Digest. 4. In supplementary proceedings under | § 292 of the Code, the creditor may examine the judgment debtor, and any other person, fully in regard to the circumstances attending the transfer|| and disposition of his property, including questions of fraud therein." (Clapp agt. Lathrop, ante, 423.) 5. Thus, where the judgment creditor, after a full examination of the judgment debtor under § 292, examined two witnesses who were not parties to the action or the proceedings, who objected to answering any questions touching property belonging to them and in their possession, or the terms on which they had purchased the same of the judgment debtor, stating that they claimed said property as their own, and giving fully the reasons why they insisted they could not be examined in relation thereto. (Id.) 6. Held, that said witnesses were in contempt, and a fine of $21 was imposed on each of them, and they were ordered to attend and be examined before the referee, and to answer each and every of the questions which had been put to them, and all similar questions which might be put to them on said examination. (This decision, it will be seen, is adverse to several cases, especially the case of Town agt. The Safeguard Ins. Co., 4 Bosw., 683.) (Id.) 7. But no order can be made directing an application of property towards the satisfaction of a judgment in case any other person claims an interest therein. (Id.) 8. An application by a party for a stay of the cxamination and proceedings in supplementary proceedings, should be made to the referee, and not to the judge who made the order appointing the referee. (Mason agt. Lee, ante, 466.) 9. Ill health or extreme mental excitement is good ground for postponing the examination. And a judge or referee should never put a party in peril by compelling an examination under circumstances of danger to health or intellect. (Id.) See APPEAL, 1. See COSTS, 6. TENDER. See AGREEMENT, 10. 11. 12. TRIAL. See JUSTICE'S COURT, 6. TRUST DEED. 1. A trust deed of marriage settlement, executed by the wife in contemplation of marriage, will not be set aside in her favor, where there is no proof of fraud or undue influence in its procurement or execution, and no allegation impeaching the capacity or integrity of the trustees, or their management of the estate; but it is claimed by the wife that she did not understand the deed when read to her; that it was done suddenly and without reflection, when her thoughts were elsewhere; and alleges that her husband has a contingent life estate in the property, which will become absolute in case he survives her-(affectionate wife.) (Wetmore agt. Holsman, ante, 202.) 1. OPINION OF DAVIES, J., reviewing the antecedent English and American authorities, and discussing the law of trusts and powers in trust for religious and charitable uses. (Downing agt. Marshall, ante, 4; court of appeals.) 2. NOTE.-The importance of the questions considered in the following elaborate and masterly opinion, which was omitted in the report of the case when last before the court, (23 N. Y. R., 366,) and the fact that many of them remain open for ultimate decision, have induced the Reporter to comply with the request of various members of the profession, to publish it in a form which will make it acceptable to the bar of the state and the country. (ld.) See CORPORATIONS, 6. UNDERTAKING. 1. Where an undertaking is given by defendants to stay proceedings on appeal from a judgment and sale in a foreclosure suit, which is in substantial, though not in strict compliance with the Code, the plaintiff should move to set it aside. If he proceeds to sell the premises without doing so, or of giving notice of the defect, the sale Digest. will be set aside. (Parfitt agt. Warner, 13 Abb., 471.) 2. Parties who execute an undertaking are estopped from contradicting the recitals in it, to defeat it. In an action upon an instrument in the form of an undertaking required to be given on the discharge of an attachment, (Code, §§ 240-1,) reciting the commencement of an action, the issuing of the attachment, and the making of application for its discharge, the subscribers to the undertaking should not be allowed to show that the recitals were untrue. (Coleman agt. Bean, 14 Abb., 38.) 3. Evidence of fraud on the part of persons other than the plaintiff, without his privity, in procuring the execution of the instrument sued upon, is properly rejected. (Id.) See SECURITY FOR COSTS, 3. USURY. 1. Where the plaintiffs borrowed money on some bank stock from G., and gave him a certificate and power of attorney in blank, and G. passed the same certificate and power to the defendants as security for moneys borrowed by him, and G. not redeeming the stock, it was sold by the defendants without knowledge of the hypothecation to G., held, that the defendants were not chargeable with notice or even with sufficient knowledge to put them on inquiry from the mere fact that the certificate was in the name of the plaintiffs, and, excepting another question which was applicable to the case, the defendants would be considered bona fide purchasers without notice, and entitled to protection. (Felt agt. Heyc, ante, 359.) 2. But the fact having been found at the trial, that the loan of the defendants to G. was clearly usurious, held, that the defendants could not be considered as bona fide holders in the usual course of business. (Id.) 3. Where the indorsee of a promissory note, made for the accommodation of the maker, procures it to be discounted by a bank in which he keeps his account, for and at the urgent solicitation of the indorser, after stating to the indorser that he has no money of his own with which he can discount the note, and after paying over to the in dorser $2,200 of the proceeds of the $2,350 three months' note, retaining the sum of $150 for his commissions and trouble in procuring the discount and for indorsing the note, there is no usury affecting the note in the hands of the plaintif-the bank, who discounted it at a legal rate of interest. And as respects the transaction between the indorsec, indorser and maker, the former acted as the agent of the latter. (Chatham Bank agt. Betts, ante, 476.) 4. An agreement by the borrower to pay to the lender for the use of the money loaned the legal interest and in addition one-third of the profits of his business, is usurious and void. And a promissory note given by the borrowers in pursuance of such an agreement, being void, furnishes no consideration for a note given by a third person to the lender on the purchase of the original note. (Sweet agt. Spence, 35 Barb., 44.) 5. The original taint of usury attaches to all consecutive obligations and securities growing out of the original vicious transaction. Hence, any security given or substituted in payment or discharge of a security which is usurious, is equally void with the original. (Vickery agt. Dickson, 35 Barb., 96.) 6. An estoppel in pais may be urged against the defence of usury, as well as against other matters of defence which involve no idea of moral or legal turpitude in the party who invokes its protection; but the matter of estoppel must exist outside the face of the paper. It is available against the maker as well as the indorser of a note. (Ferguson agt. Hamilton, 35 Barb., 427.) 7. Where the maker of a note employs an agent to negotiate the sale thereof, to raise money to pay their joint debts, and the latter on selling the same assures the purchaser that the note is valid business paper in his hands, the maker will be estopped from setting up the defence of usury; being bound by the representations of the agent. In the absence of any limitation to his authority, it is within the powers of an agent employed to sell negotiable paper, to represent it as being business paper and valid. (Id.) See EVIDENCE, 5. WARRANT. Digest. 1. In an affidavit for a warrant by a justice of the peace, it is sufficient for the plaintiff in stating his cause of action for a tort, to allege that he believes he has a cause of action against the defendant, and then set out when It is not and how he claims it arose. necessary to swear positively as to the cause of action. (People agt. Hart, ante, 215.) 2. In a suit commenced by a warrant before a justice of the peace, the plaintiff, although he be a resident of the county, may have an adjournment on his own application; the defendant, however, is thereby discharged from custody; but the suit is not discontinued by such adjournment or discharge. (Id.) WARRANTY. 1. Where, in an action for falsely and fraudulently warranting the soundness of a horse on a sale thereof, and for a breach of warranty, the plaintiff on the trial elected to go for the fraud and deceit alleged, held, on the close of the trial, after the testimony was all in, that the plaintiff could not then change his ground and ask the judge to charge the jury that if they found from the evidence a breach of warranty only, without proof of the fraud, the plaintiff was entitled to recover. (Springstead agt. Lawson, ante, 302.) 2. Where the judge charged the jury that if they found the horse, at the time of the sale, had a mere cold controllable by ordinary remedies, it was not such an unsoundness as to constitute a breach of a general warranty of soundness, held, that the charge was correct. (Id.) 3. Where the plaintiff testified on direct 4. Whenever a warranty of a thing has breach of the warranty, must include WILL. 1. Construction of a clause in a will.— The testator, Isaac Myres, in the seventh clause of his will, made a bequest in these words: "Seventh. I give, devise and bequeath unto my son Thomas M. Myres, and the heirs of my son Melancthon W. Myres, and their heirs forever, all the rest and residue of my real and personal property of whatever name, to be equally divided between my son Thomas M. Myres and the heirs of my son Melancthon W. Myres:" (Myres agt. Myres, ante, 410.) 2. Held, that there being nothing in any other portions of the will suggesting any different understanding of this clause than must be given to it in a separate reading, it gives the property to Thomas M. Myres and the five children of Melancthon W. Myres in six equal parts; that is, the beneficiaries under this clause of the will take per capita and not per stirpes. (Id.) 3. Construction of apparently repugnant clauses in a will.-It is a rule without exception, and which is not subject to any criticism, that the testator's intention is to be observed, when it can be collected from the whole will, and that no part of the will is to be rejected, if it can stand consistently with the residue, and with the general intention disclosed by the whole instrument. (Heard agt. Case, ante, 546.) 4. The testator, by his will, gave to his widow the use, occupation and income of all his estate, both real and personal, during her natural life. He then gave to two grandsons each $2,000, to be paid to them when they arrived the at the age of twenty-one years, interest to be applied to their education and support, in such sums and at such times as their guardian might think proper, and the principal to be paid to them after they arrive at the age of twenty-one, or at the discretion of their guardian; with a provision, that in the event of their dying before they came of age, so that if either leave children, such children to take their father's share. (Id.) Digest. 5. Held, that it was manifest that the| testator intended by the legacies to his two grand children, to provide for their support and education during their minority; that the bequest of these vested legacies to the grand children, with express time of payment, and the direction to apply the interest in the meantime, must control the general gift of the life estate to the widow and constitute an exception to it; so that these legatees are entitled to the interest on their legacies during their minority, and to the principal when they become twenty-one, although the widow may still be living. (Id.) 6. The testator also gave to the widow of a deceased son $250, to which no time of payment was set, held, that this legacy was not payable until the determination of the life estate of the testator's widow. (ld.) WITNESS. 1. Under the decision of Seymour agt. Wilson, (4 Kern., 567, which overrules Sizer agt. Miller, 1 Hill, 227; and Hanford agt. Archer, 1 Hill, 347,) this court is bound to hold that a party when charged with an intent to deceive, or cheat or defraud, or with fraud and deceit, must be allowed to testify as a witness in his own behalf, that he did not intend to cheat, deceive or defraud, or to practice any fraud or deceit in the transaction, however inconclusive, inconsistent or unsatisfactory his testimony may be. (Pope agt. Hart, ante, 215.) 2. No notice of the examination of the assignor of a chose in action as a witness on the part of the assignee under § 399 of the Code, is necessary to be given where the other party to the chose in action is a party to the action. (Seymour agt. Bradfield, 35 Barb., 49.) 3. Although as a general rule, opinions of witnesses are to be excluded, except WRIT OF ERROR. 1. A writ of error in a criminal case, under the act of 1852, lies on behalf of the people, as well from the supreme court as from the court of appeals. And this, though the writ from the supreme court is brought to bring up a judgment of the oyer and terminer on demurrer to special pleas interposed to the trial of an indictment. (People agt. Hartung, ante, 314.) 1. WRIT OF PROHIBITION. The writ of prohibition does not issue to correct irregularities or errors in administering justice by inferior courts; but to prevent such courts from going beyond their jurisdiction in the exercise of judicial power in matters over which they have no cognizance. (People ex rel. Brownson agt. Marine Court, ante, 446.) 2. Consequently it will not issue for the purpose of requiring affidavits to be amended so as to justify the issuing of an attachment. (Id.) 3. Nor will it issue to remedy an alleged difficulty, that the debt for which the plaintiff was entitled to sue was larger than the jurisdiction of the court permitted, where the plaintiff remitted the excess. (Id.) ANSWER. APPEAL. an order to show cause for contempt is ...... ARREST. ..... Motion to vacate order of, cannot be .... 393 An order when discharged by consent 484 In an action on a judgment obtained ASSESSMENTS. ... 507 What is to be understood by the "le- ....... 118 It is necessary for the petitioner to ASSIGNMENT FOR BENEFIT OF When not illegal by containing a clause ASSIGNMENT OF CAUSE OF 69 Action should be continued in the name ........ |