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of guilty was given with the proper tone of penitence; and his counsel's efforts were bent to secure a light sentence. It was urged that the prisoner was under the influence of liquor at the time, and poor liquor at that. "But, sir, consider the aggravation," said his honor, “an attack of this dangerous nature. Your client admits that he assaulted this man with a bottle." "Yes, your honor," was the ready reply, "but I beg you to remember that this man assaulted my client first with its contents." The point was neatly taken. Luckily for Brown, this presentation of the affair induced the court to inflict a comparatively mild sentence; and the rule is likely to be followed until Spinney sells a better quality of whisky.

COURT OF APPEALS ABSTRACT.

Henry Hart, Adm'r, etc. v. The Erie Railway Company. A traveler on a public thoroughfare, crossing a railroad, has a right, on approaching the crossing, to expect that the usual warning by bell, whistle or flagman will be given of the approach of a train. He is not bound to assume that the railroad company may violate the law by omitting such precaution. He has a perfect right to act upon the assumption that they will obey the law, in determining the degree of caution which he should exercise in approaching the crossing. In determining the question whether one injured at a road crossing, by a train of cars, was guilty of carelessness in not discovering the approach of the train, all the circumstances which surround the transaction must be considered. An act or omission which under one state of facts would be clearly negligent, under other circumstances would be excusable; hence, no rule of universal application can be prescribed, as every case must mainly depend upon its own circumstances, and be determined accordingly.

When the evidence is conflicting, or questions of credibility are involved, the case must be very clear indeed in favor of the defendant to justify the court in granting a nonsuit. Opinion by INGALLS, J.

Samuel Guillaume et al. v. The Hamburg and American

Packet Company.

When goods were delivered by the plaintiff to the defendants as common carriers for transportation across the ocean, and a bill of lading given to the plaintiff containing, among other things, the following exceptions: "The act of God, enemies, pirates, thieves, robbers, restraint of princes, rulers, and police, etc., or from any act, neglect, or default whatsoever of the pilot, master, or mariners being excepted, and the owners being in no way liable for any consequences above excepted." When the vessel on which the goods were shipped reached New York, the mate, while engaged in discharging the freight, gave the goods in question to a carman who claimed to be authorized to remove them by the plaintiff, but who, in fact, had had no such authority. The goods were lost. Held, that the exceptions contained in the bill of lading did not excuse or embrace the act of the mate in so delivering the goods without authority from plaintiff. A fair construction of such bill is, that the parties did not intend to except acts of gross carelessness, but only the hazards which attend the transportation of the goods. Opinion by INGALLS, J.

Hugh Conaughty v. Lemuel Nichols and another. This was an action by the plaintiff against the defendants to recover the proceeds of goods consigned to the defendants to sell as factors. The plaintiff alleged and proved the consignment to defendants, the sale of the goods by them, the amount realized therefor, the amount due him, after deducting expenses, etc., and the refusal of the defendants to pay the same. The complaint conFrom Hon. O. L. Barbour; to appear in the 55th volume of his Reports.

tained the following allegation," and have converted the same to their own use, to the damage of the said plaintiff, in the said sum of six hundred and eighteen dollars and forty-three cents, for which said last mentioned sum the said plaintiff demands judgment," etc. At the trial the defendant moved for a nonsuit, on the ground, substantially, that the plaintiff had failed to establish the cause of action alleged in the complaint; that the action was in tort and not in contract, and that there was a total failure of proof within the provisions of section 171 of the Code. The plaintiff asked leave to strike out the words "that the defendants converted the money to their own use," etc., which was denied. Held, that the plaintiff, having alleged facts constituting a cause of action, and having sustained them by proof upon the trial, should not have been nonsuited, because the pleading contained an unnecessary allegation adapted to a complaint in an action ex delicto. Although facts are stated in a pleading which are unnecessary to be proved to constitute a cause of action or defense, they may be disregarded upon the trial or stricken out on motion before trial.

The case of Walter v. Bennett (16 N. Y. R. 250) does not conflict with these views. All that that case decides is, that a party shall not be allowed to recover for a cause of action which is not alleged and proved.

If the complaint in question had merely stated facts sufficient to authorize a recovery for a wrongful detention, the plaintiff would not have been entitled at the trial to amend by inserting facts appropriate to an action on contract; but when a cause of action on contract is fully set forth, words appropriate to an action ex delicto may be treated as surplusage. Opinion by INGALLS, J.

DIGEST OF RECENT AMERICAN DECISIONS. SUPREME COURT OF NEW YORK.*

CONSIGNEES.

1. Liability for detention of boat. - Consignees of a cargo of grain, who are not themselves the owners thereof, are only liable to the owner of the vessel for an improper detention thereof at the place of delivery, arising from their own misconduct or neglect. Huntley v. Dows et al.

2. It is their duty to provide, at the earliest moment practicable, a place of storage; and they have no right to detain the owner and his boat while endeavoring to effect a sale of the cargo. They are liable for the damages occasioned by such detention. Ib.

3. Claim for demurrage. — If the carrier, after the cargo is discharged, settles with the consignees, and gives his receipt "in full for freight and charges," such receipt is not evidence that the claim for demurrage was settled. Ib.

EXCISE LAW.

A license to sell

1. License: to whom a protection. liquors to be drank on the premises, issued under the excise act of 1857, is not only to the licensee to sell, etc.. but is also a license to sell at a particular place. A license so issued will protect the agent or clerk of the licensee; but an individual selling as the agent or clerk of a person, or at a place, not licensed, cannot obtain immunity by claiming that he acted for another party. The Com'rs of Excise of Orange County v. Dougherty.

2. A husband, guilty of a violation of the statute, cannot relieve himself from liability by setting up the defense that his wife owned the tavern where the liquor was sold, and that he sold as her agent, where there is no proof that the wife had any license. Ib.

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tors of such deceased person," a plaintiff in an action against an executrix cannot be allowed to testify as to notes made by the deceased to the order of, and indorsed by, the plaintiff, and which were transactions had personally between them. Strong v. Deane, Executrix, etc.

2. In such a case the test of the admissibility of the testimony is, does it tend to prove what the transaction was? lb.

RELEASE.

1. What is such. —A paper by which the person executing the same, for and in consideration of a mortgage given to him by another to secure the payment of $600, exonerates the latter from all notes or papers that he holds against him, operates as a release, according to its terms, and extinguishes the debt due upon a note of the releasee for $600, held by the releasor at the time. Strong v. Deane, Ex'x, etc.

2. Explaining: burden of proof. The burden is upon the person executing such an instrument, to overcome the effect of it as a release, which cannot be done by parol. Ib.

3. And proof that there were other notes, amounting in the aggregate to the sum of $600, which were intended to be, and were, released, does not tend to explain such release, or to exclude from its operation the $600 note. Ib.

INTEREST.

Proof of payment. If, at the time a release of all notes or papers is executed, a note held by the releasor is past due, the indorsement by him, upon the note, of the receipt of interest, after the date of the release, and when the note was in his hands, is not proof of any such payment of interest by the maker. Strong v. Deane, Ex'x, etc.

EXECUTION.

1. How far a protection to officer. - A ministerial officer is protected in the execution of process fair on its face, issued by a court or magistrate having jurisdiction of the subject matter to which it relates. Shaw v. Davis.

2. To justify a seizure of property under execution, a constable is not required to prove the validity of the judgment on which it was issued; or, indeed, that any judgment in fact was rendered. Ib.

3. The process, formal in all respects, issued by a competent tribunal or officer, authorized to act in that regard, is sufficient to protect a ministerial officer who acts under it according to law. 1b.

EXEMPTION LAW.

1. Vegetables for family use. — - Where it was proved that the plaintiff was a householder, and had a family for which he provided; that he had about thirty bushels of potatoes, four or five bushels of apples, and some sixty or seventy heads of cabbage, which comprised his stock of vegetables, and were levied on about the middle of February; and evidence was given as to the number of his family, and as to the fact whether these vegetables were actually provided for family use; held, that a case was made for the jury, who had a right to find that the vegetables were all necessary, and actually provided for family use. Shaw v. Davis.

2. The fact that a man is taking his vegetables to market to exchange them for articles of prime necessity in his family, or even to obtain the means to pay his taxes, will not deprive him of the right to insist that such vegetables were, in fact, actually provided for family use, and exempt from seizure and sale on execution against him. Ib.

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on appeal, may reverse in part and affirm as to the residue. Shaw v. Davis.

INTERPLEADER.

1. If, in an action of interpleader, the property in dispute is definite and certain in character, this is sufficient. Its exact value is wholly immaterial. Cady et al v. Potter et al.

2. Thus, where the interpleader was to determine the rights of the defendants in fixed and definite property, to wit, twenty shares of the capital stock of a bank, to which twenty shares of stock neither the bank nor its officers made any claim whatever; held, that there was no force in the objection that the subject of the controversy was not definite and fixed in amount. Ib.

AGREEMENT.

1. Reforming in equity. -- Although it is the well-settled rule that a court of equity may reform a written contract, upon parol evidence of a mistake; yet this can be done only in an action between the parties to the contract, or their privies. Cady et al. v. Potter et al.

2. A contract cannot be reformed in a collateral action by persons not parties to such contract, nor claiming under a party thereto in privity. Ib.

3. Where the demand for a reformation of a contract comes from neither of the parties to the instrument, or any one claiming under them, in privity, but from the personal representatives of a third party claiming under an alleged prior transfer, parol evidence to show what the contract was, and that an important part was omitted from the written instrument, is inadmissible. Ib.

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1. Statements and dying declarations. — Although, in an action to recover damages for injuries inflicted on the plaintiff's wife, by the defendant, which caused her death, a statement made by the wife to the plaintiff, respecting the assault, immediately after it occurred, might be admissible in evidence, as part of the res gestæ, to show who the person was that committed the assault, yet a conversation had with the plaintiff, by the wife, the next day, cannot be received. Spatz v. Lyons.

2. Nor is such a statement admissible as the dying declarations of the deceased; such declarations being admissible only in cases of trial for the homicide of the person making them, and then only where the person was acting under a full conviction that the wound was mortal, and that death would speedily ensue. Ib.

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1. Retaining cause. — In an action brought for equitable relief, and tried before a judge, if there appears to be no ground for granting such relief, the court should retain the cause, and grant such legal relief as may be just. Cuff v. Dorland.

2. Hence, although a judge refuses to decree a specific performance of a contract of sale, at the suit of the purchaser, yet he should retain the case for the purpose of

awarding to the plaintiff the damages he is entitled to for the non-performance. Ib.

3. Right of jury to take papers with them. - If a jury take a paper which is given in evidence, with the concurrence of the judge, it is not error; that proceeding resting entirely in the exercise of a sound discretion by him. Schaffner v. The Second Avenue Railroad Co.

2. If the jury take a paper with the concurrence of the judge, though without the knowledge of the parties, and although it may not have been put in evidence, it is not error, if it appear either that it was not read or used by him; or that, being immaterial in its character, it can be seen, from an examination of the whole case, that it could not have had any bearing upon the issues or the result. Ib.

LIMITATIONS, STATUTE of.

1 Absence from the state. - Notes were made and dated, and fell due, in 1854, the maker being then a resident of the state of New York. He left this state in 1851 and moved his family to New Jersey, where he resided and kept house from that time till 1861; during which period his business was in New York, and on week days he was in the city daily, returning to his home at evening. In an action brought upon the notes, in 1866, it was held that the statute of limitations did not run while the defendant resided in New Jersey; and that the writ was not barred. Bassett v. Bassett.

VENDOR AND PURCHASER.

1. False representations: intent to deceive. If a vendor has knowledge of the character and condition of the property he is selling, and makes a representation respecting it which turns out to be false, the motive with which the representation was made is all important, where he is sought to be made responsible on the ground of fraud; and the fact whether he really believed, or had any justifiable reason for believing, that what he said was true, is a most legitimate subject of investigation; and in that, as in all those cases of imputed fraud where the motive is the subject of inquiry, the party charged with the fraudulent intent is permitted to be heard. Weed et al. v. Case.

2. In order to sustain an action for deceit by means of false representations, it is always necessary to aver and prove an intent to deceive; and whenever a party actually believes what he asserts to be true, he is not liable, although it turns out that what he affirmed was false, in fact. Ib.

3. Thus, where in an action by the purchasers against the vendor to recover damages for deceit in the sale of a canal boat, the judge refused to instruct the jury that if they found that the defendant really believed that the representations made by him, in regard to the boat, were true, their verdict should be for the defendant; it was held, that the judge erred in refusing the instructions asked for. Ib.

NEW YORK (CITY OF.)

1. Lease on sale for assessments. A lease executed by the corporation of New York, upon a sale of land for assessments, is conclusive evidence that the sale was regularly made according to the provisions of the statute. This includes the demand of the owner, or upon the premises, and other matters to be done to authorize the sale. Masterson v. Hoyt et al.

2. Relief in equity. — And this being so, a court of equity has jurisdiction to relieve the owner, whenever defects exist rendering the assessment illegal. Ib.

3. He may, therefore, maintain an action to set aside the assessment, to cancel the lease, and for an injunction, on the ground that the assessment was illegal; that no demand was made of him, or upon the premises; that no warrant was issued for the collection of the assessment; and that the recitals in the lease are untrue. Ib.

BOOK NOTICES.

Reports of cases argued and determined in the Supreme Court of the State of Wisconsin: with tables of the cases and principal matters. By O. M. Conover, official reporter. Vol. 23 containing the cases decided at the June and October terms 1868, and part of those decided at the January term 1869. Chicago: Callaghan & Cockcroft. 1870.

64

Wisconsin is fortunate in having a good reporter of the decisions of its supreme court. We do not remember when we have turned over the pages of a report that gave us more satisfaction than the one before us. With very few exceptions we find that Mr. Conover has done his work skillfully and well. There are four particulars in which a reporter's skill is put to the test and on which the value of a report mainly depends. 1st, the statement of the case; 2d, the argument of counsel; 3d, the head note or syllabus; 4th, the index. In each of these particulars this volume contains little to censure. The statements of facts are full, yet concise, and there is a noticeable absence of that repetition of the facts in the statements and opinions which cumber so many of our reports. The arguments, though brief, present the main points urged and the authorities relied upon. The eloquence of the advocate" has been judiciously omitted. Perhaps no part of a reporter's duty requires so much legal knowledge, talent, skill and industry as does that of preparing the abstracts or head notes. No lawyer can pretend to peruse or digest the multitude of reports constantly pouring in upon him; but every one is compelled to rely mainly upon the head notes for a knowledge of what lies beyond; that these should be concise, accurate and reliable is a matter of vast importance. If they are too long and crowded with unnecessary facts and particulars, they cease to be abstracts and give the lawyer infinite labor and perplexity; if they are deficient or inaccurate, they are false guides and mislead and confuse; if they give mere suggestions and obiter dicta as matters decided, they are a sort of fraudulent sample and almost worse than useless. This part of his task has been most admirably done by the reporter of the cases before us. As an illustration of the terse style of these head notes we select a few of the briefest: "A parol contract of marine insurance is valid." Northwestern Iron Company v. The Etna Insurance Company, 160.

"An agreement that defendant was to buy a vessel, pay the purchase money and take the title in his own name, and was then to sell the plaintiff one-quarter of the vessel, held to be void under the statute of frauds." Brown v. Slauson, 244.

"Personal judgment against mortgagor for deficiency after foreclosure sale cannot be rendered before the deficiency becomes due according to the contract. Danforth v. Coleman, 528."

In the fourth essential to a good report-the index-we find nothing to except to in the present report. The subjects are well distributed, the titles are sufficiently numerous, and the cross references carefully noted. The more important cases contained in the volume have been heretofore abstracted in THE LAW JOURNAL.

TERMS OF THE SUPREME COURT FOR MAY. 4th Monday, Circuit and Oyer and Terminer, Sullivan, Peckham.

4th Monday, Circuit and Oyer and Terminer, Onondaga. 4th Monday, Circuit and Oyer and Terminer, Genesee, Daniels.

4th Monday, Circuit and Oyer and Terminer, Niagara, Marvin.

4th Tuesday, Circuit and Oyer and Terminer, Plattsburgh, Bockes.

Last Monday, Circuit and Oyer and Terminer. Otsego, Parker.

Last Monday, Special Term, Corning, Johnson.
Last Tuesday, Special Term, Albany, Miller.

Maine judges refuse naturalization papers to aliens who are engaged in the sale of liquor.

NEW YORK LAW INSTITUTE-ELECTION OF

OFFICERS.

The annual election of the New York Law Institute took place on the 9th inst., with the following result:

President, Charles O'Connor; first vice-president, Charles Tracy; second vice-president, Henry A. Cram; third vice-president, Samuel Blatchford;" treasurer, Edward H. Owen; recording secretary, Joseph S. Bosworth; corresponding secretary, Benjamin D. Silliman; librarian and assistant treasurer, Aaron J. Vanderpoel.

Library Committee-Edmund Terry, Lewis S. Thomas, Hooper C. Van Vorst, Stephen P. Nash, Edward Paterson, James C. Carter, William Watson, Thomas M. North.

Committee on Jurisprudence-Wm. M. Evarts, Benjamin V. Abbott, Edwin W. Stoughton, David Dudley Field, Enoch L. Fancher, Chas. F. Stone, Edmund Wetmore.

Committee on Censorship-Charles F. Southmayd, John McKeon, Benjamin F. Kissam, John W. Edmonds, Henry D. Sedwick, Everett P. Wheeler, James C. Carter, Lewis B. Woodruff.

LEGAL NEWS.

Governor Bullock, of Georgia, has sued the Atlanta Constitutionalist for libel.

Hon. John O. Cole, of Albany, has resigned the office of police justice, after holding it for forty years. Ex-Governor Wells has been appointed United States district attorney of the district of Virginia. Gen. Jubal Early is about to settle permanently in Lynchburg, Va., for the practice of the law.

Judge David C. Humphreys, of Alabama, has been confirmed as an associate justice of the supreme court of the District of Columbia.

A Boston juryman signed a petition for the pardon of a convict, because, as he said, he was afraid if he did not the man would kill him.

Ill-treatment of the mother-in-law by the husband is one of the grounds upon which a divorce is asked by a lady in Richmond, Va.

At the late term of the United States supreme court at Washington about 225 cases were disposed of, leaving on the docket about 250.

Judge Woods, of the United States court in Louisiana, has dismissed a number of confiscation cases, in accordance with instructions from the attorney-general.

The king of Italy pardoned last year two hundred and twenty-five criminals; the emperor of Austria, one hundred and ten; and the king of Prussia, fortyfive.

A jury at Lewiston, Me., recently convicted liquor sellers enough at one sitting (without returning to consult) to pay fines amounting to $3,200, besides sending some to jail.

Joseph B. Keyes, assistant United States marshal for the Boston district, died at his residence in Lowell, a few days ago, of disease of the kidneys. He was a lawyer by profession, talented and successful.

The Mississippi Senate has confirmed Governor Alcorn's appointments to the supreme bench of that state. The appointees are Judges Simrall, Peyton, and Tarbell.

Lieutenant-Governor Dunn, of Louisiana, and the members of the board of the New Orleans police commissioners, have been committed to prison for five days and fined $95 each, by Judge Cooley, of the sixth district court of that city, for contempt.

The United States attorney-general has partially prepared an opinion on the question submitted to him by the treasury department as to whether officials can legally receive rewards or moieties in cases of fines or seizures for violations of the revenue laws. Judge Hoar was compelled to suspend work on this opinion on account of more pressing business, but is expected to complete it this month.

Suit has been commenced in the superior court of Baltimore, by the state of Maryland, against the Baltimore and Ohio Railroad Company, to recover the value of gold over currency in which the state has been paid its 6 per cent interest on dividends guaranteed by the company on the preferred stock owned by the state, which now amounts to nearly $2,000,000. The claim is based on the recent legal-tender decision of the United States supreme court.

Rochester, Minn., has been the scene of a queer lawsuit between a merchant and a discharged servant girl, which terminated in the discomfiture of the nierchant. The girl sued the merchant for her pay, and he brought in a bill against her to offset it, charging her fifty cents per night for kerosene when her " cousin" called to see her, and one dollar per night each night she worked for herself after the housework was done.

The following names were recently taken from a jury list in Sussex county, England, which was compiled about the year 1658: Faint-not Hewitt, Seekwisdom Wood, Redeemed Compton, Accepted Trevor, God-reward Smart, Make-peace Heaton, Be-courteous Cole, Repentance Airs, Return Spellman, Kill-sin Simple, Fly-debate Roberts, Be-faithful Sinner, Hopefor Rending, Weep-not Billings, Elected Mitchell, Fight-the-good-fight-of-faith White, Stand - fast-onhigh Stringer, Search-the-Scriptures Moreton, Thepeace-of-God Knight.

In New York, the judges of the superior court have recently leaned to the practice that orders of civil arrest are within the discretion of the judge to whom the application is made; and, if the circumstances do not otherwise demand it, an order will not be granted on mere technical compliance with the statute. This has long been the practice of the court of common pleas. In the supreme court, as a rule, it has been regarded as sufficient to present facts bringing the case within the terms of the statute, so that the issuing right, if the requirements of the statute be complied of the order has come to be regarded as an absolute

with.

One of the oddest defenses on record has just been made at Hamburg by a man who murdered his wife from motives of jealousy. According to his own account he had not murdered her, but had killed her in a fair and honorable duel, as he had placed a pistol in her hand and told her to shoot at him." The court, however, did not quite regard it as an affair of honor, and condemned him to twenty-five years' penal servitude, expressly stating that they had not sentenced him to death on account of respect for the opinions of the majority of the population of the North German Bund.

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is a man who has been accustomed to the comforts of life, having been a tradesman in a fair way of business, Hardiment has been much mortified by his new position, and his friends propose to obtain, if possible, a mitigation of his sentence.

Attorney-General Hoar has decided the question of the application of the owners of the Visitacion ranch to recall the order directing the institution of the suit in chancery to cancel the patent. This ranch is reputed to be worth several million dollars, and is located about two miles south of San Francisco. It was the subject of the recently well-known financial enterprise which was checked by the attorney-general, creating distrust in Mexican titles based on patents of the United States. That feeling is now quieted by an order of the attorney-general of the state, allowing the applicant to recall his order, and allowing the patent to stand. The decision gives great satisfaction to California land owners now in Washington.

NEW YORK STATUTES AT LARGE.*

CHAP. 47.

AN ACT to amend chapter fifty-seven of the Laws of eighteen hundred and sixty, entitled "An act conferring additional powers and duties on Courts of Special Sessions in the county of Monroe," passed March third, eighteen hundred and sixty.

PASSED March 8, 1870; three-fifths being present.

The People of the State of New York, represented in Senate and Assembly, do enact as follows:

SECTION 1. The first section of chapter fifty-seven of the laws of eighteen hundred and sixty, entitled "An act conferring additional powers and duties on Courts of Special Sessions in the county of Monroe," passed March third, eighteen hundred and sixty, is hereby amended so as to read as follows:

§ 1. Courts of special sessions in the county of Monroe, in addition to the powers vested in said courts by the first and second sections of chapter seven hundred and sixty-nine of the laws of eighteen hundred and fiftyseven, shall have exclusive jurisdiction to hear, try and determine charges for crimes and offenses in the cases in this section mentioned, arising within said county, provided, however, that the accused in such cases shall have the right to demand a trial in said court as provided by law.

1. All cases of petit larceny not charged as a second offense.

2. Cases of assault and battery not charged to have been committed riotously or upon any public officer.

3. Cases of intoxication arising under the seventeenth section of an act entitled "An act to suppress intemperance and to regulate the sale of intoxicating liquors," passed April sixteen, eighteen hundred and fifty-seven. But nothing in this act shall affect the jurisdiction of courts of sessions or oyer and terminer in said county, in cases where charges of petit larceny or assault and battery are properly joined or included in any indictment for felony according to law.

22. This act shall take effect immediately.

CHAP. 170.

AN ACT to amend an act entitled "An act to extend the jurisdiction of surrogates' courts," passed April twenty-three, eighteen hundred and sixty-seven.

PASSED April 11, 1870; three-fifths being present.

The People of the State of New York, represented in Senate and Assembly, do enact as follows:

SECTION 1. Section two of the act entitled "An act to extend the jurisdiction of surrogates' courts," passed April twenty-three, eighteen hundred and sixty-seven, is hereby amended so as to read as follows:

2. The surrogate, to whom such surplus moneys shall be paid, shall, upon the application of any person entitled thereto, or to any part or share thereof, by petition duly verified by the oath of the applicant, and by such other proof as shall be required by the surrogate, stating the name or names and residence of the party or parties entitled thereto, or to any part or share thereof, and also describing the premises so sold, make distribution of the said surplus moneys to the party or parties entitled thereto, in the same manner, by like proceedings and with like effect as moneys derived from the sale of real estate made by order of the surrogate, under and by virtue of existing provisions of law, are required to be distributed.

2. On such distribution, the claimant or claimants of the said surplus moneys, or any part or share thereof, shall make proof of his, her or their right or title thereto, by evidence satisfactory to said surrogate.

These laws have been carefully compared with the originals, and may be relied upon as accurate. We have not thought it necessary to take up space by attaching to each the certificate of the secretary of state which is attached to the copy from which we print. ED. L. J.

23. It shall be competent, on such distribution, for any party claiming such surplus moneys, or any part or share thereof, to controvert by proofs before said surrogate the claim or claims of any adverse claimant of said surplus moneys, or of any part or share thereof.

4. In case any of the parties claiming said surplus moneys, or any share or part thereof, are minors, having no general guardian appearing to protect the rights and take care of the interests of such minors, the surrogate shall appoint some proper and competent person special guardian to protect the rights and take care of the interests of such minors on such distribution. The written consent of such special guardian to serve as such shall be signed by the person so appointed, and shall be filed in the office of said surrogate. And it is hereby made the duty of such special guardian to attend the proceedings before said surrogate on such distribution, and protect the rights and take care of the interests of such minors. 25. The party making such application shall serve or cause to be served upon all persons upon whom a notice of said sale was served, or who were parties defendant in such foreclosure and sale, and upon all persons named in said petition, a copy of said notice of distribution. Such notice shall be served, and the service thereof proved, in the same manner as is provided for in part second, title fifth of the code of procedure, entitled "Of the manner of commencing civil actions," for the service of a summons, and the proof of such service. 6. This act shall take effect immediately.

CHAP. 203.

AN ACT relating to the Court of Appeals and the Commission of Appeals.

PASSED April 14, 1870; three-fifths being present. The People of the State of New York, represented in Senate and Assembly, do enact as follows:

SECTION 1. The court of appeals, instituted by the sixth article of the constitution, shall possess all the powers and jurisdiction heretofore possessed by the existing court of appeals, and all laws authorizing and regulating appeals to the last mentioned court, and other laws relating thereto, the judges thereof, their powers and duties, and not inconsistent with the constitution or with this act, shall be deemed in force and applicable to the court in this section first mentioned, and to the judges thereof; provided, however, that no existing law which relates to the rehearing of causes in such court shall be in force, and provided further, that the court may prescribe the times and places of holding its terms, except as provided in the next section.

§ 2. The said court of appeals shall hold a term for the hearing of causes and matters before it in the senate chamber of the capitol, in the city of Albany, commencing on the first Tuesday in July next. The clerk of the existing court of appeals shall act as clerk of such newly instituted court until a clerk thereof shall be appointed, pursuant to the constitution, and he shall prepare and make up a calendar for the term so to be held, to be composed of the causes and matters which shall be upon the the existing calendar of the court of appeals, which were not pending in said court on the first day of January, eighteen hundred and sixty-nine. Such causes and matters on the existing calendar shall be deemed regularly noticed and ready for hearing at such term, according to the usual course and practice. Causes not upon the said existing calendar, and brought into the court of appeals since the first day of January, eighteen hundred and sixty-nine, may be noticed for hearing at the said term, and placed upon the calendar so to be prepared. The rules and practice of the existing court of appeals shall continue to be the rules and practice of the court of appeals until the same shall be altered by order of the court.

3. The commission of appeals provided for in the said

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