The petitioner should have leave to take such legal action against the receiver as shall be proper to assert her right under her judgments. Order reversed and motion granted for leave to sue receiver with costs of appeal and of motion. Opinion by Barnard, P. J. CONTRACT. PROMISE TO PAY N. Y. SUPREME COURT. GENERAL was under no legal obligation to pay it to them. They left nothing in his hands, for they had nothing there to leave. What he paid the workmen was his own, and what he did not pay them was his own. He paid them a part of the amount due from McKee and promised to pay the balance to the plaintiff. Was there any consideration for that promise? The defendant received no benefit; no consideration moved to him. Nor has harm been done to the legal rights of McCafferty, respt., v. Decker, applt. the plaintiff or of the laborers. They Decided December, 1877. A parol agreement to pay the debt of another, for which there is no consideration, is void upon general principles. Defendant was a contractor to build the Spuyten Duyvil RR. One McKee was a subcontractor under him, and received from the defendant the instalment due on his contract, and absconded without paying his laborers. Agents of Decker went to the laborers and paid them a part of their wages due from McKee. The part unpaid these agents promised to pay to the plaintiff whom these laborers owed for goods delivered. The defendant took receipts from the laborers only for the amount paid and not for the part he promised to pay plaintiff. This is an appeal by defendant from judgment entered at circuit in favor of plaintiff. Close & Robertson, for applt. C. C. & S. F. Prentiss, for respt. Held, error. Money is always retained when it is not paid out, and in that sense the defendant retained the amount which the plaintiff now sues to recover, and in no other sense. It did not belong to the laborers, and the defendant did not owe it to them and have relinquished none of their claims nor any security for their payment. The agreement does not reach the statute of frauds, but is made void by general principles of law. Neither has the defendant made use of the plaintiff's claim to pay his own debt. He paid the laborers a certain sum of money, a part of that due from McKee, took a receipt for this amount and promised to pay the balance to the plaintiff, and this is all he did. He took receipts for the amount paid only and left the. balance unextinguished and the plaintiff's claim undisturbed. To find a valid consideration for this promise will only carry the case to the statute of frauds, and then we have a promise upon valid consideration to pay the debt of another, not in writing and so void. 21 N. Y., 412. Judgment reversed and a new trial granted, costs to abide the event. Opinion by Dykman, J.; Barnard, J., not sitting. INSURANCE OF TRUST PROPERTY. N. Y. SUPREME COURT. GENERAL TERM. THIRD DEPT. George Harvey, respt., v. Alexander Cheny, applt., et al. Decided November, 1877. One of several cestuis que trust may insure his interest in the trust property in the name of the trustee, but loss, if any, paya ble to himself, and in case of loss receive the entire proceeds, provided no unfair advantage is taken of the others in effecting the insurance. Appeal from a judgment in favor of plaintiff entered upon the report of a referee. The defendant held the title to the Grand Hotel premises at Saratoga Springs, in trust for plaintiff and a number of other cestuis que trust. Defendant refused to insure the premises for the benefit of all beyond a certain amount, which amount was not sufficient to protect plaintiff's interest. Plaintiff then, with the consent of defendant, insured his, plaintiff's, interest, the policy being in the name of defendant, but payable, in case of loss, to plaintiff as his interest might appear, and paid the premium thereon. The premises were afterwards burned. The insurance companies recognized plaintiff's rights and were willing to pay the amount agreed upon, but as defendant claimed the money as trustee, it was paid by consent of the parties to defendant White, to hold it until it was determined who was entitled thereto. This action was then brought. It was referred to a referee who reported in plaintiff's favor. Judgment was entered thereon and defendant Cheny appealed. John C. Hulbert, for applt. Harrington Putnam, for respt. Held, That defendant's position, that any insurance effected and paid for by plaintiff for his own benefit only, inured to the benefit of all others having a like insurable interest is not sustained by the authorities cited. They are cases of partners, lessees, or tenants in common, where one of the persons having a common interest takes an undue advantage of his associates to secure a benefit for himself, to their injury. But the act of plaintiff in insuring his own interest was not hostile to the others. It did not injure them. It is not evidence of any unfair advantage. They could have insured as plaintiff did. Because they did not is no reason why they should share in the fruits of plaintiff's vigilance, care, and expense. One of two several mortgagees may insure his own interest and the other would not be entitled to share therein. Waring v. Loder, 53 N. Y., 581. So in the case of joint owners. Miller v. Eagle Ins. Co., 2 E. D. Smith, 299; Turner v. Burrows, 5 Wend., 541; 8 Id., 144; 24 Id., 276. Judgment affirmed with costs. Opinion by Boardman, J.; Learned, P. J., concurs. Bockes, J., takes no part. LEGACIES. ABATEMENT OF. N. Y. SUPREME COURT. GENERAL TERM. THIRD DEPT. Lewis W. Scofield, applt., v. Ziba T. Adams, ex'r, &c., respt. Decided November, 1877. A legacy for maintenance given by a wife to her husband "for his comfort and benefit," where no other provision is made for him, does not abate with other general legacies, on a deficiency of assets to meet them all. Appeal from a decree of a surro gate making distribution of assets was made accordingly. From this decree the husband appeals. upon a final accounting. Pond, French & Brackett, for applt. Putnam & Eustis, for respt. Mrs. Scofield, the wife of the appellant, made a very informal will, and one somewhat indistinct in its provisions relating to the appellant. The Held, That this was not an absofirst sets apart certain furniture for lute gift to the husband. Briefly and his room to be used and enjoyed by formally stated, she gave to him the him during his life. She then adds use of certain specified articles of as follows: "I also give my husband room furniture for life; also the use $5,000, to be put at interest-the or avails of $5,000, with so much of principal interest" (so in the original) the principal as should be necessary "to be used for his comfort and bene- for his comfortable support; and on fit. When he is done with it, and his decease what should remain to go after his funeral expenses are paid out to Mamie and Gussie Adams. In of it, if there is anything left let the the sense of its being distinguished things be sold, and all of whatever is from other money, this legacy of left of the money be put at interest $5,000 is not specific. It is not a for Mamie and Gussie Adams when bequest of any specified money, disthey are of age to be given them. . . . tinguished from other money of the It is my especial request that every-testatrix, or of any specified property thing be done for my husband's from which the fund was to come or comfort and happiness. If the be made up. But it was a bequest of money above mentioned is not money, and in the sense of its being enough for his use, more is to be a money bequest it was a general taken from the principal and added legacy. to it." But Held also, That the legacy to She also gave to Mervin Adams and the husband does not abate with the to Mattie Blossom, each $1,000; and to other general legacies. Another rule Frank S. Bay and to Mamie L. Adams is applicable, viz.: that legacies for each $500; and by a residuary clause maintenance and support of those she gave whatever should remain to standing in near relations to the testaher nephews and nieces, who were tor, and more or less dependent upon "the most needy." It appears from the his bounty, and otherwise inprovided will itself that she supposed she had at for, do not so abate. This rule stands least $20,000 to dispose of. It proved upon the ground that the testator in fact, however, on the settlement of must have intended to give a preferthe executor's account, that there was ence to such legacy over all others only $6,502.58, to meet and answer the of a general character. In the presbequests to her husband and the four ent case the testatrix held the comfort other persons above named, which and happiness of her husband above bequests amounted to $8,000. The all other considerations in making surrogate held that the legacy to the disposition of her property. She husband abated in equal proportion made it a special request "that everyto the other legacies, and the decree thing be done for my husband's com fort and happiness," and then imme- prosecution. The case was tried at diately added that if the money the Circuit before a jury, and a verappropriated for his use was not dict rendered for the plaintiff for enough, that more be added to it. $100 damages. The case is before He was unprovided for save by this this Court on exceptions ordered legacy, nor did she anticipate that heard in the first instance at the Genher estate would be insufficient to eral Term. satisfy all her bequests in full. It is but fair and just to conclude that she did not intend that the legacy should abate with the other legacies on account of any possible insufficiency of assets, but that, on the contrary, she intended to honor it with a prefer ence. Decree of surrogate reversed, and case sent back that the decree may be corrected so as to meet the views above stated. Opinion by Boardman, J.; Learned, P. J., and Bockes, J., concur. MALICIOUS PROSECUTION. Decided November, 1877. An action for malicious prosecution on a T. F. Bush, for deft. Stewart & Read, for plff. Held, That plaintiff's discharge from custody was not a determination that he was innocent. The prose cution was not thereby determined in his favor, or determined at all, so far as appears by the case made. Until the grand jury met, and the case was presented and ignored, or the complainant failed to prosecute, the proceeding initiated before the justice was not ended. Bacon v. Townsend, 6 Barb., 426; Clark v. Cleveland, 6 Hill, 344; Thomasen v. De Motte, 9 Abb., 242; 2 Green. on Ev., § 452. The judge erred, therefore, in not granting defendant's motion for a nonsuit at the close of the case. Motion for new trial granted; costs to abide event. Opinion by Boardman, J.; Learn charge of grand larceny cannot be main-ed, P. J., and Bockes, J., concur. tained if the prosecution is not determined before the action is begun. The proceedings initiated before a Justice of the Peace are not ended until the grand jury meets, and the case is presented and ignored, or the complainant fails to prosecute. Plaintiff was arrested on complaint of defendant on a charge of grand larceny. After an examination before a Justice of the Peace, he was committed to jail in default of bail. Afterwards, and before the next meeting of the grand jury, he was discharged from custody on a writ of habeas corpus, and immediately thereafter began this action for malicious CRIMINAL JURISDICTION. The People v. Arthur B. Elliot. The Police Court of Troy has jurisdiction of Defendant was convicted in the Police Court of the City of Troy of the offense of libel, and was sentenced to pay a fine of $150 or be impris oned in the County jail at hard labor for the period of one hundred and fifty days. The Court of Sessions of Rensselaer County affirmed the conviction and sentence. The proceedings are brought to this court by certiorari to the Court of Sessions. R. A. Parmenter, for the People. Held, That the Police Justice had not the right to try, and upon conviction to punish the defendant for the offense of libel. There is no reason for believing that the Legislature intended to give to the Police Court of the City of Troy, by Ch. 18 of the Laws of 1876, greater jurisdiction than was possessed by Courts of Special Sessions in the several towns of the State. The part of § 2 which creates the mischievous doubts, and which reads "and, as such Court of Special Sessions shall have jurisdiction of offenses of the grade of misdemeanors" must be construed to mean and in like manner with such Courts of Special Sessions," &c. It follows therefore that the Police Court of Troy has jurisdiction of offenses of the grade of misdemeanors to the same extent with Courts of Special Sessions in towns, and no further. Judgment, conviction, and sentence reversed and set aside, and defendant discharged therefrom. Opinion by Boardman, J.; Learned, P. J., and Bockes, J., concur. SURROGATES. N. Y. COURT OF APPEALS. In re Claim of Thomson, creditor. Thomson v. Taylor, ex'rx., &c. Decided November 13, 1877. The authority vested in the surrogate, under the Revised Statutes, to decree payment of a debt of a deceased person by his executor, &c., in full or in part, at any time after six months from the time that letters were granted, is to be exercised in conformity with the general principle of equality among creditors. Where a decree for payment of a debt in full has remained unperformed by the executor up to the time for a general distribution of the estate, and the estate proves insufficient to pay all debts in full, the party in whose favor it was made is only entitled to his pro rata share, and especially so where the executors have been removed, and a receiver of the estate appointed by the Supreme Court. Upon application of one of the creditors of T., under 2 R. S., 116, § 18, which authorizes the surrogate to decree payment of a debt of a deceased person, by his executor or administrator, in full or in part, at any time after six months from the time of granting letters, the surrogate decreed that the executors should pay the applicant the debt in full. The decree was not performed, the executors having been removed, and a receiver of the estate of T. appointed. It now appears that the assets of T.'s estate are not sufficient to pay his debts in full, and that the time for a general accounting and distribution has arrived. The applicant claimed that he was entitled to a preference in the payment of his claim out of the funds in the hands of the receiver. F. S. Kernan, for applt. Held, That the decree not having been performed, the applicant's claim was not tenable; that the decree proceeded on the assumption that the assets exceeded the debts, and the execution of it would be contrary to the provision of the statute against preference to creditors; that the admin |