Judgment affirmed with costs. Opinion by Brady, J.; Davis, P. J., concurring. proceed to make the award. They tion. It may be that it can be accomfailing to agree selected a third per- plished by the renewal of the arbitrason, who without being sworn or tion or amendment of the pleadings, taking any evidence as to the value as she may be advised. of the house, and without any notice to defendant, proceeded to make the award on which this action was brought. The defendant as a defence to the action alleged that the arbitrator had never taken the oath required by the terms of the covenant in the lease, and that he had no notice of the time or place of making Geo. W. Lord, for applt. to Held, The appraisers were to ascertain the value, which according to the definition of that word means make sure or certain, to fix, to establish, to determine, to settle, and this would seem to demand the usual mode of investigation to determine the value. The right of parties to a hearing and to produce witnesses is one of the established privileges. 23 Wend., 628. The Courts would not deny such a right unless waived by the agreement, or in some other manner. Day v. Hammond, 57 N. Y. 479. Although it may appear that the right to be heard before the first two chosen was sufficiently shown, there is no warrant in saying that defendant waived his right to be heard before the umpire. This makes it unnecessary to examine the other questions presented, as defendant was entitled to notice of appointment of the umpire, and an opportunity either to present proofs or waive them. VOLUNTARY PAYMENT. The Liverpool and Great Western Austin Baldwin et al., respts., v. Decided July 6, 1877. Payment of money under protest to obtain property cannot be regarded as voluntary, and is sufficient to sustain an action where the said action is illegal. A carrier cannot, when he neglects to make inquiries at the time of receiving goods, and where no fraud is used, upon the discovery, after contract, of facts which would have entitled him to have charged more, insist upon payment of the additional rate. Whether, if unnegotiated securities should be stolen from a carrier, and fraudulantly put into circulation, the carrier could be held responsible for the enhanced value over the cost of reproducing the securities. Query. Appeal from judgment on the report of a referee. The action was brought to recover the sum of two hundred pounds paid under protest, as extra freight upon the transportation and delivery of two boxes of undelivered bonds of the Atlantic and Great Western Railway Company. The bonds, upon delivery to plaintiff for transportation, were represented to be simply incomplete bonds, and to be worth no more than the paper, printing, stamps, &c., but there was no evidence of any representations to the defendants as to their This does not necessarily end plain- | value. There was slight evidence tiff's attempts to procure compensa- that the boxes, when received by de lost or destroyed, and their conduct cannot be regarded as fraudulent, even if they erroneously acted in good faith upon this belief. But this is not an inaccurate view to be taken. If they had been stolen and negotiated by the thief, it is very probable that the defendant could not have been held responsible for the enhanced value, for that would be produced by an act not necessarily caused by its own omission of care. Ryan v. N. Y. Central R. R. Co., 35 N. Y., 210. fendants, were représented to contain in the hands of defendants as of on samples, but the referee found that greater value than the cost of prothere was no deception used either inducing them in case they had been the mode of packing the boxes, or in any other manner. The boxes contained $2,000,000 in amount of first mortgage bonds of the railway company in transit, to their agents at London, to be exchanged for similar bonds of a preceding date, and although complete as far as was signed for negotiation here, by the rules of the London Stock Exchange they could not be negotiated until resigned by the agent who was to receive them. Upon arrival of the vessel at London, one of the boxes was opened, and when its contents was ascertained, defendants refused to deliver the boxes without the payment of the additional freight, which was paid under protest simply for the purpose of obtaining the property. George C. Holt, for applts. Charles M. Da Costa & Wm. H. Hoes, for respts. Held, That the payment under protest, if the execution was illegal, was sufficient to sustain the action. Harmony v. Bingham, 2 Kernan, 99. That the carriers had a right to make inquiries as to the value of the boxes if they wished to regulate their charges thereby, but if this was not done they must be governed by the contract they may have made. Maguire v. Dinsmore, 62 N. Y., 35; 40. It was by no fraud the contract was made, and they could not upon discovery of a fact, which, if known at the time of shipment, might have entitled them to charge a higher price, insist upon the payment of more than the contract called for. The railroad company regarded them Judgment affirmed. Opinion by Daniels, J.; Davis, P. J., and Brady, J., concurring. COMMON CARRIERS. ERY. DELIV N. Y. COURT OF APPEALS. Robinson, respt., v. Chittenden et al., applts. Decided May 22, 1877. The owner of a vessel which has been chartered for a voyage by another party, but which is manned, equipped and sailed by him, is liable to a shipper for the safe carriage of freight for the voyage; but where the freight is delivered by the shipper to the charterer, who turns it over to the master, and is by the master delivered to the consignees of the charterers, such delivery is sufficient to excuse the general owners from liability for loss. This action was brought against defendants, as owners of a ship, to recover the value of a trunk and its contents, the property of plaintiff. It appeared that M. & Co. chartered the ship for a voyage from San Francisco to New York. They had nothing to do with the victualling, manning or sailing of the ship, but she was equipped, manned, victualled and sailed at the expense of defendants, and by the master, officers and seamen appointed by them. Robert D. Benedict, for applts. H. F. Hatch, for respt. Held, That defendants as general owners were the owners for the voyage, notwithstanding the charterparty, and were liable for the safe carriage and proper delivery of plaintiff's trunk during the voyage (1 Sumn., 551; 4 Wash., 116; 8 Wheat, 605; 8 B. & C., 166; 2 Sumn., 589; 2 Str., 1251; Abb. on Ship'g., * 22. It appeared that the trunk was delivered by plaintiff's agent to the clerk of M. & Co., the charterers, who gave plaintiff a receipt and handed over the trunk on board the ship to the master. There was nothing said or done to distinguish it from any of the other freight on board belonging to the charterers, and when the ship arrived at New York defendants delivered it to the consignees of the charterers of the vessel and not to plaintiff or to the agents ultimately appointed by him to receive it. Held, That this delivery was sufficient, and defendants were absolved from liability when that delivery was made. Judgment of General Term affirming judgment for plaintiff reversed, and new trial granted. waste during the tenancy; and it is no de- What constitutes adverse possession? This was an action for waste and eviction. Defendant, at the time of committing the several acts of waste, was grantee of the tenant for life, and plaintiffs' testator was the owner in fee. Defendant cut certain timber trees to the injury of the reversioner. E. G. Lapham, for applt. Held, The felling of the trees was waste, and an action would lie by the reversioner immediately to recover the damages to the freehold (26 Wend., 115; 10 N. Y., 114; Add. on Torts, 228); the fact that defendant acted in good faith or under a claim of right, or that he was in possession claiming a title in fee was no defence to the action. A reversioner cannot bring trespass or ejectment against a tenant so long as the tenancy continues, but he is not debarred from his remedy at law or in equity for Opinion by Folger, J. All concur. waste, because the proceedings may involve the determination of a disPOSSES-puted title. 11 J. R., 429; 2 Wend., 605; 7 Gray, 8; 57 N. Y., 614. WASTE. ADVERSE Decided June 12, 1877. To constitute an adverse possession from which a grant will be presumed, it must have been under a claim of title exclusive of any other right, and A reversioner may maintain an action for it must have been definite, exclusive and notorious, and for a period of 6 Hill, In a deed of the locus in quo, a boundary is referred to as the "Johnson boundary." Held, That this was in the nature of a monument, and it was competent to show where that boundary was, and also to give parol evidence of the location of stakes existing when defendant's deed was given and referred to in the description, although they could not be found at the time of the trial. 8 Wend., 190; 7 Cow., 723; 6 Mass., 131. Order of General Term, affirming judgment for plaintiffs, affirmed. Opinion by Andrews, J. All concur, except Folger, J., not sitting. ATTORNEY AND CLIENT. N. Y. COURT OF APPEALS. F. C. Wright, applt., v. George S. Wright, respt. Decided June 5, 1877. agreement that the action be discon- Alex. Thain, for applt. Held, no error: that plaintiff's attorney had no lien on the cause of action, and could not intervene and insist that the action should proceed for his benefit. (18 N. Y., 489; 52 id., 73.) That if the taxable costs are not such compensation as the attorney is justly entitled to, he may still have a remedy on defendant's agreement. Order of General Term, affirming ordered of Special Term, affirmed. Opinion by Earle, J. All concur. CONTRIBUTORY NEGLI GENCE. N. Y. COURT OF APPEALS. McAlpin, admtr. &c., respt., v. Powell, applt. An attorney has no lien upon a cause of action Decided June 12, 1877. and cannot intervene and insist that the action shall proceed for his benefit. After issue was joined in this ac; tion, it was duly referred, and after one hearing before the referee, defendant settled with plaintiff, and the latter gave him a release and an The principle that one guilty of negligence which contributes to an injury applied in a peculiar case. This action was brought to recover damages for the death of plaintiff's intestate, who was his son, and resided with plaintiff on the top floor of a tenement house belonging to defendant. The window of plaintiff's room opened upon a fire-escape which had been built by defendant pursuant to Chapter 863, Laws of 1873, which provides for the erection and keeping in repair by landlords of fire-escapes to tenement houses. The fire-escape, which was about sixteen inches from the window-sill, was about eight feet long and three and one-half wide, and was surrounded by an iron railing. At one end there was a trap-door and a ladder leading to the platform in the story below. The hinges of the trap-door were rusted, and were fastened only with a small wire and string. The deceased passed out through the window upon the platform of the fireescape, and stepping upon the trapdoor, was precipitated below and killed. Jno. E. Parsons, for applt. N. C. Moak, for respt. Held, That the act of the deceased in entering upon and passing along the fire-escape was in violation of the purpose for which it was designed, and he was a trespasser, and defendant owed him no duty to keep the fire-escape in repair, and was not liable. (56 N. Y., 1 ; 33 L. J., 177; L. R., 1 Ex., 239; 4 H. and N., 67; 29 L.J., C. P., 203; 3 B. and Ald., 304; 41 N. Y., 525; L. R., 2 C. P., 371; 5 L. and Eq., 491; 11 id., 551; 24 id., 507; 32 id., 349; 1, H. and C., 633.) R. R. C. v. Stout, 17 Wal., 657, distinguished Judgment of General Term, affirming judgment for plaintiff, reversed and a new trial granted.. Opinion by Miller, J. All concur except Church, Ch. J., dissenting. CONTEMPT. EXECUTOR. BODY EXECUTION. N. Y. COURT OF APPEALS. In re Watson, respt., v. Nelson, applt. Decided, May 22, 1877. An executor cannot be committed to prison as for a contempt for not paying over moneys in his hands decreed to be paid to the persons interested in the estate; the proper remedy is an execution against the body. This was an appeal from an order of General Term, made upon certiorari, and affirming an order on habeas corpus, discharging from custody W., the respondent, who had been committed to the common county jail, for an alleged contempt, by the Surrogate of Rensselaer County. It appeared that W. was the sole surviving executor of S. The commitment recites that by an order of the surrogate it was ordered that W. should be committed to the common jail of the county, there to remain charged with the contempt mentioned. in said order, until he should pay a fine of $5,876.58, therein imposed, and commands the sheriff to take the prisoner and keep him safely and closely in his custody until he shall have paid the fine. The cause of the commitment for which the fine was imposed was the non-payment and refusal to pay a sum of money decreed generally to be payable by W. as sole surviving executor to the persons interested in the estate of his testator. James Lansing, for applt. Held, That W. was not guilty of a contempt, and the order directing fine and imprisonment was invalid and unauthorized; that the decree of the |