Volume 2 — Edmonds's Select Cases

<p>Wliere trustees, without permission of the court, and against the remonstrance of the cestui que trust, diminish her income some fourteen per cent, and claim the right to do so at their pleasure, and without cause, one remedy is to remove them.</p>

The defendant was indicted for a misdemeanor. He had been sued in an action of trover before a justice of the peace, in Buffalo, and, after a trial, judgment had been rendered against him. On the rendition of the judgment, the immediate issuing of execution was demanded. He requested time to obtain security to stay execution, which was granted to brm, and he left the office of the justice.

This was an action of assumpsit on two promissory notes, payable to plaintiffs, for $150 each. Plaintiffs were merchants in Ohio, and goods bought by them in New York, for their trade, were seized on their transit through Buffalo, on an attachment against them as nonresident debtors. To relieve then* goods from the attachment they gave a bond under the statute, which the defendants signed as their sureties.

The defendant contracted with plaintiffs to bring for them 7,400 bushels of wheat, from Chicago to Buffalo, at 14 cents per bushel, freight, and to be done at the opening of the navigation. It was proved that if shipped by the first trip, the wheat would have arrived at Buffalo 1st of June, at which time it was worth $1,45 per hushel at Buffalo.

This was a complaint filed against the' defendant, as the indorser of a promissory note, to which the defendant had put in an answer, denying that he had received any consideration for his indorsement. Ho affidavit of merits being filed, an inquest was taken at the Orange Circuit, in October, 1848. At the time of rendering the verdict,

This cause came on to be tried at the Orange Circuit, in October, 1848.

<p>On a motion for judgment by reason of the frivolousness of a demurrer to a complaint:</p> <p>Held, that the Code is constitutional.</p>

This was a suit in equity, in which the defendants, after obtaining an extension of their time to answer, by consent of the plaintiffs’ solicitor, had put in a demurrer to the bill. The plaintiffs moved to set aside the demurrer as irregular; that motion was denied. They now moved to take the demurrer off the file, for frivolousness.

<p>In an action to recover the price of goods sold and delivered, and work done, the summons stated that the plaintiff would apply to the court, on a specified day, for the relief demanded by the complaint. On motion for judgment for want of an answer,</p> <p>Sdd, That the summons was in the wrong form, and that the motion for judgment must be denied.</p> <p>That the mistake in the form of the summons was not within section 145 of the Code.</p> <p>That section 145 of the Code applies only to mistakes in “pleading,” and not to “process.”</p> <p>That although the court may have power to amend the process, it could only be done on a motion therefor.</p>

After service of the copy of complaint in this action, and before the defendants’ time to answer expired, and before any answer had been put in, the plaintiff served an amended complaint. At the expiration of the period of twenty days from the time of the service of the first copy of the complaint, the defendants not having put in any answer, the plaintiff signed judgment; amotion was now made to set that judgment aside.

<p>This was a motion for an order to examine a person under section 249 of the Code. The motion was founded on an affidavit that the party sought to be examined “ has property of the judgment debtor, or is indebted to him,” these being 'the precise words of the statute.</p>

<p>Frivolous answer—practice as to.</p>

This was an action of assumpsit tried at the New York Circuit, September, 1848. It was brought on a promissory note signed by S. W. Haight & Co., and was given for a bill of goods bought of the plaintiffs in 1843.

Inobease Cbosby, by his last will, devised as follows: “I will and bequeath to my daughter, Mary Lewis’ children, the farm which I purchased of the Seggars, called the Seggar farm, together with the one hundred acres I purchased from Dr. John Morrison, to them and their heirs forever.

<p>On the return to a writ of habeas corpus, sued out for the prisoners, it appeared they were detained on a fall warrant of commitment for trial on a charge of grand larceny, issued by one of the police magistrates- of the city.</p> <p>They filed their allegations, in answer to the return, setting up that they were arrested without warrant, by a person not a police officer; that when taken before the magistrate he refused to examine the complainant in their presence, though they demanded it, and committed them for trial. The allegations also averred the innocence of the accused, and that the money they were accused of stealing was given to them under pretense of teaching French, but really for purposes of seduction.</p> <p>On filing these allegations,</p>

On the 5th of June, 1848, the plaintiff’s attorney filed the judgment record in this action; at the time of the filing the clerk indorsed on the record, “ Filed 5th June, 1848,” but did. not then sign the record. On the 23d August, 1848, the defendant’s attorney searched in the office, and found that the record had not been signed by the clerk, and he then gave notice of motion to set aside the judgment on that ground.

<p>Affidavits should he free from erasures and interlineations.</p> <p>The court will in some cases require further evidence of the truth of the complaint, than the affidavit of the plaintiff of his belief that the complaint is true, before it will authorize the signing of judgment.</p> <p>A memorandum indorsed by the defendant on the hack of the complaint, and signed by him, may in some cases constitute a valid answer.</p>

Ceoss motions had been made in this case at a Special Term, which resulted in an order denying the plaintiff’s motion, and granting the defendant’s motion. From this order the plaintiff sought to appeal with a stay of proceedings. For this purpose he filed an undertaking, and served a copy. A certificate from a judge, pursuant to. section 299 of the Code, had been obtained, but no copy served.

Ok the 7th of November, 1848, an order in favor of the plaintiff was made in this cause at a Special Term of this court. On the 13th or 14th of November, the defendant had a written notice of the order. On the 24th of November, the defendant served on the adverse party a notice of appeal, and on the 25th of November, served a like notice on the clerk.

The complaint in this action was filed by the husband against the wife, to obtain a divorce on the ground of adultery; it contained averments of various acts of the defendant, which tended to show her guilt. The defendant moved to strike out from the complaint all such averments confining the complaint to the simple allegation, that on a certain day, and with a certain person, the defendant committed adultery.

This was an action for a money demand against a nonresident debtor. The proceeding being by an attachment in the ordinary form, judgment had been entered for want of an answer.

Lsdictment for murde. In the early part of an evening, in November, the deceased and the prisoner, both of whom were laboring men, both common drunkards, and both then intoxicated, ran against each other in the street. A scuffle ensued between them, which resulted in the deceased being thrown or knocked down, and prisoner was led away by some of the bystanders.

<p>The prisoner was indicted with one Hesbit for the murder of Timothy Shea. on the 28th September, 1848, by firing a pistol at him.</p> <p>The indictment contained two counts. One charging that the pistol was fired by Austin by the aid and procurement of Hesbit, and the other that the firing was by Hesbit, and that Austin aided and encouraged.</p> <p>After the testimony for the prosecution closed, which tended to show that Austin had fired the pistol,</p>

<p>Where an answer denies a material allegation of the complaint, and as a separate defense sets up new matter in avoidance of the cause of action, and the plaintiff omits to reply thereto, the defendant is not entitled to judgment for want of a reply; hut where the denial is merely a part of the new matter, and for the purposes thereof, there the defendant may move for judgment for want of a reply.</p>

<p>Dying declarations.</p> <p>In what cases admissible in evidence.</p> <p>The evidence necessary preliminary to their admission.</p> <p>Their weight with .the jury, and how they are to be considered by them.</p>

The prisoner was indicted for murder. He was a young man, about twenty years old, who earned Ms living by opening oysters and peddling fish. He was well known as Bill Jackson, aboiit the Five Points, where he lived with a prostitute in a house of ill fame. He was addicted to the use of liquor, and when drunk was violent and abusive, and, as some of the witnesses said, it made him crazy.

The prisoner was indicted for murder. In impaneling the jury, the prisoner challenged a juror for principal cause, on the ground of having formed and expressed an opinion as to his guilt or innocence. The challenge was tried by the court, and judgment rendered that the challenge was not true. The prisoner then interposed a challenge to the favor, on the ground of bias, in having formed an opinion.

Indictment for arson in the first degree. The prisoner was a negro, of about thirty years of age, who earned his living by doing any work that was offered. Held: and made his escape into the street, where he was arrested by the police. At that moment the alarm of fire was given from the upper part of the house, and it was found that the building was on fire in two places in the garret.

To a complaint filed to recover possession of personal property, the defendant put in an answer setting up the recovery of a judgment, and the issuing of an execution, against one Edward Floyd, with an averment that the goods declared on were the property of Edward Floyd, and as such had been levied on to satisfy the execution.

On the 21st day of December, 1848, on an affidavit made by Thomas Peck, of the city of New York, setting forth that on the 20th December… Held: and (as I believe) proceeded to Lynn, in the State of Massachusetts, and from thence to the city of Hew York. “ That on Wednesday last, the 20th of December, instant, I caused the said Belt to be arrested and brought to me, from which time, and until the service of the annexed writ, he was in my custody and control, as Ms master and…

This was a criminal complaint against the officers by whom: the habeas corpus in the preceding case of Belt, had been served. The facts sufficiently appear in the opinion of the justice. For the defendants appeared on the hearing, John Jay, M. JB. Field, amd Asa Child.

The defendant was indicted for seduction, under a statute passed March 22, 1848, which enacts that any man who shall, under promise of marriage, seduce and have illicit connection with any unmarried female of previous chaste character, shall be guilty of a misdemeanor, etc., provided that no conviction shall be had on the testimony of the female seduced, unsupported by other evidence.

This was an action brought pursuant to a statute passed December 13, 1847, which enacted that 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, the person or corporation which would- have been liable if death had not ensued, shall be liable to an action for damages,…

<p>An action for a malicious prosecution cannot be maintained until the prosecution alleged to be malicious is ended; and the mere fact that the accused was discharged from the recognizance entered into by him at the time of his arrest, is not such a termination of the prosecution as will warrant an action.</p> <p>The question of probable cause, where there is no dispute as to facts, is a question of law for the court to determine; and in such case it is competent for the judge, at Nisi Prim, to order a nonsuit on the ground of there being probable cause.</p>

The complaint was on two drafts on, and accepted by, the defendants. The defendant, Ferguson, pleaded that “ he denies that the defendants, in said complaint mentioned, did, as therein alleged, accept the drafts in said complaint mentioned, or either of them,” which was verified as required by the Code.

Dudley was in possession of the bar and saloons of the Chatham theater, claiming under a lease of the same. While he and his assistants were thus in possession, two of the defendants came in and demanded the keys. He refused to give them. They then said they would take possession. He replied if they did they must do it forcibly. They replied that that was what they meant to do, for the other two defendants, who were not present.

The prisoner was indicted for an attempt to set fire to the Astor Place opera house. On the evening of the Macready riot the prisoner was arrested in the crowd, by the police, and in company with others was handcuffed and taken into the building, and confined with six or eight others in a small room, which was used by the police, temporarily, as a lock-up for the persons arrested on that occasion.

Demurrer. The defendants, in their answer, set up a claim to the avails of a note which was the subject-matter of this suit, by virtue of an agreement signed by one Britton, as attorney for Amelia Postley, one of the defendants.

This was an appeal from a decree of the Surrogate of New York, refusing to admit a will to probate. The appeal was heard before the late circuit judge of the First Circuit, and the decree reversed, and a feigned issue awarded, to be tried under the statute, at the Circuit.

The prisoner was indicted for murder. He was an Irishman, and had emigrated to this country in 1847. In 1850 he lived with his family in the lower part of Pearl street, and kept a small store in the basement. His wife kept boarders, among whom was William White, the deceased. Prisoner had made a bargain with White to sell out the store to him for $450, on which $80 had been paid.

In this and two other cases attachments were taken out against the defendant as a non-resident. It appeared that he liad formerly resided and married in this State, and had then emigrated to Indiana, where he had been engaged in mercantile business, in which he had failed.

In Equity. The hill was filed in December, 1846, in the Court of Chancery, by the complainant, one of the heirs. legatees, and next of kin, of Charles Carroll, deceased, against the executor, Charles H. Carroll, to obtain a full account of the testator’s personal estate, the disposition thereof by the executor, the moneys received by him from the real estate, and what dispositions he had made of them; and a general account of the defendant’s transactions as executor • and…

This was an action for the recovery of personal property. It appeared that the plaintiff had claimed the immediate delivery of the property, under chapter two, title seven, of the Oode, and that he had served the sheriff with the affidavit, notice and undertaking, required; that the defendant had excepted to the sureties named in the undertaking, and they had omitted to justify; and that afterward the sheriff made a return that the goods in question had been concealed,…

<p>A receiver who prosecutes or defends an action as such, without leave of the court, first obtained, is liable personally for the costs.</p> <p>The plaintiff commenced this action as receiver without obtaining the leave of the court appointing him, and having failed in his action, a motion was now made for costs against him personally.</p>

On the 14th of September, 1837, Mahoney and Trull brought an action of replevin, in the Common Pleas of New York, against the sheriff and others.

The parties to this suit were husband and wife, and had been residents of this State, where the defendant had a large property. Claiming to have changed his residence to Pennsylvania, he applied to the legislature of that State for a divorce, and also commenced a suit for that purpose in the courts of that State.

The defendant was brought up on habeas corpus, and on the return of the writ it appeared that he was in custody on a warrant, issued by a police magistrate, charging him with having defrauded one Benjamin Kathan out of certain stocks in an incorporated company. The defendant put in an answer to the return, denying that there was any complaint or any testimony before the committing magistrate.

Lsdiotmeht for murder. The prisoner was a Frenchman, and had been only a short time in this country. At the house where he boarded he became acquainted with a French family named Rosseau, consisting of a father and three sons. Rosseau bought a drinking saloon, and paid for it in the prisoner’s presence, and thus the fact that the deceased had money, and where he kept it, to wit, in a particular trunk, became known to the prisoner.

The prisoner had been tried and convicted of the murder of Charles M. Rosseau. A writ of error having been allowed by Justice Harris, with a stay of proceedings, a motion was made before the Supreme Court, sitting in the first judicial district, where the writ was returnable, to quash the writ of error and to vacate the stay of proceedings. The grounds of the application are fully set forth in the opinion of the court.

The prisoner was indicted for murder. He was a young, man, about seventeen years old, and was born in Ireland. His father had been a drinking man, and had died of cholera. The prisoner worked occasionally as a carpenter, but had no steady occupation. He was the leader of a gang of young men, on the east side of the town, known as very disorderly and turbulent. Some of them were known to the police as Fighting Tom, Butcher Bill, Four-fingered Dutch, and Johnny.

<p>In an action in which an injunction is prayed for, all persons interested in the subject-matter in suit must be made parties, except where the persons interested are so numerous that it would be impossible, or productive of great inconvenience, to make them all parties, in which case one of the persons interested may sue on behalf of himself and all others equally interested with him; but a plaintiff suing thus must distinctly state, in his complaint, that he sues as well on behalf of himself as on behalf of all others equally interested with him.</p>

<p>The affidavit in support of an application for an attachment, averring the party’s belief in the existence of facts which warrant the issuing of an attachment, should disclose the ground of such belief, to enable the judge to whom the application is made to form a belief on the subject.</p> <p>An attachment granted on an insufficient affidavit will be set aside on motion. But—</p> <p>Where the motion to set aside an attachment is made upon affidavits on the part of the defendant, the plaintiff may introduce affidavits on his part, and if, by all the affidavits in the case, sufficient appears to warrant the issuing an attachment, the court will not set it aside for any insufficiency in the affidavit on which it issued.</p> <p>What is a concealment to avoid service of process.</p>

Motion to' dissolve an injunction issued to stay summary proceedings by the defendant, to remove the plaintiff from certain premises.

The prisoner was indicted for murder, in poisoning Ms wife. They were natives of France, and were married there. He left her there, and came to America. Alter a while, she followed him, and on her arrival, she found him living with another woman, hy whom he had a- cMld, but to whom he was not married. This other female, Margaritta Lorenz, did not know that he was married, but urged him to marry her, wMch he promised to do when their cMld became old enough to be christened.

The District Attorney moved the sentence of the court on Otto Grunzig, convicted of the murder of his wife. Mr. Joachimssen moved for time to prepare a case or a bill of exceptions. The Revised Statutes, he said, gave two modes of proceeding in cases of this kind. One by a writ of error, the other by a bill of exceptions, wdth a certificate of the judge that there is probable cause for review.

The prisoner was indicted for murder. He was an Irishman, and young. He supported his widowed mother, and kept Ms mistress. He had a trade, and was industrious. He drank occasionally and became disorderly. He was a member of a fire company, wMck had frequent fights with another company, and distingmshed himself in its brawls. About a year before the homicide in this case he had been stabbed by a discarded girl, and thenceforth carried a pistol about his person.

The prisoner was put to the bar for sentence, with three others convicted of homicide. The district attorney rose and said: In the case of Michael Mulvey, it is my painful duty also to move the judgment of the court.

This was an application to strike out certain objectionable averments in a complaint. The action was for goods sold and delivered, and the complaint averred that the plaintiffs sold certain goods to one Maitland, as the agent of the defendant, and that the goods afterward came into the possession of the defendant. The motion was to strike out of the complaint such parts' as averred the sale to the agents.

The prisoner was indicted for murder. She was an Irishwoman, and addicted to the use of liquor. She and her husband occupied rooms in a tenement house, where were four or five other families. She was of a violent, bad temper, and quarrelled with other occupants of the building because they would not associate with her. One day one of the other inmates was washing in the hall of the building, when the prisoner came out of her room and used abusive language toward her.

<p>Where depositions were taken pursuant to the Code of 1848, and pending the suit and before the trial, the provision authorizing the taking such depositions was repealed, Held, that the depositions could not be used on the trial.</p>

Indictment for murder. The defendant was a Spaniard, and a sailor in a ship, trading between New York and New Orleans. One night he and two others, sailors in the same ship, were on a “ spree” in New York, and after becoming quite intoxicated, about one o’clock in the night, they got into a quarrel with another party, and became noisy. A policeman interfered, and attempted to lead them away.

The District Attorney moved the court for sentence on Antoine Lopez, convicted of the murder of Michael Foster. The Spanish interpreter repeated to the prisoner, in that language, the usual question asked by the clerk of the court as to what he had to say why sentence of death should not be passed upon him? The prisoner then said in Spanish, which was interpreted, “I have something to say to the court. Gentlemen, I am innocent of the crime of which I have been found guilty.

Indictment for murder. The prisoner was a rough, coarse, English sailor, and was one night out on a “ spree ” with some of his fellow seamen, in the port of New York, and a little after midnight they got into a fight. The disturbance attracted the attention of two of the police, who, on approaching the scene, discovered that two of them were stripped for a fight.

The district attorney asked the court for judgment on Joseph Clark. Mr H. Vandervoort asked the prisoner, in the usual form, why the sentence of the law should not be passed upon him ? Joseph Clark replied: “I have nothing to say, no more than that I did not intend to kill the man when I struck him.”

Indictment for murder. On impaneling the jury, a juror was challenged by the prisoner to the favor, for bias, and after being examined on the trial of that challenge, it was withdrawn. He was then challenged, by the district attorney, for principal cause, for having formed and expressed an opinion.

The counsel for the prisoners, in both these cases, having made the same exception to the charge, in both cases applied to Mr. Justice Edmonds for allowance of writs of error, and a stay of proceedings until the charge could be reviewed in the courts above.

Lsr both these cases the accused had been severally convicted of murder at the New York Oyer and Terminer, in September, 1851.

<p>The district attorney of New York having sued out writs of error in these cases on the judgments of the Supreme Court reversing the convictions before the Oyer and Terminer, the cases were now argued. .</p>

The Court of Appeals, having reversed the judgment rendered by the Supreme Court in both these cases, the district attorney applied to the Supreme Court to issue warrants for the execution of the defendants. The grounds of the motion are sufficiently stated in the opinion Of the court.

This was a motion for an order dismissing the complaint for want of prosecution. The answer to it was that the plaintiff was dead and had no personal representative in tiffs State. The other material facts appear by the judgment.

This was an action against trustees. It appeared by the complaint that the cause of action arose more than twenty years anterior to the commencement of the action, and there was no allegation in the complaint showing either that the operation of the statute of limitations had been suspended or that the'cause of action had been revived.

<p>A demurrer wMoh demurs to the whole of a pleading, a part of which is sufficient, is too broad and will be overruled.</p> <p>A complaint by a creditor, in the nature of a creditor’s biH, to set aside an assignment, need not allege that the plaintiffs have issued an execution to the county where the judgment debtor,resides, and that it had been returned nulla liona.</p>

The action was brought for the purpose of having the defendant removed as trustee of certain property, in which the plaintiff claimed a beneficial interest, and another person appointed in his place; and the complaint prayed that the defendant might account for all the trust property received by him, or which he might have received if he-had performed the trusts according to the directions concerning the management thereof, together with interest thereon, and might .pay over…

The relator presented, on the twenty-fourth day of August, 1852, to Mr. Justice Edmonds, Ms petition, verified in due form, setting up that John F. Tallman, captain of the steamboat Henry Clay, Edward Hubbard, pilot of said vessel, Jamos L. Jessup, captain’s clerk, John Germaine, engineer, Charles W. Merritt, second engineer, or oiler, James Elmendorf, second pilot, were, together with Thomas Collyer, one of the owners of said vessel, detained in the custody of the sheriff…

The defendant was arrested on a warrant issued by a police justice, on a charge of an attempt to murder. While the examination on that charge was proceeding before the magistrate, and before it was completed, an indictment was preferred against him for the same offense, and he was arrested on a bench warrant issued on that indictment.

<p>An attachment under the Code is not original process, as it is under the Revised Statutes. It is a provisional remedy only.</p> <p>When one creditor has sued out an attachment under the Code, other creditors of the defendant may he made co-defendants.</p>

<p>- Where a defendant is sued as an assignee of a lease and he denies by his answer only the execution of the lease and the assignment to him, to entitle the plaintiff to recover he need only prove the execution of the lease and assignment.</p> <p>The only defense the defendant can set up under such an answer is the non-execution of the lease and assignment.</p> <p>The defendant cannot under such an answer set up the defense that before the commencement of the action he had parted with all his interest in the lease and assignment.</p>

In November, 1833, the defendants, Kelsey and Anson Blake, purchased a tract of land in the city of Brooklyn, lying directly on the shore of the East river, and principally valuable for its water front. They thus became- purchasers for themselves and others who were interested with them, in whose behalf they executed a declaration of trust.

Assumpsit, commenced in the Supreme Court by the plaintiff, as assignee in bankruptcy of Preston & Pomeroy, against the defendant, to recover a balance alleged to be due from them to the plaintiff as such assignee. The cause was tried before a referee at New York, in November, 1846. The plaintiff proved an account rendered by the defendants, dated March 3, 1843, which showed a balance due them of $64.24.

The plaintiff in Ms complaint declared on two promissory-notes amounting to $1,231.18, and on nine Mils of goods sold and delivered amounting to $1,068.34, and claimed judgment for $2,300.13 with interest. The defendant in his answer merely set up that the goods were sold on credit, and that the time of the credit had not expired when the suit was brought.

In this case, the British minister to this country sued out a warrant for the arrest of the accused, as a fugitive from justice, under the treaty between Great Britain and the United States, in which treaty special provision had been made for the jurisdiction by State officers. The proceedings on the arrest of the accused appear from the following report made by the judge to the President of the United States

The prisoner sued out a writ of habeas corpus, to test the validity of his commitment as a vagrant on a summary conviction. The record of conviction was in a form sanctioned by a recent statute, which being a departure from the common law mode of procedure, and not providing for an appeal, it was contended was void, as being in violation of the Constitution.

<p>An action for partition cannot be maintained, without an averment that the parties are in possession as well as seized.</p> <p>One tenant in common cannot convey to a stranger a specific lot or parcel of the land held in common.</p> <p>Such a conveyance, though it would not pass the legal estate to the grantee, might operate as a transfer of an equitable interest, and as such be regarded and considered on final partition.</p>

This was an action brought by the plaintiff, as master of a lodge of Free Masons, who had duly received a charter from the grand lodge, to recover from the defendant, money in his hands belonging to the association.

In this case the defendant, by the will creating him executor, was vested with power over only the personalty of the testator. He, however, took possession of the real estate and received the rents and profits. On an accounting before the surrogate, to which the executor was cited by the creditors, he withheld all account of his receipts from the real estate, on the- ground that that officer had no jurisdiction.

<p>' This was a special verdict in an action of ejectment, which found that Samuel Walgrove, by his last will, devised to his wife Hester, all his real estate to he at her entire disposal, but, should any part thereof remain unsold at the time of her decease, he gave the same to his children, to be equally divided among them. Hester died, not having disposed of that real estate, a portion of which was conveyed, after her death, to the defendant, by the children of Samuel Walgrove, who claimed to take under the devise, over. Hester made a will, devising, her estate to the plaintiffs, as trustees, to convert the same into money, and to invest the same on bond and mortgage, and to collect and receive the income and profits thereof, and to apply the same, during two lives named, to the use of certain of her children.</p>

In this case, the corporation of New York had made a contract with the defendants, Russ and Reid, to pave certain streets of that city. The plaintiffs, as mere tax-payers, and not as parties aggrieved hy the measure, brought their action to restrain the performance of the contract, on the ground that it was an improvident one, and an usurpation of power not conferred on the corporation.

The defendant was indicted for incest with his daughter, He was a miller and farmer by occupation, an industrious, prudent man, of very fair character, and of an affectionate temper. His wife was a woman of feeble health, very intelligent, and a pious member of a church. Between the husband and wife, and between them and their daughter, there was great affection. The daughter was about sixteen years old.

The prisoner was indicted for murder. He was native born, of about thirty-three years of age, a journeyman mechanie, of exemplary life, reserved in manner, but of an affectionate and sensitive nature. He was working at his trade in Albany, where he had been a few weeks, and there he became acquainted, at his boardinghouse, with a woman of about his own age, who was introduced to him as a widow.

This was an appeal from a decree of the surrogate of New York refusing to admit to probate a paper, propounded as the last will and testament of John King, deceased.

This was an action for work done under an agreement, which it was claimed was collateral to another, and, not being in writing, was void. A motion for a nonsuit on that ground was denied, the court holding that the agreement was original and leaving it to the jury to determine tinder which agreement the work was done, and charging the jury to allow interest from the time of performing the service. On bill of exceptions there was a motion for a new trial.

<p>In the naturalization of an alien, a previous declaration of intention is an absolute prerequisite, without which the naturalization is absolutely void. The record of naturalization, though it adjudicates that such declaration has been made, is not conclusive, but it may be disproved by parol..</p> <p>It is a question of jurisdiction upon which the court of final naturalization cannot so adjudicate as to preclude inquiry.</p> <p>In questions of pedigree, four kinds of evidence may be received: personal knowledge, hearsay among relatives, family conduct and general reputation.</p> <p>Hearsay, to be admissible, must be from those connected with the parties, so situated as to be likely to know, and are dead.</p> <p>Family conduct from those who, by recognizing the relationship, evince a belief and opinion on the subject.</p> <p>General reputation is admissible when of so ancient a date and so wide spread as to preclude the idea of fabrication.</p>

This was an action of assumpsit brought to recover the amount of a promissory note, against the defendant Mills, as maker, and the defendants Bogert and Muir, as indorsers.

The plaintiff was the holder of paper payable in St. Louis, which he left with Smith & Co., bankers, in New York, where he resided, for them to collect for him. S. & Co. transmitted the paper to the defendants, who were their correspondents and bankers at St. Louis, to whom the money was paid when the paper became due. When it was thus paid to the defendants they passed the amount to the credit of S. & Co. in general account, but in no other manner accounted for it.

Samuel Havtland died in July, 1827, having made a will wherein he devised all the residue of his estate, with direction to his executors to put it out on interest, on good security, for twenty years, the interest to be used during that time for the assistance of eight legatees named, or them legal representatives, provided they should be destitute or needy; but such of the interest as they should not thus use they were to invest on interest, and, at the end of the twenty…

This was an action for a libel, brought against the proprietor.of the New York Express. The plaintiff was one of the branch pilots of the port of New York, and was attached to a pilot boat which had, on a Saturday, boarded the packet ship Liberty, from Liverpool, far out to sea, and had put a pilot on board.

<p>A motion to vacate an award of arbitrators can be made only in the court named in the submission, and for the causes specified in the statute.</p> <p>Any other ground for setting aside an award can be available only in a distinct action brought for that purpose.</p> <p>Such action was always an equitable one, and the amalgamation of common law and equity powers in the same court’does not alter the principle.</p>

The plaintiff declared upon a building contract,-claiming to recover stipulated damages. The defendant demurred specially for cause, among other things, that the plaintiff, for whom the work was to be done and who was to pay when the work was done, had not averred a willingness to perform on his part. The demurrer was overruled, and judgment rendered for plaintiff at the last term, without leave to withdraw the demurrer and plead.

This was an action of ejectment, brought in the Superior Court of New York. It appeared on the trial, that Jane Van Winkle, from whom both parties claimed to derive their title, was seized in fee of the premises in May, 1760. She was then married, and joined with her husband in a deed of the land to Jacob Van Winkle, under whom the defendant claimed.

In a suit in partition, a sale of the premises was had, and tire purchaser refused to complete the purchase, because of a defect in the title. Thereupon, a motion was made to compel Mm to take the deed.

The North American Trust and Banking company having failed, a receiver of its effects was appointed. The State of Indiana, acting through the Morris Canal and Banking company, as its agents, presented a claim to the receiver, who refused to pay it, and it was referred under the statute. It appeared in evidence before the referee, that, after the .

Motiost to set aside the report of the referee. The plaintiff, being indebted to the defendant, had left some goods in his possession as security. Upon a claim that the debt was paid, a demand was made for a return of the property, to which the defendant replied, by denying that he had any property of the plaintiff in his possession. On the trial, it was proved that the goods did belong to the plaintiff, and had been left in defendant’s possession.

In a business which had been carried on in a factory by hand-power, a change was made, and machinery was introduced for carrying it on by horse-power. It was complained, by the owner of an adjoining building, that the noise made by the new power was a disturbance to the neighborhood, and an injunction was obtained, restraining the use of the new power. On a motion to dissolve the injunction, the following decision was made.