Volume 14 — Howard's Practice Reports

Motion by plaintiff, after trial by the court, for judgment or decree, restoring to him a reconveyance of real estate, &c.

<p>Where an application for leave to sue informa pauperis, is made after the defendant has appeared in the action, it can only be made upon notice to the defendant.</p> <p>Such an application will be denied, on the ground of laches, if not made upon, or soon after the commencement of the action.</p> <p>The statute authorizing prosecutions in forma pauperis, does not extend to appeals under the Code. Such an appeal is not a “ cause of action ” within the statute. (2 JR. S. 444, § 1.)</p> <p>One of several plaintiffs cannot sue as a poor person. The poverty of all must be shown, and the leave must be given to all.</p>

<p>Where a case, upon a report of referees, was made before the decision in 3 ATernan, 341, which did not conform to that decision, held, that it might be. made to conform to that rule after the determination of the general term on appeal. This court hold, that they have the power, under § 174 of the Code, to allow ■exceptions to the report of referees, &c.Jcfo be filed nunc pro tunc, after the ten days fixed by the court.</p>

to them. The statement for the judgment in the second case, after the title, is in these words: “ I, the subscriber hereto, do hereby confess judgment in favor of Joel Carrington, for the sum of two thousand dollars, and authorize judgment to be entered against me for that sum, besides costs. This confession of judgment is for a debt justly to grow due to -, and the following is a statement of the facts upon which said confession of judgment is founded.

This action comes before the court, on an appeal from an order of Mr. Justice Hoffman, made the 13th of March, 1857, denying a motion that an attachment issue against James Van Norden, the defendants’ president, for an alleged contempt, in not obeying a subpcena duces tecum.

<p>Brown, S. B. Strong and Emott, Justices.</p> <p>Appeal from a judgment of foreclosure of mortgage premises.</p>

Motion that suits be continued against executors. These eight actions were brought against the defendant as the proprietor of the ferry across the Hudson River, at Troy, under the provisions of the act of the legislature, “ requiring compensation for causing death by wrongful act, neglect, or default.” {Sess.

Present, Gray, Mason and Balcom, Justices. The complaint contains these allegations, to wit “ That the defendant, on the third day of July, 1856, at Oxford, with force and arms, assaulted the plaintiff; and then and there, with great force and violence, seized and laid hold of the plaintiff; and then and there plucked, pulled and tore divers large quantities of hair from and off the head of the plaintiff; and then and there, with his fists, gave and struck the plaintiff…

The plaintiff having obtained, under § 292 of the Code, an order requiring the defendant to appear before a judge of this court, and answer eoncerning( his property, now moves, upon affidavits and notice, that a commission issue t'o examine witnesses residing out of the state, on the ground that their testimony is material and necessary for the plaintiff in the proceedings aforesaid.

<p>A sale under a-judgment of foreclosure, being advertised for the 11th of December, 1856, the defendant, on the 9th, procured an eso parte order, accompanied with a stay of all proceedings, for a motion to set'aside the proceedings. By reason of this stay, the referee, at the time and place of sale, declared it adjourned generally, without stating it to be adjourned to any particular day. The stay was soon after dissolved, and the motion denied. In the next weekly issue of the paper in which the sale had been advertised, a notice of adjournment from Dec. 11th to Dec. 18th, was regularly published, and the sale was had pursuant to such adjournment.</p> <p>Held, that defendant, whose act in procuring an unwarranted stay of proceedings, had prevented the referee from announcing, at the time appointed for the sale, the adjourned day, should not be allowed to take advantage of the irregularity, if there was one.</p> <p>Where a party procures an order to show cause for a motion, accompanied with a stay of proceedings, to which he is not entitled, it is his duty, and not that of tlje judge, to supervise the regularity of the proceedings, and to see that the order is not too broad for the case on which it is founded. If it be so, and if one of the parties must suffer in consequence, the court will not interfere to throw the loss or burden on the party who was improperly restrained; but will leave it on the party who was the cause of it.</p> <p>Although the proper method of adjourning a sale, or other judicial proceeding, would include the naming of the adjourned day, yet, in the case stated above, Held, that it would be contrary to the dictates of good faith, and allowing the party to take advantage of his on n wrong, t£> grant his motion to set aside the sale.</p>

The complaint is upon an alleged contract between the plaintiff and defendant, by which the defendant, being a common carrier of passengers for hire from the city of New-York, via Chagres, to San Francisco in California, agreed with the plaintiff to transport him and his two hired men from New-York to San Francisco for the sum of $200 each—$600 for the three, which was paid by the plaintiff to the defendant in advance; whereupon the' defendant agreed to carry the plaintiff…

Motion to set aside complaint. . A summons and complaint were served on the defendant Stevens on the 29th of September. The summons was entitled in the supreme court, but no court is mentioned in the complaint. On the 17th of October, the defendant Stevens, who resides at Batavia, and appears in person, served papers for this motion, by mailing the same at the place of his residence, upon the plaintiff’s attorney, who resides at Albany.

Motion by plaintiff to amend the proceedings by adding, “ The Albany, Vermont and Canada Railroad Company,” as defendant.

<p>On an analysis of § 399 of the Code, as amended on the 13th of April, 1857, it will stand about in this shape:</p> <p>1. A party to an action or proceeding, and a party for whose immediate benefit a suit is prosecuted or defended, may be examined as a witness in his own behalf, the same as any other witness, in all cases except,</p> <p>When the adverse party, or adverse person in interest, is not living; or, when the opposite party is an assignee, administrator, executor, or legal representative of a deceased person.</p> <p>2. Ten days’ notice, in writing, of such intended examination must be given to the adverse party, specifying the points upon which the party or person is intended to be examined.</p> <p>But in special proceedings, of a summary nature, such reasonable notice shall be given as shall be prescribed by the court or judge</p> <p>3. When notice of such examination is given, and the opposite party resides out of the jurisdiction of the court, such party may be examined by commission issued and executed as now provided by law.</p> <p>4 If a party or person in interest have been examined under this section, the other party or person in interest may offer himself as a witness in his own behalf, and shall be so received.</p> <p>Now, the ten days’ notice, and the points of examination, apply only to the party or person in interest offering himself as a witness, on the original application, in his own behalf—not to the opposite party; the law admits him, of course, and at large upon all the issues, whether his examination is upon commission or otherwise.</p>

T. R. Strong, Welles and Smith, Justices. Certiorari to the court of sessions of Livingston county. The defendant was indicted in the court below in Novembei, 1855, for selling strong and spirituous liquors.

<p>The principle upon which a receiver of partnership property is appointed, is with the view of winding up the concerns of the partnership, and dividing the surplus, and not for the purpose of carrying on the partnership business. Hence, as a general rule, a receiver is not appointed except in cases where the plaintiff will be entitled to a decree of dissolution.</p> <p>If a receiver is appointed, he must proceed to sell the partnership property and collect the outstanding debts without delay. The court will not take upon itself the responsibility of carrying on the partnership business; but may give the receiver authority to continue it temporarily to prevent injury and loss to the property.</p> <p>Where partners cannot agree in relation to the possession and control of the partnership effects and business, it is a matter of course to appoint a receiver upon a complaint filed to close the partnership, on the application of either party.</p> <p>But where the plaintiff asks relief in his complaint, for the appointment of a receiver to collect the debts and sell the partnership property, he cannot on motion ask for the appointment of a receiver to carry on the partnership business in opposition to the prayer of his complaint,</p> <p>Where the issues of fact, in an action between partners, will require the examination of a long account, the court, on its own motion,#vhere application Í3 made for the appointment of a receiver, will direct a reference to hear and decide the whole issues; that is, will direct an order of reference for the appointment of a receiver with power, &c., and a reference to hear and decide the whole issues.</p>

<p>A contract to purchase and sell pork, to be delivered at a future period, for a certain sum per barrel, where it is the intention of the parties at the making of the contract, that it shall not be specifically performed by an actual delivery of the pork, but at its maturity the difference between the market value of the pork and the price agreed upon, shall be paid by one party to the other as performance or satisfaction of the contract, is illegal and void, under the statute of betting and gaming. (1 ü. S. 661, § 8.) °</p>

Motion to set aside- complaint, &c. The complaint contains two counts.

<p>v An application under 2 Í?. S. 556, §§ 33, 34, to amend a bond, defective in some respects, must be made by all the obligors therein. It should be upon petition, verified by them t should specify all the alterations proposed to be made in the bond, and should contain an express consent to the amendment, and an agreement to execute and acknowledge the bond as amended. A new surety may be united in such bond by his consent, and that of the original obligors.</p>

Motion by defendants to dismiss complaint, for unreasonable neglect in proceeding in the cause. The action was commenced by service of a summons on the defendant Fancher, unaccompanied by a copy of the complaint.

Demurrer to answer. The action is upon a promissory note. The defendant in his answer alleges, that before the commencement of this action on, &c., he commenced a suit against the plaintiff, by summons for the recovery of a certain demand due from the plaintiff to the defendant, upon contract, before John G. Bixby, one of the justices of the peace of, &c.; that such suit is still pending, and that the cause of action in the plaintiff’s complaint accrued to the plaintiff, and…

Motion to vacate order for leave to issue execution. In November, 1843, judgments were recovered by the plaintiff in each of the above causes, in the supreme court.

<p>Present, Oakley, Ch. J.,Duer, Bosworth, Hoffman, Slosson and Woodruff, Justices.</p> <p>Appeal from an order overruling the demurrer to the complaint.</p>

Demurrer to the complaint. The complaint for the first cause of action states, that the defendant, Thomas J. L. Tyler, on the 14th day of May, 1855, at the city of Buffalo, in the county of Erie, in the state of New-York, made his certain promissory note in writing, and delivered the same to the plaintiff, whereby the said defendant, for value received, promised to pay the said plaintiff, or bearer, the sum of $500, on demand.

Appeal ,by the plaintiff from a judgment at special term.— The facts of this case will be found reported ante vol. 12, p. 58.

Motion to vacate an order of arrest. In December, 1856, the defendant was arrested and held to bail in this action, pursuant to an order made by one of the justices of this court.

Motion to set aside answer for want of verification. The cause of action stated in the complaint was assault and battery, and the answer denied all the allegations in the complaint. The complaint was verified.

<p>All persons who have joined in a contract, should be made party defendants in an action on the contract. The non-joinder can be taken advantage of by answer, where it does not appear on the face of the complaint.</p> <p>In an action, however, for the foreclosure of a mortgage, where the mortgagor had previously entered into a written agreement with a person to convey the premises, held, that, although such person was a proper party, the omission to make him a party would not prevent the rendition of a valid judgment.</p>

This action was brought for the recovery of the possession of certain premises in Rockland county, which were demised to the defendant by the plaintiff. Held: that as the tenant went into possession without, and before the construction of this raceway, the landlord could not be said to have evicted the tenant from what had never existed, and the tenant must sue for damages on his covenant.

Motion by plaintiff, Davis, to amend the complaint in the first entitled cause, by increasing the amount of damages, &c.

Demurrer to complaint. The action was against one of the defendants as maker and the other as indorser of a promissory note, payable to the order of the plaintiff himself, and indorsed by him.

Motion to set aside proceedings, &c. On the 6th day of April, 1853, the defendant Abrahams and his wife signed a statement in writing for the purpose of confessing judgment thereon, whereby they acknowledged themselves to be indebted to the plaintiff in the sum of $1,175.47. It was stated that the indebtedness arose upon four notes of hand which had been given to the plaintiff for money had and received from the bank of which the plaintiff was president.

Present, Johnson, Strong and Smith, Justices. Appeal from a judgment entered upon the order of Judge Allen. Case argued at Rochester, March, 1857, and decided at the late Cayuga general term.

Motion to amend the pleadings by striking out the name of the defendant Ford as a party. This was an action by plaintiff, on a demand of plaintiff and one Leavitt, for work, labor, &c., against the three defendants, who conducted business under the name of Joseph Hillerline & Co. The complaint alleged the assignment, by Leavitt, of his interest in the demand to plaintiff. The summons was served, on Hillerline alone.

Habeas Corpus ad subjiciendum. The defendant having been committed to the jail of the county of Yates, the writ of habeas corpus was allowed, directed to the sheriff of said county, who made return thereto, that the defendant was committed to jail, and was held in prison by virtue of a warrant issued by J. J. Diefendorf, Esq., a justice of the peace of said county, which warrant is in the words and figures following:— “Yates County, ss,: The People of the State of New-York…

The plaintiff, who is the defendant’s wife, brought this action to obtain a divorce from the defendant for his alleged cruel and inhuman treatment of her. The summons was served without the complaint. A complaint was afterwards served in which the action was entitled “ Fanny Allen agt.

Demurrer to complaint. The defendants, on the 16th of February, 1856, delivered to Fleming & Alden, merchants in New-York, the following letter:— “ New-York, 16th Fab., 1856. “Messrs. Fleming & Alden, 94 Wall-street, New-York: “ Gentlemen—In reply to your communication, made to me this morning, respecting your drawing exchanges upon us, I would state that you have our authority to do so; and all such exchanges drawn upon us will be duly honored and protected.

<p>In an action against the defendant as licensee of a ferry, where the complaint alleged that the defendant was duly licensed to run a skiff-ferry, &c.; that he continued to hold said license, and to run said skiff-ferry by his lessee, and by persons acting and ferrying under said license; and that, owing to the overloading of the skiff, the improper stoyving of passengers, and the negligent and unskilful conduct of the man rowing and having charge of the skiff, the same was sunk or swamped, and A. B. was drowned, &c.</p> <p>Held, that the inference might be justified, (and it was so assumed upon the ar gument by counsel for both parties,) from the allegations of the complaint, that the defendant had authorized some other person to run the ferry, and that the man rowing and having charge of the skiff, was the servant of the defendants lessee: the defendant, therefore, was not liable for the wrongful act of his lessee, or his lessee’s servant, and the action could not be sustained upon such allegations.</p> <p>The only principle upon which one man can be made liable for the wrongful acts of another is, that such a relation exists between them that the former, whether he be called principal or master, is bound to control the conduct of the latter, whether he be agent or servant. The maxim of the law is, respondeat superior.</p>

This was an action commenced July 3, 1855, to recover the penalties provided by the charter of the village of Rome (and which are the same as under the Revised Statutes) for the sale of liquor, between the time the former licenses expired, (about the 1st May, 1855,) and the time when the “Maine Law,” so called, took effect,—(July 4,1855.) The defence was, that in all that time there was no law in force, under or by which the penalties claimed could be recovered.

Present, Duer, Ch. J., Hoffman, Woodruff and Slosson, Justices. This action was commenced several years ago, and has been several times in the court of appeals, and finally resulted in a verdict for the plaintiff on the 14th of March, 1856, for $540, subject to the opinion of the court at general term, and judgment in the meantime suspended.

Demurrer to complaint. This was an action on a promissory note. There was a demurrer to the complaint. The complaint stated that the defendant, on the 22d day of April, 1856, made his promissory note, dated that day, whereby, for value received, he promised to pay William Rork, or order, one hundred and thirty-two dollars and fifty cents, six months after date, with use.

The action is brought to recover a balance of account. The defendant, in his answer, set up a counter-claim for costs and services as an attorney and counsellor at law. Issue was joined in December, 1849. The cause was referred ; but the referee having removed from the county, great delay has occurred in bringing the issue to trial. The plaintiff further states that the defendant is insolvent.

Action tried at the Wayne circuit in February, 1857. The plaintiffs were the assignees of one Fuller, and the defendant was sheriff of Wayne county. The plaintiffs, on the trial, proved the assignment by Fuller, and that the defendant had levied on the property in question. The property assigned consisted of a farm with the property thereon, and the remains of a store of goods. An inventory of the goods was made soon after the assignment.

The case is one where a plaintiff (in justice’s court) sued two defendants by long summons, personally served, and so returned; the summons being (in this action) averred and proved to have been issued by a justice of the peace, of a town not adjoining the town where either of the parties (plaintiff or either defendant) resided, although all parties resided in the county.

The plaintiff moves, under the 247th section of the Code, for judgment against the defendant Walter Doty, the indorser of the note on which the action is brought, on the ground of the frivolousness of his demurrer to the complaint. The complaint is founded on the promissory note of the defendants Sherrill and James Doty, payable to Walter Doty or order at the Fort Edward Bank.

The action was for the foreclosure of a mortgage, commenced in 1854, referred the same year to a referee for hearing and decision, and heard at intervals of time in the years 1854 and 1855, and the spring of 1857. The referee made his final report in favor of the plaintiff on the 9th day of May, 1857.

Present, Gray, Mason and Balcom, Justices. This action originated in a justice’s court in Otsego county. It was brought to recover the value of a cow that belonged to the plaintiff, and which one Brooks took and sold as collector of a school district, by virtue of a warrant issued and delivered to him by the defendants, as trustees of the district, for the collection of a tax voted upon the district.

Motion to set aside answer. The action is upon a promissory note, of which the defendant Ball is maker, and the defendants Curran and Baxter first and second indorsers. On the 14th of August, an answer for all the defendants was served upon the plaintiff’s attorney. The answer was verified by the affidavit of Curran only.

<p>Where a justice of the peace removes from the state, after a judgment rendered by him, and before any return is made by him to an appeal to the county court, the 363d section of the Code authorizes the áppellate court to examine witnesses on oath, to the facts and circumstances of the trial or judgment, and determine the appeal as if the facts had been returned by the justice.”</p> <p>Where, in such case, it is impossible for the supreme court (on appeal from the county court) to say that the county court had before it all the material evidence given on the trial before the justice, this court will not interfere with ihe judgment. And where, from the nature of the case, it was such that all the objections raised by the appellant to the validity of the judgment might have been supplied by evidence, this court are bound to intend that they were thus supplied.</p> <p>Where the notice of appeal is returned, and, in the case, so that the court can see what the alleged errors in the judgment were, they will disregard any that were not fairly stated in the notice; and where the notice of appeal is not returned, the same rule should prevail.</p>

This action was tried by a referee, who decided that the plaintiff uas entitled to recover $961.02, and his costs. The plaintiff moved for an extra allowance under the 308th section of the Code. The relief demanded was both legal and equitable. It was objected that § 308 did not apply to an equitable action.

<p>In this case, the verification of the complaint and the answer were made by the respective attorneys, upon information and belief, without stating any grounds therefor, and both held to be insufficient. The answer, therefore, was permitted to stand.</p>

Before the time to answer had expired, the defendant’s attorney procured an order from the county judge of Livingston county extending the time to answer, which was disregarded, and returned by the plaintiff’s attorney, for the reason that the affidavit on which it was granted, which was made by the clerk of the plaintiff’s attorney, was not accompanied by an affidavit of merits, or an affidavit of the attorney or counsel of the defendants, that from a statement of the case…

This was an action brought against the defendant, aXjustice of the peace, for a false return. The cause was tried at the last April circuit in Monroe county, when the plaintiff obtained a verdict against defendant for thirty-three dollars and sixteen cents. The plaintiff’s attorney served the usual notice of taxation of costs and disbursements before the clerk of Monroe county, insisting that he was entitled to costs.

<p>An action brought against a seller and purchaser (vendor and vendee) of real estate, to impeach the conveyance on the ground of fraud as to the plaintiff, and subsequently, without bringing the cause to trial, an order is entered discontinuing or dismissing the action as to the purchaser, such discontinuance or dismissal does not bar a new suit against him for the same cause.</p> <p>A party who has entered into a contract of sale, through an agent, for the purchase of real estate, and made the customary deposit, (ten per cent.,) is not compelled to accept a deed where a notice of Us pendens is filed, and actual notice given him of it, impeaching the vendor’s title, before he has proceeded further with his bargain.</p> <p>Where the vendor is fully bound, by his contract of sale, and chargeable within the statute, the vendee is also bound,, although he has not signed any writing personally, or by an authorized agent.</p>

Motion by defendants Russell and Eastwood to set aside judgment entered against the defendants. The complaint was verified by the attorney of the relator ; the attorney of the defendants Russell and Eastwood, deeming the verification defective, put in an answer without a verification. The plaintiffs’ attorney returned the answer, and entered judgment against all the defendants.

Motion to set aside judgment for irregularity. The action was brought to obtain a specific performance. The suit was originally commenced against the Albany Northern Railroad Company as sole defendant.

T. R. Strong, Welles and Smith, Justices. Appeal from an order at special term enjoining defendant, Elliott, against the further prosecution of four several actions against John S. King, Alexander S. Diven, Eben Smith and Franklin E. Smith respectively, &c

W. Ainsworth, as an absconding or concealed debtor, under.the fourth chapter of article seven of the Code. The attachment was issued on the 20th Nov., 1855, and was executed on the same day. ■ The sheriff and the appraisers on the inventory of the property attached made by them, certified that the potatoes therein mentioned were perishable property; and this was the only property they did certify to be perishable.

The trial commenced in February, 1857, and terminated in March following. The referees’ report was signed on the 4th day of May last, and was filed at the time of entering judgment, which was on the 21st day of May. The amendments to the Code, enacted by the late legislature, took effect on the 7th day of May. On entering judgment, the plaintiff insisted that the costs to be adjusted and inserted by the clerk should be in conformity to the amended Code.

Motion to dismiss complaint. Issue was joined in the action on the 20th of February, 1855. The venue is in Schoharie. Circuits were held in that county on the third Monday of May and the third Monday of September, at the latter of which issues of a later date than that in this cause were, upon a regular call of the calendar, tried. This cause was not noticed for trial at either of said circuits.

This action was commenced on the 5th day of January, 1857, by the service of a summons upon the defendants personally. The notice in the summons was, that if the defendants should fail to answer the complaint, &c., the plaintiff would apply to the court for the relief demanded in the complaint. A copy of the complaint was served upon the defendants with the summons, and the cause of action set forth in it, is upon contract for the recovery of money only.

Duer, Ch. Bosworth, Hoffman, Slosson and Wood-ruff, Justices. This action was brought upon a policy of insurance made by the defendants, to recover from them their proportion of the loss and damage sustained by the plaintiff by the destruction or damage of the property insured, by a fire which occurred on the morning of the 5th of February, 1855.

<p>• Motion to set aside a judgment and subsequent proceedings.</p> <p>The facts are sufficiently stated in the opinion.</p>

Interpleader. The action was brought to recover the sum of $266.93, which had been deposited with the defendant by Francis Fletcher, and is still standing to his credit on the books of the bank. On the 13th of September, 1856, Francis Fletcher transferred his interest in the deposit to the plaintiff.

Demurrer to the complaint, that it does not state sufficient facts to constitute a cause of action. The complaint is as follows:— “ The above-named plaintiff, Lawrence J. Goodall, complains against the defendants, James G. MAdam and Phcebe J. M‘Adam, his wife, and says, that the said Phcebe J. MAdam was, on the first day of April, 1853, and ever since has been, and still is, the lawful wife of the defendant, James G. MAdam.

<p>An execution against the person may be issued after the lapse of five years from the entry of the judgment withoutleave of the court, if an execution against property was issued and returned unsatisfied within that time, although more than five years have elapsed since the return of the latter execution.</p>

<p>A verified answer setting up new matter as a defence, may be stricken out as sham.</p>

Motion to vacate order of arrest. The plaintiffs are a foreign corporation, organized under the laws of Pennsylvania, and engaged in the business of insurance. The defendant was their agent for effecting insurance in Troy. This action was brought to recover a balance alleged to be due from the defendant for moneys received by him as agent, and not paid over to the plaintiffs.

<p>Plaintiffs, by an agreement on the 20th Jan. 1851, sold to Polak brandies in bond, on a credit of six months, for which notes were dated on that day; but by delay they were not delivered to plaintiffs until the 4th of February, Ib57. On the said 20th January, Polak offered and engaged to sell the brandies to Bartling, to give him a bill in a day or two, and have the goods transferred. Bartling at the same time giving Polak his check in payment. Bartling got a bill of the brandies, dated 20th January, a few days thereafter. The bilí of the plaintiffs was delivered to Polak a few days after the purchase.</p> <p>On the 23d of January the plaintiffs gave Polak the following paper:—</p> <p>“We. authorize J. Polak, jr., to withdraw the following packages, viz., (giving their marks.)</p> <p>“Jan. 23d, 1857. “ Ives, Beecher, & Co.”</p> <p>And on the 20th of January Polak delivered to Bartling this document—</p> <p>“I authorize. A. A. Bartling to withdraw the following packages, viz., (giving the same marks.)</p> <p>“Jan. 26, 1857. J. Polak, jr.”</p> <p>On the 6th Feb., 1857, the plaintiffs wrote to Bartiing that they had seen, on the • books of the custom-house, that several packages of brandy, now in the bonded warehouse of Wm. B. Peek, had been transferred to him by J. Polak, jr., and and they notified him that they had not parted with the possession of the goods, and should hold them as their own property.</p> <p>Held, that the right of the plaintiffs to the goods, was not divested by any sufficient constructive delivery to either Polak or Bartiing. The rule is limited to hills of lading, which possess something of the character of negotiable paper. No other instrument of transfer, or mercantile document, in the hands of a vendee without title, possesses the power of destroying the right of stoppage, until perfected by actual possession</p>

<p>When a report of referees is defective, in 'omitting to state the facts found, as required by § 272 of the Code, the appropriate remedy of the losing party, who desires to have the decision reviewed, is to apply for an order that the report he sent hack to the referees for correction.</p> <p>If such an order be. obtained, and it fails to effect the object, upon a fair trial, the court will set aside the report on account of the defect.</p>

<p>The plaintiff alleged a breach of covenant as follows“ The said defendant'did covenant and agree to and with the said plaintiff and his representatives, among other things, to maintain the said plaintiff through life, and to find and provide him with good and respectable clothing, and proper and reasonable board and lodging, looking after and providing for all his wants in sickness and in health, to procure and pay for all necessary and proper medical aid and attendance for him; and if at any time said plaintiff should become dissatisfied with living with said defendant, then the said defendant did covenant and agree to pay all reasonable charges for the board and necessary expenses of the said plaintiff.”</p> <p>The principal question was, whether, under this covenant, the plaintiff could, at his pleasure, elect to become dissatisfied with living with the defendant? The referees held, that it was not necessary for the plaintiff to show cause, or any excuse, for becoming dissatisfied with living with the defendant.</p> <p>On appeal from the judgment entered for the plaintiff, upon the report of the referees,</p> <p>Held, that this covenant was not intended to authorize the plaintiff to leave the defendant, without some reason or provocation for so doing.</p> <p>The testimony in this case very fully showed that the defendant, in regard to this covenant, performed his whole duty.</p> <p>It is a settled rule of law that, in determining the meaning of a contract, the subject matter and situation of the parties, as well as their intentions, should be considered.</p> <p>It could not be believed that the parties here intended to, or understood that the plaintiff might at any time, of his own volition, without' any cause whatever, quit the defendant’s house and go elsewhere to live, and then call on the defendant to pay the cash for the board and expenses of the plaintiff.</p> <p>It appeared that when the plaintiff left the defendant’s house, to reside elsewhere, the defendant forbid his going, and refused to pay any expenses for</p> <p>. board, &c., for the plaintiff, as he left without any provocation.</p> <p>Held, that this was not sufficient to sustain the allegation in the complaint of a request and refusal on the part of the defendant.</p> <p>The provisions of the contract were such that a total breach could not take place, even during the lifetime of the plaintiff,—there being certain things to be done by the defendant after the plaintiff’s death,—yet the referees decided, as matter of law, that there was a total breach.</p>

Motion lo set aside judgment for irregularity. The action was brought to compel the defendant to convey to the plaintiff certain real estate, and for other purposes. It was tried at the Columbia circuit, in January, 1856, before Mr. Justice Gould, without a jury. On the 21st of March following, the.judge delivered his opinion in writing, stating, in géneral terms, the principles upon which he should decide the cause.

The action was tried by referee, and a report and decision were made in favor of the defendant. Early in March judgment was duly entered and docketed, and notice thereof duly served on the plaintiff’s attorney, Mr. Crandall. Mr. J. C. Strong had charge of the action at all times, having been retained by the plaintiff to bring the action. Mr. Crandall, at the time Strong was retained, was in his office, and his name was used as attorney, and all papers were served on him.

THe plaintiff recovered a judgment against the defendant, and after an execution, issued against the property of the latter, was returned unsatisfied, the plaintiff instituted proceedings supplementary to execution.

<p>S. B. Strong, P. J., Birdseye and Emott, Justices.</p> <p>Appeal from-judgment on demurrer to complaint.</p>

<p>Motion to discharge order of arrest.</p> <p>The affidavit on which the order of arrest was granted showed a good cause of action—for goods sold—and alleged that they were purchased upon fraudulent representations in respect to the property and means of the defendant.</p> <p>The defendant moves to discharge the order of arrest, denying positively the fraud alleged.</p>

Motion to set aside judgment and execution. The defendants were partners, under the firm-name of Gris-wold & Blanchard. The plaintiff had advanced moneys, as is alleged, by defendant Blanchard, to the defendant David D. Griswold, who is her nephew and stepson, as a part of his capital in the firm, pursuant to the articles of partnership. On the part of the plaintiff, it is alleged that this money was ad- » vanced on the joint liability of both defendants.

Examination of an adverse party under §§ 391 and 392 of the Code. Mr. Bryan for the applicant, submitted an affidavit and order directing, among other things, the production of books and papers, or to show cause why he should not produce them.

Motion by the defendant to set aside the complaint, on the grounds, first, that the cause of action, as slated therein, does not agree with Ihe cause, of action indicated by the notice in the summons; and, second, that the amount specified in the summons as that for which the plaintiff would take judgment, upon a failure by the defendant to answer, is $1,000, and that the plaintiff, in his complaint, demands a judgment for $1,500, with interest, &o. These grounds of motion…

Present, Harris, Watson and Gould, Justices. This was an appeal from an order made at special term, overruling the demurrer of the defendant to Ihe plaintiff’s complaint, and granting leave to the defendant to answer, upon payment of the costs of ihe demurrer. The plaintiff is a married woman, and sues by John Anthony, as her next friend.

<p>A common carrier, whether by land or water, if he accepts property to carry as the property of A., has no right to dispute A.’s ownership. Where there is’ no fraud or insolvency, he must deliver according to order, and according to agreement, and take his chance for the consequences. He has no right himself to initiate a litigation of interpleader, because another interposes a claim of ownership to the property.</p>

<p>Motion to set aside judgment as irregular, atid for leave to answer on the merits»</p>

On proceedings supplementary to execution out of supreme court, returned unsatisfied in part. Examination before a referee on an order of Davies, Justice, out of court, Sept. 17, 1856.

Motion to dissolve injunction on complaint. The complaint, on sufficient facts, prayed for a separation from bed and board for ever, and for support and maintenance from the husband’s property.

Motion to set aside complaint for irregularity. The action was commenced by the service of a summons without complaint. The form of the summons was that prescribed in the second subdivision of the 129th section of the Code. The defendant, on the same day the summons was served, appeared by his attorneys, and demanded a copy of the complaint. On the next day a copy of the complaint was served.

Hubbard, P. J., Pratt, Allen and Bacon, Justices. Demurrer to answer. ' This action was brought against the sheriff of Lewis county, to recover for money collected by him on an execution in favor of the plaintiff against one James H. Sheldon.

Present, Gray, Mason and Balcom, Justices. Appeal from an order made at the Chenango special term, in January, 1857, denying the plaintiff’s motion to set aside the judgment against him personally for costs, with $10 costs of the motion.

This action came before the court, on an appeal from an order sustaining a demurrer to the complaint, which stated two causes of action.

Wright, Watson and Harris, Justices. This was an appeal from an order made at a special term, allowing a demurrer to the complaint.

<p>Application for a discharge from imprisonment on execution.</p> <p>The defendant presented a petition under article6, of chap. 5, part 2, of the Revised Statutes, entitled “ of voluntary assignments by a debtor imprisoned in execution in civil causes,'” stating that he is and has been, since -the 25th of November, 1856, confined in the jail of Monroe county, upon an execution issued out of this court, in this action, upon a judgment for the sum of $29,193.35, recovered Sept. 10, 1856. With such petition was presented an inventory of the estate of the petitioner annexed thereto, and the same was verified by the affidavit of the petitioner, in the form prescribed by the statute. On the presentation of such petition, with due proof of service thereof, with the notice required, by the statute, the applicant was brought into court; and, on application for his discharge, counsel appearing on behalf of the plaintiff to oppose the same, i.t was referred to a referee to take the examination of the petitioner and his wife, and of such other witnesses as should be produced before him by either party. On the coming in of the report of the referee, with the evidence taken by him, the application for the discharge was renewed, and opposed upon grounds which will sufficiently appear in the opinion.</p>

<p>The basis of an order of interpleader to be made under § 122 of the Code, is the admission and office of the stakeholder. If he denies a liability beyond that admission, and such is claimed against him, it becomes a subject of litigation, and the remedy given by the section is not applicable.</p>

On the 18th of July, 1856, the plaintiff presented to the defendant, as administratrix of the estate of Richard Clow,.deceased, a demand against the estate, consisting of three promissory notes, purporting to have been signed by Richard Clow, and one Samuel Clow. The demand was verified, but the defendant, doubting its justice, refused to pay it.

<p>Bowen, Greene and Marvin, Justices.</p> <p>Motion to dismiss an appeal.</p>

Motion by plaintiff for a rule or order, striking out the answer as regards the defendant Peter Peterson, and that an attachment issue against him for contempt for not attending before a judge, to be examined as a witness for the plaintiffs. Issue of fact was joined in the action, on the 31st day of July, 1855, by the service of the defendants’ answer.

<p>Although a sovereign, or a sovereign state, in their political capacity, cannot be sued in the courts of another state or nation, for the purpose of enforcing any remedy against them, yet a state may be made defendant in an action, for the purpose of giving it an opportunity to appear, and thus to enable a court to decide more, intelligently and equitably, in relation to demands which are sought to be enforced against other defendants.</p> <p>States, as well as individuals, it may be presumed as a general rule, are the best judges of what affects their own dignity and advantage ; and it may be safely left to their own sovereign option, to determine whether they shall take part or not in any judicial controversy.</p> <p>It cannot be ascertained until the hearing, whether the state shall exercise its option to appear, or whether the final adjudication can properly be made without its appearance, consequently, the objection by demurrer, that the state is an improper party, cannot be sustained at the commencement of the action.</p>

The defendant was examined before a referee, in proceedings supplementary to execution. It appears from the referee’s report, that the defendant is a stone mason by avocation, and that during the last month he has been at work for the state, .under the superintendent of section No. 1, of the Champlain Canal, and that a balance of $19.50 is now due him for his services.

Mitchell, Clerke and Davies, Justices. This was an appeal from an order at special term, denying a motion that the plaintiff be directed to receive service of a notice of appeal to the general term of' this court, or that the judgment be vacated on the ground of irregularity, because the same, was entered before the costs were taxed. The facts as they appeared before the special term, were these : The plaintiff noticed his costs for adjustment for the 21st of February.

<p>The defendants were appointed referees to hear and determine certain appeals from an order made by two of the commissioners of highways of the town of Westfield, Richmond county, for the laying out of a highway in that town.</p> <p>Held, that such referees take the place of the judges (of the former court of common pleas,) whose functions they exercise, and in whose stead they are substituted. They become a court of inferior jurisdiction, within the meaning of § 31S of the Code. The proceeding before them is also a special proceeding under § 3 of the Code.</p> <p>Upon a review of the decision of such referees by certiorari, the court may award costs under § 318 of the Code, “ according to the nature of the case.”</p> <p>Although the referees in this case were guilty of extreme impropriety in setting to hear the cases of their own near kinsmen, which they had no jurisdiction to do, and which rendered their proceedings void, they acted, nevertheless, as a court. Their error was an error of judgment, at least in the view of this court.</p> <p>The referees, therefore, were not charged with the costs personally, (although the court might have done so, on a reversal of their decision,) but costs were ordered to the relator in this court, as if in an action at issue, or an issue of law» to be collected by tax from the'town of Westfield.</p>

This was an action brought to foreclose a mortgage made by the Canandaigua and Niagara Falls Railroad Company, to secure an issue of sterling bonds, of the equivalent of one million of dollars. The mortgage embraced the railroad of the company, and all its lands and real estate then acquired or thereafter to be acquired.

<p>Motion to set aside attachment,. &c.</p> <p>On the 9th of June, 1855, the plaintiff, upon affidavits showing that the defendant was largely indebted to him, and tending to show that the defendant, who had been engaged in business in Albany, had absconded; procured a warrant of attachment against his property. The usual order for the publication of the summons was also made, and the publication commenced according to such order. Soon after these proceedings were instituted, the defendant returned. On the 20th of June, he called with a friend, at the office of the plaintiff’s attorney, for the purpose of ascertaining the amount of the plaintiff’s demand. The attorney states, that in answer to some remark or inquiry on that subject, he, the attorney, handed to the defendant a copy of the summons and complaint, saying : “ There is a copy of the summons and complaint for you, in which is contained the whole amount of the claim that the defendant took the papers and opened them, and appeared to examine them, and then handed them to his friend, who also examined them ; that he, the attorney, also at the same time, read to them the original papers aloud ; that some further conversation was had, when the defendant left; that the copy, summons and complaint, were lying on the desk, and the attorney, as the defendant was leaving, requested him to take the papers with him, but he replied that he did not want them.</p> <p>On the 11th of July, the attorney made an affidavit, stating that on the 20th of June, he had served the summons and complaint on the defendant, whom he knew to be the person mentioned and described therein; that he delivered to him a copy thereof, which the defendant received and appeared to examine, and upon this and another affidavit, showing that the attorney had received no answer or demurrer in the action, judgment was perfected on the same day.</p> <p>The defendant moved to set aside the attachment and order for publication upon affidavits, showing that he left home for the purpose of collecting some debts, and that he stated to his friends where he was going, and that he would be absent about ten days. The defendant also moved to set aside the judgment for irregularity, upon affidavits showing the facts already-stated.</p>

On application for the adjustment of costs in this action, the plaintiff claimed to be allowed as disbursements, the following items for the service therein named.