faith to the capital stock, and at least in the petition. If for any reason ten per cent. thereof paid in. It was claimed that the verification was not made before an officer authorized to administer oaths. The officer certifying simply signed as "Commissioner of Deeds," and the venue of the verification was "State of New York, County of Kings." There is no such officer as Commissioner of Deeds for Kings County, and it did not appear in any way that the officer taking the verification was a Commissioner of Deeds for the city of Brooklyn. H. C. Place, for applts. E. H. Pomeroy, for petitioner. verified. A commissioner of deeds may execute his office in any part of the county. 1 R. S., 5th ed., 383, § 11. The legal presumption in the absence of proof is that the officer taking the affidavit is what he purports to be from his official designation. | good in law the appellant's land cannot be taken, that will be available for them on the trial. Also held, That it was improper to refer the taking of the proofs upon the issues to be raised without the consent of appellants. The statute requires that "the Court shall hear the proofs and allegations of the parties, and if no sufficient cause is shown shall grant the petition." 3 R. S. (Edmonds), 641. In the absence of legislative permission, the appellants have the right to demand that evidence taken on the trial of the issues which may be made shall be taken before the Court which decides the issues. Order modified by striking out that part of it which provides for the taking of the testimony by a referee, without costs to either party. Opinion by Barnard, P. J. FRAUD. TITLE TO MONEY OBTAINED BY CRIME. Also held, That the objection is not well taken that the petition fails to show $10,000 per mile of the pro- N. Y. SUPREME COURT. GENERAL posed road subscribed, and ten per cent. paid in. By § 6 of Chap. 560 of the Laws of 1871, only $6,000 per mile need be subscribed and ten per cent. paid in, when the road is to be built of a gauge between 30 and 42 inches. The petition shows that $6,000 per mile has been subscribed, and ten per cent. paid in. The survey shows the gauge. TERM. FIRST DEPT. Stephen D. Stephens v. The Board of Education of the City of Brooklyn. Decided January 4, 1878. Where an agent and member of defendant fraudulently and by crime obtained money of plaintiff and paid it to defendant on a precedent debt, Held, That plaintiff had a good cause of action against defendant for the amount so paid. Semble, That the same principle is applicable in such case to either money or chattels, Hearing on exceptions to be heard in the first instance at General Term. Also held, That it is not a good objection to the petition that it fails to show that the title of the town of Gravesend, of which town the appellants are tenants of the land in question, has been extinguished. The ney. At times before December 18, statute requires no such statement | 1871, Gill, as such agent and attorney, Vol. 5 No. 21.* William L. Gill was a member of defendant and their agent and attor received $3,600.84 of defendant's money, which he appropriated to his own use. On the 18th of December, 1871, Gill represented to plaintiff Stephens that a client of his wished to raise $4,500 on bond and mortgage on property in Brooklyn. Arrangements were made for the delivery of the bond and mortgage and payment of the money. On the 21st of December, Gill and Stephens met at the office of Stephen's counsel in New York, and the bond and mortgage were delivered, and a check on the Central National Bank of the city of New York for $4,129.34 (being the said sum of $4,500 less some unpaid taxes on the premises mortgaged and the expense of search), was given to Gill, payable to his order. On the day of its receipt Gill deposited the check in the City National Bank of Brooklyn which passed the same to his credit and collected it from the Central National Bank of New York. Also on the same day, December 21, 1871, Gill drew his check to the order of the defendant for $3,600.84 and delivered the same to it-defendant indorsed the check and deposited it in the Mechanics' National Bank of Brooklyn, which passed it to defendant's credit, and on December 23, 1871, collected the same from the said City National Bank of Brooklyn. Subsequently it appeared that the bond and mortgage were forged by Gill, and that at no time after the receipt of the check by Gill from plaintiff had Gill on deposit at the City National Bank of Brooklyn— (except said check) more than $17. There was no collusion between defendant and Gill. The plaintiff, after demand, brought action against defendant for $3,600 with interest. The above facts having been agreed upon and submitted to the Court and jury, defendant's counsel requested the Court, 1st, to submit to the jury the question of plaintiff's negligence in delivering the check to Gill, payable to his own order; 2d. To charge that on the facts the defendant was entitled to a verdict; 3d. That on the facts submitted the complaint be dismissed. Each of which was refused by the Court, and exceptions taken by defendant. The Court charged the jury that if they believed the facts as stipulated and read to them, the plaintiff was entitled to a verdict for $ 3,583.84, with interest from the time of demand, to which charge defendant excepted. Verdict was rendered as charged, the Court directing the exceptions to be heard in the first instance at General Term. Alonzo C. Farnham, for plff. Winchester Britton, for deft. Held, That plaintiff succeeded on the trial. That the facts remaining unchanged, the opinion on the former appeal is controlling. Where money obtained by crime is traced in payment of a claim, no new consideration moving from the receiv er, the obligation to refund it should exist. There is no difference in the principle as to a chattel or money. Judgment ordered for plaintiff with costs. Opinion by Brady, J.; Davis, P. J., and Daniels, J., concurring. The case was before the March General Term in 1875 upon demurrer, which was sustained on the ground that the complaint alleged no demand. That part of the opinion applicable to the present issue and referred to in the present opinion is as follows: istence of a copartnership, but provides for one of the parties being paid fixed salary as clerk, bookkeeper, and manager, and in addition to share the net profits, such an agreement is a copartnership. Appeal from judgment entered upon the report of a referee. Held, That Gill never had any right, title, or interest in the money. It passed to defendant in payment of This is an action for an accounting a precedent debt and there was no between the parties as members of a evidence that the debt was discharged partnership alleged to have been or any security parted with by de- created by a written agreement. The fendant. It was not therefore re-business of the alleged partnership ceived for a valuable consideration as was the mining and smelting of silver applied to promissory notes. Law-ore at the Shamitic Spring Smelting rence v. Clark, 30 N. Y., 128. The defendants are in no better position than if it had been a promissory note. Calland v. Loyd, 6 Mees. & Wels., 26. Defendant having taken the money without consideration, as against the plaintiff, acquired no right to retain it. Where one receives money from another and he has not the right conscientiously to retain it, a privity between the true owner and the receiver will be implied, as well as a promise to pay it. Causidiere v. Beers, 2 Keyes, 198. Works, near Star City, Utah. The agreement among other things recited that they (defendants) 66 do agree to enter into partnership with the party of the second part " (plaintiff) " under the following terms-viz.: The party of the second part to be employed as the general principal clerk and bookkeeper and manager of the company's office and finances of the same; and to receive as compensation a salary at the rate of $2,500 per annum from the 1st day of August, 1874. In further consideration the said party of the second part shall be entitled The defendant had to demand pre- to receive one half of all the net viously to bringing the action. De-profits in all base bullion and other fendant's legal title is the same as in metals made and sold during one year, the case of Causidiere v. Beers. from the 1st of August, 1874, to the Semble, That the same principle | 31st day of July, 1875, after deductwould apply to money as to chattels. ing all needful and necessary repairs 20 Wend., 267; Brower v. Peabody, 3 to the said furnace or smelting Kern. Rep., 267. works, all salaries, wages, &c., not to exceed, however, in net profits, for the one half interest of the party of the second part, the sum of $10,000." Opinion by Brady, J. COPARTNERSHIP. AC- N. Y. SUPREME COURT. TERM. FIRST DEPT. GENERAL Under this agreement plaintiff entered upon the discharge of his duties Lewis J. Salomon, respt., v. John until the 14th of June, 1875, when Shinner, applt. Decided January 11, 1878. the works were burned, and plaintiff, with the consent of the other, return Where a written agreement declares the ex-ed to this city. Nothing was done towards repairing the works until to one half, viz., $5,556.34, less the August 25, 1875. $250 already paid him, which would be $5,306.34. . Plaintiff claimed that the net profits of the business from August 1, 1874, till the fire were $10,000. Defendants denied the partnership and counterclaimed $250 overpaid plaintiff on his salary as clerk, &c., and claimed that they should be allowed, As to the first item claimed by defendant, to wit, interest on $10,000 borrowed-since the firm was not obliged to pay any, it could not reasonably charge any. As to the third, no commission could be allowed one of the partners, unless provided for by express agrecment; and no such agreement appears in the case. As to the expense of rebuilding the works, that was not undertaken, and no expense was incurred therefor, until August 25, 1875, when defendant commenced to re 1. Interest on $10,000 borrowed of plaintiff's father and allowed as capital in the concern although no interest had been charged for it against them. 2. Commission of defendant Wilbur for selling bullion produced by the firm. 3. The expense of restoring the build them, at which time the copartbuildings destroyed by fire. nership had died by limitation. It could not therefore be charged against the copartnership. The referee found a copartnership, and that plaintiff was entitled on the accounting to $5,556.34, and against the defendants on counterclaim and all the items which they claimed should be allowed them. Edwin Coffin, Jr., for applt. Albert Cardoza, for respt. Held, That from the facts appearing the referee was correct in his conclusion that a copartnership was created and existed under the terms and conditions of the agreement. The accounting should ascertain the given amount of profits to be divided between the parties; and how much of this amount remains in the hands of each partner, deducting from each one's share such amount so held. In this case the net profits were $11,112.69, of which $250 was After deducting the $250, erroneously allowed plaintiff, with interest thereon from the date of the accounting, the judgment should be affirmed. Opinion by Davis, P.J.; Brady and Daniels, JJ., concurring. BANKRUPT. DISCHARGE OF The American Exchange Bank, respt., v. Benjamin Brandreth, applt., et al. Decided December, 1877. A judgment obtained before the judgment debtor has been granted a discharge of bankruptcy, may be cancelled of record after such discharge. makes it imperative upon the Court to make such order. in the hands of plaintiff, it being the Section 1268 of the Code of Civil Procedure amount overpaid him, and which had never been paid back, and was therefore a part of the assets of the firm. Of such profits plaintiff was entitled Appeal from order denying appli cation of defendant, Benjamin Brat If the new Code was not in effect at the date of the making the order in dreth, under § 1268 of the Code of Civil Procedure, to cancel and discharge of record as to him the judg-question, the order ought to have been ment in this action. The American Exchange Bank recovered a judgment upon a promissory note against Benjamin Brandreth and others on the 12th February, 1861, for $15,771.72. On the 30th June, 1868, Brandreth was discharged from all debts and claims provable against his estate, and which existed on the 29th February, 1868, excepting such as are excepted by the Bankrupt Act. In January, 1877, Austin Corben, who was then the owner of the judgment by assignment from the bank, commenced an action against Brandreth and another to enforce this judgment and collect the same from land conveyed by Brandreth before the discharge in bankruptcy was obtained. Defendant Benjamin Brandreth thereupon made this application, which was denied. Chase & Bestow, for applt. Held, That neither the plaintiff nor its assignee, Corben, had any debt in January, 1877, upon which to base an action. The judgment was satisfied as to Brandreth by the bankrupt's discharge. Chap. 52, Laws of 1875, authorized the Court in which a judg. ment was rendered against a defendant who has been discharged under the U. S. Bankrupt Laws from the payment of that judgment to order the same cancelled of record; that judgment is discharged by the discharge in bankruptcy. 46 N. Y., 12. $ 1268 of the new Code of Civil Procedure makes it imperative upon the Court to make the order, while the Law of 1875 made it permissive. granted if the facts called for the exercise of the power. These laws were passed to meet a necessity deeply felt by those who had been discharged under the Bankrupt Law. There was no way by which the judgment against them could be removed from the record. The value of the lands of the bankrupt acquired after the discharge seemed to be subject to liens, which in reality were not liens, and thus the merchantability and value of the lands were injured. Order reversed and order granted that the clerk discharge the judgment of record. Opinion by Barnard, P. J. CONTRACT. CONSIDERATION. PRACTICE. N. Y. SUPREME COURT. SPECIAL Decided January 9, 1878. The giving of new notes, in settlement of a pending suit, furnishes no consideration for an agreement to delay or suspend the action, or to take such notes in payment of the cause of action. A defendant who has made default, relying on such agreement, will not be permitted to put in an answer setting up the giving of such notes as a payment where he has taken advantage of a delay obtained thereby to make a general assignment of his property. Defendants, as partners, in July, 1877, indorsed and delivered to plaintiffs, for value, a negotiable promissory note, made to them by one Kelly. It not being paid at maturity, the plaintiff commenced an action thereon by service of summons and |