Exceptions. 7. 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 by such comparison. A witness cannot, however, take the place and usurp the functions of the jury. (Ellis agt. People, ante, 356.) 8. When the facts may or may not constitute larceny, depending upon the intent of the prisoner, this felonious intent is a question which can only be found by the jury. (Id.) See CHATTEL MORTGAGE, 1. See CRIMINAL LAW, 5. 6. See EXECUTORS AND ADMINISTRATORS, 1. See WITNESS. See ELECTION, 1. 2. See NEW TRIAL, 3. See BILLS OF EXCHANGE AND PROMISSORY NOTES, 7. See PRINCIPAL AND AGENT, 2. 3. 4. 5. 6. See CASE, 2. EXCEPTIONS. 1. To raise a question of law, an exception must be taken and set forth in the case. That the judgment, which should have been in the alternative for the return of personal property or for its value, is for the value absolutely, and does not conform to the report of the referee, is an irregularity, to be corrected by the court of original jurisdiction, but not reviewable on appeal. (Ingersoll agt. Bostwick, 22 N. Y. R., 425.) 2. Counsel, when stating an objection to a question, (as he may be required to do,) should state one which is well founded, otherwise his exception to the decision of the court in overruling his objection and admitting the evidence, will not avail him; although the court may take into consideration the influence of such evidence, when called upon to grant a new trial. (Harris agt. Panama R. R. Co., 5 Bosw., 312.) 3. Where a witness is allowed to answer a question without objection, an exception subsequently made, will be diregarded. (Cheesebrough agt. Taylor, 12 Abb., 227.) 4. An exception to the exclusion of an offer to prove a loss of Execution. damages by reason of the defendant's infringement of a trade mark, coupled with the condition that the witness (party plaintiff,) would not disclose the ingredients of the manufactured article containing the trade mark, cannot be sustained, where the court have previously decided that if the plaintiff claimed damages by reason of a loss of profits, he must if required, state the ingredients of his compound, although he was not compelled so to do. (Burnett agt. Phalon, ante, 100.) 5. The service of a copy of the case and exceptions is equivalent to a formal notice of appeal (following the case of Sherman agt. Wells, 14 How. Pr. R.) (Jackson agt. Fassitt, ante, 279.) 6. After a case or exceptions has been settled and filed with the clerk, it may be taken prima facie, in the further progress of the action, as evidence of the facts therein appearing. (Van Bergen agt. Ackles, ante, 314.) 7. An exception to a charge of the court should point to the very error complained of, that if committed inadvertently, it may be corrected. (Ellis agt. People, ante, 356.) See REFEREES AND REPORTS, 1. 3. 4. See NEW TRIAL, 1. 5. 6. See APPEAL, 7. 8. 20. EXECUTION. 1. The exemption from sale on execution of certain property of a householder, rests upon public policy, looking to the preservation of families against the improvidence or misfortune of their head, and the latter cannot by a prospective agreement waive such exemption. (Kneettle agt. Newcomb, 22 N. Y. R., 249.) 2. Independently of this particular policy, it is not, it seems, within the power of parties to give, by their contract, any other effect to judgments and executions than that which the law attributes. (Id.) 3. All the personal property of a judgment debtor is prima facie liable to levy and sale upon execution. If he would claim exemption for any of it, he must bring it within the exceptions of some statute, by proper proof. A wayon is not exempt, at law, as such, from levy and sale on execution. But Executors and Administrators. when customarily used in connection with a horse or horses and harness, it may constitute a part of a team, and will come within the meaning of the word "team" as used in the exemption statutes, and not liable to sale on execution, if the whole team is worth less than $250, which must be shown affirmatively by the judgment debtor. If there is no proof to show the value of the team as a whole, nor any part thereof except the wagon, the exemption cannot be allowed. (Daines agt. Prosser, 32 Barb., 290.) 4. Where an order of arrest has been granted, and remains in force after judgment, it is sufficient to support an execution against the person, unless the whole proceedings are void. (How agt. Frear, ante, 343.) See JUDGMENT, 3. 7. 8. EXECUTORS AND ADMINISTRATORS. 1. As against one who receives the property of an intestate under an agreement to take out letters of administration, and as against those who become his sureties upon the granting of such letters, it is to be presumed that the property remained in his hands until his appointment was perfected; and evidence of embarrassment and the conversion of other trust funds by the administrator at the time of his appointment, is inadmissible to repel such presumption. (People ex rel. Lent agt. Hascall, 22 N. Y. R., 188.) 2. The supreme court on reversing a surrogate's decree upon the settlement of the accounts of executors, may make a final determination of the controversy, and is not required to remit the case for a new hearing before the surrogate. (Schenck agt. Dart, 22 N. Y R., 420.) 3. Executors are not to be allowed commissions upon the transfer of corporate stock which was specifically bequeathed to legatees. (Id.) 4. A court of equity has jurisdiction over foreign executors, where they are sued on their own liability for the wrongful use or misapplication of the trust funds which have come to their hands. (Montalvan agt. Clover, 32 Barb., 190.) 5. Where the defendant was appointed administratrix in Cali Guaranty. fornia, of the estate of her deceased husband, who was a resident of that state, and there received and took possession of the property and effects of the intestate, with which she subsequently removed to this state, Held, that an action could be sustained against her here on a claim of indebtedness against the estate, which arose from assets received by the intestate in his lifetime as administrator, appointed in California, of the estate of an intestate who also resided there. (The briefs, with the authorities in this case, will be found to be important on this question.) (Gulick agt. Gulick, ante, 22.) 6. Where a practicing physician, a son of the testator, who acted also as the agent of his father for many years before his death, (for which he was allowed $500 per year,) and was acting executor of his father's estate, instituted a claim, on a final accounting as executor, for professional services for his father during four years previous to his death amounting to $3,300, Held, that it was very manifest from the whole case that the services were rendered and performed as acts of gratuitous kindness and affection, and that it was neither expected on the part of the father, nor intended on the part of the son, at the time of their rendition, that the latter was to be pecuniarily compensated; the charge was disallowed. (An instructive case as to the facility and ingenuity of raising claims against an estate, where an executor is pressed for a final accounting.) (Moore agt. Moore, ante, 211, court of appeals.) GUARANTY. 1. A promise to indemnify a guarantor against his guarantee of the debt of a third person, should be in writing, and express the consideration in order to be valid. (Baker agt. Dillman, ante, 444.) 2. In other words, a parol promise to indemnify the promisee for becoming bail for a third person, is within the statute of frauds. (Id.) Habeas Corpus. Indictment. Injunction. HABEAS CORPUS. 1. On habeas corpus this court cannot inquire into the merits of an order of commitment for contempt, but only whether the court had jurisdiction to make the order, and whether a contempt is specially and plainly charged in the commitment. (People ex rel. Hackley agt. Kelly, ante, 54.) 2. It is within the power and duty of state courts or judges to give a detained party enlisted under the laws of the United States the benefit of a habeas corpus; and upon proper evidence to discharge him from such enlistment. (Matter of Dobbs, ante, 68.) 3. A prisoner has a right on habeas corpus to show that the court or magistrate acting as a court, who tried and sentenced him, had no jurisdiction. (Matter of Divine, ante, 80.) 4. Not less than three justices can hold a court of special sessions in the city of New York. And where a commitment shows on its face that the prisoner was convicted and sentenced by a court of special sessions held by three justices, the prisoner may on habeas corpus show, by proof aliunde the return, that the court was in fact held by two justices only. (Id.) INDICTMENT. 1. Where the counts in an indictment for murder charge the killing, or the injuries which resulted in death, to have been perpetrated while the prisoner and his associates were engaged in the commission of arson, the prisoner cannot be convicted of manslaughter in the first degree. (Morrisett agt. People, ante, 203; reversed by court of appeals, Sept. term, 1861.) 2. An indictment under the act of March 23, 1860, prohibiting the sale of passenger tickets, except as therein mentioned, must state the port or place from which the ticket purports to entitle the person to a passage. (Enright agt. People, ante, 383.) See CRIMINAL LAW. INJUNCTION. 1. Where a party extends a party wall which ought by the covenants between them to have been extended by the other party, the court will not restrain him by injunction, although |