Volume 11 — Howard's Practice Reports

<p>Suits may be brought in óur courts by foreign governments in the federative name; but our proceedings must be adapted to the case, so as to do justice to all parties;</p> <p>Or, there must be a party to the record with competent authority from his government to act on its behalf.</p> <p>Therefore, the Republic of Mexico may maintain an action in the name of the republic as an aggregate body; and the modes of proceeding in cases of foreign corporations, and of other states of the union, may be resorted to for the regulations of the practice.</p> <p>The language of the Code admits of the court treating an undertaking, signed by an admitted agent of a foreign government appointed to sue, to be an undertaking on the part of the plaintiff.</p> <p>By the decision in the court of appeals in Valarino agt. Thompson, (3 Selden, 576,) it is settled that it is the right-and privilege of the United States, that a foreign consul residing here should be sued by the federal courts. Under an admitted constitutional power, the state courts are excluded from jurisdiction. The case of Flynn agt. Stoughton (5 Barb. S. C. R. 113,) is overruled.</p> <p>The construction of the second subdivision of the 179th section of the Code is, that a defendant may be arrested in an action for money received, where he is a factor, attorney, agent, &c., or other person in a fiduciary capacity; and that the same designated persons may be arrested for property embezzled or fraudulently misapplied by them. There are two cases for the arrest; and the enumerated persons may be arrested in either of them.</p> <p>In one class of cases, under § 179, the order of arrest may be made upon facts which may be entirely 'independent of the cause of action; which are to be stated in affidavits, and need not be stated in the complaint; and where the arrest may take place after the cause has actually been tried.</p> <p>In the other class, under that section, where a defendant is sought to be arrested as an agent for receiving money, the ground of action and the ground of arrest are identical. If the cause of action is shown to be-unfounded, the cause of arrest must fail. If the affidavits destroy the allegation of a fiduciary character, the arrest cannot be sustained, although that will not terminate the suit.</p> <p>Where, in these last mentioned cases, the defendant raises' a fair legal presumption that his claim may be supported, the arrest should not be sustained. Under the Code now, a case of arrest—of bail or no bail—may be decided upon affidavits which tend to decide the cause as then presented. {See 2 Selden, 562.)</p> <p>In this case, the defendant, having been entrusted by the Mexican government with a duty of delicacy and high importance—an agency to pay out and superintend for the plaintiff—which had been accomplished with admitted skill and promptitude; and, under all the facts,</p> <p>Meld, that the defendant showed a right to a compensation, by way of commission from his government—(the amount claimed and withheld by the defendant, being the cause of action and arrest.) But the court must decide, even on a motion to discharge from arrest, how far such a claim can be sustained, and the extent of the compensation so to be allowed the defendant, when the plaintiff appears entitled to some, though not to all that he demands.</p>

Johnson, Welles, and T. R. Strong, Justices. Appeal from order at special term overruling a demurrer.

Motion by plaintiffs for a new trial on a bill of exceptions. The action was for the recovery of personal property, and was tried at the Erie circuit in January, 1855.

. The plaintiff moved, -under § 247 of the Code, for an order for judgment on account of the frivolousness of the demurrer. The complaint and demurrer thereto were as follows :— u Supreme Court, county of Essex:—John Acome agt.

<p>This is a motion for the appointment of a receiver, and for other relief, as specified in the notice.</p> <p>The petition of the plaintiffs states that plaintiffs, on the 26th of June, 1854, obtained a judgment in the supreme court of this state, against the defendants, for $10,671.48 damages and costs, upon which execution was issued to the sheriff of Washington county, (the defendants’ place of business having been in Fort Edward, in said county,) and has been returned wholly unsatisfied. That after the return of the execution, and on 29th July, 1854, plaintiffs commenced an action against all the defendants, who have all appeared, but no answer has been put in. That the company entirely stopped business in May last; that before stopping, ahd previous to January, 1854, the company had become insolvent, and had ceased to pay anything towards its debts before stopping business. That the amount of the indebtedness of the company, according to a statement furnished by it in June, 1854, was between $90,000 and $100,000; and that its debts, at that time, and in January, 1854, amounted, at least, to $70,000 ; and that its property was not sufficient, at those times, to pay One half the amount of its debts. That its property was all personal and tangible, a.nd has been sold on execution or executions, and on judgments belonging to defendant Beach; except a contract for the sale of certain real estate ; and that it is now possessed of no property except from its debts due, and from which may be realized $3,000, and except its interest in said real estate and water power, upon which it has heretofore carried on business, and which it purchased or agreed to purchase from the Fort Edward Manufacturing Company, and which is now held by said defendant, said company, by contract from said other company. That the original purchase money for said real estate and water power, was $13,000, upon which there is now due the sum of $7,000 or thereabouts. That the defendant, the company, has made valuable erections and improvements upon said property, and their interest therein is now worth $10,000. That defendant, Beach, claims to own and hold a judgment against the defendant, the company, for $1,025.31, obtained on the 18th of July, 1854, upon which an execution has been issued to the sheriff of Washington county, and returned unsatisfied; and said Beach, since the return of said execution, has commenced an action in the supreme court of this state, against the defendant, the company, and the Fort Edward Manufacturing Company, for the satisfaction of said judgment out of the interest of the defendant therein, in the contract for the real estate aforesaid ; and that its interest may be sold or transferred to him, (Beach) upon such terms as the court shall deem just; and, also, for a specific performance of said contract. That said Beach claims to he the assignee and owner of another judgment obtained by one Harry Chapman against the defendant, the company, on the 26th day of July, 1854, for $3,331.05, and upon which proceedings supplementary to execution have been instituted by Beach against said company, and Hazen W. Bennett appointed receiver ; that said Beach claims the exclusive benefit of said proceedings, and that said judgment, so assigned, be first paid by the receiver from the assets of the company which may come to his hands. That said receiver claims the exclusive right and control over the remaining property and assets of the company, as such receiver, for the exclusive benefit of said judgment, so far as may be necessary for its payment.</p> <p>That the defendant, the company, is a manufacturing corporation, organized under the act of 1811, and the several acts amending and continuing the same, and was insolvent on the 28th and 30th days of January, 1854. That the company have interposed no defence to the suits or proceedings of defendant, Beach, who is in possession of said real estate, and that the company are colluding with him to give him a preference over their other creditors.</p> <p>The complaint charges that defendants, Beach and Hears, claim and pretend that they have paid a large amount for said company, as endorsers, and are liable for a still larger amount, in all to at least $25,000; and that they took a mortgage from said company on the 30th of January, 1854, to cover said amount of $25,000, covering all the estate real and personal' of the company : and that they have possessed themselves of all the personal property and assets of the company, and have disposed of the same, or of a large amount thereof, to pay their said liabilities. That said transfer or mortgage was fraudulent, and that said company had, previous to said 30th January, 1854, refused payment of all or some of its notes and debts; that said mortgage was not filed till 25th of May, 1854, at which time the company had stopped payment. That said Beach and Hears had sustained no losses when they sold the property under said mortgage, nor was the company indebted to them for money borrowed ; that a judgment was obtained by Beach a few days afterwards, for all indebtedness, and satisfied by a sale upon execution, and that said judgment was fraudulently obtained. That the amount of the capital stock of the company was $13,000, and that Beach and Hears were original, and still are, stockholders in said company.</p> <p>The defendants, in their affidavits, deny all fraud, and aver that their liabilities for the company amount to $29,000; that the mortgage -was given to secure them against loss. That the judgments which Beach obtained, and now owns and claims, were honestly and fairly obtained for honest and fair debts— and proceedings supplementary to execution, regularly instituted under the Code—and the receiver gave the required bond, and has entered upon the duties of his office. That the amount in his hands will not be sufficient to pay the amount of the first judgment. That the action commenced against the defendant, the company, and the Fort Edward Manufacturing Company, to obtain satisfaction of the judgments mentioned in the complaint, were regularly commenced on and previous to the 22d of July, 1854, and no answer has been received in either of them.</p>

The defendants were summoned to answer the complain^ of Andrew White, of the Canal Bank of Albany, as plaintiff, and if they failed to answer, judgment would be taken against them ■for $1,000, with interest from the 27th of October, 1849. The complaint, which was served with the summons, was entitled, “ Andrew White, receiver of the Canal Bank of Albany, agt.

This action was brought to set aside a conveyance of certain real estate alleged to have been made by John P., and Samuel Fowler, to the defendant, John A. Vollmer, with intent to defraud the plaintiffs and other creditors- of Gotfried Vollmer. The summons was served on John A. Vollmer, but not on his wife.

This case came before the court on a demurrer to the com-, plaint. The Pythagoras Association is a corporation under chapter 319 of the Laws of 1848.

Motion that the books and papers taken under attachment from possession of the defendants, Epstein and Horig, on the attachment against Dettlebach, as a non-resident, under 2 R. S., p. 3, be restored to the possession of the defendants from whom taken.

Before Oakley, Chief J.; Duer, Campbell, Bosworth, -Hoffman and Slosson, JJ. This was an appeal from an order at special term, dissolving an injunction, but continuing the same, if the plaintiff should appeal within ten days, until the hearing of the appeal.

R. S. Hale appeared upon an order for the ■ production of the authority of the attorneys for the plaintiffs, to bring this suit in ejectment; and objected that the provisions of the Revised Statutes on the subject were repealed by the Code. He also read an affidavit of D. W. Howard, that he was the “ general agent ” of the plaintiffs by parol appointment, “ to see to their property and business” in this state.

Present, Margin, P. J. ; Bowen & Greene, JJ. This was a summary proceeding, instituted by the defendant in error, under the provisions of the 28th section of article 2 of the 18th title of chapter 8, part 3, of the Revised Statutes.

Motion to strike out parts of the return to an alternative mandamus. So much of the return as it is necessary to state, will be found in the opinion of the court.

Before Marvin, P. J., Mullett and Bowen, Justices. Appeal by defendant from an order of the special term, denying a motion made by the defendant to set aside the referee’s report tor irregularity, or that the referee amend his report.

This cause came before the court on a demurrer to the complaint.

• This was a motion made in two causes by the defendant, Isaac Alexander, to set aside two executions issued upon two judgments in favor of the plaintiffs against said defendant. It appeared that in October, 851, the plaintiffs recovered two judgments, in the supreme court, against the defendant: the first for $380.66, the second for $379.12.

Motion by defendant for a new trial on a case. The complaint charges that the plaintiff, being the owner and in possession of a yoke of oxen, the defendant wrongfully took and retains them. That, although the plaintiff has demanded possession thereof, &c., the defendant has refused, and yet refuses, to deliver them to the plaintiff, and demands judgment for the delivery thereof to the plaintiff, and damages for the detention.

This action was commenced November, 1848, for an account as between partners, and for damages for unlawfully dissolving the co-partnership. The defendant denied the existence of the co-partnership, and any liability to account. A motion was made upon the pleadings for a reference. The other facts appear in the opinion of the court.

Judgment was recovered in this action on the 13th of September, 1851, in favor of the plaintiff, for $19,455.78; and on the 29th day of September, 1851, motion was made before Judge Edmonds, at special term for a stay of proceedings upon the judgment, pending an appeal to the general term, taken by the defendant, and also to vacate the judgment for alleged irregularity.

Judgment was recovered in this court in an action between partners on an account,' in favor of Mills, against John Thurs-by for $19,455.78, September 13, 1851, and appeal taken to the general term. Motions' for a stay of proceedings had been successively made at special term by defendant, and, after argument, denied—September 29, 1851, also November 5, and December 15, 1852, also February 19, and April 16, 1853.

This was a. motion for an order to restrain the sheriff of Kings county from making sale of the property of John Thursby, deceased, against whom the plaintiff had recovered a judgment in September, 1851, for 19,455,78, upon which executions had been issued by the plaintiff, in the lifetime of the judgment-debtor, to the sheriffs of New-York and Kings counties.

This was a motion for a stay of proceedings and to vacate a levy made by the sheriff of Kings County, upon property of John Thursby, deceased, under an execution issued in his life time, upon a judgment recovered in this action, September, 1851, for ■ |19,455.78; appeal having been taken to the general term, and the suit revived by the defendants.

This was a motion by defendants for a stay of proceedings upon the execution issued upon the judgment obtained in this action, in September, 1851, mentioned in the previous cases. The facts sufficiently appear in the opinion of the court.

This was an application by Mills, to the surrogate of Kings County, to compel the executors of John Thursby, deceased, to pay a judgment recovered in the supreme court, September, 1851, for $19,455.78, and docketed in that county before the death of the judgment debtor. The facts sufficiently appear in the opinion of the court.

<p>This was a motion to amend an appeal from a judgment in a proceeding against the executors of a deceased judgment debtor, who was summoned under sections 375 and 376 of the Code, providing that his “ personal representatives ” be “summoned at any time within one year after their appointment,” “ to show cause why they should not be bound by the judgment in the same manner as if they had been originally summoned.”</p> <p>insisted the' mistake of appellants was accidental, and ought to be' amended. ,</p> <p>contended the appeal was frivolous, and not taken in good faith; and relied on the above named sections of the Code, as amended, to sustain the regularity of the judgments.</p>

Before Mitchell, Cowles and Clerke, Justices. Judgment having been entered in this action on the report of the referees, made since the amendments of the Code of July 10, 1851, the defendant appealed to the general term, and the judgment was modified as to costs, and permission given to the appellants to apply at special term for leave to have certain matters referred to the referees for rehearing. This decision is reported ante, page 116.

Motion by defendant, D. S. Manley, to set aside the summons and complaint for a misnomer. The true name of the defendant making the motion is Dean S. Manley, and it is written in the summons and complaint Dennis S. Manley. The summons and complaint were served upon him at the same time. The notice of this motion is entitled “ Daniel E. Dole agt.

Bowen, Greene and Bacon, Justices. This action was commenced the 28th Nov., 1853, before Charles C. Severance, justice of the peace of the town of Concord in Erie County, by the plaintiff, Erastus D.… Held: upon that branch of the case, that there was evidence enough to justify the judgment, at least so far that an appellate court, sitting merely in review, would not be authorized to reverse it as against, or for want óf, evidence. First.

<p>Where the defendants served a demand, in writing, that the trial be had in the proper county, naming it, and before the time for answering expired, the defendants served on the. plaintiffs’ attorney a copy of an answer, not verified, which was returned by the plaintiffs’ attorney, on the ground that it was not verified; and the defendants thereupon moved that the place of trial be changed, and that their answer theretofore served stand as the answer in the action,</p> <p>Held, that as regarded the motion to change the place of trial, it was not necessary to inquire whether the answer was well served, without being verified or not. If the plaintiffs laid the venue in the wrong county, it was their duty, on demand, to have changed it by amendment of their complaint, or otherwise, to the proper county. And the defendants might move thus to change it before issue joined, or at any time thereafter before trial,- or before judgment, if no trial was had. And the plaintiffs, in such cases, should be charged with the costs of the motion. And on such a motion the plaintiffs cannot set up the ground of the convenience of witnesses—the defendants have no chance to answer it.</p> <p>Where the convenience of witnesses is the ground of the motion,-it should not be made till after issue joined, and after the place of trial has been fixed in the proper county.</p> <p>The residence of a corporation created by the laws of this state, is in the county where its general busitiess is transacted and located. The fact that such a corporation has an office in another county, where some of their business is done, does not change or affect their residence. (See Conroe agt. National Protection Ins. Co.,' 10 How. Pr. JR. 403.)</p> <p>Where the plaintiffs’ attorney verified the complaint in this way—“ that the action is founded on an instrument for the payment of money only, which instrument was in his possession as attorney for the plaintiffs, neither of whom were residents of Erie connty, where the attorney resided, nor was either of them capable of making the affidavit verifying the complaint.”</p> <p>Held, that the verification was insufficient, for the reason that the attorney did not set forth “ his knowledge, or the ground of his belief,” on that subject, which is required by the Code. {See also Stannard agt. Mattice, 7 How. Pr. JR. 4; and Treadwell agt. Fassett, 10 id. 1S4.)</p>

Motion by defendants for a re-adjustment of their costs, in the nature of an appeal from an adjustment thereof, by the clerk of Erie County. The defendants having obtained a verdict in their favor which entitled them to a judgment for costs, presented a bill of their costs to the clerk for adjustment, in which bill were the following items: • £C Three witnesses’ travel fee from New-York to Buffalo, for June term, 423 miles each, $101.52.

The complaint sets forth that the defendants are jointly indebted to the plaintiff, for work and labor done and performed, and materials furnished by him, upon and for a house owned by the defendant Murphy, for which the defendant Acker undertook and became responsible to pay the plaintiff, partly under a special contract, which is not set forth, and partly, as would seem, under an implied promise, resulting from the fact that some of the work and labor was performed, and a…

Motion to amend complaint. On the first of May, 1849, the defendant, with sundry other persons, signed an instrument whereby, after reciting that the legislature had passed an act to determine the… Held: that the plaintiffs were entitled to recover against the defendant the amount of his subscription made in May, 1849. The judgment rendered against the defendant at the circuit was reversed, upon appeal to the general term, and a new trial awarded.

The complaint in this action was filed on the 21st of May last, for the .purpose of foreclosing a mortgage, executed on the 13th Dec., 1833, by Hugh M£Clellan to John Sanderson, deceased, to secure the sum of three thousand dollars. On the same day a notice of lis pendens was filed, and a summons and copy complaint were delivered to the sheriff, which was served on the 23d of May last.

<p>Motion for partition and sale.</p> <p>The facts will sufficiently appear in the opinion of the court..</p>

This is a motion on the part of the respondent, to dismiss the appeal on the following grounds:— 1. That the return by the clerk was not made within twenty days after the appeal was perfected. 2. That the return, as made, does not contain a copy of the notice of appeal. 3.

<p>A'married woman is obliged to prosecute by'anext friend only where her hus'band cannot be joined with her—meaning evidently where she claims in opposition to him.</p> <p>Although, when the action concerns her separate property, she may sue alone, and, as a necessary consequence, is bound by the judgment. It does not alter her liability in this respect if the husband .is joined with her as a co-plaintiff, when'they have not adverse interests in relation to the subject of the claim.</p> <p>Therefore, where the husband and wife bring the action, but the wife verifies the complaint, and is the principal actor in the suit, no next friend for the wife is necessary; and it is no objection that the husband is joined, as it can not exempt her from the liability of being bound by the judgment, as when she sues alone.</p>

<p>Banks created under the general banking law, when suing, should recite the title of the act, and the date of its passage, under which proceedings were had for its incorporation. This is required by the 13th section of the 4th title of chapter 8, of the 3d part of the Revised Statutes, which is retained by § 471 of the Code.</p>

Motion to set aside summons, &c. The plaintiff, being an infant, presented a petition to one of the justices of the supreme court, praying for the appointment of a next friend to commence this action. In pursuance of the prayer of the petition, an order was made . appointing Philip H. Finger such next friend. The suit having been commenced, the defendant moved to set aside the summons and complaint, on the ground that an iiffant cannot sue by a next friend.

The plaintiffs, having recovered several judgments against the defendants, upon which executions had been issued and returned un satisfied, brought this action to obtain a sequestration of the stock, property, things in action, and effects of the defendants, and to have a receiver of the same appointed. By an order, made at a former 'term of the court, the defendants were required to show cause why the relief demanded by the plaintiffs should not be granted.

This was an afction brought by the plaintiff under the statute (2 R. S. 295, § 16) to redeem, as heir at law, certain lands, to which the defendants held title through a mortgage foreclosure and sale, made July 2,1823. The plaintiff’s father was the mortgagor, and previous to the sale owned the premises in fee. The plaintiff was not made a party defendant to the bill of foreclosure. The remaining facts will sufficiently appear in the opinion of the court.

Motion to set aside judgment. The complaint states that, on the 15th of May, 1845, the defendant, Allen Comstock, made his promissory note for one-thousand dollars, payable three months after date, to the order of the defendant, Peter Comstock, and that he, and the defendants, Lorenzo D. Baker and John C. Cameron, afterwards severally endorsed the note, and the same was transferred to the -plaintiff. The action was commenced in 1851: James H. Hooker was then plaintiff.

<p>The facts in the case will sufficiently appear in the opinion of the court.</p>

Allen, Bockes, and James, Justices. Motion to dismiss an appeal. The case presents the following facts:—Smith obtained a judgment against Hart before a justice of the peace, filed a transcript thereof in Fulton county clerk’s office, and docketed judgment thereon on the 24th of March, 1855. An execution was issued thereon to the sheriff of Fulton county on the same day.

The plaintiffs’ claim in this case was $45,000. An attachment under the Code, against the defendants, as non-resident debtors, was issued, and stocks to the amount of $8,000 levied on by the sheriff. The plaintiffs then compromised their claim for $22,500, upon which the suit was settled. The sheriff’s bill for services and fees under the attachment is presented for adjustment. He claims to be allowed poundage upon the $22,500.

Hand, Cady, Allen and James, Justices. Appeal from an order of the Washington county special term, on a motion for lehve to issue execution against the estate of a deceased judgment debtor. The plaintiff, Alden, in 1847, obtained a judgment in the supreme court against all the above-named defendants, upon a note made by Clark, and signed by the others as sureties for his benefit.

<p>Motion for judgment on frivolous demurrer to complaint.</p>

The action is against John Fosgate as maker, and against John Fosgate, junior, as guarrantor, of a promissory note. The complaint contains but one count, wherein the note and guaranty are set out; and avers that the guaranty .is endorsed on the note in these words:— “ For value received, I guarantee to John B. Eaton the payment of the within note when due.

Present, Bowen, P. J., Bacon and Greene, JJ. Appeal from an order made at chambers on the following facts:— On the 14th day of November, 1854, a motion was made before Justice Greene, at chambers, for an attachment against the defendant, on the ground that he had departed from the state, with intent to defraud his creditors,.or to avoid the service of a summons, or that he kept himself concealed within the state with the like intent.

Motion to set aside judgment, &c. The complaint alleges, that in 1853, the plaintiffs sold goods to the defendant, Susan A. Lemon, and performed labor, &c., for her to the amount of .$161; and that she promised to pay therefor out of her separate property, and did appoint the same to be paid out of her separate estate; and the plaintiffs claimed judgment for the amount stated, with interest, to be collected out of the separate property of the defendant, Susan A. Lemon.

<p>An action against the superintendant of the Albany county penitentiary, personally, must be tried in that county, for the reason that he is a “public officer within § 124 of the Code.</p>

The defendant, Jewett, demurs to the complaint. The complaint states, that the plaintiff is the holder of what purports to be one hundred shares of the Parker Vein Coal Company ; that the whole number of shares of stock of the company was 30,000 of $100 each; that the property of the company consisted of lands and steamships, worth together three millions of dollars; that the defendant, Clark, was secretary of thé company, and the other defendants directors.

<p>, W. F. Allen, F. W. Hubbard, D. Pratt, W. J. Bacon, Justices.</p> <p>This action originated in a justice’s court, and was brought to recover the price of certain sap-buckets and a thrashing machine, sold and delivered by James Bradford to the defendant.</p> <p>The cause of action was assigned, by Bradford, to the plaintiff. On the trial, Bradford was offered as a witness for the plaintiff, and objected to by the defendant, on the ground that no notice, in writing, of his intended examination as the assignor of the claim, had been given under § 399 of the Code. The objection was overruled, and the witness permitted to testify.</p> <p>A judgment for the plaintiff was rendered by the justice, which was reversed by the county court on appeal.</p>

The action was brought by the plaintiff as assignee of Jqel B. Nott, to recover the sum of one hundred dollars, alleged to have been paid upon an execution against Nott, in the hands of a deputy of the defendant. It was alleged in the complaint that, after such payment, the execution had been returned wholly unsatisfied; and that since such return, Nott, the defendant, had been compelled to pay the whole amount of the judgment.

<p>Motion to discharge defendants from arrest, or to reduce their bail.</p>

<p>A judge has no right to threaten or intimidate a jury, who are unable to agree upon a verdict, in order to affect their deliberations. Nor should he allude to his own purposes as to the length of time they are to be kept together. There should be nothing in his intercourse with the jury, having the least appearance of duress or coercion.</p> <p>A jury, while all proper motives to induce them to agree upon a common result, ■ may be repeatedly and earnestly urged upon them, should be left to feel that they act with entire freedom in their deliberations. That, should they continue to disagree, they are not to be exposed to unreasonable inconvenience; nor to receive the animadversion of the court.</p> <p>A judge may keep the jury together as long as, in his judgment, there is any reasonable prospect of their being able to agree, but beyond this he is not at liberty to go.</p>

Ingraham and Daly, Judges. This was an appeal from a judgment of the district court of the city of New-York for the second district. The respondent moved to dismiss the appeal, and read a notice of motion- to the effect that the appellant was required to procure the return to be filed on or before the fourth Wednesday of May, 1855, qr the respondent would, on that day, move the court, at the general term, for an order dismissing the appeal.

Complaint. ' The complaint of the above-named plaintiffs against the above-named defendants in this action, respectfully states and shows to this court. lst„ That the plaintiffs now are, and, for some time past, have been, co-partners in trade, doing business under the name and style of “ Reilay & Wood.” 2d. That on or about the 10th day of January, 1854, at the city of New-York, the above-named defendant Ansel Thomas, at the city of New-York, duly made his promissory note,…

The material facts upon which the question on this motion arises are, that at the May special term at Herkimer county, an injunction was granted in this suit upon a complaint showing upon its face ample ground therefor. This injunction, among other things, restrained the sale of the real estate of the defendants, The New-York Central Mills, upon two judgments, known as the Rockwell and Ferry, and the Matte-son and Johnson judgments.

Motion to set aside amended complaint. The affidavits show that a complaint was served Dec. 1,1854, on a note of the defendants, dated Dec. 28, 1853, at six months: that an answer was put in, showing a recovery, in Pennsylvania, of a judgment in favor of the plaintiff against the defendants on the same note, on Sept. 4,1854: that action being commenced on 13th of July, 1854; that on the sixth of January last the plaintiff amended his complaint, setting forth both the note…

This action was brought for the partition of lands. The plaintiff’s affidavit shows that three of the defendants reside in New Gascony, in the state of Arkansas; that the defendant Thomas Allen, being a soldier in the army of the United States, left this state about twenty-five years ago, and has not been heard from for more than twenty years; that when he was last heard from he was stationed at Council Bluffs, in the state of Missouri; that when he left he had a wife and…

This controversy arises out of a contract made on the 30th of April, 1853, for the sale and purchase of a house in Lexington avenue. Three hundred dollars df the purchase money, it appears, was paid down: two hundred more was to be paid four days after, on the 3d of May, and the balance, say fifteen hundred, on the delivery of the deed : it being understood that the premises were, and were to remain, subject to a mortgage of six thousand dollars.

<p>The theory of the Code in reference to pleading is, that the party pleading knows, or should know, beforehand, what is the truth of his case, and that he should state the truth, and nothing but the truth, in his pleading.</p> <p>The statement of the case in different forms, for the purpose of guarding against a variance between the allegation and the proof, is no longer necessary. If there is any variance between the allegations and the proofs in any of the details of the case, the party will, upon the trial, be allowed to amend, so as to adapt his pleading to his case as proved, upon such terms as- may be just-provided no new cause of action is stated.</p> <p>It is impossible, in the nature of the case, that there can be four distinct causes of action in an action for breach of promise of marriage»</p> <p>And where the complaint in such action stated, first, a promise by the defendant to marry the plaintiff upon request; second, generally, a promise to marry the plaintiff; third, a promise to marry in a reasonable time; and, fourth, a promise to marry when the defendant should be disengaged from another,</p> <p>Held, that each of these promises was to be regarded as but a reiteration of the first, only varied in its terms. The complaint was set aside, with costs, with liberty to amend.</p>

This action was brought to trial before á jury at a circuit court held in Saratoga county in June, 1852, and a verdict ordered for plaintiff, subject to the opinion of the court on a case-cause to. be argued and application for judgment to be made, in the first instance, at general term. A case was made and the cause argued before the general term, where judgment was pronounced for the plaintiff. The defendants, upon the case, and upon affidavits, now move for a new trial.

Motion by the plaintiff for an attachment against the sheriff of Monroe county for not returning an execution. The plaintiff recovered a judgment against the defendant in an action for slander, and issued an execution on the judgment.

This was an action against the makers of promissory notes, amounting to $1,667.84. The defendants, without denying the demands, claim a set-off for money laid out and expended, and work and labor, amounting to $150, tacitly admitting a balance due to plaintiff of $1,517.84.

<p>If the rule, that an injunction cannot be issued in one action to stay proceedings in another in the same court, prevails under our present system, it must be confined to cases where the whole object of the injunction would be accomplished by a simple order to stay proceedings.</p> <p>Where an injunction is proper in reference to part of the subject of the action, there is no good reason why one should not be allowed broad enough to embrace the whole case, if a restraint as to the whole is proper, although as to the residue of the controversy the restraint might be obtained by a mere order to stay proceedings.</p> <p>In what mode proceedings in a pending action shall be restrained, is matter of practice purely, and where circumstances render a restraint by injunction the most proper, that mode may be resorted to.</p> <p>Where notes against third persons are turned out as collateral securities for a debt, with the endorsement of the debtor, who afterwards makes partial payments on the principal debt, and subsequently suits are commenced on the notes, and judgments obtained against all the parties, makers, and endorsers, by default; the party who turned out the notes is not concluded by the judgment against him from showing, when sued on the principal debt, or suing to obtain the securities, that less than the amount of the judgment against him as endorser on the collateral securities is due from him on the principal debt.</p>

The plaintiff was a dry goods merchant in the city of Troy, Rensselaer county, and had a partner by the name of Ely. They dissolved partnership on the 27th of February, 1854, and on the same day one Norton entered into partnership with the plaintiff in the same business, which they carried on until September 20th in the same year, when they dissolved.

<p>Where, in an action upon a decree for the payment of money, it was set up in defence, that a conveyance of land was made to, and received by, the creditor in satisfaction of the decree; and the plaintiff replied that it was, upon the representation of the defendant, believed by the creditor, that the grantor had a perfect title to the land; whereas he had not any title or interest therein; held, that the reply was bad on demurrer. It did not show a total want or failure of consideration.</p>

The defendant, Riel, moves to set aside a judgment, which has been entered against him, for irregularity. An unverified answer was served on plaintiff’s attorney, within twenty days after service of the summons. He returned it, with a notice in writing that he refused to receive it, because it was not verified. After twenty days from the service of the summons, the plaintiff entered up judgment, as foy want of an answer.

The action was brought upon a promissory note for $800, made by the defendant Baird. The other defendants were accommodation endorsers. The complaint not being verified, the defendant Frazier put in an answer, in which he denied each and evéry allegation in the complaint. The summons and complaint were served on Frazier on the 3d of March, 1854, and the answer was put in within twenty days. The other defendants made no defence.

On an affidavit of C. Brown, that this action is on contract, to recover $314, is at issue, that plaintiffs have assigned their interest-in the subject matter of the action to John C. Brown, and. that the affiant, C. Brown, is desirous the latter should be substituted as plaintiff in this action; the plaintiffs, on a notice from their attorney to the defendant, and to him only, move for an order making such substitution.

<p>In an action brought to compel the defendant to keep secret a certain invention, in pursuance of a written agreement between the parties, an injunction, restraining the defendant from divulging or teaching the secret, art, and invention of such matter, is not the proper remedy, especially where the defendant denies that he has divulged the thing mentioned in the agreement, but something else.</p> <p>Because the moment the investigation as to the identity takes place, the secret vanishes—its exclusiveness is gone, and with it the action itself. And besides, the patent laws provide that inventions shall be secured for a certain time, and in a certain manner; and this jurisdiction is confided to the General Government, not to the state courts.</p> <p>An action for damages is probably the only redress the plaintiff has in such case.</p>

<p>Application for an injunction and receiver,</p>

The complaint was on a promissory note, made by the defendant, to the order of Godard & Hovey, and endorsed by them, A. Miller, and J. V. P.Gardner, and contained an allega1 tion that the note was, “ before it became and fell due, delivered to, and discounted by, the Bank of Utica, in its ordinary course of business.” The answer alleged that the note was executed by the defendant for the accommodation of Godard & Hovey, and left with them, upon their agreement that the time…

The defendants move for an order, requiring the plaintiff to so amend his complaint as to make it more definite and certain, and so as to state separately the causes of action contained in it, and to plainly number them, and for other relief. The plaintiff insists that it contains but a single cause of action, and that it is an action on the case, in the nature of conspiracy.

This was a molion made at January term, 1855, for a rule or order referring it back to H. Ballard, Esq., sole referee in this cause, to make a further or supplemental report, stating whether certain facts were proved before him or not,

Demurrer to complaint. The complaint alleges that the plaintiffs, at the request of one Mallon, expended large sums of money, amounting to $9,075.34, in the purchase of merchandise, which was placed in a schooner to be conveyed to Kingston, Jamaica; and that for making the purchases and their services, they were entitled to be paid the sum so expended, and $227.71, of which the defendant had notice.

On fyabeas corpus, to the sheriff of Ontario county, to be relieved from imprisonment. The case was heard at the court-house in Canandaigua, the 15th of May, 1855. The return of the sheriff to the writ stated, that the imprison- ment ivas by virtue of a warrant, issued by Chas. J. Folger, county judge of Ontario county, a copy of which was annexed.

Oakley, Ch. J., Campbell, Bosworth, Hoffman, and Slosson, Justices. This action was first tried in February, 1854, and the jury disagreed. It was noticed, and on the calendar for the following March and April terms. It was on the day calendar, and. called in its order on the 27th of April, and the plaintiff not appearing, the complaint was dismissed.

Motion to refer. The action is against a judgment-debtor and his assignee, to set aside an assignment for the benefit of his creditors for fraud; and to have the avails of the assigned property applied in payment of the judgment. On the part of the defendants, it is objected that the court has no power to order a reference in such case, either to hear and determine the cause, or to report the evidence on the facts.

<p>Motion to set aside the judgment in favor of the plaintiffs for irregularity.</p>

The plaintiff obtained a judgment in this court against the defendant, and issued execution thereon, which was returned unsatisfied. An application was then made to a justice of this court, pursuant to Chap. II, Title IX, Part II, of the Code of Procedure, entitled “ Proceedings Supplementary to the Execution and an order was granted requiring the defendant and several other persons to appear before a referee, appointed for the purpose, to be examined.

<p>Selden, Johnson, and T. R. Strong, Justices.</p> <p>Appeal from judgment of county court of Wayne county.</p> <p>The action was commenced in a justice’s court to recover the value of services rendered by the plaintiff for the defendants as attorney. The plaintiff, as attorney, had tried several suits for the defendants in justices’ courts, which services had all been settled and paid for at the price stipulated, except $5 for one suit. Several of these judgments had been appealed from to the county court, and the plaintiff proved, on the trial before the justice, that he was employed to take charge of the appeals in that court; but did not prove that his services were of any value,.or that he had rendered any services under such employment. The suits were settled by the parties after the appeals. The justice allowed the plaintiff nothing in the appeals, and gave him judgment for the $5 only. The county court reversed the judgment of the justice, on the ground that the plaintiff was entitled to recover something for his retainer in the suits appealed ; and that it was the duty of the justice to fix and determine the value, in the absence of all proof on the subject of value.</p>

<p>Although it is said that the Code is a nursing mother, and amends or overlooks formal irregularities, it does so only “in furtherance of justice.”</p> <p>A defendant who has not pleaded in time, ought not to be allowed to say to the plaintiff, you have not sued me in time. In other words, to be allowed as matter of grace to his laches, to interpose the statute of limitations to the plaintiff’s demand, embraced in a regular judgment, by default.</p>

<p>Motion to set aside execution for irregularity.</p>

Application by petition to compel the purchaser of premises pendente lite, to perform a decree made against the original owner.

<p>In all cases, where a single judge, before whom a cause has been heard, has deliberately pronounced his decision, he has no power to suspend the formal entry and docketing of the judgment, consequent upon such decision, or to deprive the successful party of the benefit, which by the terms of the law the docket gives him.</p> <p>Where an appeal is desired, and the requisite security to stay execution has been given, the court may, on proper terms, direct an entry on the docket that the judgment is “secured on appealand thereupon the lien ceases, and the judgment-debtor is left free to mortgage or dispose of his property till the final determination of the case. (§ 281.)</p> <p>And although the lien cannot be prevented without security, a stay of execution may be obtained, either by such security or by the special order of"the judge dispensing with it entirely, or upon terms, in his discretion. (§ 348.)</p> <p>In jury trials, but in no other cases, a judge is authorized (§ 265) to direct j “ the judgment in the. mean time to be suspended,” or a verdict to be taken “ subject to the opinion of the court at a general term.” And then “ the application for judgment must be made at the general term.” (See Taylor agt. Harlow Sf Pierson, ante page 285.)</p> <p>A plaintiff has no right to compel the defendants to elect between the suit in which he is plaintiff, and another suit in which the defendants are plaintiffs against him in reference to the same subject matter. If it is a double vexation, he is chargeable with it as much as the defendants. It is not a case of election.</p>

The first three suits were brought against the American Exchange Bank for payment of sight drafts, or bank checks, of the Commercial Bank of Toledo, Ohio, which the respective plaintiffs held. Held: also for collection, about $14,000 of paper, part of which belonged to the American Exchange Bank, and a part to its customers, which had been remitted by the American Exchange Bank to the Toledo bank for collection.

<p>A motion to strike out parts of a pleading as frivolous, is not governed by the rule applicable to demurrers: that is, if any part of the pleading is held good, the motion must be denied.</p> <p>On motions, the court is not limited to granting the whole or none: they may be granted in part and denied in part.</p> <p>Where the allegation of the plaintiff is, that the bill of exchange was made payable to the plaintiff, and was delivered to him; and the answer says, that the defendant has not any knowledge or information sufficient to form a belief whether the plaintiff is now the lawful owner and holder of the same, the answer is frivolous. There is no such allegation in the complaint as the answer attempts to put in issue, and none is necessary. A material issue might be taken on those that are made.</p>

Motion on behalf of the plaintiff, Livermore, to vacate an order heretofore made, removing this cause into the supreme court of the United States.

<p>A voluntary appearance of a defendant is equivalent to personal service of the summons upon him.</p> <p>And a cause may proceed under the Code upon an answer, without any formal appearance, or notice of retainer or appearance, ever being filed or given.</p> <p>On the 15th of September, 1855, the summons for relief, with process of attachment, were served upon the defendants, under the 134th section of the Code. On the 6th of October, a petition to transfer the cause into the circuit court of the United States, was filed, and a regular appearance of the defendants entered with the clerjr, and a bond filed.</p> <p>Held, that the petition was filed in time, on the 6th of October, the plaintiffs not having taken any steps to obtain judgment, although entitled to it on that day.</p> <p>After the removal of the cause into the circuit court, which is effected by the statute, without an order, it is in the power of th.e plaintiffs to take the pleadings from the state court, in which the proceedings are stayed, and have the cause expedited in the circuit court, if they wish it.</p> <p>The attachment is, by statute, preserved in force; and whatever steps are necessary in relation to it, should be the subject of a special application.</p>

This was an action brought for the foreclosure of a mortgage given by a married woman on her separate property.

<p>Application for partition, &c.</p>

This was an action brought by the appellants against the respondent under the following circumstances, as found from the evidence in the case, viz.: On the 7th of October, 1850, Brower, on behalf of himself and Cram, made an agreement with Lovett & Co., to sell them fifty casks of potashes for $1,657.08, to be paid for—cash on delivery.

No 'grounds were stated in the notice of appe'al in this action ; and the plaintiff’s counsel, who had given the usual notice of appearance, objected to any argument, and asked to have the judgment of the justice affirmed. The counsel for the defendant insisted that it was too late to raise that objection, since the plaintiff’s counsel had .given notice of appearance, and the cause was regularly brought on for argument.

<p>The amount of costs—$7 or $12,—(before notice of trial,) la not. made to depend on the fact whether an application is made to the court or not, or whether the issue is such that application to the court would be necessary; but on the nature of the. action, and the mode of service, (§ 246, sub. 1, 2,) without reference to the pleadings.</p> <p>That is, $7 is allowed when the action is of such a nature that, if the defendant fail to answer, judgment may be entered without application to the court; and $12 is allowed in an action in which judgment can only he entered on application to the court, whether the defendant fail to answer or not. (This agrees with Van Valkenburgh agt. Van Schaick, 8 How. Pr.R. 271.)</p> <p>“Issues arise upon the pleadings, when a fact or conclusion of law is maintained by the one party and controverted by the other. (Code, § 248.)</p> <p>The plaintiff, in his complaint, said the defendant owed him $600 for a note. The defendant in his answer, did not deny it, nor say anything about it; but said the plaintiff owed him $40, for goods sold. The plaintiff made no reply.</p> <p>Held, that there was no issue to be tried, and no notice of trial was necessary. The plaintiff could take judgment without a jury, and was therefore not entitled to $15 trial fee; nor to $7 for proceedings subsequent to the notice of trial; and was entitled to $7 only, for proceedings before notice of trial.</p>

<p>Motion to set aside judgment on confession and execution in the first above entitled cause.</p>

The plaintiff seeks to examine one of the'defendants, on five days’ notice, under § 391 of the Code. The cause is not at issue. Tjhe party sought to he examined resides in the state, and is not about to depart—nor is she sick or infirm.

<p>The facts will sufficiently appear in the opinion.</p>

<p>Where a party, compet nt to judge for himself, enters into a contract, on a • speculation—the purchase of a new invention—and gives his promissory notes in consideration, he is not permitted to turn round, after a failure in the speculation, and ask to have the contract rescinded, on the ground of the want of proper and adequate consideration—especially where such party has acquiesced in such contract for a long time, and has paid one of his notes given thereon.</p> <p>Because an invention, however promising in its inception, has not yielded the expected golden returns, (as is usually the case,) is no reason, in the absence of all fraud or circumvention, why the person entering into the speculation should not, however disagreeable it may be, fulfil the terms of his engagement—especially after that engagement has been fully executed on one side, and partially on the other.</p> <p>A party asking for the reeision of a contract, deliberately entered into, must make his election with all due promptness.</p> <p>A voluntary payment, deliberately and understandingly made, without fraud or duress, cannot be recovered back, "</p>

<p>Where an application for an injunction is made upon the complaint under the first clause of § 219 of the Code, and an affidavit in corroboration of the complaint is used, which states more than the complaint, it does not lessen the efficacy of the facts stated in the complaint, or transfer the application made upon the complaint to an application made upon affidavit.</p>

<p>A mandamus should not issue, except when it is necessary to enforce the rights of the party seeking its aid, and in that class of cases only, where no other adequate remedy exists.</p> <p>The powers of another tribunal should not be invoked, unless the court having original jurisdiction should, from want of proper authority, be unable to. enforce its own orders or decrees.</p> <p>If an order made by the superior court, directing the comptroller to procure a warrant to be countersigned by the mayor, was one which the mayor himself was bound to obey, such order can be promptly enforced by the superior court, or the justice by whom it was made.</p> <p>A mandamus by this court to compel obedience to such order, would be altogether improper.</p>

<p>Motion by defendant to dissolve injunction. The facts sufficiently appear in the .opinion.</p>

<p>Present, Bowen, P. J., Mullett and Greene, Justices.</p> <p>Appeal from an order at special term overruling a demurrer to the complaint.</p>

This action was brought for the recovery of specific personal property. The complaint was demurred to by the defendant; and after a hearing at special term, the demurrer was overruled, but liberty was given to the defendant to withdraw the demurrer and answer the complaint in twenty days, on payment of costs.