Volume 10 — Howard's Practice Reports

This was an application by the defendant to discharge and set aside the attachment issued in the cause, and all proceedings «n the part of the plaintiffs. The attachment was granted by a county judge upon the following affidavit: “ The President, Directors, and Company of the Bank of Commerce agt. the Rutland and Washington Railroad Company. County of Washington, ss.

<p>The court must be enabled to see from the pleadings, and other papers of the parties, that the trial of the cause must necessarily involve the examination of a long account on either side before they will compel a reference.</p>

The complaint in this, action is filed for the purpose of carrying into effect an agreement for the purchase of certain real property in the city of New-York, dated 29th Nov. 1850. The alleged-contract is in writing, and pur- ■ ports to be made between Jane Christie, (entitled to dower in the lands,) Stephen L. Preston, and Margaret Ann his w-ife, Levi H. Truex and Mary Jane his wife, of the first part, and the plaintiff of the second part.

The complaint in this ■case is upon a promissory note alleged to have been executed to the plaintiffs as the payees thereof, by an agent of the defendant thereto duly authorized, containing the usual allegation ■of nonpayment, and demanding judgment for the amount thereof. The complaint was duly verified.

<p>Where a defendant is convicted of a misdemeanor under the statute, (or any other statutory offence,) the judgment of the court thereon for sentence must state the particular offence constituting the misdemeanor, or other crime.</p> <p>That is, it is not enough for the judgment to state that the defendant was convicted of a misdemeanor, simply—it must state what the offence was which constituted the misdemeanor, whether a violation of duty as a commissioner of excise, or gaming, &c.</p> <p>The detention of a defendant under such an alleged defective judgment may be inquired into on habeas corpus, because the defect is apparent on 'the face of the process of commitment. And where it clearly appears, the defendant will be discharged.</p> <p>In Kings county a special statute exists directing the courts sentencing prisoners to imprisonment for thirty days or more, to sentence them to be imprisoned in the penitentiary. Therefore a sentence and commitment of a person convicted of a misdemeanor to the common jail of that county for thirty days is illegal; and this question may also be decided on habeas corpus.</p>

The summons, by which the suit was commenced, specified the name of the county in which the trial was desired; but the complaint, which was afterward served, wholly omitted to specify the name of such county. The defendants obtained three several orders extending the time to answer said complaint, each upon an affidavit stating, in substance, that the defendants intended to answer the complaint.

The complaint of the plaintiff was as follows:— “ The plaintiff in this action complains that the defendant, on the 4th day of July, 1851, made his promissory note or contract in writing, of which the following is a copy: “ Russia, July 4th, 1851. “For value received, I promise to pay to Henry Carruthers, or his wife Elizabeth, annually, on the first day of April, during the life of the longest liver of them, the sum of two hundred dollars, if called for or needed. “ William…

This was an action to recover the possession of real estate in Orange county, as also the rents and profits of the premises while in the occupation of the defendant. The plaintiff had judgment for the property, and also seventy dollars for damages for the detention. An execution was issued against the property of the defendant, and returned unsatisfied. Ah execution against the person was then issued, and the defendant arrested.

The complaint in this action was-for work and labor performed, and money paid, by the plaintiff for the defendant. The answer contained, first, a genéral denial of the complaint; second, that the labor and money mentioned in the complaint were done and paid by plaintiff for and at the request of defendant, jointly with one John M.-Griffith and seven others, who were all living, and ought to. be .joined.as defendants; third, an off-set-for money lent to the - plaintiff. .

This action is brought to recoven the possession of personal property, and is; familiarly known as an action of replevin. The defendant, in his answer interposes a general denial of the allegations in the complaint, and, secondly, a justification for the taking of the property, under executions againt one William Bingham, whom the answer alleges to be the owner of the property.

The defendants are the sheriff and two of his deputies of the county of Kings, who have been held to bail in an action for damages for taking per ■ sonal property. A motion is now made to vacate the order, on the ground that a sheriff is not liable to arrest. The affidavits on the part of the defendants show that the property was . taken by virtue of three several executions against the property of Benjamin T. Robbins.

Motion by the defendant to strike out portions of the complaint as “irrelevant and redundant.” The complaint is for relief, and concludes with the following prayer:— “And the plaintiff asks that the deed so fraudulently obtained be ordered by this court to be set aside and cancelled, or that the said defendant reconvey the said property to the said plaintiff, or that the said deed be re-formed, so as to give this plaintiff the possession of the premises during her life, with…

This was an action to foreclose a mortgage, made by the defendants, Enoch C. Roberts, Frederick W. Allen, and William Hickock, to Daniel A. Galloway, on the 28th of July, 1842, to secure the sum of $2,129.25, upon certain premises situated in the town of Waterford, N. Y., consisting of water-power, which were then subject to a mortgage of $1,500, previously given by John Pettit and wife (from whom the mortgagors in this case derived title) to one Mahala Van Nort; subject to…

<p>Where the plaintiffs, on a sale of a bill of goods on a credit of six months, claimed that the sale was conditional—that the title, although the goods were received by defendant, did not pass from them in consequence of the condition not having been complied with; and alleged that the defendant had wrongfully converted said goods to his own use, and claimed damages (the amount of the goods) by reason thereof; and the answer of the defendant admitted the purchase, amount, and receipt of the goods, but denied the conditional purchase, and the conversion of plaintiffs’ goods to his own use.</p> <p>Held, that a provisional order obtained by plaintiff under § 244, sub. 5, directing the defendant to pay and satisfy the amount of plaintiffs’ claim, admitted in the answer to be due, was not evidence in the cause, and was improvidently granted. Because, 1st. It is applicable only where the defendant’s answer admits part of the plaintiffs’ claim—when the whole is admitted there should be judgment; and,</p> <p>2d. The defendant denied the trover and conversion, and the whole claim on that ground, but admitted the facts of the purchase, &c , to show that the property was not in the plaintiffs, but belonged to him.</p> <p>The difficulty was; (there being no evidence of wrongful conversion,) that there was an effort of the plaintiffs to convert a simple contract claim into a fraud, so that they could extort payment from the defendant or his friends by obtaining the power to imprison him. Against such attempts the courts should be watchful.</p>

The plaintiff sues as the assignee of the claim or cause of action. The claim originally belonged to one Michael Amon, who sold and assigned the same to the plaintiff. Upon the trial of the cause, the assignor, Michael Amon,. was offered as a witness to prove the plaintiff’s case, and he was objected to by the defendant, on the ground that no notice of the examination of the said. Amon had been served upon the defendant.

<p>This is an action by the mother, to procure sentence of nullity against a fraudulent marriage of her minor daughter.</p>

The first count of the complaint was on a note alleged to have been given on the 20th of July, 1848, by the defendant, by which, for value received of one J. C. Offerman, the defendant promised to pay, 3 mos. after date, to his own order, $100; and states that defendant, at the same time and place, transferred it tó J. C. O., and J. C. 0. on the same day transferred it to the plaintiff, who is now the owner, and that it had ■not been paid, but had been protested for…

In August, 1825, Nicholas W. Stuyvesant and wife granted to Hall and Reade a triangular lot of land, lying between Seventh-street and Third and Fourth-avenues, in trust, to permit Nicholas W. Stuyvesant, his heirs and assigns, to receive the rents and profits, “ until the said hereby granted and conveyed parcel shall be opened as a public square,” and “ after the said parties of the second part, their heirs or assigns, shall have elected to lay open, and shall actually open…

This is an action of slander, brought by the plaintiff, an unmarried female, for words spoken against her chastity. The complaint contains three counts, each count charging the same words, but as spoken at different times, and to different persons. The substance of the charges are, that the plaintiff was then pregnant, or had been delivered of a child.

This case comes before this court on appeal from a judgment of the supreme court rendered on a demurrer interposed by the defendant to the reply of the plaintiffs. The complaint is upon a promissory note. The answer sets up the pendency of a former suit at the time of commencement of this action.

<p>The summons in this action does not contain the name of any court. It was served on the 31st of October, 1853, and was not accompanied with a complaint. The defendants did not appear, and on the 22d of November, 1853, judgment in the action against the defendants was entered in this court in the clerk’s office of Cayuga county. A motion was made by the defendants, at a special term of the court held in Syracuse, before Mr. Justice Pratt, to set aside the judgment, and for leave .to the defendants to appear and answer, for irregularity, in that no court is named in the summons, which motion was denied. The defendants appealed from the decision to the general term.</p>

<p>Where at the circuit a verdict is directed for the plaintiff subject to the opinion of the court at general term, the plaintiff on a case made and decided in his favor is entitled to a trial fee of an issue of law ($15.)</p> <p>Such being a calendar cause, the printer3s fee for the case and points (as required by rule 30) is a proper disbursement charge for the plaintiff—also the clertfs fee ($1) is allowable.</p>

<p>The plaintiff at the last Dutchess circuit, before Mr. Justice Brown, recovered a verdict against the defendants, and at this term the plaintiff moved for a per eentage allowance in addition to the regular bill of costs. The plaintiff’s attorney, Jacob B. Jewett, Esq., stated in his affidavit, that the examination of the question, whether the plaintiff had made an assignment of the policy after the loss had been incurred and the effect thereof, presented “ a difficult and extraordinary question,” and that on the trial of the cause counsel from New-York were in attendance.</p> <p>In opposition it was shown that the plaintiff’s complaint contained about nine folios, and that the trial of the cause did not exceed two hours, and that the only question was one of fact, whether the plaintiff had or had not made the assignment contrary to the conditions of the policy.</p>

This was an appeal from a judgment upon the report of a referee. The action was upon a note, in the words and figures following:' “ $500, Thirty days from date I promise to pay to the order of J. Diosse'y, at the Manhattan Bank, five hundred dollars, with interest, value received. Utica, September, 30,1851.

The complaint contains two counts, the first of which states, that the defendants are a corporation engaged in carrying passengers and freight from Greenbush to Boston by railroad—that they had entered into a contract with the United States, by which, for a stipulated price and period they had agreed to transport upon their railroad, and in their cars, the mail and mail-agent—that the plaintiff was the mail-agent on that route, in the employ of the United States—that on the…

The complaint contained two counts or statements of causes of action. The first count was upon a special contract for the recovery of money only, and the second was upon a general indebtiatus assumpsit for services rendered and money paid by the plaintiff for the defendant. The complaint was not verified. The defendant demurred to the first count, and answered the second.

This was an action brought by the plaintiff for the wrongful taking and converting personal property, chairs, tables, carpets, bedsteads, and bedding, and other household furniture goods, and cooking utensils of the value of $800 claimed to be owned by and which were in the possession of the plaintiff at twenty-fifth street in the city of New-York.

<p>The facts are sufficiently stated in the following opinion.</p>

<p>A judgment entered on demurrer to an answer not constituting a counterclaim, and by stipulation of counsel for both parties, an appeal brought to review that judgment, while questions of fact were pending and undecided in the action,</p> <p>Held, that the appeal be dismissed; because the cause had not been finally disposed of—there had not been a final judgment in the action. And the parties could not stipulate a judgment, without disposing of the issues, for the purpose of enabling one of them to appeal, so as to obtain the decision of the court upon an intermediate order.</p> <p>Besides, it seems, that such a judgment is a nullity, because entered upon a decision of a demurrer to an answer not constituting a counter-claim.</p>

The action is for slander. The allegation is, that the defendant charged the plaintiff with having swindled him, in a quantity of gold and jewelry, and with being a “ swindler.” It is alleged that these words were spoken of the plaintiff as a merchant, and were intended to charge him with the crime of obtaining goods and money under false pretences.

Judgment was entered and perfected in the Chemung county clerk’s office in favor of the defendant, against the plaintiffs for $456.68 on the 9th of May, 1854. On the 15th of the same month written notice of the judgment was served on the plaintiff's attorney. On the 24th of the same month the plaintiffs attorney served upon the defendant’s attorney notice of appeal from the judgment to the general term.

The plaintiffs being a banking institution, organized under the general act, brought an action in the name designated in the articles of association. The defendants demurred to the complaint, and among other causes of demurrer alleged that the action should have been in the name of the president, as provided by statute, and that the complaint did not show a cause of action.

<p>Lots “ appropriated, set apart and devoted as a situation for a building for public worship to be erected thereonand lots “ appropriated for the uses and purposes of a cemetery, a keeper’s house, and a chapel erected for religious services at interments,” are not exempt from taxation under the statute in relation to the assessment and collection of taxes. (1 R. S. 388.)</p> <p>Because, the statute declares that every building for “public worship, and the several lots whereon such buildings are situated, shall be exempt from taxation.” Now “ vacant lots” is not a building for public worship, however appropriately dedicated to be used for the erection of such a building; neither is a .“.chapel,” erected for religious services at interments in a cemetery, a place of “public worship” in the sense contemplated by the statute, and of course the lots appurtenant to the chapel, as well as the chapel itself and the keeper’s house, are subject to taxation.</p> <p>Where taxes have been assessed without objection or- appeal, although subsequently .paid under protest, they can not be recovered back.</p>

This action was brought to recover a balance due to the plaintiff from the defendants upon a joint and not several contract. Both the defendants appeared and answered. . The defendant, Israel B. Coats, among other things, set up in his answer the defence of infancy at the- time he entered into the contract.

In November, 1851, the relators presented to the board of supervisors of the county of Albany a claim against school district No. 16, in the town of Westerlo, with a statement that they were trustees of the district, and that, in performing their official duties they assessed a tax on the inhabitants of the district for the payment of teachers’ wages, &c., and made out their warrant for its collection, and gave it to the collector; that the collector levied upon property…

Motion to dismiss appeal from an order made by the county judge of Wayne county. The facts are sufficiently stated in the opinion of the court.

This was a motion to strike out the 3d, 4th, 5th, 6th, and 7th divisions «of the reply of the plaintiff.

The action was to vacate an award of arbitrators, on the ground that two of the arbitrators certified at the same time with their award the principle of law on which they decided; and that the certificate showed that their award was against law. The action was against seven different insurance companies, they all having joined in the submission to the same arbitrators, and but one award being made.

This was a motion to compel the plaintiff to elect upon which one of his first five counts or statements of causes of action in his complaint set forth he would rely; and to strike out the residue as irrelevant or redundant; or that the complaint be set aside as containing several counts on the same cause of action; or as not conformable to the 2d subdivision of the 142d section of the Code.

Appeal by defendant from judgment rendered upon the report and decision of a referee. The action was against Robinson as survivor of himself and Parsons, to recover the price of propeity sold and delivered to Robinson and Parsons. The defendant answered : 1. Denying each and every allegation in the complaint; 2.

<p>Appeals from orders made at special term held at Rochester, July 1,1853, before Selden, J., confirming reports of commissioners, &c.</p>

This is an action to set aside an assignment, executed by Ferguson to Lamont, in trust, for the benefit of creditors,' bearing date 29th October, 1851, at Harpersfield, in Delaware county, where Ferguson was engaged in business as a merchant, and where Lamont was employed as a clerk in the law office of S. A. Givens, Esq. The plaintiffs are judgment creditors of Ferguson in the amount of $561.06, on a judgment recovered against him 18th Dec., 1851, for goods sold to him…

Motion on the part of defendants to set aside a common law writ of certiorari for irregularity. The grounds of the motion are fully stated in the opinion of the court.

Motion to set aside judgment for irregularity. The action was upon several promissory notes. The complaint was verified by one of the plaintiffs attorneys. The verification was in the following words : “ City and county of Albany ss.

<p>Where it appears that a stock company have fraudulently issued false certifiactes of stock largely beyond the actual capital of the company, and the company have become insqlvent; an injunction restraining the company and its officers from opening their transfer books for the transfer of any stock, even for owners who are stock brokers and require such transfers to be made in the regular course of their business, will be granted and continued until the courts or the legislature dispose of the matter.</p>

<p>In an action for partition and sale of real estate, it is not necessary to advertise for persons having general liens by judgment or decree, to present their claims to a referee, &c., in order to render the sale regular and valid. (See Imws of 1830, eh. 320; 12 Wend. 269.) The advertisement and reference are only intended as a means of cutting off certain general liens. If there are none, there is no use of the advertisement; and if the .parties to the suit know there are none, there is no reason why they should be subjected to the expense and delay of an advertisement and reference that must amount to nothing. If there are such liens in fact, the purchaser, on examining his title, will discover them, and decline to take the title until the liens are discharged.</p> <p>As, however, judgments and decrees do not cease to be a lien as against heirs at law at the end of ten years, the parties to such an action who choose to omit this ordinary advertisement should produce, at their own cost, regular searches for all judgments and decrees for at least twenty years.</p> <p>The administrator of the deceased, or any of his creditors, may obtain a decree of the surrogate for the sale of the real estate at any time within three years after letters of administration are granted, (2 R. S. 100, § 1,) in order to pay the debts of the deceased; and a previous sale of the real estate, in partition by the heirs at law, by an order of the court, does not divest the surrogate of _ this power to decree a sale under the aforesaid statute.</p> <p>A purchaser under a partition sale by the heirs at law is not bound to take an affidavit of the administrator or any other person, that there are no debts of the deceased; he is entitled to have the fact made out beyond all reasonable doubt that there are no debts or liabilities of any kind of the deceased, for which there is any risk that the property may be sold, whether those debts are his own, or as surety, or contingent.</p>

This is an application to amend the complaint after all the testimony had been taken, the cause brought to a final hearing, elaborately argued upon both sides upon the merits, and a decisión made in the case against the plaintiff. The affidavits and papers show that the suit was commenced in the month of February, 1852.

This action was brought to restrain the defendants from interfering with, injuring or removing a certain barn and outhouses, erected by the plaintiff, on what he claimed to be the rear of a lot, in the village of West Troy, known as lot No. 39 on a map or plan of the village, made by and for the original proprietors of the lands, of which lot No. 39, on the westerly side of Rochester street, formed a part.

The plaintiff sued for the recovery of the possession of personal property, and in the affidavit, on which was founded the requisition to the sheriff to cause the property to be delivered to him, he enumerated a great number of articles, valuing them at $1,250. In the complaint, he described less than one-fourth of the articles, and valued them at $250.

<p>Where judgment is obtained against the personal property of a deceased debtor, and the execution is issued against his executors, describing them in their representative capacity ; such description alone is insufficient to prevent the sheriff from levying upon the individual property of the executors.</p> <p>Where, in such case, it is intended to collect the amount out of the assets in the hands of the executors, the execution, under § 289 of the Code, should require the officer to satisfy the judgment out of the property which, according to the judgment, is liable for its payment.</p> <p>Where the executors’ accounts have been “rendered and settled” before the surrogate, it is unnecessary to procure an order from the surrogate to issue execution; but it is provided that “ the execution shall issue only for the sum that shall have appeared, on the settlement of such account, to have been a just proportion of the assets applicable to the judgment.” Therefore, where the amount of assets is less than the amount of the judgment, it is irregular to issue execution for the whole amount of the debt.</p>

The defendants move to dismiss the appeal in this case, on the ground that it is taken as from an order, and without giving any security. They demurred to the complaint, and. upon the trial of the issue of law thereby formed, it was ordered that the defendants have judgment. Leave to amend was not given.

This is an appeal under § 349 of the Code, as from an order, from a decision entered in the minutes, after a trial by the court at a special term, directing judgment for the plaintiff on a demurrer taken by the defenuant to one of two several counts or alleged, causes of action in the complaint, with leave to the defendant to answer. Upon the appeal being moved for argument, it was objected, preliminarily, that the appeal‘will not lie. .

<p>The action is for verbal slander. The complaint contains two counts or statements of causes of action, which are sufficiently stated in the opinion.</p>

The plaintiffs in this case were partners in business, and merchants doing business in the city of New-York, under the name and firm of Mott, Weaver & Richardson. Held: possession of all the property and effects intended to be conveyed by said assignment.

This action is brought upon two promissory notes. The complaint alleges the making of one of the notes by the defendant, John Totten, payable to the order of the defendant, William Totten, at the Commercial Bank of Perth Amboy. It then states that John Totten delivered the note to William Totten, “ who thereupon endorsed the same, and duly delivered it.

At a late special term, upon the petition and other papers of the Buffalo and Batavia Plank Road Company, an order was. made, requiring the commissioners of highways of Lancaster to show cause, at this special term, why a mandamus should not issue against them, to compel them to assess certain persons for land and property owned by them upon the line of the plank road, and to apportion such highway labor upon the Buffalo and Batavia Plank Road, as a separate road district;…

Motion made by the defendants for an injunction, restraining the plaintiff from the further prosecution of this action, until the final determination of the issue in a cause now pending in the superior court of the city of New York, in which the .above-named defendant, Nicholas Quackenbos, is plaintiff, and the above-named plaintiff is defendant.

The actions were commenced in 1840, and were all ejectment suits to recover parcels of land in Ontario county, of which the defendants in the several suits were respectively alleged to be in possession.

The defendant was arrested under the 4th sub-division of § 179 of the Code, for fraudulently contracting a debt; and, after litigating the charge, the defendant was, on the 16th of September, 1852, held to bail upon the charge, and for want of bail was imprisoned, where he still remains. 7th of October, 1852.—A complaint in assumpsit, for goods sold and delivered, without any averment that the goods were obtained by fraudulent representations, was served.

This was' a motion for a new trial in an action on a recognizance, taken by a justice of the peace before indictment found, for the appearance of one Smith at the June oyer, in Dutchess county. On the trial, the plaintiff called the county clerk as a witness. On his cross-examination, it appeared that there was' a court of sessions, with a grand jury, between the taking of the recognizance and the June oyer.

<p>The plaintiff filed her complaint against the defendants, claiming, under a will and an order of the surrogate, the rents and annual income, during her life, of the .leasehold .premises of Alfred Hill, deceased, lately known as No. 208-Greenwich street, in the city of New-York; and that said premises, after her decease, belong to her child, Florence Hill. It appeared that Alfred Hill, late of the city of New-York, died on the 30th of June, 1850, after, a brief, illness, at Saratoga Springs, New-York. On .the day of. his death, he made his will as follows : “The last will and testament of Alfred Hill, of the city.of New-York. I, Alfred Hill, do make, and publish and declare this my last- will and testament, as follows: I give, devise and bequeath unto my mother, Mary Hill, and sistérs, Caroline, Amanda and Emily, all and. singular my real estate of every description, and wheresoever situated; to have, and to hold the same in equal proportions, share and share alike.</p> <p>££ And I do further give and bequeath unto Elizabeth Parker, of the city, of New-York, the use and annual income of all and singular 'my goods, chattels, moneys, bonds, notes, and person*! property of every name and nature, during her natural life; and the said goods, chattels, moneys, bonds, notes, and personal estate, after the decease of said Elizabeth, I give and bequeath unto Florence, the child of said Elizabeth; to have, and to hold the same forever.</p> <p>££ And I do hereby nominate and appoint my friend, William Burger, executor of this my last will and testament; and do hereby authorize and empower him, my said executor, to do and perform any and all act or acts necessary to carry into effect, this my last will and testament.”</p> <p>In September, 1850, the will, on presentation to the surrogate of the city and county of New-York, by the executor, was duly proved; and on the 30th December, 1850, the surrogate made his decree. therein, as follows: “ The citation in this matter having been duly issued, served and returned, such proceedings were thereupon had, that the proofs were duly taken, and after hearing, counsel for all the parties appearing, and mature deliberation thereon had, it is decided, ordered, adjudged and decreed, that the instrument offered to probate in this matter is, and the same is hereby admitted to probate as a valid will of the real and personal estate of the testator, except as to the legacies of the testator’s “ personal estate” therein mentioned .to Elizabeth Parker and her child Florence ; which said legacies of said ££ personal estate” are admitted to probate as a part of said will, except as to the leasehold lot and premises of the said testator, known as number two-hundred and eight Greenwich street, in the city of New-York, which premises are hereby reserved from the probate of so much of said will as relates to said legacies of said ££ personal estate.”</p> <p>It appeared in testimony, on proving the will, that Mr. Hill informed the person called to draw his will, (Judge Bockes, of Saratoga Springs,) that he owned real estate ; and referred to the store No. 208 Greenwich street, New-York, and requested his real estate to be devised to his .mother and sisters, as stated in the will, and his personal property to the plaintiff and Florence her child, stating that Florence was his child. But the testimony disclosed that the store and lot No. 208 Greenwich street was leased to Mr. Hill, for a term of years, at an annual rent—that he did not own the fee.</p> <p>Plaintiff alleged in her complaint, that she was the same person the legatee named, in said will of Alfred Hill, deceased, as Elizabeth Parker. That William Burger, the executor, on or about the 11th of January, 1851, appealed from so much of said decree of the surrogate as excepted from the probate of said will the leasehold premises of the testator known as No. 208 Greenwich street, and reserved the same, from so much of said will as related to said legacies of personal estate, to the supreme court. Subsequently, negotiations were entered into, and consummated by and between the counsel for the respective parties, by which such appeal was abandoned by the executor, and an order entered the 15th of March, 1851, by consent, dismissing the appeal, and remanding the matter back to the surrogate, to be proceeded with by him. That the executor, Burger, in the arrangement made by him with the other defendants hereto, agreed to release, and transfer to the said defendants, Mary Hill, Caroline Hill, Amanda Hill, Garrit Forshay, and Emily his wife, the leasehold premises in Greenwich street, as heirs at law, with the right to collect the rents for their own use.</p> <p>That. such arrangement and withdrawal of said appeal, and agreement to transfer said leasehold estate by said executor, were signed by D. Evans, attorney and proctor for William Burger the executor, and the attorney, proctor and counsel of the said Mary Hill and others, heirs at law; that they were wholly unauthorized by the plaintiff, or by any person acting for her, or by or for said Florence Hill, her child, who was an infant under twenty-one years of age, and never had been assented to by the plaintiff, directly or indirectly. That the plaintiff was not, in said negotiations and proceedings, represented by counsel, and was not a party to said proceedings. That as soon as she was informed of such proceedings, she disavowed them, and insisted upon said appeal being revived, and the order dismissing it to be annulled, if it could be; the time allowed by statute for appealing anew from the surrogate’s decree having elapsed. That an application was made to the supreme court to annul said order, dismissing the appeal, and to revive said appeal; but was denied on the specific ground that the executor, by law, had no right to appeal in said matter. •</p> <p>That on the 31st of March, 1851, the premises No. 208 Greenwich street, had been leased to Hall & Van Buskirk, by a collector of said estate, appointed by the surrogate, and under his order, with the advice and consent of the executor, for five years, for a yearly rent of $1,350, payable quarterly. That said defendants, Mary Hill and others, claimed, as heirs at law of said Alfred Hill, deceased, the leasehold premises in Greenwich street, and the rents thereof, under the said order of the surrogate of the 13th of December, 1850; and had commenced proceedings before said surrogate, to compel the executor to assign to them said leasehold premises, and the lease thereof, and all the rents accrued or to accrue thereon. That plaintiff feared said assignment would be made by said executor, unless the parties were restrained by the order of this court.</p> <p>Plaintiff charged, and prayed judgment accordingly, that so much, and such part of the order of the surrogate as excepted from probate the legacies of the testator’s personal estate to her and her child Florence, and which admitted said legacies of personal estate to probate as a part of said will, except as to the leasehold lot and premises in Greenwich street, and which reserved said premises from the probate of so much of said will as related to said personal estate, was null and void, and of no force or effect, so far as it purported to admit a certain portion of specific legacies to probate, and rejected other portions of the same legacy from the probate of said will. That the legal effect of said decree of the surrogate, was to admit the whole will to probate, asa will of real and personal estate; and that under said will, and said order or decree, the plaintiff was entitled-to the use and annual, income , of said, leasehold premises, and to the rents thereof, during her life; the said premises, after .her decease, belonging to her said child, Florence; and that the.arrangement and settlement, or compromise, made by said Burger, was void for want of authority on the part of the executor, and of consideration.</p>

Motion, on behalf of plaintiff, asking for an order directing the clerk of Madison county to adjust full costs to the plaintiff, and enter the same in the judgment roll with the verdict; and also to set aside the adjustment of defendant’s costs.

The body of the complaint is as follows:—£ “£ $1,500. , Rochester, April 7, 1854. ££ £ Three months after date, I promise to pay to the order of J. Chappell, fifteen hundred dollars, at the Rochester City Bank, with interest—value received. ££ £ J. W. Bissell.’ ££ And further says, that there is due to him. thereon, from the said defendant, the sum of $791.64; for which amount,with interest from the 7th day of August, 1854, the said plaintiff demands judgment against the…

This was an appeal from justice’s court. The plaintiff was a householder, providing for herself and two infant children. The holder of the note, recited in the opinion of the court, recovered a judgment upon it, on which an execution wa# issued under which the defendant Leal, a constable, assisted by the defendant Reynolds, levied upon and carried away the plaintiff’s exempt property; for which taking this action was brought.

The defendants, George H. Power and Hugh McClellan, who alone had answered the complaint, movéd, upon an affidavit stating, in the usual form, that Thomas H. Gantley, their co-defendant, is a material witness for the defence, and that he resides at Adrian, in the state óf Michigan, for a commission to take his testimony. ■ It appeared, from the affidavits read ■ upon the motion, that the action is brought to recover a balance alleged to be due from the defendants to one…

This is an appeal from the appraisal of certain lands belonging to the appellant, by commissioners appointed by this court pursuant to § 15 of the general railroad act passed April 2,1850.

Upon the case and pleadings in this cause, and upon affidavits, the defendant moves to set aside the verdict rendered against him, for the following causes:— lsf. For incorrect ruling of the judge. 2d. For surprise, in the introduction by the plaintiff of Samuel S. Beach, jun., as a witness, instead of Joshua M. Beach.

Motion by plaintiff for judgment, on account of the frivolousness of the answer, with costs. The facts sufficiently appear in the opinion.

This was an action brought for the foreclosure and sale of mortgaged premises in the city of New York. Judgment of foreclosure and sale was rendered for the plaintiffs on the 30th.

<p>Order that plaintiff file security for costs, or show cause, &c., founded upon affidavits tending to show that, after the. action was commenced, the plaintiff removed from his residence in the county of Monroe, in this state, to the state of Illinois, where he now resides. The plaintiff, in his affidavit, denies that he has changed his residence; and states that he went to Illinois on business, and has since returned to Monroe county aforesaid, where he now resides. That his absence from the state was temporary, and that his family has remained in Monroe county.</p> <p>It also appears that the action is for slander; that the defendant demurred to the complaint; that the demurrer, after argument, was overruled at special term, with leave to the defendant to answer on payment of costs; that the defendant appealed from the order overruling the demurrer, to the general term, where the order was affirmed, with leave to the defendant to answer, on payment of costs of the demurrer and of the appeal. That in July, 1854, on showing these facts, and that the costs had not been' paid, and no answer served, &c., the plaintiff obtained, at special term, an order that a writ- of inquiry issue to ascertain the plaintiff’s damages.</p>

The action was commenced in 1851, to recover the amount of a promissory note, of which the defendant was the maker. It was dated February 24th, 1851, and was for the payment of $819.68; in-five months from date, to the defendant’s own order, and was endorsed by him. The complaint, after describing the note, averred that the plaintiff was the lawful holder and owner of it, and that the defendant vras justly indebted to him in its amount.

<p>The court has a right, in proper cases, to call for the residence and occupations of the respective plaintiffs in a cause.</p> <p>It is no valid objection that it is difficult to comply with such a requisition. An attorney who sues in court, is bound to know the place "of residence and occupation of his client, that it may be .disclosed, if the rights of the defendant require it.</p> <p>Where the defendant showed, that in several suits brought against him by different plaintiffs, for several alleged causes of action arising out of the same ■transaction, that several of the nominal plaintiffs were dead, that others were probably so, that some others were probably non-residents, and that third per.sons probably held, as beneficial owners or assignees, most of the claims upon which the actions were founded, held, that the defendant was entitled to the ■names of the plaintiffs and their residences; to prove these facts by their own evidence if necessary; and to show that the alleged assignees had a right to sue. And also had a right to such information,' in order to enable him to obtain security for costs from the non-residents.</p> <p>The court has authority to require the exhibition, by the attorney in a’cause, of •his authority to sue in the name of a plaintiff. And this authority will be ■exercised where the case is peculiar, and the rights of the defendant seem to ■demand it.</p>

The plaintiff complained of the defendants, as carriers of property, for the loss of a trunk and contents. The proof of defendants’ undertaking to carry the trunk, was the possession of defendants’ check; such as are given to passengers on the cars, and duplicates of which are attached to the trunk by the baggage-master.

This was a reference to ascertain the liens and their priorities upon the surplus moneys arising in a foreclosure case. Abner L. Ely, the petitioner, claimed the surplus moneys as as owner in fee of the property, he having bought it pending the foreclosure; and having bid it in at the sale under the foreclosure.

<p>Courts of special sessions are courts of special and limited jurisdiction, deriving their powers from the statute; and, in their proceedings, must pursue the statute strictly.</p> <p>It is as a court, and not as a justice of the peace, merely, that the magistrate renders judgment. And the record must show that the court was in session when it was rendered.</p> <p>Where the record showed that, on there ndition of the verdict of the jury before a justice of the peace holding a court of special sessions, and at the request of the prisoner, judgment was suspended, and the court held open until a future hour in the day at the same place J and at the latter hour and place the justice was present, but the prisoner did not appear; and on the neat day the prisoner was taken before the justice at another place from where the court was held the previous day, and the justice then and there rendered judgment upon the verdict; and ordered and adjudged that the prisoner pay a fine of $15, and stand committed until such fine should be paid—held, that such judgment was a nullity—</p> <p>Because, it did not appear that there was any continuance of the court after the preceding day, by holding open, or postponement, or otherwise, and it was consequently ended; and the justice had no power to revive or reorganize a court of special sessions at a subsequent period, for the purpose of rendering judgment. The statute"confers no such power. The court which tries must render the judgment, and it must be done during the continuance of the court at which the trial is had.</p> <p>There is no force in an objection that a second venire (where the jury have disagreed once) is made returnable in two days, instead of being made returnable forthwith. The provision of the statute which allows the venire to be made returnable not more than three days from its date, (2 R. S. 711, § 9,) applies to any venire which it .becomes necessary to issue.</p> <p>It seems that an adjournment of a .court of special sessions, during a trial, without the assent of the prisoner, would, under the statute, be erroneous. But the justice may keep such court open, or continue it for a given time, to enable him to render a proper judgment</p>

This was an application for the appointment of a receiver of the Knickerbocker Bank. The facts will sufficiently appear in the opinion of the court.

Motion, by defendants, to set aside the summons- and complaint in the last above cause, on the ground that leave to prosecute the undertaking on which it was brought had not been granted by the court; also, to stay proceedings therein until the decision of the court of appeals in the first above cause.

<p>Where a cause, upon complaint, answer and reply, is submitted to the court for decision, and the facts establish that the plaintiff is entitled to an account to be taken; but there are questions of fact, material to the taking of a final account, that must be settled by testimony, the cause will be referred to a referee, where there are no difficult questions of law involved, to find the facts upon the several issues presented by the pleadings; and, upon such finding, to state the accounts between the parties.</p>

<p>Motion for reference by plaintiffs.</p> <p>The moving affidavit is in the usual form under the old practice, but omits to state whether the investigation on the. trial will -require the decision of difficult questions of law ; for this reason the defendants’ counsel objects, preliminarily, to the sufficiency of the affidavit. (Citing § 271 of the Code, and 1 Whittaker’s N. Y. Prac. 564.)</p>

This was a motion to confirm two several reports oí a referee, to whom it was referred to retax .the costs in the above actions, bearing date respectively Oct. 29, 1852, and Jan. 21, 1854.

The action is against Smith, as constable, and Marshall as surety on Smith’s official bond. The complaint charges that Smith, on the 26th of February, 1854, received from the plaintiff an execution, issued on a justice’s judgment in favor of the plaintiff, against one Wandall, for $91. That the defendant, Smith, took, by virtue of the execution, sufficient goods and chattels of the defendant in the execution to satisfy the same.

<p>Where two of several promissory notes, given upon the same transaction, and for the same consideration, were sued in this court; and while the action was at issue upon a question of fraud in the consideration, another of the same notes was sued in the marine court, and after litigation upon the same issue, judgment was rendered for the defendant—establishing the fraudulent consideration,</p> <p>Held, on demurrer to a supplemental answer setting forth these facts, in the action in this court, that the question had been decided, by a court of competent jurisdiction, between the same parties, and they were bound by it.</p> <p>Where a deed of compromise between a debtor "and his creditors contains a clause, “ that the compromise shall not be binding except all the creditors agree to this agreement,11 and one of the creditors refuses to sign it, unless the debtor will give him some endorsed notes for a part of his debt," which, on being done, the creditor agrees to keep secret from the rest of the creditors, it renders the notes thus given void, for the fraud which enters into their consideration.</p>

<p>Where it is sworn positively that no notice of adjustment of the costs in the action has ever been received, it is incumbent upon the other side, in his affidavit, to state the time and manner of service; so that an indictment might be found upon the affidavit, if found to be false. A “ slip-shod ”• affidavit of service won’t answer.</p>

The plaintiff alleges that he purchased of defendant, Draper, four lots on 107th street, for $840, paying ten per cent, in cash; that thirty per cent, was to be paid on the delivery of the title, and the remainder to be secured by mortgage; that, although ready on his part, the defendant, Draper, has not complied with his bargain, but has put the plaintiff off with excuses. He, therefore, prays for a decree of specific performance.

This is an action in the nature of replevin. A requisition to the sheriff, requiring him to take the property and deliver it to the plaintiffs, was endorsed by them on the affidavit required for that purpose; upon the receipt of which, together with the prescribed undertaking, the sheriff made the usual seizure. The property, however, was afterwards returned to the defendants on their requisition, accompanied by a counter undertaking.

<p>The Code, although not applicable to previously existing causes of action, so far as the substantial rights are concerned, does nevertheless regulate the forms by which parties are to avail themselves of their rights. (§§ 73, 74.) And it is made imperative that a defence setting up the statute of limitations, shall “ only be taken by answer.”</p>

<p>In an equitable action to set aside a conveyance on the ground of fraud, the court may order the issues, or any specific question involved therein, to be tried by a. jury. {Code, § 254.) But this will not be done, even on application of one of the parties, where the circuit calendar is crowded with business. tinder such circumstances, -a reference is proper.</p>

The action was for assault and battery, and false imprisonment. It was tried at the Ulster circuit in November, 1853, before Mr. Justice Harris. Upon the trial the plaintiff proved that, while riding upon his wagon in the evening, he was seized by the defendants, and taken about two miles to their residence, and there detained the greater part of the night. The plaintiff having rested, the defendant, Brigham, offered his co-defendant, Crawford, as a witness on his behalf.

This is. an action of ejectment; and it seems to have been admitted-upon the trial that on the 19th day of May, 1838, Philip Peck, jr., received, a. conveyance in fee of these premises from Philip Peck, sen., and both parties upon the trial claimed title from Philip Peck, jr. The plaintiff makes title through a trust deed from Philip Peck, jr., dated March 19, 1851, conveying the premises to him in trust, for the benefit of the creditors of the said Peck.

<p>When a party, against whom a verdict is rendered, moves on a case at special term, and obtains a new trial on the ground that the verdict was against evidence, on the terms of paying the costs of the trial and of the subsequent proceedings, the opposite party is entitled to a fee of $10 for every term the cause is necessarily on the special term calendar, on the case made, exclusive of that at which it is heard; and for the latter term, to the fee given by the Code for the trial of an issue of fact.</p>

The action is on a policy of insurance, and was commenced on the 4th Noy. 1854. The place of trial laid in the complaint is the county of Albany. On the 8th of November, the defendants’ attorneys served a demand that the trial be had in ■Saratoga county. The cause was put at issue by the service of an answer on the 12th of December. The plaintiffs, at the commencement of the action, were non-residents of the state, and the defendants’ place of business was in Saratoga county.

The plaintiff in his complaint averred, that on the 26th of March, 1852, the defendant forcibly entered a certain dwelling-house of the plaintiff in West Farms, Westchester county, and severed and separated therefrom a cooking-range of the plaintiff’s, belonging to said house, and attached thereto, and carried the same away, and converted the same to his own use.

Motions to set aside appeals, and an order at special term; and also an order made at general term in New-York; and for attachments. In 1845, the plaintiff filed her bill before the chancellor, in this case, praying that the will of Sidney Smith, deceased, be declared void ; and that it be also decreed that his real estate descended to his heirs at law, and that the assets be distributed to his next of kin.

This was a motion to discharge the defendant from imprisonment under an order of arrest, or to mitigate the bail.

The cause was tried at the Jefferson April circuit, 1854. The plaintiffs were non-suited; exceptions were taken, and the judge directed an order to be entered suspending judgment, and allowing a motion for a new trial upon the exceptions, under § 265 of the Code, to be heard in the first instance at a general term. A motion was accordingly made at a general term, and a new trial denied. No mention of costs was made in the rule denying the motion.

<p>An answer can be stricken out as sham only when it contains new matter, known to the defendant to be false.</p>

Motion to dismiss appeal. The defendant, Kortright, having served an answer to the complaint, the plaintiffs’ attorney, pursuant to the 247th section of the Code, gave notice of an application to a judge, at chambers, “ for judgment thereon, on account of the frivolousness thereof.” The motion was granted. From the decision or order thus made, the defendant, Kortright, appealed to the general term.

The defendant had noticed a motion at chambers for Monday, February 5th. On that day plaintiff appeared, to oppose the motion; but, finding there was no judge at chambers on that day, left, supposing another notice must be given before the motion could be made. On Tuesday, February 6th, the defendant appeared; but, on account of the press of business, was unable to make the motion. On Wednesday, February 7th, the defendant again appeared, and took his motion by default.

This was a motion to dismiss the complaint, because a copy of it had not been served on the attorneys of the defendant, pursuant to demand. Messrs.

The relator was collector of school district No. 13, in the towns of Harmony and Busti, in 1850, and was sued for acts done by him in his official capacity, and was put to costs and ■expenses in defending, &c. He made application to the hoard ■of supervisors of Chatauque county, upon due notice to the trustees, for an order requiring the payment of such costs and expenses by the district.

This was a motion by the defendants to dissolve a temporary injunction. It appears that the plaintiff, with others, were bidders for the contracts of cleaning the streets in the different wards of the city of New-York, under the proposals advertised by the street commissioner.

<p>A person, an emigrant, having left for ever his native land, is living in the state of New-York, without any determination to reside anywhere else—where is his residence 1 Most clearly, in the state of New-York.</p>

<> The plaintiff, giving the usual security to the sheriff, commenced an action for the claim and delivery of six paintings, which he valued at $5,000. The defendant, pursuant to § 211 of the Code, caused a sufficient undertaking in the sum of $10,000 to be executed to the sheriff, who, upon the justification of the sureties, re-delivered the property to him.

The plaintiff, on the usual affidavit that he had obtained judgment against the defendant for -$12,227.07, and had issued an execution to sheriff of Ontario county, requiring him to collect the same from the defendant’s property, and that the execution had been returned wholly unsatisfied, procured an order from the county judge of Ontario county, requiring the said corporation to appear before said judge to be examined concerning its property, and where it was to be found,…

The plaintiff, as averred in his complaint, 'prosecutes the defendant—a common carrier of goods-.-and merchandize ; and alleges that plaintiff caused to be delivered to the defendant, on board his steamboat Hendrick Hudson, at Albany, certain trunks, containing merchandize of the value of $2,000, to be safely and securely carried to the city of New-York.

<p>On confession of judgment in pursuance of § 383 of the Code, where the affidavit and written statement are upon the same page, and the signature of the defendant is to the affidavit only, it is a substantial compliance with that section.</p> <p>The written statement, upon which the judgment is entered, must state all the material facts out of which the indebtedness arose with the same particularity as if the judgment was impeached and assailed by a bill filed for that purpose. It is not enough to state one or two facts, such as the amount due and the general nature of the debt.</p> <p>If a debtor may conceal the name of his original creditor, and the nature of the contract out of which the indebtedness arose, and the price or value of the property which forms the subject of the legal obligation, there is no value to be attached to the provision of the Code, in reference to the confession of judgments.</p>

<p>Motion to set aside assignment, and for appointment of receiver under the statute.</p>

<p>Where two persons had become joint assignees of a lessee, who held under a lease in fee, subject to an annual rent, and the lessor was ignorant of the fact wnether they had divided the premises between themselves, and, if so, in what proportions, and brought his action against both of them for the whole rent due, and alleged in his complaint that he did not know how, or in what proportions the defendants held such lands, and prayed judgment against the defendants jointly, if it should turn out that they were jointly liable, and severally, and for a proper apportionment between them, if it should appear that they held in severalty; and, after issue joined, it was proved that they held in severalty.</p> <p>Held, that the plaintiff was entitled to recover against each defendant the rent due for the land so held by him.</p> <p>In such case, the action, under the Code, is a substitute for a bill in equity, and and not for a suit at law; the object being to obtain a discovery by an examination of the defendants severally as witnesses, of the extent and relative value of the interest of each defendant in the lands leased.</p>

<p>The plaintiffs, Ogden and Lewin, under the firm-name of Jonathan Ogden & Co., purchased, for shipment to Liverpool, 285 bales of cotton at eight cents per pound, making an aggregate price of $9,090.80. The defendants, who were cotton dealers as well as cotton brokers, requested, it was alleged, to be let in to the adventure; and were admitted to an equal joint interest—thus creating a particular partnership, with all the rights and liabilities, so far as that single shipment was concerned, incident to partnership transactions.</p> <p>The adventure resulted in a loss of $1,758.44, which the plaintiff claimed should be borne equally by the defendants, with the plaintiff. The defendant, Wright, admitted his liability, but Stewart, the other defendant, insisted that Wright had no authority to bind the firm; and that he, Stewart, never consented to take an interest in it “ otherwise than conditionally, and upon the induce ment of false representations.”</p> <p>On the trial of the cause before the court, upon pleadings and proofs, it was held, that the evidence, in regard to the alleged misrepresentations, was loose and unreliable, and, assuming admitted facts, no probability they were ever made.</p> <p>Next, was there any agreement between Ogden & Co. on the one part, and Stewart and Wright, on the other, to share in the profit and loss of this adventure ! Held, that Wright not only admitted, but on his examination as a witness testified, there was; and Stewart, in his answer, made, in effect, the same admission, with the qualification, however, that the agreement to which he assented was conditional—that is, that a sample of the proposed shipment was exhibited, which was of a quality known in the trade as “ fair;” and he consented to become interested “ if the cotton was equal to that sample, otherwise not.” Now it was proved, and Stewart’s own statement was a portion of the testimony, that that grade of cotton “was then worth, ¿it the market, nine to nine and a half cents per pound.” ' It was not at all probable, therefore, that Stewart could have believed that the owner of the cotton had sold Ogden & Co., (who at the same time sold to the defendants,) for eight cents a pound, a quality or grade of the article then worth, in the market, nine and a half, when, by walking to the Exchange, the latter price might have been procured.</p> <p>Held, on a review of the whole evidence, that, as a matter of fact, the defend- " ants did make the agreement alleged by the plaintiff’s bill, and that no such condition was attached as was then pretended.</p> <p>Stewart next insisted that the agreement, not being in writing, was void by the statute of frauds.</p> <p>First. This objection was not set up in the answer. A party who would avail himself of the statute of frauds, must specially insist upon it in pleading: Second. The statute says, that ¿very contract for the sale of goods for the price of $50 or more shall be void, unless there be a note or memorandum in writing, or a part delivery, or part payment. In this case the contract was in relation to a shipment, which Ogden and Co. “ were about to make.” It is presumed the cotton was not on board the vessel at that time, but was delivered, and received by the captain of the vessel, subsequently, as the agent of the shippers. Who were the shippers? The plaintiffs and defendants jointly. Consequently, the delivery was as much to the defendants as to the plaintiffs; ■ and, besides, it was a delivery of the whole number of bales sold.</p> <p>Turd. But m a contract of partnership, whether special or general, neither writing nor delivery, except implied delivery, is necessary. An undivided interest, it is true, passes from the one partner to the other; but being tenants in common, delivery to one, and possession by one, are delivery to and possession by both. So that if the statute applies, its terms are, ipso Jacto, fulfilled.</p>

This action was commenced prior to the enactment of the Code of Procedure. It was brought against the defendant as the endorser of a promissory note for $808.71, made by one Schriver, payable at the Ogdensburgh Bank six months after date, and dated September 20th, 1834. The defendant, Jessup, pleaded, first, the general issue, and secondly, the statute of limitations.

This action was brought to recover $346.84, the balance of an amount of a bill of dry goods, sold by plaintiffs to defendant in July or August, 1848.

The complaint avers that one Hartley Hollister, late of Paw-let, in the county of Rutland, Vermont, deceased, was indebted to plaintiff at the time of his decease in about the sum of $562.

<p>Where the defendant mortgaged to the plaintiffs, to secure advances, the “ invention, and every benefit and advantage to arise therefrom,” known as the “ Self-Regulating, Anti-Corrosive Gas-Burner,” and “ the patent,” when obtained. And it appeared, on the part of the defendant, that such patent was never granted; but two other new inventions and patents, entirely distinct from the first, were obtained, to wit, one for “ an improved regulator for gas-burners,” and the other for “an improvement in gas-burners.”</p> <p>Held, that the defendant could not, by a pretended improvement, unexplained, and a mere subdivision of the invention into two parts, defeat the plaintiffs’ rights. The law looks to the substantial intent of the parties, and not to mere verbal distinctions, and seeks to enforce the dictates of good faith.</p> <p>On motion, by a defendant, to dissolve an injunction which enjoins the transfer to the plaintiffs of certain property, by way of mortgage, to secure advances; and the defendant seeks to extinguish by a set-off, or counter-claim, or by confession and avoidance, these advances, can the plaintiffs meet this new matter on the part of the defendant by opposing affidavits ?</p> <p>Held, that the same principle which gives to the defendant the right of answering the plaintiffs’ case, must give to the plaintiffs the right of rebutting the defendants. (Code, § 226.)</p> <p>Where a defendant moves, not upon “ affidavits,” as distinguished from an “ answer,” but upon affidavits with or without answer, “ on hts part,” as distinguished from the original papers, solely, on the part of the plaintiff, in . such case the plaintiff may introduce “ additional ” affidavits to oppose- the motion, and to sustain the injunction.</p>

(See ante, page 186.) The Parker Vein Coal Company is an incorporation of the state of Maryland.

The action was upon- a promissory note. The defendant answered. After the cause was at issue, and noticed by the defendant for trial, the plaintiff accepted the offer of the defendant to allow him to take judgment for $49.50. The defendant claimed costs in his offer, and gave notice to the plaintiff’s attorneys that he should apply to the clerk to have his costs inserted in the judgment, and incorporated into the plaintiff’s record.

This was an appeal from an order made by the special surrogate of Chautauque county, appointing a receiver, and the several orders prior thereto, made by him in proceedings supplemental to execution. The affidavit produced before the officer shows the recovery of a judgment by the respondent against the appellant and others, on the 22d day of September, 1843, for $714.08 damages, and $96.08 costs.