Volume 17 — Howard's Practice Reports

Present, Davies, Sutherland and Hogeboom, Justices. This was an appeal from a judgment given by Mr. Justice Roosevelt, at special term, in 1854, holding Mr. Stewart liable upon a purchase of cotton or shipment of cotton. Lewin. is the surviving partner of Jonathan Ogden & Co., by whom the suit was originally brought.

<p>Where suits are instituted by the district attorney of a county, in the name of the people, under the 21st section of the “act to establish a Metropolitan police district, comprising the counties of New-York, Kings, Westchester and Richmond,” passed April 15th, 1857, to recover penalties, ($50 each,) for publicly keeping and disposing of intoxicating liquors on Sunday, such penalties being for the benefit of “ the police contingent fund,” thereby authorized ;</p> <p>Held, that where the defendants succeeded in such suits, the people are liable for the costs of the defence, to be paid from the state treasury.</p> <p>And it is the duty of the attorney-general on request of the defendants, to give the requisite statute certificate, that such suits were duly instituted as by law required. (2 I?. S. 553, § 14.) A mandamus is the proper remedy to compel the giving of such certificate in case of refusal by the attorney-general. And it will be no answer for him on such application, to say that no appropriation by the legislature has been made to meet such expenses. It is no reason why the defendants should not have their claim perfected.</p>

<p>If the plaintiff is not a resident of the state, or the subject of the action did not arise or is situated within the state, he cannot have an attachment under the Code.</p> <p>Where a note was made at the office of the defendants in the state of Iowa, and was payable at a bank in the city of New-York, held, that ¿he cause of action did not arise in this state.</p> <p>Whether on a motion to vacate an order of publication of summons, additional affidavits may be used in support of the order? Doubtful.</p>

Motion to set aside judgment. The parties entered into a written agreement reciting that George 0.

Grover, P. J., Green, Marvin and Davies, Justices. Appeal from order of special term,' overruling demurrer to complaint. It appears from the complaint, that the defendant Dibble, on the second day of Januaiy, 1855, was seized and possessed of certain premises described; that on that day he mortgaged the premises to the defendant Mary Vosburgh, for the consideration as stated in the mortgage, of $557, to be paid at the expiration of ten years. The mortgage was recorded.

<p>This is an action brought upon a joint note, as appears from the affidavits before me on this motion.</p> <p>The defendant Norman Ford appeared and answered the complaint, and the defendant Acton P. Ford suffered default. The plaintiff demurred to the answer of Norman, and had judgment upon the demurrer, and entered a joint judgment against the defendants, with the costs of suit, including the costs of the demurrer. The defendant Acton P. Ford now moves the court to have the costs of the demurrer stricken out of the judgment against him.</p>

<p>Motion to vacate order of arrest.</p>

Plaintiff sues to recover the amount of a promissory note executed by the defendants to him, bearing date 12th of September, 1856, for $232.64, and payable three days after date with interest. This suit was commenced on the 13th day of April, 1858. ' The defendants plead a former suit in bar for the same cause of action, commenced on the 15th day of February, 1858, and still pending.

Present, C. L. Allen, James, Rosekrans and Potter, Justices. The complaint avers the uttering of these words with reference to the plaintiff’s testimony, in a suit pending before a justice of the peace, viz : “ P. J. W. is honestly mistalcen, hut you are wilful,” with similar expressions, varying the reference to the plaintiff from the second to the third person.

<p>Where referees appointed by a county judge to hear an appeal from an order of commissioners of highways refusing to lay out a road, reverse the decision of the commissioners, and proceed to lay out the road, they must give the time days' notice to occupants required by the statute, (lü. S. 514, § 62,) in order to give' them jurisdiction to proceed. That is, their proceedings in laying out the road without giving such notice are void for want of jurisdiction.</p>

<p>Demurrer to complaint.</p> <p>Plaintiff averred that Samuel L. Armstrong, deceased, her late husband, in his lifetime and on the 27th of January, 1852, leased to the defendant for the term of five years, a certain lot of land in Lisbon, in the county of St. Lawrence, containing thirty acres, upon certain conditions contained in the lease, and also at the same time leased to defendant a certain other lot or farm in the same town, containing 135 acres, for the same period, and also the use for the same time of ten sheep, ten cows, one yoke of oxen, one double wagon, one plow, one drag, one grindstone and one chain, for 300 bushels of potatoes per year, to be delivered at the depot in Lisbon, or in lieu thereof, money at the rate of 33J cents per bushel for the potatoes. That the lease contained averments on the part of defendant, to keep the fences and buildings on the premises in repair, and to keep the cattle and sheep and utensils in good order, and to so return them at the expiration of the term.</p> <p>The complaint further averred, that defendant entered into possession of the premises and so remained until the expiration of the term on the 19th of April, 1857; that the lessor, the testator, died in the month of December, 1854, having executed, made and published his last will and testament, appointing plaintiff his sole executrix, and making her devisee in fee simple of the 135 acre lot. The plaintiff then assigned for breaches, that defendant did not deliver the potatoes for the last two years of the term, and refuses to pay the $200 in money; that he has not returned nine of the cows; that he did not fence the orchard, or carry on the farm or premises in a good workmanlike manner, nor did he keep the fences and buildings in good repair.</p> <p>The defendant demurs to the complaint on the grounds:</p> <p>1. That there is a misjoinder of parties, the plaintiff claiming to prosecute as executrix and also as devisee.</p> <p>2. That there is a misjoinder of causes of action, viz: for those which accrued only to the heir, and for those which accrued only to the executor, that plaintiff cannot recover for damages to the freehold and for rent accruing after the death of the testator ; and that she cannot as devisee, recover for not returning said personal property.</p>

Before Bosworth, Gh. J., Slosson, Woodruff and Mou-CRIEF, Justices. Proceedings were taken, in this action supplementary to execution, before one of the justices of this court, in which the defendants were examined touching their property, after the return of an execution unsatisfied, pursuant to the provisions of section 292 of the Code.

<p>The following irregularities in the deliberations of a jury in a case of murder were established: One of the jurors inquired of a' constable in attendance, whether the jury could not bring in a verdict of manslaughter ? Stating at the same time, that if they could do so, the whole jury would agree on such a verdict Upon which, the constable in violation of his duty and oath, undertook to give his opinion. The Revised Statutes were subsequently sent for by the jury, and their provisions in relation to the crimes of murder and manslaughter, examined.</p> <p>Held, that these irregularities of the jurywpuld have been sufficient to vitiate the verdict, unless it had appeared: beyond all reasonable doubt that no injury had resulted from it to the defendant.</p> <p>It is well settled that the evidence of jurors is not allowed for the purpose of impcaching or in any way impairing the effect of their verdict. Much less are their unsworn and irresponsible statements as to the occurrences in the jury room to he allowed to be brought second hand before the court, in support of an application to set aside their verdict.</p> <p>The practice of one or more constables being constantly present in the jury room, is not to be commended, but it seems there is no role which prohibits it.</p> <p>The defendant’s counsel took the ground that under the circumstances of this case, the verdict of the jury was not, and could not have been the result of that calm deliberation and concurring judgment which alone could fitly characterize so momentous an act. ° The court on a review of the circumstances, thought otherwise, and denied the motion for a new trial.</p>

<p>This case presents a purchase of goods upon false representations, (not unfrequent in the city of New-York,) upon these facts:</p> <p>The goods were sold, by the plaintiff to defendant Wells, upon a credit of six months, upon the representations of defendant Renway, that Weils was good and responsible to the extent of §800 to §1,000. That he was a prudent and careiulman, worth $2,000 to $3,000, and owed very little if anything, and that he was every way responsible and worthy of credit.</p> <p>When the fact was, that at the time of the purchase, Wells was considerably in debt, and in reality insolvent, and Ronway knew it, for among other debts of Wells, was a judgment against him in favor of Renway, for §1,000, docketed only one month previous to the purchase, and upon which an execution was issued and put in the hands of an officer, and on the arrival of the goods from N e w-Y ork, and before they reached Wells’ store, the execution was fastened upon them by a familiar proceeding called a levy. Judgment was rendered for plaintiff with costs.</p>

Motion by defendant to set aside judgment entered upon defendant’s failure to answer the complaint, and that the defendant have leave to answer, &c. An action was commenced in April, 1858, by the plaintiff against the defendant, by the personal service of a summons and complaint, notice in the summons being in pursuance of subdivision 1 of section 129 of the Code.

<p>A justice of the peace can. take the confession of a judgment out of the town in which he resides, anywhere in his county. He is not by the Revised Statutes limited in the exercise of any official act to his own town, except that he shall not try a civil cause in any town other than the one for which he was chosen.</p>

<p>This is an action to foreclose a mortgage given by the defendants Cook and wife, to Elisha Crawford, and eventually assigned by him, and also by the White Plains Bank, of which, he had been president, to the plaintiff.</p>

Motion to set aside writ of restitution or to perfect appeal, &c. The defendant was convicted on a traverse taken to proceedings for forcible entry and detainer, originally commenced before the county judge of Essex county, and removed by certiorari to this court.

This case was brought up from the circuit court of the United States for the northern district of Hew-York, by writ of error.

Trial by the court. Plaintiff's statement cj facts. This action was commenced against Kanouse alone, and grew out of another action against him, begun in the New-York court of common pleas, in September, 1845, to recover a bill of costs and counsel fees from Kanouse, of which bill a copy is annexed to the copy of the complaint now in the hands of the court in this case.

<p>Application for allowance of writ of error and stay of execution.</p>

This is an appeal by defendant from a judgment entered upon the report of a referee. The defendant, for the stipulated price of $1,050, had agreed to deliver to the plaintiff 1,400 spruce poles, in 1854, and the like number in 1855 ; to average in length 35 feet.

This is a suit, in the nature of a bill in equity, to charge the separate estate of Mrs. Dederer, a married woman, with the payment of a promissory note, which she signed with her husband, Eicholas A. Dederer. It appears, from the pleadings and proofs in the case, that the note was dated December 26th, 1853, payable with interest, on the first of May, 1854, and was signed by both defendants.

<p>Where a guaranty is entered into in the following form, to wit: “I do hereby (first stating the consideration) guaranty the payment and collection of the principal and interest money of the. bond and mortgage within assigned,” the guarantor is not liable on default of payment, until the remedy on the bond and mortgage is exhausted.</p>

<p>Under the old chancery practice, if an averment made in the bill was denied on oath in the answer, the -denial was treated as equivalent to the testimony of a witness.</p> <p>But, under the Code, a sworn denial merely creates an issue, to be tried in the same manner as if unsworn. The oath is the required evidence of the good faith of the pleader, and not of the truth of the plea. Each party, on the trial, is allowed to avail himself of the admissions and omissions of his adversary, but not of his own averments, responsive or otherwise.</p> <p>Therefore, where, in the compiaint, it is alleged that some of the defendants claim some interest in the subject of the litigation, it is not an admission that can enure to the benefit of such defendants on the trial. They must prove their claim.</p>

<p>The plaintiff declares on a policy of insurance, and alleges the loss to have been occasioned by the barratrous acts of the master and crew. The policy contains a clause, declaring that the risks which the assurers “ are contented to bear and take upon them in this, voyage, they are of the seas: First, pirates, rovers, assaulting thieves, jettisons, barratry of the master and mariners, unless the- assured be owner or part owner of the vessel,” and all other losses, &c. The defendants allege, in their answer, that the assured, at the time of said alleged loss, were owners or part owners of said vessel.</p> <p>To this portion of the answer the plaintiff demurs.</p>

One Daniel Hartnett rented of the defendant a house, barn, grocery and garden, at the yearly rent of $100. At the time of renting, Hartnett told the defendant that he might have the manure to be made at the barn, if he would furnish the straw to be used there. The defendant replied that he could not furnish the straw, as he had no more than he wanted himself.

Motion to dismiss an appeal, taken by the defendant to the general term, from a judgment at special term. The notices of appeal, were not served on the attorney of the plaintiff,, and on the clerk, so-as to perfect the: appeal,, until the 2nd of December, 1858..

The defendant moved to set aside the plaintiff’s complaint on the ground that it varied from the cause of action indicated in the summons. The summons and complaint were as follows: “ State of New - York, Supreme Court, Albany county.—The Board of Commissioners of Excise of the county of Albany,plaintiff, against Elias Classon, defendant. To Elias Classon, the above named defendant.

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

The complainant is a resident and citizen of the state of New-Jersey, and has been such resident and citizen since the month of January, 1855. During all that time he was, and still is, engaged in the business of banking in the city of New-York, as a partner in the firm of James GL King & Sons. The defendant is the receiver of taxes in and for the city and county of New-York.

The plaintiffs in the above entitled suits are foreign corporations or associations, organized under acts of parliament of Great Britain, for the purposes of insurance.

<p>The constitution declares that “ no person shall be held to answer for a capital or otherwise infamous crime, unless on presentment or indictment of a grand jury.”</p> <p>The defendant was indicted for the crime of arson in the first degree—charged with setting fire, in the nighttime, to an inhabited dwelling-house, the property of, &c., the penalty for which is death. On the trial, the proof established only the crime of arson in the third degree—the burning of the goods and furniture in the building, with intent to prejudice the insurance company.</p> <p>The question was, whether, if the legislature had power to classify offences different in their nature, under one general head, and to designate them, however unlike, as different degrees of the same offence, they had power to deprive the accused party of a proper specification in advance of the matters alleged against him ?</p> <p>Held, that the defendant, being chargeable with knowledge of the law (which is constitutional), was bound to take notice that the crime of arson was of different degrees; that under an indictment for a higher he might be found guilty of a lower degree of the same crime under the statute.</p>

<p>Appeal from order at special term, directing a readjustment of costs, on a motion for consolidation.</p>

This was a suit in equity, to restrain the defendants from receiving the proceeds of the sale of the ship Joseph Walker and her cargo, and from interfering therewith further than to raise and place the same in a safe and proper situation, and to have the same duly sold, on due notice, at auction, on the customary terms of such sales, and to have said proceeds brought into court, and the rights of the plaintiff and the other parties to the suit thereto ascertained, and said…

Tms'action was brought before a justice of the peace, where the plaintiff recovered a judgment against the defendant, for $32.74, besides costs. The Tioga county court affirmed the judgment, on the ground that the notice of appeal to that court did not state the grounds upon which the appeal was founded, within the rule laid down in Derby agt. Hannin, 15 How. Pr. P. 32; Bush agt. Dennison, 14 How. Pr. P. 307; 6 Abb. 183.

This was an application made by Mrs. Agnes Mary Grant, to compel the defendant Chester, an attorney of this court, to pay over to her moneys, the proceeds of drafts placed by her in his hands, early last summer, to invest upon bonds and mortgages. In July or August, she determined to make a different use of the money, and, as it was not then loaned on bond and mortgage, gave him notice that she should want it in October and November.

<p>In the publication of the opinion of the court in this case (16 Em. 311), holding that in eases of publication the name of the state should appear in the summons or complaint, and that the time and place of filing the complaint should be stated in the body of the summons as published, &c., it does not appear that Mr. Justice Rosbkrans dissented.</p> <p>In order, therefore, to place the learned justice right on the record, his dissent is now published in his own words, the authenticity of which, on perusal, will not be doubted. Under the decision of the court of appeals on this question, in Cook agt. Eslceck, ante, page 134, the following may perhaps properly be considered a prevailing opinion.</p>

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

This action was to recover for services rendered by the-plaintiff (respondent), as referee in a cause, commenced in the court of chancery, and brought into and continued in the 6th judicial district, wherein Absalom Calkins was complainant, and Asa M. Calkins et al. were defendants. The bill filed in the suit last stated was filed to redeem certain premises from the lien of a mortgage.

<p>Where a party, for the purpose of securing, with other obligations, a promissory note made by himself, executed a chattel mortgage to the payee, and, after the note had been protested for non-payment, through an agent of his paid the note at the bank, unknown to the payee, and procured another loan from a third party upon the same note, and to secure which the payee assigned to such third party so much of the chattel mortgage as would secure the amount, and on foreclosure of the chattel mortgage by the payee and the collection of the whole amount,</p> <p>Held, that the payee of the note by the assignment of the mortgage was estopped from saying that the note had been paid, and the mortgage extinguished pro tanto. He was, the trustee of the third party to the extent of their interest in the mortgage, and bound to account to them for such interest. The latter was not a party to any fraud, if any was practiced on the payee.</p>

This is an appeal by the plaintiffs, from the decree of the surrogate of Rensselaer county, refusing to allow the plaintiffs to participate in the distribution of moneys arising from the sale, under a surrogate’s order, of the- real estate of Joseph P. Casey, deceased, and awarding the same entirely to the defendant.

<p>This action was brought, against the defendants to recover upon a promissory note, of which the following is a copy.:</p> <p>“ Benton, January 1st, 1855.</p> <p>“ $51. One year from date, for value received, I promised to pay William Perkins, or bearer, fifty-one dollars, with use.</p> <p>(“Signed) “Thomas Snydeb,</p> <p>“James W. Richmond,</p> <p>“ Security.</p> <p>“ Gteobge Baeden,</p> <p>“ Security.”</p> <p>The process was served upon all the defendants, and aE appeared and answered.</p> <p>Upon the trial, the plaintiff proved the signatures of the defendants, Richmond and Barden, the amount due upon the note, and then rested.</p> <p>The defendant, Snyder, then asked that the plaintiff be non-suited as to him; which motion was granted, and as the return states, he was discharged.</p> <p>The justice then rendered judgment against the defendants, Richmond and Barden, for the amount due upon the note and costs, and they now bring appeal to this court.</p>

<p>The plaintiff in error, Daniel O’Leary, was indicted at the Saratoga oyer and terminer, in January, 1858, charged with having, on the 22d day of September, 1857, at the village of Waterford, feloniously made an assault upon one Margaret Collins, with a certain deadly weapon, commonly called a cleaver ; that said O’Leary did then and there feloniously beat, strike, cut and wound, with intent, her, the said Margaret Col* lins, then and there feloniously and wilfully to MU.</p> <p>There are three counts in the indictment. The first and second counts are in all respects similar, except that it is charged in the first, that he held the cleaver in his right hand, and the second charges that he held the cleaver in both hands at the time of making the assault.</p> <p>The third count charges the assault to have been made with intent to maim.</p> <p>O’Leary was arraigned and pleaded not guilty.</p> <p>The issue thus joined came on to be tried in June, 1858, at the Saratoga general sessions, where it had been sent by order of the oyer and terminer for trial.</p> <p>The jury found the prisoner guilty of assault and battery, with intent to hill.</p> <p>The prisoner was sentenced to imprisonment in the state prison in the county of Clinton, at hard labor, for the term of two years.</p> <p>No bill of exceptions was made or filed.</p> <p>The prisoner sued out a writ of error. A certiorari was also issued, and a return to each was made by the clerk,</p>

<p>Application for discharge of the relator from, enlistment, for want of a proper consent of his parents.</p>

<p>Motion to set off judgments.</p>

The plaintiff was the assignee of Conine & Tompkins, an insolvent firm, in Ashland, Greene county, who assigned their property to the plaintiff for the benefit of creditors, on the 14th of September, 1857, by an assignment making preferences, and referring to an inventory or cotemporaneous instrument for a statement of the debts of the preferred creditors.

Motion to set aside decree and for leave to file a supplemental complaint. The plaintiffs filed their bill of complaint,, setting up the recovery of five separate judgments in favor of five separate plaintiffs, with executions duly returned thereon respectively unsatisfied, and sought to set aside a certain fraudulent conveyance, by the judgment debtor to his son, of certain real estate, and also to reach the other equitable property of the judgment debtor.

<p>Application for a peremptory mandamus.</p>

This was an application for a stay of proceedings or a dismissal of complaint in this action, upon grounds which will • appear in the following opinion.

Motion by defendant for a resettlement of facts. This action was originally tried .by the court without a jury, and judgment entered for the plaintiff. Exceptions were taken, and ease made and settled, embodying the exceptions, on which an appeal was taken to the general term, where the judgment was affirmed. The defendant then appealed to the court of appeals.

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

At the last November general term this court reversed the judgment entered on the report of the referee in this case and ordered a new trial, with costs to abide the event, on the ground that “ the report of the referee was contrary to and against the weight of evidence in the case.” The plaintiff now moves for a modification of the rule reversing the judgment, by striking out the direction as to costs and inserting “ on payment of costs by defendant.”

<p>Under the statutes of 1848 and 1849, the marriage ot a mortgagee, a single female, with the mortgagor, does not cancel the debt, as at common law—the mortgage may be foreclosed and the mortgage debt collected by the mortgagee, unaffected by the marriage.</p> <p>Nor does the execution, after marriage, by the husband and wife, of a mortgage on the same premises to a third person, discharge the lien of the wife’s mortgage against her husband.</p>

<p>A power of attorney given by one partner residing abroad to another residing here, authorizing the latter “ to transact all the former’s business in the city of Mew-York, of whatsoever name, nature or description the same might be, whether relating to him as a member of the firm or in his individual capacity,” does not confer an authority to assign all his individual property to a trustee for the payment of his debts.</p> <p>Whether it gives authority to sign the absent partner's name to a general assignment of the partnership effects for the benefit of creditors, qimre.</p> <p>A power of attorney always receives a strict interpretation.</p> <p>A power of attorney given by a man to his wife, simply saying that he appoints her his attorney, without stating for what specific purpose or object, but adding, with full power and authority to do whatever he might do in the premises, ratifying and confirming all that she might lawfully do by virtue of the power, is authority sufficient to authorize her to release an action brought by her husband, the plaintiff, against the defendant.</p>

The county judge of Delaware county granted an order of arrest in this action, upon which the sheriff of blew-York arrested the defendant and held him to bail in the sum of $3,500. The defendant made a motion to vacate the order upon which he was arrested, at a special term of this court held by Justice Balcom in Delaware county in January, 1859, which motion was denied with $10 costs.

This is an appeal by the defendant from an order granted by Mr. Justice Gould, allowing a commission to issue to examine the plaintiff as a witness in his own behalf. The action is brought to recover the amount of a promissory note, and is ■ pending in the supreme court of this state in Rensselaer county. The plaintiff resides in Wisconsin.

<p>A transcript of a justice’s judgment may be taken and filed with the county clerk for any amount less than $25. And where the defendant is a resident of the . state, proceedings supplementary to execution may be instituted against him, on return of execution upon the judgment by the sheriff, unsatisfied.</p>

<p>A sheriff’s privilege as hail must be commensurate with his liability. Unless otherwise provided, it seems reasonable that whenever bail given by others can he relieved, he should be.</p> <p>Bail in general may surrender their principal after judgment and execution against the person, and the sheriff, when bail, is not excepted from this privilege. Within twenty days after suit commenced against him, the sheriff can avail himself of the 191st section of the Code, and surrender his principal in his exoneration.</p>

Motion by the plaintiffs for judgment upon the ninth and tenth counts of the complaint. The complaint contained ten counts.

This is an appeal by the plaintiffs from a judgment rendered in favor of the defendant by a justice of the peace of Sullivan county, and certified to this court by the county judge of that county, on account of his affinity to one of the appellants.

. Ho inventory or appraisal was made. “ The defendants served an answer and the cause was noticed for trial at the June circuit for Steuben county, 1858, and placed on the calendar, and during the' circuit the same was settled by the agreement of the defendants to pay in satisfaction of the plaintiff’s demand, a sum exceeding $1,500, and to pay the plaintiff’s costs and disbursements in the action, all which, e-xcept said costs and disbursements, have been paid. “ After…

<p>A resolution of the common council of the city of New-York, adopted by one board in one year, and by the other in the succeeding year, an election of one or both boards having taken place intermediate, is invalid. (Weimurre agt, Siory, 22 Barb. 414.)</p> <p>The act of 1858, “in relation to frauds in assessments for local improvements in the city of New-York,” authorizing an application by an aggrieved party to a justice of the supreme court to vacate any assessment, &c., applies to assessments made either before or after its passage.</p>

Motion to compel referee to deliver to the defendant a report in his favor in accordance with his decision as announced to the defendant’s attorney.

<p>The respective defendants in this action who had previously commenced actions against the plaintiffs, upon certificates of stock of the plaintiffs, issued by the defendant Schuyler, were restrained by injunction from the further prosecution of those actions, until the determination of this action, on the ground that the equity of the complaint in this action, resting on the allegation that the plaintiffs had ascertained that such certificates of stock held by the defendants were fraudulently issued by Schuyler, and were in fact of the class and description decided by the court of appeals (3 Kern. 599) to be void, was not denied nor impeached.</p> <p>And further, that the omnibus suit (so called) having been brought by the plaintiffs against all the numerous holders of the spurious certificates, and sustained by the court of appeals, for the cancellation of all such spurious certificates, as clouds upon the title of the plaintiffs, it followed that the plaintiffs had a right to restrain by temporary injunction any action or proceeding against the plaintiffs founded upon any of such spurious certificates as genuine.</p>

This cause was regularly commenced and at issue prior to January, 1859, and was noticed for trial for the January circuit by both the plaintiff and defendant.

<p>Motion to vacate order of arrest.</p>

<p>It is not sufficient for a party to say that he thinks a discovery is necessary. He must show how and why it is necessary.</p>

This was a motion to set aside an execution, issued by the-plaintiffs against the persons of the defendants, for irregularity and upon the merits. In October, 1855, the defendants wrote a letter to the plaintiffs, stating that they had shipped to them 52 sides of good slaughter upper leather, in the rough, and that they had drawn upon them at ninety days for $150, which draft they wished them to honor.

Issue of fact was joined in October, 1855, which was duly noticed for trial for the circuit held in Steuben county, where the venue was laid in ¡November of the same- year, but was not reached upon the calendar. The cause was also duly noticed for trial for the circuit held in said county in May, 1856, but was put over that circuit, the defendant stipulating that the calendar fee of that circuit should abide the event.

<p>Where the plaintiff obtained judgment against the defendants on a contract for regulating a street, and subsequently the defendants moved to set aside the judgment, on the ground that the original bid of the plaintiff was 22' cents per cubic yard for the earth filling, instead of 42 cents; that the original record of the contract kept in the street commissioner’s office had been altered by an erasure of twenty and a substitution of the word forty.</p> <p>Eeld, on the papers before the court, that it did not appear that, the plaintiff participated in or knew of any such fraud. Nor did the mere fact of the extra amount of $7,000, recovered hy him for such work, raise a presumption of fraud against him. But while the plaintiff vindicated his own integrity, he presented a case for the relief of the defendants.</p> <p>The contract was awarded to the plaintiff as the lowest bidder, and on the case presented by him he must be assumed as having meant and offered a bid at 42 cents, and took the contract at that price, in which case the record showed that there were nine lower bidders. The contract, therefore, must have been made by the corporation on a misstatement or mistake of fact, and was void. The contract sanctioned and intended to be made by them was for 22 cents—which the plaintiff never agreed to.</p> <p>jHeld, that this mutual and fundamental mistake of the very basis of the contract was ample ground for relief, and of the power of the court to give relief there could be no doubt. (Code, § 474.) Judgment and report of referee, with all subsequent proceedings, set aside, without costs.</p>

<p>Where the plaintiff, while under an injunction festraining him from making any disposition of his property to the prejudice of his judgment creditors, collusively made an indirect and fraudulent transfer of a large amount of stock to the defendant, his brother, on a secret trust for his (the plaintiff’s) own benefit— Held, in an action by the plaintiff against the defendant, his brother, to recover back such stock so transferred, that the sale or transfer was effectual in law, to vest the title absolutely in the defendant, although it appeared that the latter was a party to the fraud.</p> <p>A misdemeanor is not the source of a civil action in favor of either of the guilty parties. Having trusted each other against the law, they cannot invoke the law against each other. However unjust the transaction, as between the brothers, it is an injury for which the law gives no redress.</p>

<p>Until a referee has signed Ms report, and the same is in readiness for delivery, the case is under his control, and he may reconsider his decision and change it, or may withhold his report for the purpose of receiving further evidence, iSigning the ríport, together with notice of the fact to the pa/rty entitled to it, are the acts which preclude his opening the case for further evidence or consideration, and close his judicial authority therein.</p> <p>Where the trial had been regularly gone through with, the parties had been fully heard by their counsel, the referee had taken the case and held it under consideration as long as he desired—had deliberately come to a conclusion—written an opinion, and announced his decision to the parties, but had not drawn up and signed a formal report thereon, Seld, that the referee had not lost authority and control over the case.</p> <p>This large discretion allowed to a referee should he exercised with great circumspection. In case of its abuse, the court has the full power to apply the corrective, by setting aside the report when made. (This decision affirms that at special term, ante, p. 461.)</p>

<p>On the dissolution of and winding up of a partnership, where a valuable part of the partnership property consists in the good will of the business carried on by the partners (publishing a newspaper), such value, as much as the furniture of the office or debts due to the firm, must be protected and disposed of for the benefit of the creditors of the firm, or of the partners jointly.</p> <p>Where there is a dissolution of a partnership in the business of publishing a newspaper, and the whole title to the paper is owned by one of the partners, or a purchaser under the firm, the court has no right, in the absence of any cove- • nant or restriction on the subject, to restrain or interdict the establishment, by the other partner, of another paper devoted to" the same objects, provided the latter paper is sufficiently distinguished from the former to prevent the doctrine of piracy of trade marks from applying.</p>

<p>Motion to set aside judgment on report of referee.</p>

<p>Habeas Corpus by the petitioner, for the custody of bis infant children.</p>

Motion to change the place of trial. The action is brought to recover the value of certain personal property taken by the defendant, who was a constable of the county of Schenectady, by virtue of an execution against one Simon Houck. The plaintiff claimed the property under a chattel mortgage. The venue in the action is laid in the county of Albany.

<p>The court, on appeal, will not interfere with the finding of a referee, on a question of fact, unless clearly against the weight of evidence, or in direct violation of some rule of law; and especially on a question of fraud, where there is evidence on both sides, and the point is not entirely free from doubt.</p>

<p>The remedy of a party aggrieved by proceedings at the circuit, such as motions to put a cause over the circuit—to put off a cause till a later day in the circuit —motions as to the order of business to correct the calendar—for attachments against absent witnesses, &c., is not by appeal, but to move upon affidavits at a non-enumerated term, to set aside the proceedings for irregularity, or upon terms.</p> <p>Thus, where the circuit judge refused to put a cause over the circuit for want of a sufficient excuse, and the plaintiff proceeded substantially ex parte, and took a verdict of the jury in his favor, the defendant, upon affidavits, moved at a special term, held by another judge, and obtained an order setting aside the • verdict and allowing the defendant to come in and defend on terms, which order was appealed from, and affirmed at general term.</p>

<p>The officers of a corporation must pay dividends to the persons holding stock on the books of the company. If the directors, in making the dividend, do not limit the period, the officers have no right to do so, and their only guide istho stock book to ascertain the parties entitled thereto at the date when the dividend is declared.</p> <p>Therefore, where the plaintiff became a stockholder of the company (on surrender of a bond against the company, according to its conditions), on the 3d of December, and a cash dividend on the surplus earnings of the company, ending on the 30th of November, payable January 6th, was declared on the 11th of December, Held, that the plaintiff was a stockholder on the books of the company at the time the dividend was declared, and was entitled to his share thereof.</p> <p>It seems that a board of directors, in making a dividend, cannot limit it to persona holding stock at any given time, to the exclusion of others who subsequently acquire stock.</p>

<p>An injvmction was granted against the defendants in this action, restraining them from paying a dividend, declared by them on the stock of the corporation, to any stockholders of the corporation, except such as can be ascertained to hold none of the spurious stock issued by Schuyler, and from making any future dividend on the stock, until, by the decision of some court of competent juris diction, it shall be established who are the genuine stockholders in the company, or until the further order of the court.</p> <p>The application was made on the alleged ground that the plaintiffs are genuine stockholders of the defendants’ corporation, and that, among the persons who are designated as stockholders in the company, there are several holding the false stock, or that which was fraudulently issued by Schuyler, according to a • second examination by a Mr. Holbrook (not authorized by the defendants) of the hooks of the defendants, in order to make out a new list of stockholders.</p>

<p>The place of residence of a corporation, created by the laws of this state, must be ascertained by its place of business. If it have several places of business, it must also be deemed to have several places of residence.</p> <p>The principal business of the defendants is transacted in New-York, and yet they have a place of business in Albany, which fact constitutes them, for the purposes of venue, residents of Albany.</p>

This case came before the court on defendant’s motion to discharge an attachment which the plaintiff- had obtained against him.

<p>Demurrer to complaint.</p>

<p>Appeal from a judgment.</p>

<p>Where the maker of a promissory note makes a certificate that it “ was given for value received, and will be paid when due,” and the note is issued at a usurious consideration, and on the strength of the certificate a third party, for value, discounts the note, the maker will be estopped by his certificate from interposing the defence that the note was given without value and issued at a usurious consideration. {This agrees with Chamberlain agt. Townsend, 26 Barb. 611. The defendant, by certifying to a falsehood twice instead of once, takes the case out of the statute.—Rep.)</p>