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GUARANTY - Contract o,.

GUARDIAN -- Ad litem.


HIGHWAY - Negligence — duty of a person, driving upon a highway, to one
attempting to pass him — when he is liable even though no collision takes place.

HUSBAND AND WIFE — Conveyance of land by the husband to a trustee to
apply the income to the support of the wife during her life and convey the land to
the husband's heirs at law should he predecease her — it creates an irrevocable
power in trust-effect of a reconciliation between the husband and wife — pos-
session of the premises by one holding under a lease from the widow does not avoid
a deed from the trustee to the heirs.] 1. A husband and wife having sepa-
rated, an indenture under seal was entered into between the husband, the
wife and a third person, which recited that, for the purpose of providing for
the support and maintenance of the wife, the husband conveyed to the third
person a certain lot of land, in trust, to collect the rents and after defraying
the necessary expenses to pay over the balance to the wife during her natural
life, and upon her death to convey the premises to the husband, if he should
be living, or, if he should die before his wife, then to convey the same to his
heirs at law. The husband died before the wife, and the trustee, after the
wife's death, conveyed the premises to the husband's heirs at law.

In an action brought by the latter to recover possession of the premises it


Held, that the instrument executed by the husband and wife was a pres-
ent conveyance which not only vested rights in the wife, but also in the heirs
of the grantor in case the husband should predecease the wife;

That the fact that, after the execution of the instrument, the husband and
wife became reconciled and lived together until the death of the husband,
had no effect upon the rights of his heirs, even assuming that, from the time
of the reconciliation, the husband could either have obtained the income of
the trust estate or insisted on its application to the wife's support in such a
manner as to relieve him pro tanto from that charge;

That he had at least granted a valid power in trust to be exercised in
favor of his heirs in case he should not survive his wife, and no right to
revoke such power in trust having been reserved in the trust deed, it was

That the deed from the trustee to the heirs at law of the husband was not
void because the premises were in the possession of one claiming under a
lease for a term of years executed by the widow, as such possession could
not be deemed adverse to the title of the heirs at law, and for the further
reason that the possession of the widow could not be adverse as against her





Semble, that the rights of the wife under the trust deed were not abrogated
by her subsequent cohabitation with her husband. SMITH v. TERRY.... . . . .
Marriage settlement —construed not to cover property acquired by the
wife after the husband's death.] A marriage was contracted at a time when it
was effective to pass to the husband the absolute title to the personal estate
of the wife, in view of which condition of the law a marriage settlement
was made to the end, as stated in it, that all the private fortune of the
intended wife should be limited and appointed to the trustees for her benefit
in the manner prescribed in the settlement, which conveyed all the property
of the wife derived, or to be derived, under a certain will, or which she
may at any time or times hereafter derive, either by bequest, devise, descent,
distribution, gift or otherwise howsoever," upon certain trusts. The instru-
ment contained no directions to the trustees concerning the disposition of the
income or the use of any property which should vest in them under it after
the marriage should come to an end by the death of the husband, if that situa-
tion arose, except that it made provision for the issue of any subsequent mar-
riage, from which it might fairly be inferred that it was not the intention of


the parties to the instrument that the estate of the trustees should cease if the
wife should become a widow, but should continue in view of the possibility
of her contracting a subsequent marriage.

Held, that the marriage settlement accomplished its object when given a
construction by which it was restricted to such estate as the wife should
acquire during her coverture, and did not require a construction which would
include within the conveyance property acquired by the wife after her hus-
band's death.


The general rule is that, in the construction of such an instrument, words
of conveyance of after-acquired property of the wife must, in the absence of
words showing a contrary intention, be read as though the words during
the coverture had been inserted in the instrument. BORLAND . WELCH.. 284




Husband and wife living apart - the husband is liable only on proof
that articles sold to the wife were necessaries.] Where a husband and wife are
living separate and apart from each other, the presumption that the wife is
the agent of the husband, authorized to charge him with purchases made by
her, ceases.

In an action brought to recover for goods sold to a wife under such cir-
cumstances, the complaint should allege that the goods so furnished were neces-
saries and that the husband did not supply them or furnish his wife with
money with which to purchase them. HATCH. LEONARD.....

... 128

Marriage fraudulently contrived to obtain the property of an incompetent
—a complaint based on such fraud does not state more than one cause of action,
because of the fact that three instruments are sought to be set aside.


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Conversion - what possession is sufficient to sustain an action for, by a
husband against his wife.


IMPEACHMENT - Of witnesses.


INDICTMENT - A witness may not be discredited merely by showing that he
has been indicted.


INDORSEMENT - Of negotiable paper.


INFANT - Power to appoint a guardian ad litem-practice in a special pro-
ceeding. 1. Where an infant beneficiary of a trust, over the age of fourteen
years, and a resident of the State of New Jersey, is served, in the State of
New York, with an order made in a special proceeding instituted by the
trustee, in the Supreme Court of the last-mentioned State, to obtain a dis-
charge from his trust, requiring her to show cause why a guardian_ad litem
should not be appointed to represent her in such proceeding, the Supreme
Court of the State of New York has, upon the failure of the infant to apply
for the appointment of a guardian ad litem prior to the return day men-
tioned in the order, power to appoint such a guardian.

Semble, that the practice to be followed in the appointment of such guar-
dian, is analogous to that prescribed in section 473 of the Code of Civil Pro-
cedure relative to the appointment of a guardian ad litem for a non-resident
infant defendant in an action. MATTER OF CUTTING. (No. 1).........


An appointment of a guardian nominated by the adverse party will
be vacated.] Where the Supreme Court of the State of New York appoints
a guardian ad litem nominated by the adverse party in express violation of
rule 49 of the General Rules of Practice, the order appointing the guardian
ad litem so nominated should be vacated. Id.


The appointment of a guardian ad litem on the nomination of the
adverse party proceedings in which such guardian appears will be vacated.]
An order permitting a trustee to resign his trust and appointing a referee to
state his accounts, should be reversed where it appears that the guardian




INFANT - Continued.

ad litem representing the beneficiary of the trust, who was a non-resident
infant, over the age of fourteen years, was nominated by the adverse party,
and that his appointment was, therefore, irregular under rule 49 of the
General Rules of Practice. MATTER OF CUTTING. (No. 2)


See TAX.


4. Action by one of several heirs at law of deceased grantors to set aside
a deed executed by them to their father during minority- — non-joinder of the
other heirs at law- — a delay to disaffirm for fourteen months, and until death, is
not a ratification of the deed.] An heir at law of an infant who has executed
a deed during his minority may maintain an action for the purpose of dis-
affirming such deed.

Two minors who had inherited certain real estate from their mother sub-
ject to the life estate of their father, executed to the latter a quitclaim deed
of the property when they had respectively attained the ages of fourteen
years and four months, and twenty years and eight months. The father
immediately conveyed the property to a third party, who reconveyed it to
the father and his second wife. The elder son died when he was twenty-two
years and two months old and the younger son died before reaching his


In an action brought by one of three heirs at law of the infants, to dis-
affirm the deed executed by them, against the second wife of the father who
claimed the premises as the surviving tenant by the entirety,

Held, that the plaintiff was entitled to maintain the action;

That, conceding that the other heirs of the deceased children were necessary
parties to the determination of the controversy, under the provisions of sec-
tion 452 of the Code of Civil Procedure, their absence did not prejudice the
defendant, as the rights of all parties who were not joined in the action were
fully preserved by the judgment;

That the neglect of the elder infant to disaffirm the deed for a period of
fourteen months after attaining his majority, was not, in the absence of evi-
dence of any intention to ratify it, such unreasonable delay as to warrant the
conclusion that it had been so ratified. O'ROURKE v. HALL..



INJUNCTION Not granted where the relief sought is contingent upon the
happening of a future event.] A temporary injunction, restraining a sheriff
from paying over the proceeds of the sale of property on executions under
certain judgments, should not be granted in an action brought by a junior
judgment creditor of the same judgment debtors to set aside the judgments
under which the sale took place on the ground that they are fraudulent,
where the real purpose of the action is to tie up the property levied upon
under the executions issued upon such judgments, which are claimed to have
been confessed in violation of the Bankruptcy Law, until at some future
time the plaintiff may institute proceedings in bankruptcy and have the prop-
erty thus tied up transferred to a trustee, to be appointed in such proceedings,
in order to secure its ratable distribution among the creditors of the bankrupt.

A temporary injunction will not be granted where the plaintiff is not enti-
tled in that action to the final relief sought, and where such relief is not
claimed to be absolute but only contingent upon the happening of a future
event and upon the termination of proceedings which may thereafter be
brought in another court. VIETOR V. LEWIS..


Contract authorizing the printing from the vendor's plates of books to be
sold at a specified price — sale of plates to another party by a receiver of the
vendor - the purchaser restrained from selling a better edition at a less price –
contract in restraint of trade — monopoly.


Partnership — an injunction to restrain the use of the firm name and
trade marks by a surviving partner.





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INSANE Marriage fraudulently contrived to obtain the property of an incom-
petent - a complaint based on such fraud does not state more than one cause of
action because of the fact that three instruments are sought to be set aside.



INSPECTION - Of books and papers.


INSURANCE - Life insurance · -on a son's life for the benefit of his mother —
to whom payable where the mother dies before the son.] A policy of insurance
on the life of a son, issued on an application signed by him on behalf of his
mother, which is, by its terms, payable to the mother and her executors,
administrators and assigns, and recites that she has an interest in the son's
life to the full amount of the sum named therein, belongs, in case of the death
of the mother before the son, to the mother's estate, and her administrators
have no authority to assign it, except for a valuable and sufficient

ISSUE-Trial of.


Such a policy cannot be construed as indicating an intention on the part of
the son that it should be paid to the mother if she survived him, and, if
not, to such beneficiary as the son might designate.


JOINDER— Of causes of action.


Of parties.


JAMAICA - Contract for lighting the town of Jamaica—it is void where it is
to be executed only after the consolidation of the town in the Greater New York —
notice of the filing of a petition.


JOINT TENANCY - In real property.

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JUDGMENT- Action on a judgment rendered in another State-proof as
to identity of name.] 1. In an action upon the judgment of a sister State,
the fact that the judgment sued upon is against C. A. Coutant, while
the defendant in the action is Charles A. Coutant, is immaterial, espe-
cially where the verification of the defendant's answer states, Charles A.
Coutant, being duly sworn, says," and is signed "C. A. Coutant;" in such
an action evidence tending to identify the defendant as the C. Á. Coutant
against whom the foreign judgment was rendered, is competent.



3. Effect of a general denial.] Under a general denial, the defendant
is not entitled to offer evidence tending to disprove an allegation of the com-
plaint to the effect that the judgment sued upon was obtained upon per-
sonal service of process, where it appears that the allegation of the complaint
is in conformity with the recitals of the judgment. Id.






Want of jurisdiction must be pleaded.] Want of jurisdiction in
the foreign court to render the judgment sued upon is an affirmative
defense which must be pleaded, and is not available to the defendant
under a general denial. Id.


4. Confession of judgment — when it states concisely the facts out of
which the debt arose."] A confession of judgment for $4,200, which states:
"This confession of judgment is for a debt or liability justly due, and to
become due, to the said plaintiff from me, W. A. Mather, arising upon the
following facts, viz.: The defendant has, from time to time, borrowed of
the plaintiff money, and there is now due, and to become due, to this plain-

JUDGMENT — Continued.

tiff from the defendant aforesaid the sum of forty-two hundred dollars
($4,200), for cash borrowed and interest thereon, for which plaintiff holds two
promissory notes of this defendant, copies of which are hereunto set forth,
viz.," followed by copies of the two notes, sufficiently complies with section
1274 of the Code of Civil Procedure, requiring a confession of judgment to
state concisely the facts out of which the debt arose."



5. A misstatement as to the amount due constitutes perjury.] Semble,
that any misstatement as to the amount due would render the defendant
liable to an indictment for perjury. Id.


The facts are sufficiently stated if they would constitute a good com-
plaint. Semble, that a confession of judgment is sufficient, provided a
complaint alleging the facts stated in the confession would not be

demurrable. Id.

Pleadings — admission in an answer that one installment of the purchase
price of goods sold was due on the day the action was brought it does not enti-
tle the plaintiff to a judgment on the pleadings when the right of action



Judgment in an action in which a set-off is used merely to defeat a claim
it is not a bar to an action to recover the excess of the set-off over the claim of
the plaintiff in the first action.



under to be erroneous.



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Action to charge a surety upon the bond of an administratrix
judgment in an action at law based upon a substituted service upon the adminis-
tratrix will not sustain it.



That a will was erroneously construed in an action to which all persons
interested were parties, is not a ground of objection to the title.


Motion for judgment upon an order striking out an answer as frivolous
- when it may be made.

See LEE v. JACOB..


On an award.


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A judgment falls with the order on which it is based.
See RAFF . KOSTER, BIAL & Co....

power of, to decree a previous order and a payment there-


JUDICIAL SALE Purchaser at a judicial sale—when the title to a lot
bounded on a street, which by legislative act is moved ten feet after its conveyance
by the original owner, is not marketable· -effect of the owner's having made con-
veyances of other lots referring to the street.] 1. After the execution of a deed,
which described the premises conveyed by a reference to a certain map and
the numbers thereon as bounded westerly by a certain avenue, and which
provided said avenues to be and to remain open as public highways, reserv-
ing, nevertheless, to the said Gilbert S. Thatford (the grantor) the right
to enter upon, regulate and grade said avenue or any part thereof," the
avenue was, in pursuance of an act of the Legislature, moved bodily ten feet
westerly, so that a strip ten feet in width was added to the front of the
premises and an equal portion taken from the rear, and a new map was filed
showing such change. By subsequent conveyances, each of which described
the premises with reference to the first map, and one of which contained the
clause, said avenue to be open and to remain open as a public highway,"
the title to the premises was vested in one Ellis, who executed deeds convey-
ing the premises to one Joseph Morris by a description evidently referring
to the second map. Subsequently Morris conveyed the premises under the
same description to Fanny Morris and the latter executed a mortgage









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