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sequent eccentric and irrational actions, dizziness, etc., and that he was subject to great exc:tement on slight provocation. Defendant's counsel then offered to prove by the prisoner's wife that a short time before the day of the homicide she had told him that her father, the murdered man, bad stolen defendani's potatoes, and also that she had told defendant a week before the homicide that her father had criminally assaulted her, both before and after her marriage, both of which oflers were rejected by the court, Held, error; that it was admissible for the purpose of showing an adequate cause for the state of mind existing subsequent to the communication, and as corroborative, more or less strongly, of the mental condition which the other and separate evidence in the case tends to
prove. People v. Wood (Ct. App.), 952. 7. The subsequent conduct, appearance and conversation of the person to
whom the communication is made are the proper subjects of proof for the one purpose of showing what effect upon liim such communication had, and that it rendered him insane within the legal definition of the term at
the very time of the commission of the deed. Id. 8. An insane man frequently deliberates, and after the most mature delib
eration commiis acts which but for his insanity would be crimes. The question always is, not did the party deliberate, but was he at the time
insane within our legal detinition of that term. Id. 9. The court held that it was not the right of the defendant to take the
objection, but that it was the personal privilege of the wife, and she was put to her election whether she would answer or not. Held, error; that the Penal Code, $ 715, does not leave the matter entirely to the discretion of the witness, but that the other party interested may object to any contidential communication between a husband and wife, and that upon such objection being made, the witness not only cannot be compelled, but that
she has no right to make the disclosure. İd. 10. Evidence as to the conduct or appearance of the wife of the defendant subsequent to the killing is inadmissible. Id.
See CRIMINAL LAW, 6.
HUSBAND AND WIFE.
See HOMICIDE, 9.
INJUNCTION. 1. To warrant the granting of a preliminary injunction to restrain the vio
lation of a contract it should be made to appear that the plaintiff has no
adequate remedy at law. Carter v. Ferguson (Sup. Ct.), 1. 2. While an injunction may be granted to prevent actors from performing
for other parties when they have undertaken to play only for the plaintiff, the exercise of jurisdiction to grant the same should be limited to cases where the artistic abilities of the defendant are exceptional so that his place
cannot be readily supplied. Id. 3. In order to give a plaintiff a right to injunctive relief, it is necessary to
establish a substantial injury, and not merely a technical wrong calling for nominal damages, and this whether the injury be single or continuous, and whether it be the subject of only one or of successive actions. Purdy
V. Manhattan El. R. Co, et al. (N. Y. C. P.). 43. 4. To authorize an injunction on the ground of preventing multiplicity of
suits, the fact must be alleged and proved that a number of suits are
pending or expected. Id. 5. Plaintiff was sued by defendant in another state upon a promissory
note, although both are residents of this state. In this action for a partnership accounting 'laintiff asks for an injunction to restrain the action on the note on the ground that defendant was to apply moneys received by him on partnership account to the payment thereof and that the note has equitably been so paid. Hu, no ground for equitable interference.
Donnelly v. Morris (N. Y. Supr. Cl.), 78. 6. A preliminary injunction should not be continued where its effect would
be to give to plaintiff practically all the relief he could obtain by a final judgment; especially where any possible injury to plaintiff must be slight and readily capable of compensation. Steele v. P., S. & L. E. R. R. Co.
(Sup. Ct.), 193. 7. A firm of commission merchants on being required to return all unsold
goods in their possession belonging to plaintiff's assignor, apparently did so, and rendered an account of sales made, some of which were not accepted, as they were much below the market price. The firm afterwards made a general assignment, and plaintiff discovered the goods claimed to have been sold in the assignee's possession, the firın having taken them to their own account. The assignee refused to deliver or pay for thein on demand, and plaintiff brought this action for an accounting, allegiog that some of the goods had been sold and the proceeds liable to be distributed among the creditors of the firm. Held, that the action was properly brought; that as some of the goods had been sold replevin was not the proper remedy, and that an injunction pendente lite was properly granted.
McDonald v. Buyne et al. (Sup. Ct.), 203. 8. An injunction was procured by attaching creditors to restrain the
sheriff from selling property of the attachment debtor under an execution against him, and the other defendants from receiving or collecting any of his goods or chattels, which injunction was afterwards set aside. Ileld, that an order of reference to ascertain the damages sustained by the judgment creditor, made without notice to the judgment debtor and sheriff, was irregular; and that the failure of plaintiffs to raise the objection on the hearing did not rectify the proceeding, as the right to raise it is not restricted to them, but inheres in the other persons who were in no way
represented by them. Stein et al. v. Levy (Sup. Ct.), 533. 9. An injunction order, although irregular, cannot be disregarded. The
proper course is to move to set it aside because of the irregularity. Daly
V. Amberg (Sup. Ct.), 713. 10. An injunction order, served with the complaint, had not been served the goods are stored in the warehouse of a third party, not accompanied by any delivery of the goods, is a mortgage and is not a pledge.
upon the defendant, who was out of the state. The order in terms restrained him, his agents, etc., from producing a certain play. The papers were served upon one of the appellants here, who was acting as manager pro tem. Held, that although no service had been made upon the defendant in the action, yet the appellant, as his servant, and cogni.
zant of the contents of the order, was bound to obey it. Id. See BANKS, 3; CORPORATIONS, 7; Costs, 2; NUISANCE, 4; TRADEMARK;
INSOLVENCY. 1. Where a corporation has been dissolved and permanent receivers appoint
ed and the latter have in their hands sufficient assets, the claim of a creditor should be paid although the time to prove debts against the estate had
expired. People v. E. Remington & Sms (Sup. Ct.), 282. 2. Royalties upon an article manufactured under a license and subsequently
sold are not a lien upon such article ; the claim for such royalty arises when the article is manufactured and sold ; hence it is the claim of a general creditor against the estate and is not a debt contracted by the receivers
as such. Id. 3. Where however the receivers came into possession of some of the articles
already manufactured and thereafter sold them, led, that the claim for the
royalty was a debt against the receivers which must be paid in full. Id. 4. A bill of sale of goods to the cashier of a bank, stating that the goods were
to be held by him as collateral security for a note of the vendors, and that
Id. 5. The owners of a patent licensed E. R & Co. to manufacture arins
under their patents, and E. R. & Co. agree to pay them a ceriain sum “ for each arm manufactured and sold.” Held, that the giving by E. R. & Co. of a chattel mortgage upon arm manufactured, and the making default in the payment thereof, was a sale within the meaning of the agreement
and entitled the licensors to royalties. Id. 6. When the payment of a dividend is deferred by reason of an unsuccess
ful contest of a claim, the creditor so delayed should be allowed interest on the dividend. But he is not entitled to interest for the time payment is delayed by his own failure to perform a condition of the order requiring the application of collaterals before payment could be demanded. People v. E. Remington & Sons (Sup. Ct.), 577
INSURANCE (ACCIDENT). 1. A beneficiary in a certificate of insurance in the defendant company has
no vested interest until the death of the insured; and, therefore, the declarations of the insured made subsequent to the issuing of the certificate are admissible against the beneficiary in an action on such certificate.
Steinhausen v. Preferred Mut. Accident Ass'n (Sup. Ct.), 70. 2. One J. was insured by an accident policy which provided that he should
use all due diligence for personal proteciion. He was crossing railroad tracks, when he was called to from several directions to “look out for the express,” and thereupon hastened to reach the platform on the other side when he was struck by the train and killed. Held, that under the circumstances it was for the jury to determine whether his death was caused by his negligence. Duncan v. Preferred Mut. Accident A8s'n (N. Y. Supr.
Cl.), 928. 3. It was a question of fact for the jury as to the extent to which he was
influenced or controlled by external circumstances, and they would be bound to find that his act was not voluntary if it was such as a man of
ordinary prudence would be induced to do by the circumstances. Id. 4. The provision of the policy against “standing or walking on the road
bed or bridge of any railway” does not include such a crossing of the
track. Id. 5. Evidence of a custom or usage of people to cross the track at the point
in question is admissible on the question whether the deceased was killed while violating the rules of the company, within the meaning of the
policy. Id. 6. The court correctly charged that to establish that deceased met his
death by voluntary exposure to unnecessary danger, the jury must find that the act of exposing himself was known or ought to have been known to him and that his crossing the track was done voluntarily with full
knowledge of the danger. Id. 7. The court properly refused to charge that he was bound to exercise
more than ordinary care, holding that the care should have been such as a prudent man would have 1.sed under the same circumstances. Id.
INSURANCE (LIFE). 1. An intent to defraud is not a constituent element of the defense of a
breach of warranty of the representations of the insured, but such defense is made out by showing that he made a material representation upon which defendant accepted the risk ; that such representation was expressly warranted to be true, and that in fact it was not true. Sullivan v. Metropoli
tam Life Ins. Co. (N. Y. ('. P.), 38. 2. The insured represented that he had never been sick and had never been
attended by a physician. It was proved on cross-examination of his mother, the beneficiary, that he was ailing and had been attended by a physician within a month before the policy was issued. Held, a breach of the war. ranty which rendered the policy void. Id.
3. In an action to compel a reassignment of a paid-up policy of life insur
ance it was found that plaintiff's testator assigned the policy to defendants in consideration of its surrender value, and received back an agreement to sell the same to him on or before a specified day on repayment of that sum, and that is payment was not made on that day they would pay him $100 on demand in full of all claims, and that no payment was made on the day specified. The court found that the transaction was a sale of the policy and not a mortgage and dismissed the complaint. No exceptions were taken to the findings of fact. Ileld, that the facts found justified the conclusion of law and that there was no error. Brennan v. Crouch (Ct.
App.), 194. 4. A company promised to pay the amount of an insurance policy to El
vina A., wife of Maltby G. Lane, the insurel, for her sole use if living, and if not living to the children of the insured, or if there were no such children surviving, then to the executor, etc., of the insured. Hed, that the wife Elvina, having died before the insured, acquired no interest in
the moneys. Lane v. De Mets (Sup. Ct.), 798. 5. The provision relative to the children was one made for them as a class; was for
benefit of those and of those only who survived the insured, and that they would take all. Id. 6. Grandchildren of the insured, their parent having died before the insured, would not have taken as against his executors. Id.
See BENEFIT SOCIETIES.
INSURANCE (MARINE). The master of a vessel hypothecated it and its freight to plaintiff for a loan. Plaintiff's regulations regarding such loans stipulated that neither owner nor master should take any further advances upon the same freight, or in such case must hold themselves bound to return the loan made, even though the vessel were lost. Subsequently, without the knowledge or consent of plaintiff, the captain obtained a further loan on the freight. Later the defendant insured the vessel for plaintiff “on advances against captain's draft upon the freight, etc." A loss occurred. Held, that plaintiff's insurable interest under the policy was not affected by the subsequent loan procured by the captain in violation of the regulation; that plaintiff had two remedies : one against defendant upon the policy, the other against the captain or owner under the stipulation above stated. Cassa Marittima v. Phænix Ins. Co. (Sup. Ct.), 242.
INTEREST. See Banks, 5, 6; EXECUTORS, ETC., 14; INSOLVENCY, 6; LEGACY, 1, 2.
INTERPLEADER. 1. In an action to recover a fund in a bank, other claimants were allowed
to be impleaded and the bank was ordered discharged on opening a new account to the credit of the action. Held, that the latter provision was improper and should be stricken out and the bank directed to deposit the
fuod in court. Faivre v. Union Dime Savings Inst. (N. Y. Supr. Ct.), 79. 2. The plaintiff in the first action sues to recover the proceeds of a sale of
goods made by defendants as commission merchants, upon which he had levied under executions against the owners thereof. The second action is brought to recover the same proceeds by the receiver of said owners. Held, that both actions were upon contract, and the only controversy arose between the several plaintiffs, and hence an order of interpleader was
proper. Sickles v. Wilmerding et al. (Sup. Ct.), 562. 3. It is error, however, to make the plaintiff in the action first commenced
a defendant in the second action. Id.
JUDGMENT. 1. A judgment will not be reversed because of inconsistent conclusions of
law, where the judgment directed to be entered is in accordance with the correct conclusions of law on the facts founcl. Knox et al. v. Metropolitan
El. R. Co. et al. (Sup. Ct.), 2. 2. Plaintiff's assignor recovered judgment in an action against defendants
and others, by which it was adjudged that he recover certain shares of defendants' capital stock, or their value, from the other defendants, and that this defendant be enjoined and restrained from disposing (f or transferring such stock on its books. Defendant made default, but prior to the judgment had transferred the stock. Ileld, that plaintiff, by the assignment of the ju 'gment, acquired no greater rights than his assignor had; that as such judgment authorized no recovery of the stock, or its value, of this defendant, no such recovery could be had in an action founded solely upon such judgment. Hawes v. Gas Co sumers' Benefit Co. (N. Y. C.
P.), 48. 3. Where the minutes of the court show simply that the complaint in an
action was dismi-sed, the clerk in making out the posten has no right to add the words “upon the merits," and a judgment so entered is unauthorized and should be set aside. Freeman v. United States Elect. ic Lighting
Co. (Sup. Ct.), 542. 4. After the decision of an action at special term, the court may, upon &
less notice than eight days, settle the form of judgment and direct the
entry thereof. Parker et al. v. Linden et al. (Sup. Ct.), 564. 5. Under pretext of an application at the foot of a decree, no substantial
alteration of the original judgment can be permitted, nor can a judgment be entered relating to a subject matter which might have been a subject
of investigation on the trial. Id. 6. In an action to construe a will it was found that one of the devisees was
dead, but before entry of judgment said heir applied for leave to defend, which was granted, but before her time to answer bad expired judgment was entered. Ileld, that such judgment was irregular and should be set
aside. Parker et al. v. Linden et al. (Sup. Ct.), 844. 7. A judgment for defendant, on demurrer, was reversed by the general
term of the city court and an interlocutory judgment was ordered entered, dismissing the complaint unless plaintiff complied with certain terms. He did not do this; and upon proof of his failure the defendant procured from a special term of the city court an order for final judgment dismissing the complaint and entered said judgment. Held, error. The judgment which should have been entered was the final judgment of the gen term of tbe city court. Flatou v. Von Bremsen (N. Y. C. P.),
863. 8. The strict common law rule is that if two persons be bound jointly and
severally in an obligation, and the obligee voluntarily and unconditionally releases one of them, both are discharged and either may plead the release in bar, but the legal operation of a release of one of two or more joint debtors may be restrained by an express provision in the instrument that it shall not operate as to the other. Whittemore y. Judd Linseed &
Sperm Oil Co. et al. (Ct. App.), 881. 9. In an action brought by the defendant company against H. & T. as co
partners, separate judgments were entered against each; and H. & T. having made an assignment, the oil company agreed to accept fifty per cent of the judgment against T. in full satisfaction of its claim against them, and to release and discharge T. and his individual estate, reserving all rights against H. or the joint estate. The judgment was assigned to L. with a similar reservation. In August, 1874, L. executed to H. a release of the claims of the oil company against H. & T. Subsequently the company assigned to L. their rights and claims against the joint property under the judgment against T. and thereafter issued execution against Hř. under the judgment against him. In an action to enjoin the collection of such execution and to declare the judgment satisfied and discharged, Icu, that as a release is to be construed according to the intent of the parties and the