Volume 15 — Howard's Practice Reports

The complaint contains two counts, each upon a promissory note made by the defendant, payable to his own order and by him indorsed and delivered to one John Maginnis, for a valuable consideration. It is further alleged in each count, that the plaintiff is now the bona fide holder and owner of the note, and the plaintiff claimed judgment for the amount of both notes, with interest.

<p>Demurrer to complaint by defendant Warner.</p> <p>Attachment out of justice’s court to recover a debt of $421; the goods attached are alleged in the complaint to be worth $2,300. The writ was against Wolfe Kamena; John Kamena claimed them, and tendered a bond approved by the justice of the court, who issued the attachment, in the sum of $1,000, with sureties.</p> <p>The bond was refused, and the goods were removed. The action is by the claimant for the value of the goods and damages.</p> <p>On demurrer,—</p>

<p>On petition for the dissolution of an incorporated company, the statute (2 R. S. 467) must be fully complied with in all its particulars.</p> <p>Wherein the application in this case was held defective, stated.</p>

<p>Mitchell, Clerke and Peabody, Justices.</p>

Motion to set aside proceedings supplementary to execution. The judgment in this action was recovered on the 28th day of May, 1851. On the 18th of May, 1853, an execution was issued thereon to the sheriff of Columbia, the defendant being a resident of that county. The execution was returned unsatisfied. On the 20th of November, 1854, the defendant removed to the state of Michigan, where he remained until the 30th of May, 1857, when he returned to Columbia county.

Defendant in this case was arrested and held to bail for money received in a fiduciary capacity, and after the justification of bail, he made a motion to be discharged from arrest, upon affidavits denying, as he alleged, the facts stated in plaintiff’s affidavit, as the grounds of the arrest in this action. Who stated as a preliminary objection, that such motion could not be made after the perfecting of bail.

Present, Johnson, Strong and Smith, Justices. This was a proceeding before the county judge of Genesee county, supplementary to execution. A reference was ordered for the examination of the defendant. From this order, the defendant appealed to the general term, where the order was affirmed. The defendant thereupon appealed to the court of appeals, and the appeal was there dismissed.

Present, S. B. Strong, P. J., Birdseye and Emott, JJ. The defendants, a part of whose road passes through the county of Dutchess, were sued in this action before a justice of the peace, in the town of Washington, in that county. The summons by which the action was commenced, was issued on the 11th January, 1855, was made returnable on the 15th of the same month. It was served on the 12th of that month.

<p>Present, Duer, Ch. J., Bosworth, Hoffman, Slosson and Woodruff, Justices.</p> <p>Appeal from an order at special term overruling a demurrer to an answer.</p> <p>The action was for an illegal arrest and false imprisonment, caused by the defendants. The defendants justify themselves upon the ground of orders and process issued out of the supreme court, in an action in which the defendant Wicker was plaintiff, and the present plaintiff, defendant; that judgment had been recovered against the present plaintiff, and an order obtained for his examination under § 292 of the Code ; and that various orders and process had ensued in such action, under which the arrest complained of had been made, and all which were duly and legally made and issued.</p> <p>On the 17th of September, 1856, an order was made by Justice Davies of the supreme court, residing in the city of New-York, in the action above referred to, requiring the ¡present plaintiff, defendant there, to appear before him, the said justice, or one of the other justices of the said supreme court, on the 20th of September, 1856, at 10 o’clock A. M., at the chambers of the said justices, and make discovery under oath, &c.</p> <p>The present plaintiff appeared on the return day, and an order was made by Justice Davies, sitting as stated at special term and also at chambers, appointing a referee to take the examination and to report the same; such examination to be proceeded with at the chambers of the said supreme court.</p> <p>The said Dresser left the chambers without submitting to such examination; a further order was then made on the same 20th of September, to show cause why he should not be punished for a contempt.</p> <p>An excuse was made which was deemed sufficient, and an order was made by Justice Davies, (the said Dresser being present,) that he submit to an examination on the 23d of September, at 10 o’clock, before the referee. The examination was commenced on the day appointed, but the party, without the consent or permission of any one, left the room.</p> <p>Thereupon another order was obtained from Justice Davies, requiring Dresser to show cause why an attachment should not issue against him and he be punished as for a contempt. This was adjourned from time to time until the 11th of October, 1856.</p> <p>On the 11th of October, 1856, an order was made by Justice Davies, while sitting at special term, and also at chambers, on hearing the parties, adjudging that the said Dresser had been guilty of a contempt in refusing to submit to such examination ; and directed an attachment to issue, unless he submit to an examination as required by the order of the 20 th of September, before the referee therein named, on the 13th of October, at 12 o’clock, at chambers, and pay $10 costs.</p> <p>The plaintiff (Dresser) neglected to obey this order, but appealed to the general term from the order adjudging him guilty of a contempt, of the 11th of October. The general term affirmed the order, with $10 costs of the appeal.</p> <p>On the 16th of December, 1856, proof was made of the said Dresser’s disobedience to the orders; an order was made by Justice Clerke, described as one of the justices of the said supreme court, while sitting at special term, and also at chambers, “ that an attachment issue against the said Dresser for such misconduct and contempt; that a writ of attachment reciting the proceedings was issued to the sheriff of the city and county of Hew-York, commanding him to attach and arrest the said Horace Dresser, and to produce his body before one of the justices of this court at a special term of the court, to be held at the city hall in the city of Hew-York, on Friday the 19th day of December, 1856, at 10 o’clock A.M., and then and there to return such writ of attachment, in order that the said Dresser might be dealt with according to law.”</p> <p>This attachment was signed by the said Justice Clerke, and sealed with the seal of the said supreme court. On the return of this attachment (having given bail for his appearance in the sum of $100 as required) the said Dresser attended, and asked for time to clear his contempt, which was granted by said Justice Clerke, who directed interrogatories to be filed and answers to be made thereto. This was done.</p> <p>On the 11th of January, 1857, Justice Clerke made an order that a commitment against said Dresser issue, unless he submit to the examination before the referee, as required by the order of Judge Davies, on five days’ notice, and pay $10 costs of motion, $10 -costs of the appeal, $10 costs of this motion, and $9 fees of the referee, being $39, with the fees of the sheriff on the attachment, to be paid on or before Tuesday the 20th of January, 1857, at 9½ o’clock A. M. Notice was accordingly given to appear and be examined on the 21st of January, 1857, at 10 o’clock A. M., before the referee.</p> <p>The costs and fees were not paid, and on application to Justice Clerks, he granted a commitment on the 20th of January, 1857, to the sheriff of New-York, signed by the said justice, and attested by the clerk and with the seal of the court, commanding him to commit the said Horace Dresser to the jail of the county of New-York, and detain him until he should comply with the order of Mr. Justice Clerke, of the 11th of January, 1857.</p> <p>Notice being given by the sheriff, Dresser paid the fees as ordered, and commenced submitting to the examination.</p> <p>The action is brought for the alleged illegal arrest on the 17th of December, 1856, (under .the order of the 16th,) and also for that of the 21st of January, 1857, under the order of the 20th of that month.</p>

The action was for the recovery of money. An attachment was issued, and the property of the defendant was attached. The defendant appeared, and upon giving bond, the property was released, and before j udgment was recovered, he tendered the sum to which the plaintiff was entitled for damages and costs, other than the per centage, as specified in section 308 of the Code as amended by the act of April 17, 1857.

This action was commenced in a justice’s court; and on trial of the cause before the justice and a jury, a judgment was rendered in favor of plaintiff. From this judgment the defendant appealed to the county court of Wayne county.

Motion to set aside judgment by confession. On the 20th day of March, 1856, a judgment by confession in the first entitled cause was entered in the office of the clerk of Columbia, for $2,540.85, besides costs.' The statement, upon which the judgment was entered, was as follows: “Judgment is hereby confessed in this cause for the sum of $2,540.85. This confession is for a debt justly and legally due to the plaintiffs, arising upon the following facts:— “ 1.

The complaint alleges that Tobias Lear, in his life, was the owner and possessor of a large number of letters, addressed to him by General Washington, from 1790 to 1799: that said Tobias Lear continued to possess the same until his death, in 1816: that they remained in his family until the month of September, 1856, when they were delivered to Mrs. Higbee for a special purpose, by the widow of Tobias Lear.

Before Bosworth and Woodruff, Justices. • The plaintiffs move to dismiss an appeal taken by some of the defendants in this action; the notice of appeal states that the appeal is taken from the “judgment order ” of the special term herein made, on the 11th of June, 1857, “ and from every part of such order.” The printed case, on. which the motion to dismiss the appeal is made, shows that the action was tried before Mr. Justice Duer : that it is an equity suit: that it was…

<p>Motion upon an order to show cause for a writ of mandamus.</p>

Roberts commenced an action against Carter. Five days thereafter Carter commenced an action against Roberts. Both causes referred to Isaac Dayton, Esq., as sole referee, and by agreement the report in each case was to be simultaneously. The referee reported due Roberts from Carter, $800. Due Carter from Roberts, $149. The same day that the reports were given, Carter assigned the report in his favor to Terry, and Terry was ex parte substituted as plaintiff upon the record.

Motion to set aside judgment by confession. On the 5th day of March, 1857, the defendant executed and verified a statement, in which he confessed that he was indebted to the plaintiffs in the sum of $3,300 dollars, and authorizing judgment to be entered against him for that amount.

<p>Motion for re-adjustment of costs.</p>

<p>The statute providing for the application of highway labor in certain cases on plank roads, has no application to assessments in respect to persons, or in respect to any property not in the road itselfj or in or attached to land immediately adjoining.</p> <p>It does not embrace assessments for the personal property generally of the owner of land upon the line oí the road, or for the capital of a banking corporation, or personal property held in trust.</p> <p>A tenant or occupant of land on the line of a plank road liable to be assessed for highway labor in regard to the land, is authorized 'by the statute to apply to the commissioners to be assessed on the plank road.</p>

Present, Mitchell, Clerke and Cowles, Justices. This action was originally commenced in November, 1853, against James Diamond and John Haggerty, as partners, to recover for work and labor. After the service of the summons and complaint on Haggerty, and before the same was served upon Diamond, Diamond died. Haggerty put in an answer making an issue.

Attachment for disobedience of an injunction. The defendant and one Josiah W. Bissell had purchased a certain building in Rochester, the basement of which was used and occupied for stores, and the upper part for a church.

Motion to set aside judgment for irregularity. The plaintiff resides in Canada; the defendant in the city of Albany. The suit was commenced in November, 1856, and the venue was laid in St. Lawrence. Before the time for answering expired, the defendant demanded that the trial be had in the proper county. Subsequently, the defendant put in his answer, to which the plaintiff served a reply.

<p>The notice in the summons, in an action upon an undertaking of bail given to procure the discharge of a party from arrest in a civil action, must be that prescribed by the 2d subd. of § 129 of the Code.</p> <p>Such an undertaking is not for the payment of money; and the 1st subd. of § 129 is only applicable to an action to enforce a contract for the payment of money.</p> <p>The proceedings to obtain judgment in an action ofr such an undertaking, on default of the defendant to answer, ’must be according to the 2d subd. of § 246</p> <p>■ of the Code; and the court may order the damages to be assessed by a jury.</p> <p>Serving notice of a motion in an action, on the plaintiff's attorney, signed by an attorney, as “ att’y. for the deft.” is a sufficient notice of appearance by the defendant.</p> <p>Like notice of the assessment of damages by a jury, on a writ of inquiry, is neces¡¡ary, as is required on an assessment by the clerk, where the defendant has appeared in the action.</p>

These actions were brought to set aside conveyances in partition, and a lease of certain premises in the city of Hew-York, executed by George H. Titus.

<p>Before Duer, Ch. J., Bosworth, Hoffman, Slosson and Woodruff, Justices.</p> <p>This action comes "before the court, on an appeal by the plaintiffs from an order vacating an order directing the defendant to be arrested and held to bail.</p> <p>The moving and opposing affidavits present certain undisputed facts; up to and for several years prior to the 25th of August, 1857, the defendant was prosecuting extensively, the business of a banker, in the city of New-York. The plaintiffs reside in Cincinnati, Ohio. In November, 1855, they opened an account with the defendant as their banker. At that time an agreement was made between the plaintiffs and the defendant, that defendant should receive and credit to the plaintiffs, all moneys deposited by them, and the proceeds of all drafts, bills and other securities, which they should remit to him for collection on "their account. The defendant was to accept and pay the plaintiffs’ drafts from time to time, as they should be presented, and pay and allow interest upon all balances of deposits and credits, at the rate of five per cent, per annum, as a compensation for the use of such credits and deposits.</p> <p>Under this arrangement, the parties continued to transact business with each other, up to the suspension of the defendant’s business, on the 25th of August, 1857.</p> <p>The deposits made by the plaintiffs with the defendant, and by him passed to their credit, amounted in the whole to $302,998.77, including credits for interest, under the said agreement, amounting to $351.61. The plaintiffs had drawn on the defendant against these deposits and credits, from time to time, drafts amounting to several hundred in number, and to an aggregate amount of $292,029.64.</p> <p>The defendant was held to bail, by reason of his receiving and refusing to pay to the plaintiffs, on demand, $4,000, proceeds of a draft, dated Cincinnati, 13th August, 1857, drawn by C. E. Uourse & Co., on Ketchum, Howe & Co., of 1ST. T., and payable on the 25th of August, 1857. This draft was sent from Cincinnati by the plaintiffs to the defendant, on the 13th, with a check for $199, and the two were received by the defendant, on the 15th of August, Í857. The item of $199, was collected and placed to the plaintiff’s credit on the 15th, and the bill for $4,000 on the 25th of August, 1857.</p> <p>The defendant's business was extensive, and required the employment of some eighteen clerks. So far, there is no dispute about the facts.</p> <p>There is nothing tending to show that the defendant personally knew of the fact of the receipt of the bill for $4,000, until after it had been collected by his clerks, and passed to the plaintiffs’ credit.</p> <p>■ There are affidavits which strongly tend to show that he did not.</p> <p>The particular facts relied upon as creating the right to hold the defendant to bail, are, that on the 24th of August, 1857, Thompson was insolvent and knew that fact, and had no balance whatever in bank or in his office, and on the morning of the 25tli, before the $4,000 draft was paid, told the cashier of the Bank of the Republic, that he had made up his mind to fail. Before the draft was collected, the balance due from the defendant to the plaintiffs was $6,900, and after that $10,900. The $4,000 was demanded of the defendant on the 31st of August, 1857, and he did not pay it, alleging as a reason that he had failed.</p> <p>The plaintiffs insist, that the $4,000 was received by Thompson in a fiduciary capacity, and as a trustee for the plaintiffs, and that applying it to purposes other than paying the plaintiffs, was a wrongful conversion of it to his own use, and that the obligation to account for and pay over the money, was fraudulently incurred.</p>

<p>In an action against several defendants, each defendant or set of defendants, appeared by separate attorneys, and demurred to the complaint, raising a distinct issue of law, and the special term ordered judgment for the defendants severally, with costs upon the demurrers, and that the complaint be dismissed with costs, unless the plaintiffs should amend and pay costs of the demurrers within twenty days, (in one order). On appeal to the general term, within the twenty days by the plaintiffs, from the “ order,” (as it was termed in the notice of appeal,) directing judgment for defendants on the demurrers, &c., the defendants moved to dismiss the appeal, on the ground that it should have been taken as an appeal from a judgment, and not from an order, which motion was denied, on the ground that the appeal having been taken within the twenty days allowed to amend on terns, was properly taken as from an order.</p> <p>The general term decided (on argument of the appeal on the merits,) that the order on the demurrers be reversed,, and that plaintiffs have judgment against the defendants on the several demurrers, with costs, with leave for the defendants severally to answer on payment of costs, within twenty days.</p> <p>The question was, what costs the plaintiffs were entitled to, to enable the defendants to answer ? The plaintiffs claimed separate bills of costs against the several defendants, who appeared and demurred severally; and also that they were entitled to the costs of the appeal as if taken from a judgment.</p> <p>Held, 1. That the plaintiffs were entitled to all the dishv/rsements which had been incurred by them in consequence of the numerous appearances put in by the defendants, and the multiplied proceedings which had necessarily resulted.</p> <p>2. That the expense of printing the case and points might properly be included in the costs.</p> <p>3. That the plaintiffs were only entitled to a single hill of costs against all the defendants, if the action proceeded against all of them. (See Comstock agt. Halleck, 4 Sand. 611, adverse:)</p> <p>4. That the plaintiffs were entitled to recover for the appeal in this case, the proper costs of the trial of an issue of law. These costs, as well as all the costs of the cause, were to be regulated by the Code, since the late amendments, (April, 1851.)</p> <p>“ Proceedings before notice of trial, $15,” charged in the bill, would not be allowable, unless on entering judgment final for plaintiffs. It was no part of the costs then to be paid by the defendants for amending.</p> <p>“Subsequent proceedings before trial, $10,” was to be paid upon amending</p> <p>“ Three term fees $30,” was proper if the case was on the calendar as specified in sub. 7 of § 307. The trial fee at the special term, was of course, properly charged.</p> <p>The items of $15 and $30, for the appeal, before argument, and for the argument, were disallowed, and in their place the charges relating to the trial of an issue of law, substituted.</p> <p>Besides the trial fee, and the proper term fees of the terms, there might be allowed $10, under sub. 3 of § 307, for all proceedings subsequent to notice of trial, and before trial. The notice of argument being in effect a notice of trial.</p>

<p>“ Whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would (if death had not ensued), have entitled the party injured, to maintain an action and recover damages in respect thereof; then and in every such case, the person who, or the corporation which would have been liable, if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony.” (Laws 1841, ch. 450, § 1.)</p> <p>“ Every such action shall be brought by and in the names of the personal representatives of such deceased person, and the amount recovered in every such action, shall be for the exclusive benefit of the widow, and next of kin of such deceased person, and shall be distributed to such widow and next of kin, in the proportion provided by law in relation to the distribution of personal property left by persons dying intestate; and in every such action the jury may give such damages as they shall deem a fair and just compensation, not exceeding five thousand dollars, with reference to the pecuniary injuries resulting from such death, to the wife and next of kin of such deceased person, provided, that eveiy such action shall be commenced within two years after the death of such person.”</p> <p>“ Every agent, engineer, conductor or other person, in the employ of such company or person, through whose wrongful act, neglect or default, the death o a person shall have been caused as aforesaid, shall be liable to be indicted therefor, and upon conviction thereof may be sentenced to a state prison for a term not exceeding five years, or in a county jail not exceeding one year, or to pay a fine not exceeding two hundred and fifty dollars, or both such fine and imprisonment.” (Laws 1849, ch. 256, §§ 1, 2.)</p> <p>Meld, that an' action against a common carrier of passengers, brought by the personal representatives of the plaintiff, killed, claiming damages under this statute, might be properly brought on contract. That is, the above statute (section second) by defining the claim of the personal representatives, to be ounded on the loss of property, brings the case clearly within the rules allowing a waiver of the tort, and a suit on the contract. (Does the Code admit oí different poems of action o'/i substantially the same fads constituting the cause of action? If the tort is not admitted on the statement of fads, cam it be waivedt Repoetek.)</p> <p>Held, consequently, that such an action on contract survives against the executors of the defendant.</p>

Before S. B. Strong, Birdseye and Emott, Justices. Appeal from an order at special term denying an application of the relator for a peremptory mandamus.

The action being at issue, was upon the calendar for trial, at the Albany circuit, in November, 1856. After the commencement of the circuit, and before the cause was reached upon the calendar, it was referred by consent of the attorneys for the parties respectively. The trial before the referee commenced before the amendments to the Code adopted in 1857, took effect. The referee made his report in favor of the defendant, on the 8th day of June.

An order to show cause why a peremptory mandamus should not issue, was granted in this case, on the 16th of March, 1857, from which it appears that the relator was employed as an engrossing clerk in the office of the register of the city and county of Mew-York, during the year 1854. His bill for his services amounting to $339.75, was not paid by the register, and he applied to the board of supervisors to pay it.

<p>A court of equity will not assume jurisdiction to review the legality or validity of proceedings of a municipal corporation in prosecuting a local improvement, or in assessing or collecting the means to complete it.</p> <p>This court has no supervisory power over such proceedings of public officers, or jurisdiction, and ought not to interpose by injunction to restrain their action, merely upon an allegation that their proceedings are illegal or invalid. The common law writ of certiorari, is the proper remedy in such cases.</p> <p>To authorize a court of equity to interfere by injunction in such cases, it must appear that the acts of the corporation which are done or threatened, in the prosecution of the work, or the like, will be productive of peculiar or irreparable injury to the premises of the plaintiff, or will lead to a multiplicity of suits. Therefore, where the allegations of the plaintiffs were, that the defendants’ (a corporation) proceedings, which were apparently valid, but really void, by causing an assessment, &c., would create a lien on their lands, and produce a cloud on their title, held, that this court would not assume equitable jurisdiction to review such proceedings, if there were no other reasons than the illegality or invalidity of them.</p>

Action for divorce on account of the adultery of the defendant. The defendant did not appear, and the action was referred to a referee to take proof of the facts stated in the complaint, and to report his opinion thereon. The referee reported his opinion, that the material facts are true, &c., and also the evidence taken by him. The only witness to prove the entire case was the plaintiff.

<p>Where the temporary custody of a child, pending litigation between husband and wife for divorce, is given to the mother, the privilege should not be made an instrument of possible injustice to the father. Therefore, the father on sufficient cause shown, may require security from the mother that the child be kept within the jurisdiction of the court.</p>

Motion to refer, in an action for a divorce for adultery, to take proof of the facts stated in the complaint, and to report opinion thereon. The complaint was verified. The defendant had served an answer not verified, and the plaintiff’s attorney had returned it for this cause.

<p>The constitution of this state {art. 8, § 1) declares that corporations may be formed under general laws; and by section 3 it is declared that the term “ corporations ” as used in this article, shall be construed to include all associations or joint stock companies having any of the powers or privileges not possessed by individuals or partnerships.</p> <p>The legislature of this state in 1849 and 1854, passed laws authorizing, generally, the formation of associations or joint stock companies, under this provision of the constitution, and conferred on them many powers and privileges not possessed by individuals or partnerships. The plaintiffs in this case were organized and formed under these laws.</p> <p>But strange as it may seem, the act of 1854, above referred to, after conferring upon these companies, additional powers and privileges, possessed only by corporations, closes with this remarkable declaration: “ This act shall in no court be construed to give said associations any rights and privileges as corporations.”</p> <p>Seld, that if the legislature meant by this, any other rights and privileges as corporations, than those conferred by said acts, all well But if they intended to declare that such associations should not be corporations, after conferring on them, in accordance with the constitution, some of the powers and privileges of corporations, and which admit that if any such powers and privileges are conferred, they shall be deemed corporations, such declaration merely runs afoul of the constitution, and must yield to the provisions of the latter.</p> <p>Seld, also, that these joint stock associations being corporations, within the meaning of the constitution, they are liable to taxation on their capital, like all other corporations.</p>

-At a special term held before Mr. Justice Smith, in Monroe county, on the second day of February, 1857, an order was made that the defendants show cause on, &e., why a mandamus should not issue to compel the defendants to allow and pass to the credit of the relators, and provide for the payment of the same out of any moneys in the hands of the defendants applicable thereto, the account of the relators for relief to certain persons therein, as presented to said defendants…

<p>Is a widow who has received her distributive share of her deceased husband’s personal estate, under any circumstances, bound by law to refund ?</p> <p>That depends upon the proper construction of the words “next of kin,” used in the Revised Statutes upon this subject. Sometimes this term “next of kin,” is used as comprehending the widow, and sometimes as contradistinguished from her. Its true meaning in any given instance, must depend upon the eon- • text and the consequences.</p> <p>The Revised Statutes, (2 R 8. 89,) provide that in case any suit shall be brought upon a claim which shall not have been presented to the administrator of a deceased person, within six months from the first publication of the notice prescribed by law, such administrator shall not be chargeable for any assets he may have paid “ in making distribution to the next of kin, before such suit was commenced“ but any creditor (§ 45,) who may have neglected his claims, may, notwithstanding, recover the same in the manner prescribed by law, of the next of tin of the deceased, to whom any assets shall have been paid or distributed.”</p> <p>Held, that the term next of kin in these provisions, is not used in its strict sense of blood relatives, but with the more enlarged meaning of all relatives of the testator, to whom any assets shah have been paid; and consequently includes the widow, the same as other relatives who have received portions of the personal estate.</p> <p>In an action after mortgage foreclosure, against the widow, who had received a portion of her deceased husband’s personal estate, to recover a balance due on the bond executed by the husband, held, that the action was properly brought against the widow, and the claim made against her, as next of kin of the deceased husband.</p>

<p>“ Sham and irrelevant answers and defences may be stricken out on motion.” So says the Code, (§ 152.) It is not proper, therefore, to limit this unqualified language to answers and defences setting wp new matter. Pleadings containing mere denials of the plaintiff’s allegations, may be made to work injustice and delays, as effectually as those setting up affirmative defences.</p> <p>This power of striking out should be cautiously exercised, for it may do injustice to the defence, as it disposes of the pleadings, and strikes them from the record in a summary way. Yet if the answer alleged to be sham, contain, as it may, matter, which if true, would constitute a defence to the action, redress by appeal may be had. If the answer does not involve the merits, or affect a substantial right, it ought to be stricken out.</p> <p>It seems, that motions to strike out sham and irrelevant defences, (§ 152,) for judgment on overruling frivolous defences, (§ 241,) for - expunging irrelevant and redundant matter, and for compulsorily amending uncertain allegations, (§ 160,) may, in a proper case, all be combined in one motion; the party applying, taking the hazard of having his motion denied, if he asks what ought not to be granted, and to costs, if he asks too much.</p> <p>It seems, that an averment in a complaint being absolute and unequivocal, and supported by an oath of positive knowledge, and that in the answer being merely on information sufficient to form a belief) the defendant is bound on a notice of motion to set aside the answer as sham, to support it by the oath of a party having knowledge. That is, it is a case where the defendant is bound to seek for knowledge.</p> <p>In this case, the motion asked for two kinds of relief—to strike out sham and irrelevant matters, and for judgment on the expurgated answer as frivolous. All the pleadings were verified. The several denials and allegations constituting the first defence in the answer, were struck out as sham or irrelevant; and the remaining defences overruled as frivolous, and judgment for the plaintiff's. Costs of making and opposing motion to abide event. Leave to serve an amended answer.</p>

<p>Bill filed to set aside an assignment made by defendant George Webb.</p> <p>The principal grounds relied on to set aside this assignment as fraudulent and void, as to the plaintiffs, -judgment creditors of Webb, ar.e two.</p> <p>First: that the debts of $10,000 and $7,500, preferred and directed by it to be paid to Mrs. Webb, the wife of the assignor, are fictitious, and have no existence in fact. Second: that the assignor absconded immediately on the execution of his assignment, taking with him a portion of his estate, and that such acts render the assignment fraudulent and void.</p>

<p>Motion to set aside inquest at the circuit.</p>

Demurrer to complaint. These facts are stated in the complaint, 2d count. The defendant was the owner of the whole capital of the American Exchange Bank of Hew-Jersey, amounting to $50,000, except $250, and that was held by several persons in trust for him. He fraudulently withdrew from the bank all the assets in its coffers, amounting to $16,000, with a view to defraud the plaintiff and other creditors of the bank, and converted them to his own use.

Demurrer to complaint. The action was upon premium notes. The complaint set out the notes and an order directing the receiver to sue for the whole premium notes of the company. Defendants demurred to the complaint.

<p>The facts sufficiently appear in the opinion which was rendered a few days before Judge Peabody left the bench.</p>

<p>Motion for relaxation of costs.</p> <p>The action was brought to recover the possession of lands. It was tried upon an issue of fact, at the Rensselaer circuit, in June, 1857. The trial resulted in a verdict for the defendant. Upon the taxation of the costs, the defendant was allowed for the attendance of nineteen witnesses. The aggregate number of days allowed was 106, and the whole number of miles allowed for the travel of the witnesses was 668. The defendant was also allowed $48, for surveyor’s fees. These charges having been duly objected to on the taxation, the plaintiffs moved for a retaxation.</p>

<p>Where ia an action upon a promissory note, the defendant set up a cornier . claim for many years’ services rendered the plaintiff’s testator, (the payee of the note,) previous to the date of the note, and that the testator had promised to give defendant in consideration thereof, certain real estate of large valuation, which counter claim was attempted to be proved on the trial, although a payment upon the note had been made by the defendant, as late as six weeks before the testator’s death.</p> <p>Seld, that the circuit judge was correct in charging the jury, that all the alleged services, if any, having been rendered before the date of the note, and it not being shown for what the note was given, the jury had a right to presume, in connection with the subsequent payment, that the note was a settlement of all existing claims between the parties.</p>

C. L. Allen, James and Rosekrans, Justices. This is an appeal from, an order of special term, striking out of the complaint the last statement or second count of the cause of action.

<p>Motion to quash, writ of mandamus, and demurrer to return to writ, heard together.</p> <p>The relator had been clerk of Monroe county, and had sued out and obtained an alternative mandamus, requiring the defendants to audit and allow his claim for making up circuit calendars for three years. The defendants had put in an answer to the writ, to which the relator demurred. The defendants moved to quash the writ, and this motion, and argument on the demurrer came on together, presenting the single question whether the making up of court calendars by the clerk, was a county charge.</p>

Motion to set aside judgment by confession. On the 31st of December, 1856, the defendant signed a statement, and verified the same by his oath, whereby he confessed himself to be indebted to the plaintiff in the sum of $4,165.40, and authorized him to enter judgment thereon for that amount.

Motion to strike out parts of complaint. The complaint is as follows: [Title of Cause.] The plaintiff in this action avers that in the early part of the year 1850, he and the said defendant jointly undertook the building of a church in the city of Bew-London, in the state of Connecticut, for a congregational society in said city, and that the said plaintiff and defendant commenced their work upon, and for the purpose of erecting, the said church, in the month of April, 1850,…

Before Bosworth, Slosson, Woodruff and Pierrepont, Justices. On the 28th of October, 1857, Fuller brought an action against Read, to recover $4,863, treble the damages alleged to have been sustained by reason of Bead’s using measures not .conforming to the legal standard, in measuring ale or beer, sold and delivered by Bead to the plaintiff, between the 1st of May, 1856, and the 28th of October, 1857.

Motion by defendant Reuben H. Foster, for a rule or order dismissing the complaint, and directing judgment against the plaintiff for costs, or for such other order as the court may see proper to grant.

<p>On the 8th November, 1854, judgments were recovered by the plaintiffs against Granger, Comfort and Van Cott, executions issued thereon, and returned unsatisfied. In December following, this action was commenced to set aside assignments made. In September of that year, Yan Cott’s individual property was amply sufficient to pay all his individual debts, and he would have been solvent, if his firm had been so. His firm wished to make an assignment giving preferences, which he would not consent to; and on the 18th day of that month, he alone made an assignment, disposing of all his individual property, in trust for his individual creditors, and next he assigned to the same trustee, H". Wyckoff, “ all and singular, the share and interest which he had, or was entitled to, as a partner in the firm of Granger, Comfort & Co.,” in the moneys, goods, wares, merchandise, lease and fixtures of store, good will of business, notes, obligations, judgments, books of account, book debts, claims, contracts, rights and things in action, or property of any nature and kind soever, and wheresoever the same may be, in trust to take possession of such share and interest, and dispose of the said property, and collect the said debts.</p> <p>First, to apply the proceeds thereof, (after deducting his expenses and legal commission) in due proportion, to the payment of the debts and settlement of the concerns of the said partnership, according to the established rules of law and equity, which control such cases. Second, to apply the residue of said proceeds, in any payment of his individual debts and liabilities, in the order before mentioned, if the individual property should be insufficient for that purpose; after that, if there should still be a surplus, to other purposes named.</p> <p>On the 3d of October, in the same year, Granger and Comfort by indenture, made in the name of themselves and of Yan Cott, stating that they composed the firm of Granger, Comfort & Co., but executed by Granger and Comfort only, and signed by them individually, assigned to Klinck all the property of the firm, in trust, to take possession of all the assigned property, and sell it and collect all the debts, and apply the proceeds, first to pay debts of the firm in schedule B.; next to pay all other debts of the firm. This assignment was made against the will of Yan Cott and Wyckoff, and on its being made, Klinck excluded Wyckoff from all control over the property of the firm.</p> <p>Wyckoff on his appointment by Yan Cott, immediately went to the store and claimed to be in possession, and to have a right to exercise a control over the affairs of the firm; Granger and Comfort denied his right, and prevented any active interference.</p> <p>The complaint makes no objection to the assignment by Yan Cott, but insists that the assignment made by the other two partners is void as against creditors.</p> <p>The complaint is taken as confessed by all the defendants, except Van Oott and Wyckoff, who put in an answer. The answer insists that the assignment was intended to, and had the effect to dissolve the partnership, and that, thereupon, Wyckoff became tenant in common with Comfort and Granger of the partnership property, and that the assignment toWyckoff for the benefit of all the creditors of the firm joro rata out of the partnership property, should be carried out, and that the rights of these plaintiffs’judgment creditors, are subordinate to Van Cott’s right, and the right of the other creditors to have an equal distribution of the partnership property, whether the assignment by the two other partners be valid or not.</p> <p>The plaintiffs insist that that assignment, not being executed by all the partners, but against the will of one, is a nullity as to them, and that they have priority of lien according to the priority of their present actions. The partnership was not to continue for any specified time, and might, therefore, be terminated at the will of any of its members.</p>

Motions to settle the question as to which party should recover costs upon the report of the referee in the action. The facts necessary to a correct understanding of the case, sufficiently appear in the opinion of the court

Motion to set aside judgment, in an action upon a promissory note, against the makers and indorsers. The makers put in an answer upon information and belief, denying that the plaintiffs were duly incorporated, and alleging that the plaintiffs were not the owners of the note described in the complaint, but the same belonged to one Van Keuren.

On the 3d of April, 1856, A. H. Parks made his draft upon the defendants, in favor of the plaintiff, and delivered the same to the plaintiff, whereby he requested the defendants to pay to the plaintiff or his order, the sum of six thousand dollars; and on the same day, the defendants, the said draft having been presented to them, accepted the same as follows: “ accepted, payable at our office, on or before 1st June, from any moneys in our hands belonging to A. H. Parks.” It…

Motions by the defendants to strike out divers portions of the respective complaints in the above actions. The character of the complaints and of the portions proposed to be stricken out, sufficiently appear in the opinion.

<p>An answer which denies that the plaintiffs are the owners and holders of the draft, is a simple denial of a legal conclusion, and is frivolous. (See Solstein agt. Rice and note, aniep. 1.)</p> <p>A justice of this court at chambers, on an application for judgment on account of the frivolousness of the answer, has power under § 247 of the Code, to make an absolute or conditional order for judgment, precisely as at special term.</p> <p>The power to hear the motion, necessarily includes the power to make such decision upon it as the court would make in term. Such an order or decision as the justice of the case requires.</p> <p>Therefore, where it appears that the answer is put in, in good faith, and merits are properly stated and sworn to, a new or amended answer may he allowed upon terms.</p>

In January 1857, the plaintiff and the defendants Schlieper and Haarhaus formed a copartnership for the transaction of an importation and commission business, under the firm name of “Wetter, Scblieper and Haarhaus,” to continue for three years, and end in December, 1859. The place of business of the firm was at the city of New-York, where the partners resided.

Motiom to set aside judgment for costs. The action was brought to recover the possession of personal property. Upon the trial, the decision was in favor of the defendant, who thereupon perfected judgment for the value of the property in question, and also for the damages for taking and detaining the property, and the costs of the action. Erom this judgment the plaintiff appealed to the general term.

Motion by defendants for a re-adjustment of their costs in the action. The action was tried at the Tioga circuit, in December, 1857, when the jury found a verdict for the defendants.

Before BOSWORTH, HOFFMAN, WOODRUFF and PIERREPONT, Justices. This action comes before the court, on an appeal from, an order made by Mr. Justice Pierrepont, declaring that the clerk erred in adjusting the costs of the action in favor of the plaintiffs, and directing that the clerk adjust defendant’s costs of the action and insert them in the entry of judgment in the judgment roll.

Demurrer to complaint. The complaint alleges that on the first day of November, 1856, the defendant, with loud, boisterous and abusive language, made an assault upon the plaintiff, and seized him by the body, neck and throat, and jammed and squeezed Ms throat, and then and there published and declared, in the presence and hearing of divers good and worthy citizens, of and concerning the plaintiff, these words: “you perjured yourself, and I will send you to the states…

<p>Policies of inswrame should be construed liberally, for the interest alike of'both parties.</p>

The action is upon a note. It is alleged in the complaint that the defendant made the note payable to the order of one Jesse Pattison, on or before the first day of January, 1857; that Jesse Pattison indorsed the note to the plaintiff; that defendant has not paid the note, &c. The defendant by answer denied each and every allegation in the complaint; and for a second answer, alleged that he gave a note, describing it as described in the complaint, except that it was payable…

<p>If the contract of a smrety imports anything more than a liability accessory, or collateral to that of another person, he becomes a principal debtor.</p> <p>But the contract of a surety may be for the payment of the debt, when it becomes due; or it may only amount to an assurance that the principal debtor is solvent; and that the demand can be enforced against him. In the one case the surety is liable at once, on the failure of the principal to satisfy the demand ; in the other, he is liable only when the necessary legal means of enforcing compliance against the principal, have been exhausted; or at least on proving by legal evidence that he was not solvent.</p> <p>To determine to which class any guaranty belongs, depends of course, upon the construction of the language employed.</p> <p>The language of the guaranty in this case is as follows: “All drafts drawn by George 0. Hotchkiss will be duly honored and paid by me, should he meet with any misfortune that he will not be able to do it himself.”</p> <p>Held, that this was not an assurance that George 0. Hotchkiss was then a solvent person, and that he was good for the amount, but a promise that if he should not be able to pay it, that the defendant would. It was not, therefore, necessary for the plaintiff to prove that he had exhausted his remedy against George 0. Hotchkiss; it was. only necessary to show that the drafts had not been paid when they became due. “ Misfortune” comprehends any cause which may prevent the principal from paying the debt.</p> <p>Held, also, that both the circumstances and the contract constitute in the present case, a full and perfect consideration, and are distinctly set forth in the complaint.</p>

Motion to substitute réferee. The action is brought upon 'a written contract for the sale of goods and chattels. The goods were tendered in pursuance of the contract, but were not delivered, and the action was to recover the value of the goods. The case was tried before a referee, who made a report in favor of the defendant, which, on appeal, was set aside by the court, upon technical grounds, and a new trial granted.

The action is brought by the plaintiff as assignee of Samuel J. Clarke, surviving member of the firm of- Clarke & Co., to recover an alleged balance of account due by the defendants to that firm.

<p>Where a creditor holds a claim against executors or administrators, and desires a reference under the statute, he must first move on the subject of the reference. Neither party is bound to refer, and if either desires a reference, he must offer to refer. The executor or administrator cannot be said to refuse until the claimant in some way manifests his willingness to refer.</p> <p>An unqualified rejection of the claim, unaccompanied with an offer to refer, is not equivalent to a refusal to refer. (The contrary of this was held in Fort agt. Gooding, 9 Barrb. 394.) A neglect to answer an offer or proposition to refer, may be deemed a refusal.</p>

<p>The complaint averred that the defendant made his note to the Atlas Mutual Ins. Co., or order, and that the company indorsed it, and transferred and delivered it to the plaintiffs, but did not expressly aver that the transfer waa made pursuant to a resolution of the board of directors.</p> <p>Held, on demurrer, that if such resolution were necessary, it was implied and provable under the allegation that the company transferred the note: that allegation was not true, if the transfer was not made by the proper officer of the) company, and according to law.</p> <p>Where the complaint showed an agreement between persons called “ the undersigned,” and the company, that the subscribers agreed with the company, that they would lend their notes to the company, if they were secured by collaterals to be leitvwith the plaintiffs, whom they called trustees, and that the trustees should, in their discretion, advance the subscribers’ notes to or for the use of the company, on receiving such collaterals as security;</p> <p>JEW, that there was nothing necessarily illegal in such a transaction. It was carried out; the subscribers, through the trustees, so applied their own notes and took as security, the note of the defendant, with others. This gave the plaintiffs a right to recover against the defendant. And even if the transfer to the plaintiffs was invalid as against creditors or stockholders, it was good against the defendant, until those supposed to he enjoined applied to set it aside.</p>

Motion to set aside verdict for irregularity. The action was tried at the Sullivan circuit, held in June, 1857. The plaintiff recovered a verdict for $500. One of the jurors who rendered the verdict was Wilson D. Spaulding. He was drawn and summoned as one of the regular panel for the circuit. He attended on the first day of the circuit, but did not arrive at the court-house until just after the panel had been called and sworn.

Motion that a surety be added to the undertaking given in this cause, or a new undertaking be given to the plaintiff, with additional surety.

Present, Johnson, Welles and Smith, Justices. Appeal from an order made by Justice Greene, at the Genesee circuit, directing a reference for the appointment of a receiver. The action was a creditor’s stiit upon the return of an execution unsatisfied.

<p>Where the defendants are sued for damages occasioned by a ftaud committed by them, on demurrer to the complaint, which admits they were instrumental in perpetrating the acts constituting the fraud, they cannot escape liability by showing that they acted as agents.</p>

The bills in all the cases were adjusted together, and consisted principally of several items. The counsel for defendants objected to the allowance of the items for calendar or term fees, in each case, upon the ground that it did not appear that said causes were, either of them, necessarily on the calendar of the term for which they are severally charged, and not reached or postponed.

<p>In ascertaining the damages on a reference upon the discharge of am injunction, the question arises whether any other allowance can be made for costs or counsel fees, than what the Code permits to be recovered by a successful party against his adversary ?</p> <p>“ There may be allowed to the prevailing party upon the judgment, certain sums by way of indemnity for his expenses in the action, which allowances are in’ this act termed costs.” The measure of compensation between attorney and ehent, is left to the agreement, express or implied, of the parties. (Code, § 303.)</p> <p>Seld, that the import of this provision is, that the unsuccessful party shall only be subjected to the charges specified as costs, where the action takes the ordinary course. But where there is a special contract as to damages, (and the injunction bond amounts to this in fact,) it will control; it will afford a new rule of estimate, and is not to be affected by the ordinary rates of allowance.</p> <p>Another question then arises, whether if counsel fees are allowable, they can only be allowed when actually paid, as it is the damage sustained which is to be repaid, not any contingent liability ?</p> <p>The Code has left the compensation of attorney and counsel, to the operation of any agreement express or implied. Counsel can have the same remedy for services rendered which they possessed before its passage.</p> <p>If a client can be made responsible, and a claim is reasonable, a bond of indemnity would appear to cover such a liability, as much as an actual advance. Therefore counsel fees, although impaid, if reasonable, can be recovered in the shape of damages, in an action upon an injunction bond.</p> <p>And then another important question arises, what is the effect of the Code as to the mode of ascertaining damages by an assessment under an order of reference ? What does the report if confirmed, settle ? Can it be followed by a judgment for payment of the amount ? If it can, as to the principal and party to the action, can it be as to the sureties ? or is the only remedy an action on the undertaking ?</p> <p>Seld, that under the provisions of the Code on this subject, a reference establishes the amount of damages, so that they become finally liquidated as between the parties. Where there are sureties, this shows the propriety of directing notice to be given to them. Regal defences which are wholly independent, will arise, and may be taken in the action on the undertaking. There is not authority enough to warrant a judgment upon the bond for the amount recovered, even against the plaintiff and obligor. It is therefore the safest course to bring an action upon the undertaking.</p> <p>Although the provision of the Revised Statutes, (2 E. S. 190,) which is presumed to be in force, that the chancellor shall direct the delivery of any bond executed under the provisions of the article to the person entitled to the benefit thereof, for prosecution, whenever the condition thereof shall be broken, or the circumstances of the case shall require such delivery, yet the court might well decline the delivery up of an undertaking on file in these cases; (See Code, § 423 ;) as an inspection to draw the complaint is all that is necessary; and upon the trial, the clerk can be subpoenaed to produce it in case of dispute.</p> <p>The items disallowed and allowed by the court seriatim, as damages on dissolving the injunction in this case, will be found stated at the conclusion of the opinion.</p>

Motion to strike out answer. The action was upon a promissory note of $600, against maker and indorser, and contained the usual allegations of the making and indorsing of the note and of demand, nonpayment and protest and notice.

<p>It is not necessary that various causes of action in one complaint should affect all the parties equally. It is enough that they affect all, though in unequal degrees. That is the case wherever there are various incumbrances in a foreclosure suit, or persons having diverse interests as the owner of the fee, and dowress or lessees, &c.</p> <p>In this case it was held, on demurrer to the complaint, that considering the statements in the complaint to be true, the plaintiff had one cause of action against the defendants, and that was a right to a lien on the lands, first, for the value of the plaintiff’s share of the estate, or $850 ; and secondly, for $1,000 loaned by her to defendant Beck: or if the two liens were to be deemed within § 16T of the Code several causes of action, they both might be considered on contract, or both as injuries to property, or clearly, both as on transactions connected with the same subject, viz: the land. The plaintiff relying on fraud as the basis of her relief as to both transactions.</p>

<p>In this case the summons and complaint were served together. .</p>

Motion to set aside inquest. The action was upon three promissory notes against makers and indorsers. The defendant Archibald McQueen appeared and put in a general answer, denying the allegations of the complaint. The cause was noticed for trial at the late Genesee circuit, after service of such answer.

<p>Where the plaintiff in the first count in his complaint against the defendants, who were president, vice-president and treasurer of the Parker Vein Coal Company, alleged that the company were authorized to issue stock to the amount of $3,000,000, in shares of $100 each; that the stock at the time of the acts complained of, was worth par in the market, or nearly so, and in its intrinsic value, and that but for the acts of the defendants it would have continued to be so; that the plaintiff purchased 200 shares of the stock between 27th of October, 1853, and 25th of February, 1854, and still owned the same; that at that time the company’s property was worth at least $3,000,000; that the defendants fraudulently issued 128,000 shares of the stock beyond what the company was authorized to issue, and realized from the sale $1,300,000, which they converted to their own use; and that by this over-issue the genuine stock was rendered valueless, and became unsaleable in the market; and the plaintiff’s shares had been rendered thereby wholly unsaleable and valueless.</p> <p>Meld, that by the decision of the court of appeals, the company was not liable for the stock thus over-issued. This count was not therefore liable to the objection that the company should sue for the wrong.</p> <p>Meld, also, that on the allegation that by the acts of the defendants the stock had become valueless to the plaintiff; and not averring what the plaintiff paid for the stock, the objection was one not to be taken by demurrer, but on a motion to make the complaint more definite. Then it would result that by the fraudulent acts of the defendants they had made the stock of the plaintiff valueless to him. This was an injury which was peculiar to the plaintiff, as regarded the stock owned by him. He could not join the other stockholders with him, because they did not own the shares of their stock jointly, but separately.</p> <p>Where in the second count of the complaint, the plaintiff alleged that at the times of the purchase of the stock, the defendants made false representations respecting the character and value of the stock, and the then position of the company; representing that the affairs of the company were in a good and prosperous condition, and wholly withholding and concealing from the plaintiff the fact that they had theretofore, and were then making the over-issues of stock; that the defendants made such false statements for the purpose of inducing various parties, and particularly the plaintiff, to purchase largely of the stock; that the plaintiff was influenced thereby in making the purchases, and did not know of the over-issue, and that by such over-issue the shares oí the stock had become valueless to the plaintiff.</p> <p>Held, that this count was for a false representation, made not (as was common) to the seller of goods, but to the buyer of property. To sustain it, the same facts must concur as in an action for a false representation of the credit of a buyer. The representation must be false in fact and so known to the defendants—must have been made with the intent to deceive the plaintiff, and must have produced that effect, and have caused loss to the plaintiff; and the pleading must state what the false representation was.</p> <p>Meld, also, that it was not essential that the representation should be addressed directly to the plaintiff. If it were made with the intent of its influencing every one to whom it might be communicated, or who might read or hear of it, the latter class of persons would be in the same position as those to whom it was directly communicated; but they must have come to a knowledge of it before their purchase.</p> <p>In all such cases, it is essential that the false representation, or the concealment which made the partial statement practically false, should be made with the intent to deceive.</p> <p>Meld, on the assumption that everything stated in this count, although improperly stated, was true, and applying the rules stated to such cases, there could be but little doubt of the defendants’ liability. Although good on demurrer, it was so indefinite as to require amendment in the particulars indicated.</p> <p>The third count alleged the purchases of the stock by the plaintiff, and the over-issue of the stock, both before and after the plaintiff’s purchases; that the certificates for the unlawful stock were similar to those for the lawful; and that the plaintiff believing them to be certificates of lawful stock, purchased 200 shares of them, and paid large sums for them, and that he afterwards discovered that they were spurious.</p> <p>Held, that this loss was clearly individual to the plaintiff. The objection that he did not allege that he bought of the defendants, and that he had his remedy against the seller of the stock, was not well taken, because, at common law a tort feasor when sued could not plead the non-j oinder of his co-tort feasors. The principle of the rule was, that the wrongdoer was not entitled to the aid of a court to call on others to constitute and bear a part of the penalty for which he also was liable for his wrong-doing. Much less could he say, when sued, that there was another party, who was entirely innocent, but whom he had deceived, and who in consequence had innocently transferred what he supposed to be of value to the plaintiff, and that the plaintiff must therefore have recourse to that person, and not to the wrongdoer himself.</p> <p>Nor is the objection valid that the defendants if guilty, are liable to the person to whom they sold the property, and that a cause of action for a tort cannot be assigned. Because first, the first purchaser may have passed the stock away for its full value, and so have suffered no loss; he assigns then not the tort, but the stock, to the present plaintiff, and the present plaintiff is the first person who suffers any loss by the fraud: Second, the spurious certificates were the acts of the defendants; (in this unlike the defendants in the New Haven R. R. Go. case,) by the certificates the defendants (not the company,) represented to every person who received them that they were genuine; and this representation they made as much to the plaintiff as to the original purchaser. Third, these certificates pass by a power of attorney in blank as to the name of the purchaser, the defendants so passing them, authorized the insertion of the name of the plaintiff as the immediate purchaser from them, or from their agent, and made him thus the immediate contracting party with them. This count held good. As the causes of action were all founded in tort, the several counts were properly joined.</p>

This action was referred to the Hon. George G. Scott, as sole referee, to hear and determine the same. The facts are taken from the report of the case in 16 Barb. 294,,and are as follows: “ Conrad Cramer, on the 15th of March, 1850, recovered a judgment in this court against Ansel C. Durkee, for $67.12, damages and costs, upon a debt contracted the 1st of April, 1849. The summons was served on the 22d day of February, 1850, in the afternoon.

<p>Demurrer to complaint in an action of ejectment.</p>

Before Bosworth, Hoffman, Woodruff and Pierrepont, Justices. The summons in this action in terms, required' the defendants to serve their answer upon the plaintiffs’ attorney at the city of New-York, within twenty days, and was subscribed by the plaintiffs’ attorney, with the addition to his name, of the words and figures, “ 195 Broadway.” The residence of the plaintiffs’ attorney is at Flushing, in Queens county, but Ms office is at No. 195 Broadway, in the city of New-York.

The answer in this case contains a denial of some of the material allegations of the complaint, and the ans.wer is verified according to the requirements of the Code, and the plaintiff moves to strike out the answer as a sham answer, on the ground that it is false.

<p>Demurrer to complaint. The facts will appear in the opinion.</p>

<p>A report of a referee, “that in his opinion it would be proper to allow said infants to prosecute an action for the partition or sale of the real estate mentioned in the petition,” is not sufficient to warrant the court in ordering proceedings in such an action. Under the statute, ihe facts which warrant such a conclusion, should be set forth in the report.</p>

Motiom for a writ of mandamus. The relator was indicted in the court of oyer and terminer, for Wayne county, for obtaining goods by false pretences. The trial came on at the sessions for the same county, held in September, 1856, to which court the indictment had been sent, upon which trial the relator was convicted.

This action was tried for the third time-at the Chemungcircuit, held by Justice Balcom, in February, 1858.

Present Bowen, P. J., Greene and Martin, Justices. Appeal from an order of the county judge of Erie county, staying proceedings on an order of reference to examine the defendant in proceedings supplementary to execution, pending before the county judge.

<p>It seems, that by the scope and operation of the 468th section of the Code, the former judgment creditor’s suit under the Revised Statutes, “ to compel the discovery of any property or thing in action belonging to the defendants,” is repealed or superseded; and that § 292 providing for proceedings supplementary to execution, is substituted therefor.</p> <p>But this does not reach an action brought by a judgment creditor to set aside an assignment made by his judgment debtor, as fraudulent and void, as against creditors. Such an action is entirely different in its object from that primarily sought by the institution of supplementary proceedings, or by a mere creditor’s bill. Where the plaintiff had as a judgment creditor, commenced proceedings supplementary to execution, against the defendants; and subsequently commenced an action against the same defendants to set aside an assignment made by one of the defendants to another defendant, as fraudulent and void;</p> <p>Held, on motion to compel the plaintiff to elect between the two proceedings, and to proceed in one only, that the motion must be denied. Being doubtful whether under any circumstances this would be the proper course, to compel a plaintiff to elect between a valid and invalid proceeding.</p>

Motion by defendant for costs against plaintiff, and for an extra allowance, &c., and that defendant’s costs be set off against the recovery by plaintiff. The action was upon a promissory note made by the defendant to Joseph Westfall or bearer, dated November 26, 1852, for $449.70, payable one day after date, with a payment indorsed at date of the note of $18.67.

<p>Motion for judgment of perpetual injunction.</p>

Motions by plaintiff and defendant for re-adjustment of plaintiff’s costs, and by plaintiff for re-adjustment of defendant’s costs. In August last an order was made on application of the defendant that he, the defendant, recover costs under section. 885 of the Code, and that such costs be set-off against the recovery of the plaintiff. That motion was resisted on the ground that the offer of judgment was insufficient. But the offer was held sufficient.

Iisr October last, upon the application of the plaintiff in this action, and by the consent of the defendant, represented by counsel, an order was made by this court at general term, enjoining the defendant from the exercise of its corporate functions and franchises, and appointing a receiver of its property and effects, upon the allegation of insolvency.

The papers were served prior to November 28th, 1857, without demanding prepayment of fees. On that day the sheriff wrote to the plaintiff’s attorney, that the papers were served, and that on receipt of $1.25 for his fees and postage, he would return the papers.

This action is brought to recover three thousand dollars, the value of work done by plaintiffs for defendants, on the employment of the clerk of the common council, who, by resolution of the board, passed and approved on the 16th day of December, 1853, was directed and authorized to cause one thousand five hundred copies of the city charter with Kent’s notes, to be printed and bound, at an expense not to exceed the amount theretofore paid for the same.

<p>Motion for a certiorari.</p>

Mr. Mathews made the following points: First. The motion invokes the discretion of the court, and seeks to enjoin three actions previously commenced, involving the questions sought to be put in issue in this action. This is unnecessary, and this court has decided it will not sanction or permit the practice. (Grant agt. Quick, 5 Sand.

.Motion by defendant to set aside an order entered at Monroe special term, on the 29th day of September, 1857, defaulting defendant, for not appearing on attachment, and directing that the bond given by the defendant on the service of the attachment, be prosecuted. , On the 24th day of September, 1857, the defendant was arrested by one of the coroners of Onondaga county, by virtue of an attachment, dated August 24th, 1857, returnable at the Monroe special term, on the 4th…

This is an action for a limited divorce a mensa et thoro, for cruel and inhuman treatment. The plaintiff was married to the defendant at the residence of her father, Bichard Morris, at Butternuts in the county of Otsego, on the 19th of September, 1856.

<p>On the trial of an indictment for murder, where the defence of insanity was interposed, the presiding judge at the oyer and terminer, charged the juiy as follows : “ The fact oí killing is admitted; that the act was done by prisoner is not disputed. Thus, the issue is really reversed from the usual one. The question of insanity is matter of positive defence, and it is a defence to be affirmatively proved; a failure to prove it is (like all the failures to proVe any other fact) the misfortune of the party attempting to make out the proof. And in this case, as in all other cases of fact, you are not to presume what has not been proved under the distinctions, and upon the principles already given you.”</p> <p>“ The act being plainly committed, and that the prisoner did it being undoubted, and the defence set up on his part that he was insane, the burden of proof is shifted. In the proof of the deed itself, if any reasonable doubt be left on your minds, the prisoner is to be acquitted; but as sanity is the natural state, therp is no presumption of insanity, and the defence must be proved beyond a rear sonable doubt. If (canvassing the whole evidence on the legal principle laid down in the charge) the prisoner has satisfied you so far beyond a reasonable doubt, that you find that he was, at the time of the killing, so far really insane as not to be responsible (under the directions stated to you) for this particular act, you acquit, otherwise you convict.”</p> <p>jHeld, (by the court of appeals,) that although it is true, that sanity is the normal - condition of the human mind, and in dealing with acts criminal or otherwise, there can be no presumption of insanity; yet, it is not true, upon the traverse of an indictment for murder, when the defence of insanity is interposed, and the homicide admitted, that the issue is reversed, and the burden is shifted.</p> <p>The burden is still the same, and it still remains with the prosecution to show the existence of those requisites, or elements which constitute the crime, and of these, the intention, or malo animo of the prisoner is the principal. Notwithstanding the legal presumption, the sanity of the prisoner’s mind is under all the definitions of the crime, to be made out affirmatively upon the trial, as a part of the case for the prosecution.</p> <p>There must be care to distinguish between what constitutes prooi) including those presumptions which the law regards as equivalent to proof, in a criminal case, and what is understood by the burden of proof, or onus probandi.</p> <p>The act of 1855, (Sess. Laws 1855, p. 613, § 3,) provides substantially that whether any exception shall have been taken or not, on the trial, the prisoner if convicted, can take (on writ of error as matter of right) any exception in or out of the case, and shall be at liberty to claim a new trial on any ground. This statute was considered by the supreme court at the general term, (Gould, J., delivering the opinion,) and held to be unconstitutional, it being embraced in a local bill on a different subject. The question was not considered (or at least, decided) by the court of appeals. The exceptions in this case were not taken on the trial, but on the argument in the appellate courts.</p> <p>(The opinion of Judge Gould in this case, delivered at general term, is given so far as it discusses the questions above stated. The opinion of the court of appeals by Judge Brown is given entire, and then follows the last charge to the jury of Judge Gould on the third trial, entire. The case will attract attention and interest from its general notoriety, and particularly so now, as there are occasionally, between the distinguished judges (at the trial, and the appeals) some sharp differences of sentiment flashing up, illuminating the legal horizon, and discovering different sources of judicial construction.—[Reporter.</p>

Motion to amend a complaint by striking out the name of Perry P. Billings, as a defendant.

Motion made on the part of the defendant to stay the supplemental proceedings on the judgment recovered in the marine court, on the ground that the defendant had appealed from the order overruling the demurrer, to the general term of that court.

On the 30th day of July, 1856, the plaintiff recovered judgment in this court, against the defendant, for the sum of $974.90 damages and costs. The action was prosecuted by E. 0. Robbins, an attorney of this court, on behalf of the plaintiff, who acted in prosecuting the-same, and in the subsequent settlement and- satisfaction of the judgment, under his general retainer as attorney, and without any other or special authority.

Demurrer to one defence set up in an answer. First. The note in suit was due before the appointment of the' receiver, and the relative rights and obligations of. the defendant and the bank were fixed, and could not be changed by such appointment. I. The receiver has no other powers as respects this cause of action than a common law assignee, (4th ed., 2 Rev. Slat, p. 469, § 68 ; Laws of 1849, chap. 226, § 11; 6 Paige R. 499.) Second.

The defendant, Edwin Parkes, was brought before Wm. M. Waterman, Justice, January 21st, 1858, on a charge of being a “ disorderly person,” and keeping a house of ill-fame. The proceedings were under the statute, against Parkes as the owner and lessor of the house, knowing and assenting to the fact that it was kept as a house of prostitution.

The relator, in the months of April and May, 1857, furnished stationery amounting to $167.13, to the tax commissioners of the city of bTew-York, which was used by them in the performance of their official duties.

Motion by plaintiff for leave to serve amended complaint,' and to amend summons, &c. The summons was in the ordinary form for money, with a notice that in case of defendant’s failure to answer, the plaintiff would take judgment for $67.43, and interest from September 16th, 1856.

<p>In England and in this country, the law is, that if a man voluntarily makes himself d/rank, it is no excuse for any crime he may commit while he is so.</p> <p>But it does not follow because drunkenness is no excuse for crime, that it is not in some cases, where the question of guilt or innocence is one of intent, or where the degree of the crime on the same facts depends on the specific intent, a material circumstance in determining whether any crime had, been committed,, ortho degree of the crime which had been committed.</p> <p>The prisoner in this case, was indicted and tried for murder. The proof showed . that the meeting in the street between the prisoner and the deceased, on the occasion when the prisoner stabbed the deceased with a knife and killed'-him, was not premeditated: there was no evidence nor even a pretence, that the prisoner knew the deceased, or had ever seen him before; there was nothing other than what took place on the occasion, to show that the prisoner when he struck the fatal blow, intended to kill the deceased. And all the witnesses agreed in saying that at the time of the occurrence, the prisoner was excited by drink, and some of them said he was very drunk.</p> <p>On the trial, the judge charged the jury, that under the 'old law, intoxication was an aggravation of crime; but that intoxication never .excused crime unless it was of the degree to deprive the offender of his reasoning faculties.'</p> <p>The counsel for the prisoner, substantially requested the court to charge the jury • that they had a right to take the intoxication of the prisoner into consideration with the other circumstances of the case, in determining the intent • and that if-they found that there was no intention to commit the crime of murder, the jury should find a verdict of manslaughter. The court refused so to charge, and the prisoner’s counsel excepted.</p> <p>Held, that the right of the prisoner to have the circumstance of -his intoxication fairly submitted to the jury on the question of intent; or whether he was guilty of manslaughter or murder, was as clear and as well established by law, as the principle that voluntary drunkenness is no excuse for.crime. .The principles are consistent with each other. New trial granted.</p>

<p>The complaint must conform to the summons as to the naiv/re of the action. If ' not, the complaint will be set aside. The summons must control the complaint in that respect. (The cases of Boynton agt. Lapham, 14 Sow. 360 ¡ amd ■ Tuttle agt. Smith, id. 395, approved.)</p> <p>The summons in this case stated that if the plaintiff failed to answer the complaint as required, the plaintiff would take judgment against the defendant tor $300, with interest, besides costs. On demand, the defendant’s attorney was served with a copy complaint in the nature of a creditor’s bill to set aside a written instrument for fraud, &e.; and that the plaintiff as receiver have judgment against the defendant for $500 and costs, or for such other relief, See.</p> <p>Seld, that the complaint be set aside as an unauthorized departure from the summons in regard to the nature of the action. And a general appearance in the- suit by the defendant before the service of the complaint, is not a waiver of such irregularity. (See, confi-a, Webh agt. Mott, 6 Sow. 439.)</p>

<p>Motion to set aside judgment, for irregularity.</p>

Motion to strike out answer, and for further relief, unless defendant comply with the terms of an order heretofore made by Justice Rosekrans, requiring him to pay $50 for expenses of suit and $150 annually, in payments of $75, at the end of every six months, for alimony.

An order was served on the plaintiff’s attorney to show cause why he should not deliver up to the plaintiff all the papers and documents in his hands, or obtained by him as attorney for the plaintiff, as also the papers in the action, and why he should not deliver up to the plaintiff a consent for substitution of another attorney as the plaintiff may nominate.

W. B. Wright, I. Harris and G. Gould, Justices. This action was commenced on the fourth day of January, 1856, in a justice’s court, against the defendant, a constable, for the recovery of $10.57 overplus moneys collected by him on an execution against this plaintiff. It was admitted on the trial, that on the 26th day of December, 1855, the defendant being a constable, &c., sold the property of the plaintiff on an execution against him in favor of Matthew Taber.