the defendants had duly accepted
the work, without the additional
allegations that such work was a
full compliance, and was received
by the defendants as a full perform-
ance, did not remedy the omission
of the complaint to show that such
certificate had been given. ib.

7. The plaintiff received a sewing
machine from the defendants un-
der a written contract, by the
terms of which she certified that
she "hired it to use," and agreed
to pay them a specified sum in ad-
vance, as security for its safe keep-
ing, and to make monthly pay-
inents of an amount fixed, for
twelve months thereafter, for the
use of the machine, and upon de-
fault in any of the payments, to
forfeit the machine and the secur-
ity money. The contract also stip-
ulated that she could at any time
purchase the machine upon the
payment of a sum, which added to
the security money, and the month-
ly instalments, should amount to a
certain price. The security money
was paid, as well as six monthly
instalments, when a default was
made, and the machine taken by
the defendants, whereupon she
sued to recover back the amount
of her several payments. Held,
that she could not recover the
amount of the instalments, nor
(DALY, Ch. J., dissenting) the
amount of the original deposit.
Haviland v. Johnson,

297

8. Where a retiring partner, on be-
ing paid for the good-will of the
business, agrees with the remain-
ing partner not to engage in busi-
ness in opposition to him so near as
to take away his customers and in-
jure his trade, the agreement only
provides for a fair protection to the
continuing partner, and is not void
as against public policy. Deth-
lefs v. Tamsen,
354

9. Where such is the intent and
meaning of an agreement of disso-
lution and sale of good-will, evi-
dence showing that a new store of
the retiring partner, opened by
him in the same trade within two
doors of the old stand, resembled
the latter in outward appearance,
is material in determining whether
there has been a breach of that

agreement, and the amount of
damage occasioned thereby.
ib.

10. And in such an action the con-
tinuing partner, a party to the ac-
tion, may testify in what amounts
his monthly receipts fell off after
the opening of the opposition store.
ib.

11. Evidence of falling off in the re-
ceipts of the injured party, without
specific proof of individual in-
stances of loss of custom, is suffi-
cient to warrant a jury in award-
ing damages.
ib.

CONTRIBUTORY NEGLIGENCE.

See NEGLIGENCE.

CONVERSION.

1. Where the plaintiff had sold a
sewing machine to the defendant's
wife, to be paid for by certain in-
stalments, and to be returned to
the plaintiff in case such payments
were not made, in an action against
the defendant for the wrongful de-
tention of the machine after a fail-
ure to pay certain of the instalments,
proof of non-payment and of a for-
mal demand for the machine on the
defendant's wife (who did not re-
fuse to deliver it), and that there-
after, in a conversation between
the plaintiff's agent, who had made
the demand on the defendant's
wife and the defendant, about pay-
ing what was due on the machine,
the defendant had said that he
would not pay him, but would go
to the office and pay: Held, no
evidence of a wrongful detention
or wrongful conversion of the
machine by the defendant. Howe
Sewing Machine Co. v. Haupt, 108

1. Where the plaintiff covenanted
that she was seized in fee simple
in her own right of certain land,
and would convey the same to the
defendant, free and clear of all in-
cumbrances, and by a deed with
full covenants, and the defendant
by the same instrument covenanted
to purchase the land at a fixed
price, and to erect certain build-
ings thereon: Held, that these
covenants were mutual and de-
pendent, and that the plaintiff
having deeded the land to a third
person, this was such a breach of
the covenants on her part as justi-
fied the defendant in refusing to
perform those on his part. James
v. Burchell,
531

of the whereabouts of her first
husband, and had not heard of or
from him for some nine years prior
to her marriage with the plaintiff,
yet the court held that the fact of
her having obtained the divorce
showed that she could not have be-
lieved her former husband to be
dead,-which prevented her from
taking advantage of the statute (2
R. S. 139 § 6) providing that "if
any person whose husband or wife
shall have absented himself or her-
self for the space of five successive
years, without being known to
such person to be living during
that time, shall marry during the
life of such absent husband or
wife, the marriage shall be void
only from the time that its nullity
shall be pronounced by a court of
competent jurisdiction."
ib.

DOMICILE.

See RESIDENCE.

E

ELEEMOSYNARY CORPORA-

TIONS.

1. The New York Juvenile Guardian
Society, organized under the Gen-
eral Act of April 12th, 1848, for
the incorporation of benevolent,
charitable and missionary societies
-the objects of its incorporation
being to provide instruction, homes,
clothing, temporary board, and
free Christian schools (not denom-
inational) in destitute districts in
the city of New York for neglected
children,-is subject to the visita-
tion and examination of the Board
of State Commissioners of Public
Charities, in accordance with the
powers and duties conferred on
them by L. 1873, c. 571, § 4, in re-
gard to any charitable, eleemosy-
nary, correctional or reformatory
institutions of this State (except-
ing prisons), whether receiving
State aid or maintained by muni-
cipalities or otherwise. New York
Juvenile Guardian Society v.
Roosevelt,

188

2. The examinations and inspections
made by the Board of State Com-

missioners of Public Charities are
not in the nature of an action or
proceeding against the institutions
xamined, and the commissioners
are not obliged to conduct them
according to the forms of a civil
or criminal action or proceeding;
the examination may be secret and
not based on any specific charges,
nor confined to any particular
points, and the institution exam-
ined is not entitled to notice of the
course the examination is to take,
or to have notice of what is done,
or to be present by its officers or
counsel at the taking of testimony,
or to cross-examine the witness
produced or to introduce wit-
ib.

nesses.

EQUITABLE LIEN.

1. Where the plaintiffs had been in-
duced to execute a bond of in-
demnity to secure from loss the
sureties in a bond given to release
an attachment on a stock of goods
belonging to a business firm upon
the promise that the goods so re-
leased should be held for the
plaintiff's indemnity and security
against loss: Held, that the plain-
tiffs had an equitable lien on such
stock of goods for the amount
they had been legally compelled to
pay by reason of the bond of in-
demnity. Arnold v. Morris, 498

3. Held, further, that although an
agreement that the firm might
make sales from such stock of
goods and purchase others to re-
place those sold, and that those so
purchased might in their turn be
sold and their place supplied by
others, the plaintiffs' lien to open
and shut, to set out and take in
such goods, would make the agree-
ment void as against creditors, or
the assignee as their representa-
tive, yet that such an agreement
was not established by evidence
that the firm had promised to keep
the stock of goods "replenished
up to its then value, and that the
agreement must be construed ac-
cording to the positive promise of

66

8. Where the evidence showed that
when the order was last seen it
was in the hands of a judge of
the court from which it issued,
that the judge had since died,
that the plaintiff's attorney had
searched, as he testified, with
great care "the files and indices of
the clerk's office and had not
found the order, that it should be
there, and that he did not know
where it was: Held, that the loss
or destruction of the order had not
been sufficiently shown.
ib.

-when judgment in Equity case
will not be reversed for admis-
sion of irrelevant evidence.
See APPEAL, 1.

-when question whether verdict

was rendered against the
weight of or on insufficient
evidence will not be considered
on appeal.

See APPEAL, 2.

EXAMINATION OF ADVERSE
PARTY BEFORE TRIAL.

1. The right of a party under § 391
of the (old) Code of Procedure to
examine his adversary before trial,
is not absolute, and such an ex-
amination will not be allowed in a
case where, by the established rule
before the Code, a bill for a discov-
ery would not have been sustained
in equity. Phoenix v. Dupuy, 238

2. The rule in equity was, that a
party could not be compelled to
discover any matter which might
subject him to a penalty, a forfeit-
ure, or a criminal prosecution, and
accordingly held that a defendant
could not, under § 391 of the (old)
Code of Procedure, be examined
as to whether he had published an
alleged libel against the plaintiff. ib.

3. The practice in equity as to bills
of discovery and the various con-
structions placed upon § 391 of the
Code reviewed. Per CHARLES P.
DALY, Chief Justice.
ib.

4. The decisions upon the construc-
tion of §§ 390, 391 of the old Code
of Procedure, as to what must be
shown to sustain an order for the
examination of an adverse party
before trial, are not applicable to
the construction of the provisions
of $ 870 et seq. of the new Code of
Procedure. Hynes v. McDermott,
513

5. Under the new Code of Procedure,
a party applying for the examina-
tion of an adverse party before
trial need not show such facts as
would have sustained a bill for a
discovery in equity, and the rules
applicable to bills of discovery do
not apply to such applications. ib.

6. Where the applicant presents an
affidavit setting forth the facts
prescribed by § 872 of the new
Code of Procedure, he is entitled

1. A party to certain suits in this
court having applied for a substi-
tution of attorneys, an order of
reference was made to take testi-
mony and report the same with his
opinion as to whether such sub-
stitution should be ordered, and
if so upon what terms. A large
amount of testimony was taken be-
fore the referee as to the amount,
nature and value of the services of
the attorneys sought to be re-
moved, and the referee made his
report advising that the substitu-
tion should be ordered upon cer-
tain payments being made and
security given by the party apply-
ing therefor. After this report
had been filed the applicant prayed
leave to withdraw his application
for a substitution and to have the
report vacated upon such terms as
to payment of costs as should be
just. Held, that under the circum-
stances, the application should be
denied; that the applicant having
invoked the jurisdiction of the
court over the dispute between
himself and his attorney and lit-
igated on the reference the amount
due from him to his attorneys, he
should not be allowed to escape
the effect of the court's decision
on that point; that the report
should be confirmed so far as it
was found correct, in order that
the attorneys might have the ben-
efit of such force as it might have
as evidence in any suit between
themselves and the applicant to
recover for the services rendered
by them in the suits in which they