Volume 18 — Howard's Practice Reports

<p>The 12th and 15th sections of the Patent Act of 1836, taken together, were designed to protect the right of the first inventor, although he was not tho first to adapt his invention to practical use, provided he had filed his caveat, and. had' used reasonable diligence in protecting his discovery.</p> <p>The purpose of the caveat is, to save the discoverer from the effect of the rule of law that gives to the inventor, that first adapts his invention to practical use, the right to the grant of the patent; and in case the commissioner of patents complies with the terms of the I2th section (in giving notice of the filing of another application), it is to secure him against the effect of tire rule.</p> <p>Where the commissioner issues a second patent, the patentee cannot be prejudiced on the trial for the infringement of the patent, by the accidental omission of the commissioner to give him the notice under the 12th section.</p>

<p>Motion to vacate judgment and for an order for a new trial-in ejectment.</p>

<p>The Code de Commerce in France, relating to bankruptcy, does not make the concordat (an agreement between the creditors and the insolvent) equivalent to a discharge under the English bankrupt law, unless the prescribed number of creditors decide in favor of an absolute discharge, and the court sanction it.</p> <p>Although in the proceedings before the French tribunal, instituted by the creditors of the insolvents (residents of France), the court confirmed the composition to which they had agreed, declaring it obligatory on all, yet, where it appeared that the condition was “ that the firm (insolvents) should be entirely acquitted and discharged toward them (tire creditors) by malting surrender of their assets, as well in the states of America, and particularly in the United States of America, and in Mississippi, as in-continental France and its colonies, &c,” which was accepted by the required majority of creditors, and the agreement in conformity with it was drawn up by the judges and duly entered.</p> <p>Held—that at this time the assets of the insolvents in New-York, of the value of over §100,000, being seized, and in the possession of trustees under an attachment issued many months before, the condition of the composition could not be fulfilled by the insolvents, as they could not surrender to the assignees in France all them assets in the United States of America.</p> <p>The French creditors, therefore;' were not precluded (the composition not being a final discharge) from enforcing payment for the remainder of the claims due to them; and had a right, as creditors pro tanto, to participate; with the American creditors who had merely received dividends from the assignees in France, in the proceeds of the attachment in New-York.</p>

<p>Appeal from decrees against the appellant.</p>

<p>Motion in behalf of Samuel F. Righter, as a subsequent judgment creditor, to set aside judgment.</p>

<p>The bill was filed in this case to recover freight for the transportation of one hundred and fifty-one tons of coal.</p>

<p>Where an exception is taken to the decision of the court granting a non-suit, and the court does not order that .the case be sent at once to the general term, a motion for a new trial on such exception (before judgment) may be made at the special term. Such motions are embraced under the general head of motions for a new trial, in section 265 of the Oode. (As to the power of another ■ judge to sit in review of such exceptions, see Ryle agt. Sarrington, 14 Sow. 59; and Jaclcson agt. Fassit, 11 Sow, 453.)</p>

This is an application pursuant to an order to show cause why an order supplementary to execution for the examination of Kimball & Mudge, two of the judgment-debtors, should not be discharged.

This case arose upon an appeal by the defendant from a judgment entered against Mm, for the sum of $690.81.. The case was tried before Mr. Justice Slosson without a jury.

<p>Where in an action the facts are such that an order of arrest might have been obtained, an execution against the person may be issued, although neither the record shows such facts, nor an order of arrest has been obtained.</p> <p>And such execution may be issued without application to the court. The Code has made no provision for applying to the court or judge for leave to issue such execution. {It will he seen that this decision is adverse to that of Humphrey agt. Brown, 11 How. 481.)</p>

<p>Motion by libelants that defendants file nunc pro tunc a bond or stipulation for costs.</p>

The plaintiffs appeal from an order made in this action, on the 12th of March, 1859, denying a motion made by them for an order, that Malcolm Campbell pay to them, upon a judgment which they have recovered in this court against said Mary E. Foster, $650, which said Campbell received as a receiver of the property and effects of said Mary E. Foster.

Appeal by defendant from a judgment entered against him upon the report of a referee. Hills & Dennison, on the 7 th of July, 1853, made a contract with defendant, to make for defendant 20,000 forks, one-half two-tined, and the other half three-tined forks, to be made in a good ivorTcmanlilce manner. Defendant to furnish the material and pay for such labor $1,500.

<p>When a person forms a new word to designate an article made by him, which has never been used before, he may obtain such aright to that name as to entitle him to the sole use of it as against others who attempt to use it for the sale of a similar article; but such an exclusive use can never be successfully claimed of words in common use previously, as applied to similar articles.</p> <p>Words as used in any language cannot be appropriated by any one to his exclusive use to designate an article sold by Mm, similar to that for which they were previously used. That is, no person can acquire a right to the exclusive use of words, applied as the name of an article sold by him, if in their ordinary acceptation they designate the same or a similar article.</p> <p>Held, that if the plaintiff, in this case, can eventually sustain his legal right, by action, to the use of the name of “ Schiedam Schnapps,” as applicable to a certain kind of gin alleged to be manufactured and sold by him, he may then obtain the relief by injv/nciion he asks for; until then he is not entitled to it, as Ms right is expressly denied by the defendant.</p>

<p>The power of commissioners of highways to discontinue roads is limited to roads which have, since they were laid out, become, or proved upon trial to be, useless and unnecessary. It does not extend so far as to allow them, or a jury of freeholders called by them, to review and reverse decisions of the commissioners laying out the road, especially where the decisions have been affirmed on appeal.</p> <p>The proceedings of commissioners of highways for the discontinuance of a road are void where it does not appear that any ground is stated in the application for the discontinuance, and, also, where it appears that the proceedings were taken within four years from the time of the filing of the decision upon appeal, laying out the road.</p>

<p>Motion for a new trial.</p>

The action was to recover damages for a libel. The matter complained, of as libelous is set forth in the complaint with innuendoes.. The defendants denied the complaint generally; and then, for a second and further answer, alleged that the facts embraced in the supposed libel were substantially true, to wit: (then follow varioús allegations of facts, which, however, do not-entirely meet and cover all the libelous matter as stated in the complaint).

<p>Coin shipped from China, described in the invoices as “ copper cash,” which passes in China, by count as money, and the oniy coin there, cannot be imported into this country free of duty, or brought within the free-list, without at first proving that it was imported to be used as part of the currency of the country, or that it is, or was at the time of the importation, a part of such currency.</p> <p>• A protest made against the payment of the duty and penally on an article of importation, after the money is paid and in the hands of the collector, and the duty is ascertained comes too late.</p> <p>It seems, that a suit cannot be sustained for a balance of money paid for duties in the hands of the collector, where the amount was tendered to the plaintiflb before suit brought.</p>

<p>Where it appeared that the usual rate of commission at China, upon goods imported from there, was two per cent., held, that an additional charge of one-half per cent, therefor, at the custom-house, was error.</p> <p>The market value of goods at the port of exportation is the criterion to govern the officers at the customs; and any discounts that may be made to the parties purchasing are not to be taken into the account.</p> <p>Appraisers cannot add to the invoice value of goods, as a charge for export duty at the port of shipment, upon the ground that the invoice value is too low. If they regard the invoice value as too low, they must raise it by appraisal in the ordinary way.</p>

Jeremiah Russell, a judgment-creditor of the defendants, Brink and Snider, moves to set aside the judgment entered by confession in this action for the insufficiency of the statement, which is in the following words: “ The above indebtedness arose on a promissory note, made by the defendants to the plaintiff, dated June 21st, 1854, in the sum of seven hundred dollars with interest; that amount of money being had by the defendants of the plaintiff, and upon which there is…

<p>Hearing on return to habeas corpus.</p>

Motion by defendants to set aside proceedings for the claim and delivery of personal property, and an order for the arrest of the defendants, &c.

<p>"Where an. assignee of a judgment seeks to examine a judgment debtor, he should show in his affidavit that he has a right to proceed upon the judgment, and to move in the matter.</p>

The action was upon a note made by the defendant Wolf, payable to the order of one Corning, and indorsed by the latter and one Meach. The action was against the maker and the indorsers, and the defendants answered separately. Wolf obtained a verdict upon the trial upon a plea of infancy. The plaintiff 'had a verdict against the other defendants. Wolf procured his costs to be adjusted and entered judgment therefor against the plaintiff, without any award therefor by the court.

<p>Demurrer to complaint.</p>

Action for assault and battery. The defendants joined in a general denial answer, and on the trial the plaintiffs obtained a verdict against the defendants other than Attenburg, as to him, the plaintiffs failed. He presented his costs for adjustment to the clerk, who refused to adjust them, the plaintiff objecting that Attenburg was not entitled to costs. Also, that he should first have obtained the order of the court allowing him costs.

Demurrer to the return of the respondent to the alternative mandamus. The return and demurrer thereto present simply the question, whether notaries public are authorized, by chapter 860 of the Laws of1859, to take proof and acknowledgments of deeds, &c., in counties in which there are no commissioners of deeds?

<p>Appeal from an order.</p>

<p>Writ of error for a new trial.</p>

<p>It is a settled general rule of navigation, that when two sailing vessels are approaching each other on opposite tacks, both having the wind free, the one on the larboard tack must give way and pass to the right.</p> <p>But this rule should not prevail when, as in this case, it appeared-by the weight of evidence, that the course of the vessel on the starboard tack was to the Zeawaird, and somewhat astern of the other, and by suddenly coming around on her starboard taek produced a collision.</p>

<p>Appeals from deerees of the court below.</p>

<p>Motion by defendants on a case for a new trial.</p>

<p>A promissory note made and delivered for the purpose of assisting to form a mutual insurance company, under the act of 1849 (Laws of 1849, p. 441), is absolute, and payable at all events without any assessment. That is, such notes arc ordinary promissory notes, available for all the purposes for which such notes are usually available. (This decision follows that of White agt. Haight, 16 N. Y. B. 310.)</p> <p>(B appears that whenever the court of appeals finally decides a case, it intends to follow and adhere to the decision ; and whenever subsequent cases involving the same principle are brought before it, they will be decided entirely upon the authority of such former decision, without further reasoning or argument by the comi. Although this rule is well settled and generally understood by the courts, there are occasionally some singular exceptions.—[Rep.)</p>

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

<p>Motion to continue injunction.</p>

<p>In mutual insurance companies, organized under the act of 1849 (Laws of 1849, p. 441), there were “premium notes,” different and distinct from capital stock notes. And the premium notes were of a different tenor from the stock notes drawn according to the law (5th section); and controlled by different rules as to calls and collection.</p> <p>On these premium notes, given after the organization of the company, and in the course of their regular business, no action can be maintained, except it be to pay for losses or expenses actually accrued while such notes were in force, and after assessments made; they come within the decision of Bevendorf agt. Beards'ley (23 Bari). 656).</p>

The evidence in -this case showed that the plaintiff was riding as a passenger, in her brother’s wagon, on a highway in Delaware county, where they were met by the defendant, who was driving two horses and a wagon. A collision occurred between the two wagons, that turned over the one in which the plaintiff was riding, threw her out upon the ground, and injured her.

<p>The effect on a cargo of la/rd, shipped in very hot weather, is the melting of the lard, and when melted to shrink the staves and loosen the hoops of the casks and barrels containing it. In such case, the shipper takes the risk, and, unless one neglect or fault can be charged upon the vessel contributing to the loss, he is liable.</p>

<p>Witnesses, who attend the trial by request (without subpoena), in two causes, are .entitled to the full allowance of fees in each case, though the parties may be the same.</p>

<p>Motion for a new trial.</p>

<p>Whore an action was brought upon a promissory not efor $186, given on the settlement of accounts between the parties, and a defence interposed on the ground of a mistake in fact as to any amount being due to the plaintiff, and the referee, on tho trial, examined all the accounts between the parties, which exceeded $2,000, and corrected the errors committed in their settlement, which reduced the amount of the note down to $26.12, and thereupon reported his conclusions of fact, and added thereto his conclusion of law, “that the plaintiff recover of the defendant $26.12, with costs,"</p> <p>Held, 1. That by tho facts found a justice of the peace had no jurisdiction bf the action, and,</p> <p>3. That the referee’s conclusion of law, that the plaintiff recover costs, as well as damages, was correct.</p>

<p>Heabing on return to habeas corpus and certiorari.</p>

This action was brought to recover penalties incurred by the erection of four buildings in violation of the fire laws, particularly designated in the complaint, and for the judgment of the court in accordance with the provisions of the statute—■ that the several houses be' taken down and removed. When the cause was called at the special term, the plaintiff’s counsel moved that it be tried by the court without a jury. The defendant’s counsel claimed a trial by jury.

<p>This court, on appeal, upon a question of fact which has been established in the usual way, and with reasonable satisfaction before the commissioner, will not disturb the decree of affirmance of the court below, where the rebutting proof is very general and indefinite.</p>

<p>It is the settled practice, that a preliminary injunction cannot be sustained, when ail the equities of the complaint are denied by the answer.</p> <p>State Internal Improvement Bonds, and Railroad Bonds, are negotiable securities, the title to which will pass by delivery, and, unlike certificates of stock, are valid securities in the hands of bona fide holders against existing equities between the partes. *</p>

<p>Appeal from an order made at special term.</p>

<p>Motion by defendant for a new trial.</p>

The defendant was incorporated by act of the Canadian Parliament, June 16th, 1856, and its two termini fixed by the act, viz.: Goderich and Fort Erie. At the time of incorporation all the corporators were foreigners, and at no time since has there been any officer, agent or managing power resident or citizen of this state, with the single exception of one director for a short time. By act of the Mew-York legislature (Chap. 860, Laws of 1847, Vol.

<p>Where, in an action in personam, the court below ascertained, from the hearing before it, that the main questions in controversy were iu respect to accounts between the parties as master and owner of a vessel—held, that it was a proper case to be referred to a commissioner; it was not necessary that the testimony should be taken in open court.</p> <p>As a general rule, where the court below make a decree upon matters of fact depending upon a conflict of evidence, the appellate court will not disturb it.</p>

• Motion to strike out the whole of an answer as irrelevant, redundant, and immaterial. The action was for the specific performance of an agreement for the sale of real estate. The separate answer of Eldred contained a specific denial, a general denial, and six separate defences; the two latter—the six years and the ten years’ statute of limitations.

This case was argued in May last, on a mandamus proceeding against the defendants, to compel them to deduct the sum of $103,000 from a taxable capital of $750,000 levied upon their capital stock. The plaintiffs claimed that the said sum of $103,000 was a portion of their capital stock invested in stocks of the United States, and was therefore exempt from taxation under the constitution. The tax commissioners held to the contrary, and refused to abate the tax.

<p>Application for an order for the publication of the summons.</p>

<p>Where, in an action fortheforeclosure of a mortgage, the mortgagor and his grantee of the premises are made defendants—the latter only answering—the mortgagor is not a competent witness for the grantee, under section 39? of the Code to 'prove usw'y in the bond and mortgage.</p> <p>Because, under that section, the defendants would be jointly interested in such a defence, and a separate judgment thereon could not be rendered, the basis of the action being a single contract—the bond and mortgage.</p> <p>Whether the mortgagor might not be a competent witness on that question inhis own behalf, under section 399—qw&re?</p>

Motion to confirm report of sale under judgment of foreclosure. The action was brought to foreclose two mortgages. Judgment was rendered on the 27th of July, 1858. The amount due upon the mortgages was $3,240.90. The costs were taxed at $284.28. The judgment directed that the mortgaged premises be sold, and that these sums, with the interest, be paid out of the proceeds.

<p>The defendant made and signed an order in these words: “ Messrs. Poster & Lee, Gents.: Pay to Joseph Lenx, or order, the sum of $68.50, in such furniture as he may select, and charge the same to my account, for value received,” and upon the back of this order Joseph Lenx wrote: “ Pay to Henry Lenx,” and signed his name thereto. The order was given for a bona fide indebtedness.</p> <p>Hdd, that the order not being either a bill of exchange or promissory note, it was not transferable at law by indorsement merely; but in equity the indorsement invested the plaintiff with all the rights of Joseph Lenx, and entitled him to recover against the defendant.</p>

Motion to substitute new referee. The action was commenced on the 16th of December, 1857, by the service of a summons and complaint. On the 23d of January, 1858, and within the time allowed the defendant, by an order obtained for that purpose, an answer was served. The answer contained a counter-claim. On the 10th of February the plaintiff served a reply to the counter-claim. On the first of March the defendant served an amended answer.

<p>Motion for the continuation of an injunction, and the appointment of a receiver.</p>

This was an action of trespass quare clausum fregit, brought in a justice’s court, for cutting and carrying away a quantity of hay. There is nothing either in the complaint or in the evidence offered on the trial showing the locus in quo, or even the town, county, or state, where the alleged trespass was committed.

<p>Appeal from a justice’s judgment.</p>

<p>Appeal from a judgment rendered by a justice of the peace.</p>

<p>Where the terms for vacating a judgment, and letting the defendant in to defend, were stated to be “ all the costs of the hearing before the referee in this action, and of the proceedings subsequent thereto ”—held, that the sum of $10, allowed by the Code, for aM proceedings after notice and 6efore trial, was properly taxable.</p>

This was an action commenced by the above-named respondents, before James H. Brown, a justice of the peace of the county of Ulster, against the appellant, for violations of sections thirteen and fourteen of the act entitled, “ An act to suppress intemperance, and to regulate the sale of intoxicating liquors,’’ passed April 16, 1857.

At the April special term, held at Albany, in the third judicial district, the plaintiff and defendant made counter-motions to set aside the different judgments entered in this action. The first judgment was entered by the plaintiff on the 15th day of November, 1858, in the first judicial district in the city of New-York, and the second by the defendant in the third judicial district in the county of Rensselaer, on the 29th of December, 1858.

<p>In claims for salvage, the courts always look to the nature and character of the service, the time consumed by the salvors, the peril involved, the expense, as well as to the situation and condition of the vessel saved, and its value, in fixing compensation.</p> <p>As a general rule, the rate of salvage of a vessel, which is derelict at sea, is a moiety of her value. This, however, except in very special cases in which great hardships and damages have been encountered, is the extreme limit.</p>

<p>The defendant, in hia answer, setup as a defence to an action on hia promissory note, that the note was given upon a representation that the Antioch College (the note being given for a scholarship in said college), would he located in Western New-York, and that the directors had decided on such location, which the defendant believed to be true, when it was in fact not true, nor was such college established in Western New-York. That the note was obtained in consequence of such false representations, and, therefore, there was a failure of consideration.</p> <p>Meld, on demurrer, no defence at all.</p>

<p>Where it appeared that the complainant made three tills of sale, absolute on their face, of three steamships owned by him, but in fact as a security for a han of $100,000, upon a usmious contract, in which was secured more than 1 per cent, for the forbearance of the loan,</p> <p>Held, that the contract and bills of sale were void iu law, and must be set aside, and that the complainant was entitled to be restored to his interest in and possession of the vessels, or, in case either of them could not be restored, was entitled to its value.</p>

These actions were tried together before a referee. They involved the same legal questions. In each action the referee reported in favor of the plaintiff. Judgment was perfected, and written notice thereof was served on the defendant’s attorneys on the 5th of October, 1857. The service was made by mail.

<p>Demurrer to complaint.</p>

<p>Appeal from a decree dismissing libel.</p>

<p>Although, in an action founded on a hill of exchange or draft, there is no right of action against the drawees, where on presentation they refused to accept, yet, if the complaint alleges that, on an accounting had between the drawers and drawees, there was left in the hands of the drawees, by the drawers, sufficient money to pay said draft, and which the drawees then agreed to pay to the holder, it is a cause of action on a promise made to a third person for a fixed consideration, and valid.</p>

This is an action brought to recover penalties for violation of the excise law (Tit. 9, Ch. 20, Part 1, of the Revised Statutes), by persons other than the overseers of the poor, in their names and title of office, upon giving the proper security, by virtue of chapter 285 of Session Laws of 1854. The complaint claims for four violations of section 15, title 9, chapter 20, part 1st, of the Revised Statutes.

This was an appeal from the decision at oyer and terminer of Justice Roosevelt, granting a new trial to the defendant. The reasons of the judge were given as follows:

Motion to stay proceedings, &c. On the 13th of October, 1857, this action was commenced to recover the possession of a store of goods, which the defendant had taken by virtue of attachments against one Thomas Canavan. On the same day, the coroner, to whom process for that purpose had been delivered, took possession of the property, and still retains the same. The value of the property was $22,100, according to the plaintiff’s affidavit.

<p>An indictment, in other respects correct, is not invalid by reason of not containing the signature of the district-attorney—that office being vacant (by death) at the time the indictment was found.</p>

<p>Motion for a new trial, on judgment on report of referee.</p>

Motion that clerk re-adjust costs. The action was tried at the August circuit, 1853 j at the April circuit, 1857, and at the August circuit, 1857, when the plaintiff had a verdict. The defendant, upon exceptions, obtained at special term, an order granting a new trial, costs to abide event. Upon appeal to the general term, the order was affirmed with costs to abide the event. The action was again tried at the June circuit, 1859, and the defendant had a verdict.

This was an action on a policy on freight on the ship Samuel Willetts, and was tried before Justice Pierrepont, who rendered the following decision:

The plaintiff sued John J. Bell as the maker, and Daniel D. Bell and Meeker Gorham as the indorsers of a promissory note, in this action. They all defended, having put in separate answers. The cause was tried at the Ulster circuit. The jury rendered a verdict in favor of the plaintiff against John J. Bell, and against the plaintiff in favor of the defendants Daniel D.' Bell and Meeker Gorham.

The cause was tried before Chief Justice Bosworth, and a jury.

A writ of habeas corpus, issued on the petition of the father of Thomas Tobano, directed to the Governors, &c., of the House of Refuge, commanding them to produce the body of said Thomas, &c., was served upon the officers of that institution, to which they returned, that at the time of the allowance of said writ, the said Thomas was not nor had been at any time since, nor was he now, in their possession or custody, or under their control, power or restraint, or by them…

This is an application for an order under section 244 of the Code, that the defendant satisfy ¡Dart of the plaintiff’s claim.

This' is a motion to dismiss the summons and complaint issued in this action, to vacate the order of attachment, and to set aside the order authorizing service on the defendant by publication.

<p>The New-York and New-Haven Railroad Company, under the decision in the Mechanics’ Bank case (3 Kern. 599), are not liable in an action on the case for the fraud of Schuyler, in inducing a loan upon the faith of the false andfraudu lent certificates of stock issued by him, and transferred by him on the books of the company (but no now certificate given) prior to making the loan.</p>

<p>Without a patent from the government no one has an exdvsive right to manufacture and sell pills as a usefgl invention.</p> <p>Therefore an injaction will not be granted to restrain an innocent defendant from manufacturing, advertising or selling by any name, designation or trade-mark whatsoever, pills precisely like those manufactured and sold by the plaintiff, and by the name designated by him, or pills composed of the same elementary , constituents.</p> <p>But where it appeared that the defendants, in having connected themselves with the plaintiffs in the business of manufacturing, advertising and selling pills by a. particular name or designation, and having induced the plaintiffs to expend large sums of money in advertising, &c.,. the pills so manufactured; and then suddenly and without notice, in an unjustifiable manner and apparently from improper motives, severed their connection with the plaintiffs and setting up the same business for themselves,</p> <p>Held, that an injunction be granted, restraining the defendants from using the name or designation used by the plaintiffs, in designating, marking, labeling, advertising or selling the pills manufactured by the plaintiffs; and also restraining the defendants from using- either of the labels or trade-marks of the plaintiffs, or any other labels or trade-marks, made so similar to the plaintiffs’ as would be calculated to deceive the public.</p> <p>If the pills are an innocent humbug, the defendants have no right to deprive the plaintiffs of the reputation and customers which the plaintiffs’ money has been ■ the means of acquiring for the pills and themselves; especially as the expendi- . ture was in a great measure induced by the defendants.</p>

This action was prosecuted to recover damages for the alleged wrongful killing of Gustavus Bernhardt, by the defendants, in ¡November, 1846, by running a locomotive engine against him in the city of Schenectady, producing injuries of which he died. The defendants by their answer denied all negligence or improper conduct on their part, and claimed that the injuries were occasioned by the negligence of the said Gustavus Bernhardt.

<p>The action was brought by the present plaintiff, as assignee of the firm of W. & A. Crumbie & Randall, against the defendant as sheriff, to recover from him certain personal property which it was alleged he wrongfully detained.</p> <p>The case was tried before Mr. Justice Slosson and a jury, and the learned judge directed the complaint to be dismissed. Judgment was entered to that effect on the 9th' day of June, 1859. A motion for a new trial had been made and denied on the 19th day of May, 1859. From the judgment and the order denying a new trial, the present appeal was taken.</p> <p>The defendant justified his taking the property demanded, by virtue of an execution issued upon a judgment recovered by Bunce and others, against' the firm of W. & A. Crumbie & Randall, on the 7th day of May, 1855, for $603.39, The execution was put in his hands on the 23d day of May ; and, during the lifetime of the same, he levied upon the property in question.</p> <p>The goods had been delivered to the plaintiff under the provisions of the Code. The defendant demanded, in his answer, the return of the same, or the full value of the goods to be assessed, with damages.</p> <p>The jury at the trial assessed the value at the sum of §797.70.</p> <p>The judgment entered was in favor of the defendant against the plaintiff for the return of the property described in the complaint, or, in case a return thereof could not be had, for the recovery of the value as assessed by the jury, viz., §797.70, and also that the defendant recover of the plaintiff his costs, including interest on the verdict.</p> <p>The assignment under which the plaintiff claimed was dated the 31st day of January, 1855. It purported to be made between William Crumbie, Alexander Crumbie, James McLean and Henry Eandall, doing business under the firm and name of W. & A. Crumbie & Eandall, of the city of Hew-York, of the first part, and Daniel L. Pettee, of the second part: it recited the indebtedness of the firm to several creditors, and its inability to pay them in full; and transferred some property specifically mentioned, and also all and singular, every and any other property of whatsoever description, and wheresoever situated, belonging to the said parties of the first part. The trusts and purposes were as follows:</p> <p>To have and to hold the said estate, and all and singular the premises hereby bargained and assigned, unto the said party of the second part, and his legal representatives, to his own proper use and benefit forever. In trust, nevertheless, and this indenture of assignment is hereby declared to be made upon the trust and confidence, and for the uses, intents and purposes herein specified, that is to say,</p> <p>First. To sell the estate, and all and singular the property hereby bargained and assigned, at public auction or at private sale for cash, and for the best prices that can be obtained therefor, as soon hereafter as practicable; and to demand, sue for, and collect all debts and demands of every nature whatever, that now are or may become due to the said parties of the first part.</p> <p>Second. Out of the proceeds coming into the hands of the said party of the second part, to pay and satisfy all reasonable fees, costs, charges and expenses which the said parties of the first part now owe, or have been put to, by reason of legal advice tending to and comprehending the making and execution of this indenture, and other papers necessary and proper to carry the objects of this indenture into effect, including the costs and expenses allowed by law.</p> <p>Third. To pay any costs, charges and expenses (out of the proceeds) to which the said party of the second part may be put or rendered liable in originating, prosecuting and defending suits otherwise in- aid and furtherance of the object, intention and execution of this indenture.</p> <p>Fourth. To pay (out of the said proceeds) the several creditors mentioned in schedule A., hereunto annexed, the amount of their respective debts in full; or, should the proceeds bo insufficient for that purpose, to appropriate them to the last mentioned creditors in proportion to their debts respectively.</p> <p>Fifth. After satisfying the aforementioned trusts, to pay, out of the said proceeds, all the rest and remainder of the creditors of the said parties of the first part, their respective debts in full; or, should the proceeds be insufficient for that purpose, to appropriate the residue and remainder of the said proceeds to the last mentioned creditors in proportion to their debts respectively.</p> <p>There was also the usual clause constituting the party of the second part the lawful attorney of the parties of the first part.</p> <p>The instrument was signed with the partnership name and seal, and by William Orumbie and Henry Randall, with their respective seals.</p> <p>The schedule of preferred creditors shows a liability of $1291.50, and to numerous other persons in small sums, being, in the aggregate, about $330,000.</p> <p>It was proven, on the trial, that Alexander Orumbie was absent from the state of New-York, and on his way to California on business of the firm, and that McLean, who resided in Brooklyn, was also absent, and in the island of Cuba on business of the firm, at the time the assignment was made.</p> <p>It was also proven that such assignment was never executed or ratified by Alexander Crumble and James McLean, or either of them, and was dissented from by them as soon as they received notice, or had any knowledge, that said assignment had been made.</p>

<p>Where the plaintiff recovers judgment on contract against three out of four joint debtors, he may, under section 315 of the Code, serve a summons on the fourth defendant, who was not served with summons in the original action, to show cause why he should not be bound by the judgment</p>

<p>Motion to vacate assessment for work in setting curb and gutter, &c.</p>

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

<p>Motion by plaintiff for leave to prosecute as a poor person.</p>

<p>There was a recovery in the justices’ court against the defendant, who was a path-master, and defended his acts as such officer. He appealed to the county court, and the judgment was reversed. The plaintiff then appealed to the supreme court, where the judgment of the county court was affirmed. And the question presented is, to what costs is the defendant entitled ?</p>

<p>In an action on contract, an execution cannot be issued on a judgment recovered thereon, against the person of the defendant, under section 288 of the Code, unless an order to arrest and hold him to bail was made therein before judg ment was recovered.</p> <p>The only actions in which such an execution can issue, where the defendant was not held to bail before judgment, are those in which the cause of action, established by the judgment-roll, creates per se the right, under sections 119 and 181, to arrest and to hold to bail.</p> <p>Where the right to hold to bail depends upon extrinsic facts, and not upon the nature of the cause of action itself, that right must be asserted and determined before judgment, in the manner prescribed by the Code; and if that be not done, no execution against the person of the defendant can be issued upon the judgment. (So we thought, notwithstanding the decision in Lockwood agt. Van Slyke, ante, p. 45.—Rep.)</p>

The defendants put in a joint answer, justifying the taking of the goods for which the action was brought, by virtue of an attachment in an action in this court, in which the defendant Lovell, and one Oolles, were plaintiffs, and Franklin W. Bradley was defendant. It is alleged, in the answer, that the defendant Lovell acted in aid of the sheriff. The defendants, on the trial, had a verdict in their favor.

<p>The statement of the case appears in the opinion of the court.</p>

<p>it is not necessary, on an indictment for obtaining money on false pretences, to prove all the false pretences or representations alleged in the indictment. If any material portion of them is proved, it is sufficient.</p> <p>The declarations or admissions of a party are equally good as ovidenee, whether made before or after the offence charged against him.</p> <p>It is not necessary, even on an indictment for perjury, to prove the identical words or language of the party charged; it is sufficient to prove substantially what he said, and all that he said, on the point in question.</p> <p>The prisoner in this case, having been indicted for obtaining money by false and fraudulent pretences, in selling a false passage ticket from New-York to Bremen, and it appearing, in evidence, sufficient to submit the question to the jury, that the prisoner was acting in concert with another person, who acted as his clerk, and who carried on the negotiation, and consummated the sale with the applicant, in the German language, in the presence and hearing of the prisoner, although it was not shown that the prisoner understood the German language,</p> <p>Meld, no error in the court, in charging the jury, to say that it was not necessary, in making out false pretences, that words alone should be used; the pretences might be gathered from the acts as well as the words. A falsehood could bo acted as effectively, in many instances, as it could be spoken.</p>

Motion by defendants to stay the plaintiffs’ proceedings in this action, until the determination of an action pending in the superior court between the same parties.

<p>No trustee can, directly or indirectly, become the purchaser of the subject of his trust.</p> <p>"Where, on a motion to reform a deed of real and personal property, and to settle the question as to whether the conveyance was made subject to the payment, by the purchasers, of an incumbrance of $41,000, in addition to the consideration of $50,000-expressed in the conveyance, or whether their title was to be free and clear of all incumbrances, on payment of such consideration,</p> <p>Held, it appearing that the conveyance was made between parties who were executors, and in relation to the property of the testator, (which was, in fact, corporate stock), that the deed was void as against all the parties in interest who did not consent, or who, being under age, were incompetent to consent. Therefore, a reference was ordered, to inquire into the true value of the property at the time of the consummation of the sale, and reserving all further directions, as to whether the deed should be modified, annulled, or affirmed, until the coming in of the referee’s report.</p>

<p>Where a ship had been towed to sea, and had passed the bar outside of Sandy Hook, and was in the act of talcing in her hawser, with only her maintop stay sail sot, and at this time a Mexican steamer, with her steam up and sails set, hove to within a quarter or half a mile of the ship, for the purpose of sending back to New-York, by the tug which towed the ship, a pilot and some passen- . gers, and, within some ten or fifteen minutes thereafter, the vessels drifted together causing a collision;</p> <p>Held, that upon the weight of testimony the steamer was in fault, and could not sustain the libel: she had, her steam up and sails set, and it did not appear that any effort was made, by the use of either, to avoid the collision. The steamer took the risk of the collision and damage by heaving to so near the ship, with a flood tide tending to set in that direction—the ship being unable to set sail until her hawser was taken in.</p>

<p>Costs should he taxed according to the fee hill in force at the time of the rendition of the tosí verdict in the action. (Zb the same effect is Jackett agt. Judd, ante, p. 385.)</p>

Motion by defendant to dissolve an injunction, obtained by plaintiff, ex parte.

This was an application on behalf of the comptroller to vacate and set aside a judgment for $13,974.58 obtained by the plaintiffs, against the corporation, on the 26th of September, 1859.

<p>Petition, by Charles A. Davis, appointed special receiver as the successor of John J. Palmer, deceased, for leave to file a supplemental complaint, and that the suit be continued in his name, as the successor of Palmer, as such special receiver.</p>

<p>Tha fifth section of the act of 1859, (Laws 1859, p. 1127), authorizing the comptroller of the city of Hew-York to take all proper and necessary means to open and "reverse any judgments against the city, which he shall have reason to believe was obtained by collusion or founded in frand, is not unconstitutional.</p> <p>An affidavit of tlio comptroller, that ho has reason to believe that the judgments were obtained by collusion and fraud, is not of itself sufficient to entitle him to have the judgments opened or reversed. It is sufficient, however, to entitle him, on application to the court, to “take all proper and necessary means to have them opened or reversed;” but it rests in the sound discretion of the court whether the application will bo granted or not. (This case, and the three following, were judgments obtained against the city upon report of sole referees, and were severally set aside, and new trials ordered, upon the facts disclosed in the respective cases.)</p>