, and in the latter event they
cannot, in an action by the principal, set
off a debt due them by the agent.-Mc-
Lachlin et al. v. Brett et al., 266.
5. The statute of limitations begins to run
against moneys collected in installments
by an agent or attorney against each in-
stallment from the date of the receipt of
the same by the agent.-Douglass v. Mur-
ray, 339,
6. Where payments are made from time to
time by the agent on account of such
collections, not designated to be applied
on any particular items, such payments
are applicable and must be applied to the
payment and extinguishment of the items
first received in the order in which they
came into the hands of such agent.-Id.
7. The fact that the principal executed a
satisfaction of a mortgage in the hands
of an attorney for collection raises no
presumption of a settlement between the
attorney and his principal or of the re-
ceipt from such attorney of the moneys
collected by him.--Id.
See BANKS, 9, 10; BROKERS; SALE, 5, 6.
See CONTEMPT, 5; DIVORCE, 7, 8.
1. There are no officers having the powers,
within the city of Rochester, such as are
vested in fence-viewers of towns, to
assess damages done by cattle; and one
distraining cattle damage-feasant within
the city is a wrongdoer.-Armbruster v.
Wilson, 165.
2. The required scienter does not necessa-
rily depend upon knowledge of the owner
of an animal liable to be vicious that it
has actually made an attack on a person;
it is sufficient that he is advised that it is
ferocious and ugly, and that there is
reasonable ground to apprehend that it
will do injury if permitted.-Rogers v.
Rogers, 236.
3. The owner of a vicious animal which
escapes upon the premises of an adjoin-
ing owner through the defective line
fence of the latter is liable for the inju-
ries inflicted upon him while attempting
to restrain the progress of the animal
upon his premises with a motive to save
his children from injury should the ani-
mal remain at large.-Id.
4. It is not contributory negligence, in the
ordinary sense of the word, for a person
to attempt to restrain a vicious animal
under the circumstances of this case.-Id.
1. A druggist undertakes that he possesses
the ordinary knowledge and skill of
druggists or apothecaries, and that he
will exercise due and proper care and
skill in putting up the medicine required.
The degree of care required being pro-
portioned to the gravity of the injury
that would naturally result from a want
of care the failure to exercise such due
and proper care is the ground of an ac-
tion of negligence.-Beckwith v. Oatman,
189.
2. The court instructed the jury that if the
medicine was not properly compounded
in accordance with the prescription, but
was made differently, and to such an ex-
tent and in such a degree as to render it
injurious to be taken, and plaintiff suf-
fered in consequence of it, she was en-
titled to recover. And refused to charge
that if the clerk used proper care in put-
ting up the prescription, even though he
made a mistake in doing so, defendant
was not liable. Held, Error. That the
question as to the want of skill or negli-
gence of the clerk was substantially taken
from the jury, and they were in effect
instructed that it was immaterial, if a
mistake was made, whether it occurred
from his want of skill or negligence.
Under the proofs defendant was entitled
to have that question submitted to the
jury.-Id.
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