taking. (Hallen v. Jones, 21 N. Y. Supp. 943.)

§ 567. Upon appeal from order denying a motion to vacate an order of arrest, the Court of Appeals will not review the order, when the facts proved, or the legitimate inferences from those facts, furnish some evidence tending to establish the existence of one of the grounds of arrest. But when there is no evidence legitimately tending to establish such a conclusion and the natural inferences from the facts do not necessarily lead to the presumption of a fraudulent intent, a question of law is presented for that court. (Morris v. Talcott, 96 N. Y. 100.)

§ 572. See Havemeyer Co. v. Taussig, 44 Hun, 475; Ryan v. Crane, 12 Civ. Pro. R. 431; Gellar v. Baer, id. 433; Wright v. Grant, 11 id. 407; Sweet v. Norris, 110 N. Y. 668; Redner v. Jewett, 25 N. Y. Supp. 273.

§ 575. If the sheriff takes security other than the law authorizes, it is void; as if he exacts an undertaking for a larger sum than that specified. (Toles v. Adee, 84 N. Y. 223, 234; Cook v. Freudenthal, 80 N. Y. 205.)

581. Where the sheriff is discharged. by the allowance of bail, the court has no power to renew his liability. (Lewis v. Stevens, 93 N. Y. 57.)

§ 586. This applies to a case where a person deposits money for the benefit of the defendant. It was formerly held that it became the defendant's money by the loan, and was subject to attachment in a subsequent suit against him, which attachment would hold the money if the suit in which the deposit was made failed. (Salter v. Weiner, 6 Abb. Pr. 191.)

§ 601. No demand need be made before suing the sureties, and they are not re

lieved by the bankruptcy of their principal. (Wilson v. Field, 27 Hun, 46.)

INJUNCTION.

§ 603. An order of General Term, affirming an order granting a temporary injunction, is not reviewable in the Court of Appeals, except where it plainly appears on the face of the complaint that the case is one in which by settled adjudication the plaintiff, on the facts stated, is not entitled to the relief of a final injunction. In all other cases the granting of the order rests in the sound discretion of the court of original jurisdiction, subject only to review by General Term. (Hudson R. Tel. Co. v. Watervliet Co., 121 N. Y. 397; McHenry v. Jewett, 90 N. Y. 58; Strasser v. Moonelis, 108 N. Y. 611.)

Courts will not in all cases interfere by injunction to restrain the continuance of an illegal trade or business; for plaintiff to have a right to such relief, it must appear that the business is dangerous to life, or detrimental to health, or the occasion of great public inconvenience. (Health Dep. v. Purdon, 99 N. Y. 237.)

§ 606. A judge of the N. Y. Court of Common Pleas is not a "county judge" within this provision, and an injunction order granted by him in an action in the Superior Court is void. (People v. Edson, 20 J. & Sp. 53.)

$620. Defendant cannot have damages assessed until appeals are determined, as until then there is no final decision that the plaintiff is not entitled to the injunction. (Musgrave v. Sherwood, 76 N. Y. 194.)

The fees of counsel for services in procuring a dissolution of an injunction, and in attending a reference to assess damages

consequent thereon, are allowed, but such fees incurred on the trial of the issue in the action are not allowable, unless they are incurred solely or principally in consequence of the injunction. (Newton v. Russell, 87 N. Y. 527. See further as to damages Randall v. Carpenter, 88 N. Y. 293; Lyon v. Hersey, 32 Hun, 497; Holcomb v. Rice, 119 N. Y. 598.)

ATTACHMENT.

§ 635. In an action to compel a trustee to account and pay over the sum found due and to convey to plaintiff the trust estate, no attachment will lie, since this is not an action for a sum of money only. (Thorington v. Merrick, 101 N. Y. 5.)

A suit on a judgment of another State is a suit on contract. (Nazro v. Oil Co., 36 Hun, 296.)

So a judgment for a tort is to be deemed a contract. (Mfg. Co. v. Mayor, 108 N. Y. 276.)

Attachment is allowable in an action for damages for obtaining goods by fraudulent representations, as being an injury to property. (Card Co. v. Searing, 47 Hun, 237; Whitney v. Hirsch, 39 Hun, 325.)

§ 636. Allegations in an affidavit to show fraud may, though weak, be sufficient to give the court sufficient power to decide that fraud existed, and if it so decides and awards the attachment, its action is not reviewable in the Court of Appeals. (Nat. Park Bk. v. Whitmore, 104 N. Y. 297; Wenzell v. Morrissey, 115 N. Y. 665.)

Affidavits may be on information and belief, but the sources of information and grounds of belief must be so stated that the judge can see that the belief has a proper basis to rest upon. (Buell v.

Van Camp, 119 N. Y. 160; Hodgman v. Barker, 128 N. Y. 601.)

Par. 1. If the affidavit does not show these facts, viz., that the plaintiff is entitled to recover the sum stated, over and above all counterclaims known to him, the judge has no jurisdiction to grant the warrant. (Ruppert v. Haug, 87 N. Y. 141; Thorington v. Merrick, 101 N. Y. 5.) "Known to him," means known to plaintiff, and if an agent or attorney swears to the affidavit, he must not swear as to his own knowledge, but as to the plaintiff's knowledge. (Murray v. Hankin, 3 Civ. Pro. R. 342.)

An agent or attorney swearing to a plaintiff's knowledge, must set forth facts showing how he himself has knowledge that the alleged sum is due over all counterclaims known to the plaintiff. (Cribben v. Schillinger, 30 Hun, 248; Smith v. Arnold, 33 id. 484; Buhl v. Ball, 41 id. 61.) But when the agent can be presumed to have such knowledge from the nature of his position, duties, etc., he need not show how he gained such knowledge. (Amer. Bk. v. Voisin, 44 Hun, 85.)

§ 638. Publication in one paper on the

30th and in the other one on the 31st day after the granting of the order is not sufficient and the warrant will be vacated. (Taylor v. Troncoso, 76 N. Y. 599; see also Mojarrieta v. Saenz, 80 N. Y. 548.) But voluntary appearance within thirty days is equivalent to a service of summons. (Catlin v. Ricketts, 91 N. Y. 668.) Substituted service is not sufficient under this section. (Bogart v. Swezey, 26 Hun, 463.)

When the 30th day is Sunday, service on the next day is sufficient. (Gribbon v. Freel, 93 N. Y. 93.)

If publication be begun within thirty days and the plaintiff voluntarily appear after thirty days and consent to entry of judgment, and publication be then discontinued, the attachment will hold good. (Tuller v. Beck, 108 N. Y. 355.)

§ 644. The sheriff may exercise a reasonable discretion as to the amount of property to be attached and held by him. (Wehle v. Conner, 83 N. Y. 231.)

Wages for sixty days, necessary for family support, are not attachable. (McCullough v. Reilly, 24 Hun, 157.)

Railroad bonds in the possession of a Trust Company were delivered to the sheriff upon his threat to break open the safes of the company and take them by force unless they were delivered. Held, a good attachment, though the sheriff redelivered the bonds to the company to keep for him. (Coffin v. Construction Co., 19 Abb. N. C. 383.)

Money deposited with the clerk of the court, in lieu of an undertaking on appeal, may be attached in an action by a third person against the depositor. It is, however, subject to the claim of the respondent in the appeal. (Dunlop v. Fire Ins. Co., 74 N. Y. 145.)

§ 647. This section does not apply to shares owned by a non-resident defendant

in the stock of a foreign corporation. The stock is not deemed to be within the State in such a case, but has its legal situs elsewhere. situs elsewhere. (Plimpton v. Bigelow, 93 N. Y. 592; see Douglass v. Phenix Ins. Co., 138 N. Y. 209.)

§ 649, Par. 2. The only way now to attach a promissory note, bill of exchange, etc., is to take it into the sheriff's actual custody. Nothing else will make a levy. (Anthony v. Wood, 96 N. Y. 180.)

But this is not true when the note is in possession of a pledgee. The pledgor's interest is then attached in the mode prescribed in subdivision 3 of this section. (Warner v. Fourth Nat. Bk., 115 N. Y. 251.)

The proper way to attach a judgment is to serve a copy of the warrant and notice on the judgment debtor, and not to serve it on his attorney; but where the judgment debtor is dead, it must be served on his personal representatives. (In re Flandrow, 84 N. Y. 1; S. C., 92 id. 256.)

A prior equitable assignment of a claim in the hands of a garnishee is a bar to an attachment, notwithstanding no notice of such assignment has been given to the garnishee. (Williams v. Ingersoll, 89 N. Y. 508.)

§ 259. A will, the contents of which were understood by the testator and which was executed with all the required formalities, is valid and will be admitted to probate, although it is written in the English language, which the testator did not understand. Will of Walter, 64 Wis. 487.

§ 265. Though a will be very informal, it will be admitted to probate if it shows a complete testamentary purpose and is properly executed, notwithstanding the fact that the testator expressed an intention to execute a more formal instrument. Matter of Beebe, 6 Dem. 43. See Ash v. Ash, 10 Jur. N. S. 142.

§ 266. "The unnecessary addition of a seal does not change the essential character of the instrument or justify treating it as in part a will and in part a deed." Wuesthoff v. Germania Life Ins. Co., 107 N. Y. 580.

§ 272. Upon the distinctions between wills and other instruments, and as supporting the principles laid down in the text and in the leading cases, see Reed's Executors v. Hazleton, 15 Pac. Rep. 177 (Kan.); Diefendorf v. Diefendorf, 132 N. Y. 100; Leonard v. Kebler's Adm., 34 N. E. Rep. 658 (Ohio); Campbell v. Morgan, 68 Hun, 490; Worley v. Daniel, 10 S. E. Rep. 938 (Ga.); McKinnon v. McKinnon, 46 Fed. Rep. 713; Creil v. Codman, 154 Mass. 454; Lines v. Lines, 21 Atl. Rep. 809; Brumley v. Mitchell, 30 N. E. Rep.

80.

§ 281. The rules, stated in the text, as to the incorporation into a will of extraneous documents referred to in the will, are recognized in England and in most of the States of this country. Goods of McGregor, 60 L. T. Rep. 840; Symes v. Applebe, 57 L. T. Rep. 599; Paton v. Ormund (182), P. 247; Baker's Appeal, 107 Pa. St. 381; Fickle v. Snapp, 97 Ind. 287; Goods of Kehoe, 3 L. R. Ir. 13.

But in New York it is said that a paper, which is of a testamentary nature and which is not itself executed as required by the statute, cannot be taken as a part of a will, even though it be referred to in the will for the purpose of making it a part thereof. An extrinsic memorandum, however, referred to in the will to identify a thing specifically given might be taken into consideration. Booth v. The Baptist Church, 126 N. Y. 215, 247; In re Conway's Will, 124 N. Y. 455; Robert v. Corning, 89 N. Y. 225; Williams v. Freeman, 83 N. Y. 569.

§ 299. It is provided by statute in New York that, whatever formalities in the execution of a power may be required by the language creating the power, no formalities need be observed in its execution more strict than those necessary to convey the estate affected by such power. N. Y. R. S. (8th ed.), p. 2450, § 119 (1 R. S. 736).

§ 308. In New York every person, who signs the testator's name to any will by his direction, is required by statute to