Volume 21 — Howard's Practice Reports

Justice Hilton, of the plaintiff’s complaint, at trial. The plaintiff brought his action to recover $491.56 for carriage hire, incurred by divers members of the defendants’ common council in the necessary performance of their official duties—$317 of which was incurred before the first day of June, 1856, and the remainder, viz., $104.50, was incurred after the passage of the charter of 1857.

The first count in the complaint in this case was for work and labor performed by the plaintiff for the defendant for ' one year, whereupon, the defendant became and remained indebted to the plaintiff for the sum of $140. The second count was for $76, money lent by the plaintiff, and paid out and expended to the defendant’s use.

The defendants are sued as makers of notes executed in the name of their firm by De Witt 0. Brown, attorney. The defendant Embury denies, in his answer, that Brown ever had authority to sign these notes for the defendants. Upon the trial of the cause, the signature of the attorney was proven by himself. He testified that he was the attorney of the firm when the notes were signed.

The defendant in this action having been examined pursuant to § 292 of chapter two of the Code, and a receiver having been duly appointed under § 298 of the same chapter ; on application of the plaintiff, made in pursuance of the provisions of ^ 294, the county judge by order directed David Trapp to appear before a referee to answer, &c. David Trapp, in pursuance of such order, afterwards appeared before the referee, and on‘being examined on oath by the plaintiff’s counsel,…

The case, as made by the complaint, is briefly this: In the years 1851 and 1852, John C. Gulick and Richard M. Gulick, were residents of the state of California. That while so residing, John became indebted to Richard, in the sum of $2,300, for money loaned. That after such loan, and in April, 1852, Richard died intestate at California, leaving personal property there.

The action was to try the title of the defendant to the office of commissioner of highways of the town of Marlborough, in the county of Ulster. The evidence establishes the following facts: Prior to the first March, 1851, the electors of the town of Marlborough, determined by resolution at their annual town meeting, that there should be three commissioners of highways in said town. In 1851, at the annual town meeting, one Maleo m was duly elected a commissioner.

<p>In an action for an account and payment of profits and for damages, on the ground that the defendant had been unlawfully copying and using the plaintiff’s trade mark or label on bottled porter, the defendant, on being called as a witness, refused to answer the following questions, upon the ground that his answer would tend to convict him of a criminal offence, under the act of April 1, 1850, {Laws of 1850, p. 197) to wit:</p> <p>1st. Have you, within the last six years, used labels like those set forth in the complaint, on American porter, bottled by you ?</p> <p>2d. Were there, on any of the bottles, labels like those of the plaintiff, as set forth in the complaint ?</p> <p>3d. Have you sold porter, within the last six years, as and for an imitation of Byass London porter ? r<J</p> <p>4th. Did you, at any time during the three years ending May 1, 1857, put American 'porter in bottles and label them with labels like those attached to the complaint in this action 1</p> <p>Held that the defendant was privileged from answering the first, second and fourth questions, but was not privileged from answering the third question.</p> <p>Held, also, that the same rule of law which excuses a witness from answering questions which may tend to convict him of a crime or misdemeanor, excuses him from producing books or papers, which may be used as evidence against him tending to the same result.</p>

<p>On habeas corpus.</p>

<p>Where the judgment of this court, at general term, upon proceedings on certiorari, amongst other things, ordered that the defendant, Thomas Kearney, deliver to the relators the infant children, Catharine Laffin and Mary Ann Laffin, who were adjudged to be entitled to their custody and care (see 19 How. Pr. i2., 493,) and upon demand by the relators of the defendant for the delivery up of such children in pursuance of such judgment, and a refusal by the defendant to comply with such demand,</p> <p>jWeld, on proceedings upon attachment against the defendant, by which it appeared that the defendant had removed the children to a foreign country pending the certiorari, that the defendant was in contempt, and must suffer the consequences.</p>

<p>The certificate of the clerk of the court of special sessions in the city of New York, is insufficient evidence to show what a witness testified to before said court.</p>

<p>A promissory note should he prosecuted hy the real owner and bolder.</p>

<p>Where the court appoints a stenographic reporter at the trial, and orders the expenses to be borne equally by the parties, they cannot be taxedas ^disbursement by the prevailing party.</p>

<p>Appeal on motion for new trial on exceptions.</p>

<p>A commitment of a witness for contempt in refusing to answer a question, must show on its face that the court or body propounding the question was properly organized, and also that some action or matter was pending before such court or body in relation to which the witness was sworn, and that the court or body had jurisdiction of the subject matter.</p> <p>Courts, are bound to take judicial notice of the various courts established by law, and of the judges presiding over them, but it is otherwise in the case of bodies not continuous in their nature, such as grand juries, §c.</p>

On the 31st of July, 1859, Abram Brower purchased of Tallmadge Delafield and wife, a house and lot on the north side of Putnam avenue, Brooklyn, for $4,000. On the 3d of April, 1860, Brower rented the premises for the term of one year from the first of May following, to James W. Scott, at a yearly rent of $300, payable monthly in advance.

This was an appeal from an order made at the December special term of this court, held in Onondaga county in 1860, denying the motion of the defendant, Allen, to vacate the order of arrest as to him, with $10 costs. The order of arrest was granted by the county judge of Madison county, in October, 1860. It required the sheriff of that county to arrest the defendants and hold them to bail in the sum of $300.

, referee, before whom the cause was tried. The pleadings in the case consist of a complaint and answer, and are as follows: The plaintiff complains of the defendant, and alleges the following facts, constituting his cause of action: That on the 25th day of January, 1859, he was lawfully in the possession of a certain gray horse, about ten years old, his own property, of the value of two hundred dollars, which property on that day he left in the possession of the defendant,…

Motion by defendant to change place of trial from Otsego to Montgomery county, on the ground of undue excitement. The facts on which the decision is grounded are sufficiently stated in the opinion of the court.

<p>Affidavits, whether original or additional, founded on hearsay, without stating the sources of information, are insufficient to sustain an order of arrest.</p>

<p>Motion to make answer more definite and certain.</p>

<p>Appeal from a judgment of conviction of the plaintiff in error.</p>

The complaint alleges that the parties made an agreement whereby the plaintiff was to work for the defendants for a year, cemmencing January 1st, 1857, and the defendants were to pay the plaintiff $75 for each and every month therefor; that the plaintiff had performed his part of the contract, and had tendered his services for the months of November and December, 1857, which the defendants rejected ; and that there is $150 due him from the defendants.

The above respondent was a store-keeper in. Jersey City, dealing with vessels. The master of the schooner Moonlight came into his store and bought an outfit in provisions for the schooner, for a round voyage he was about making to the West Indies and other ports. The amount of the bill was $296.88. The bill was purchased in the name of the vessel, on a credit of three months.

<p>Where four out of seven trustees and directors of a manufacturing corporation sold the entire property of the corporation (except its real estate,) and transferred to the purchasers the whole business of the corporation, without and against the consent of the other trustees and the corporators,</p> <p>Held, that the transfer was without power, and a violation of the trust and conji~ dence reposed in the trustees and directors of the corporation. (This decision affirms that at special term, 20 How. Pr. P., 199.)</p>

<p>Motion for a new trial on behalf of the plaintiff in error.</p>

<p>This is an appeal brought by Michael P. Moore, executor of Lewis Moore deceased, from a judgment of the supreme court of the first judicial district, entered on the second day of June, in the year 1859, affirming the decree of Mr. Surrogate Alexander W. Bradford made on the 24th day of December in the year 1855. The proceedings were commenced before the surrogate of New York, in the year 1846, by John L. Moore, and George Fair to compel Michael P. Moore the executor of Lewis Moore, deceased, to render a final accounting of his proceedings as executor. The surrogate decreed against the executor for the sum of four thousand six hundred and eight dollars and ninety-nine cents, from which Michael P. Moore, the executor appealed to the supreme court and from the supreme court to this court. * * ■ * *</p>

<p>This court will not interfere by injunction or otherwise, to restrain summary proceedings for the recovery of demised premises, where it appears that the same questions were raised and tried before the justice on such proceedings, and decided by him—no fraud or abuse being shown by the plaintiff.</p>

' An action was commenced by plaintiff against the defendant in a justice’s court, to recover damages for trespass alleged to have been committed by the defendant in breaking and entering the close of the plaintiff, situate in the town of Hartland, Niagara county, cutting and carrying away timber, and destroying the grass, &c., &c„ with cattle.

<p>Where a motion to vacate an order of arrest is made and denied, it canned bo renewed on any state of facts, without leave of the court.</p>

<p>If a person set fire to a building, and thereby an adjoining building is set fire to or burnt, he can be indicted and convicted of setting fire to the latter.</p> <p>Where the prisoner was indicted for arson in the jirst degree,Tbr^eloniously setting fire in the night-time to the inhabited dwelling house of Caroline Brown, No. 35 Goerck street, in the city of New York, and the evidence tended to show that the prisoner set fire to his .ownjstore, No. 33 Goerck street, in which he had goods insured, and that the fire communicated to the dwelling house No. 35, adjoining, which was assumed on the trial to be inhabited,</p> <p>Held, that the jury were authorized to disregard the circumstance of the dwelling house being inhabited, and to find a verdict of arson in the third degree. (Allen, J., dissenting.)</p>

<p>It seems, that a question of jurisdiction of the court cannot be raised for the first time on appeal.</p> <p>Thus, whore the complaint showed that the plaintiff's title to certain goods and chattels in the possession of the defendant here, passed to the plaintiffs as trustees, under and by force of foreign (Belgium) bankrupt judicial proceedings, which, under the decisions of our courts, gave the plaintiffs no right of action diere; but the question was not raised by the defendant, either by demurrer or on the trial.</p> <p>Held, on appeal, by the defendant, from the judgment (roll, no exceptions taken), entered for plaintiffs, that the defendant could not for the first time raise the question, either of title or jurisdiction, on the appeal.</p>

This was an action brought to recover the compensation provided by a contract made in March or April, 1843, by the common council, in relation to cleaning the streets of the city. To this complaint the defendants interposed a demurrer, on the ground of their non-liability under such contract.

<p>.Under the decision of the court of appeals (Mechanics’ Bank case, 3 Kern., 599) an assignee of a certificate of stock of an incorporated company cannot thereby acquire any rights against the corporation superior to those possessed by the assignor. He is to be deemed an assignee of a thing in action not negotiable, and as succeeding merely to the rights and equities of the assignor.</p> <p>This rule applied to this case, where the plaintiff, as assignee, brought his action against the bank organized under the general banking law of 1838, for a transfer of certificates of stock on the books of the bank, held that the bank might assert its lien upon the stock as security for the notes given for the stock subscription by the assignor, and had a right to sell the stock to obtain payment of the notes. Complaint dismissed.</p>

These two motions are to compel the plaintiffs, receivers of insolvent insurance companies, to pay the judgments in favor of the defendants in the several actions above entitled, with the costs of these motions. The plaintiffs, as receivers, in their defence to the motions, set up that they have no means in their hands to pay the said judgments.

<p>Appeal from a judgment at special term, entered on report of a referee.</p>

<p>This was an .appeal from an order denying a motion for a new trial, and from a judgment entered in favor of the plaintiffs, for the sum of $5,215.50 damages, interest and costs. The cause was tried before Justice Robertson and a jury. Under the charge of the court a verdict was rendered for the plaintiffs. The complaint set forth that the plaintiffs are a corporation for dealing in ice in the city of New York and elsewhere; that the defendant had been in the habit of purchasing ice from them; that at different times between the 24th day of July, 1858, and the 1st day of January, 1859, he had bought and had delivered to him, in the aggregate from them, ice to the value of $4,501.55, and that he was still indebted to the plaintiffs in that amount, as he has admitted. The defendant in his answer admitted that he had purchased quantities of ice from the plaintiffs, but denied that the amounts and sums mentioned are correct, and put the plaintiffs to prove the same. The defendant also set up as a distinct defence, and by way of counterclaim: 1st. That in the fall of 1856 he was a memher of a partnership or association in the city of New York, existing under the laws of the state, by the name of “ The . Independent Ice Company;” that by the by-laws of said company no member shall sell out his interest in it either without the consent of the shareholders, each and every of ■ them, or without purchasing the interest of such members as would dissent from his doing so; that while said bylaws were in force all the members of the Independent Ice Company, except the defendant and one other person, sold their shares in the same to the New York Ice Company, without the consent and in spite of the protest of the defendant against the proceeding ; that the members of the New York Ice Company were formerly members of the Independent Ice Company, and are now plaintiffs in this action; that at the time of the said sale of the Independent Ice Company’s stock the defendant held of it $21,802.50, and that amount was the market value of it; that by reason of said sale the stock became worthless; that no stock of the plaintiffs’ company had ever been issued to him (the defendant) in lieu of the stock held by him of the Independent Ice Company; but that stock of the New York Ice Company had been issued to every member of the Inde-' pendent Ice Company, except the defendant; and that the stock of the plaintiffs’ company is not worth near as much as the stock of the Independent Ice Company was at the time of said unauthorized sale. 2d. As another defence, (the 3d one in the complaint) the defendant alleged that the said sale having been effected, and the plaintiffs having constituted themselves a company from the Independent Ice Company, and in the manner aforesaid, commenced doing business; that the defendant’s business being to buy ice at wholesale, and to sell the same at retail, he, in the summer of 1857, in order to fulfil the contracts he had made with his customers, found it necessary to purchase ice of the plaintiff’s company; that they contracted and agreed to sell to him, on credit, all the ice he would require for the purpose aforesaid; that in violation of their said contract, on the 12th day of May, 1858, they refused for three days to supply him with ice"; that he, the defendant, for that reason failed to supply his customers with ice; that reports as to said failure injurious to his business were spread about; that, consequently, many of his customers refused to be supplied thereafter with ice by him; and that, by reason of said reports, and the refusal of the said plaintiffs to perform their contract, he had suffered damage to the amount of $10,000. 3d. As another defence, that in the month of January, 1857, he was employed by the plaintiffs’ company, and rendered services to them, the value and expense of which were $174.38, and, therefore, that he demanded judgment for $3,600.</p> <p>The plaintiff's, by their reply, put in issue all the allegations of the answer in relation to ceasing for the three days to supply him with ice. They alleged, that prior to the 12th day of June, (May) 1858, the defendant had agreed with the plaintiffs’ company that he would not sell ice to a certain class of persons known to be customers of other ice dealers; nor to sell ice to any one at an under price; that the defendant violated said agreement in both particulars, and did so after he had received notice from one of the plaintiffs to refrain, or that the company would sell him n® more ice. The plaintiffs admitted that they employed the defendant to do some work at New Rochelle, but denied that the work done was worth the sum claimed ($176.38.) The jury, under the charge of the court, rendered a verdict for the plaintiffs for $4,895.96. No exceptions were taken to the charge; nor is it set forth in the case; the exceptions on which the case comes from below arise upon the rulings of the court during the course of the trial.</p>

<p>Whenever femes covert may sue and be sued as femes sole, they are sued by the same process and in the same form, and the same form of judgment given against them as if they were not covert.</p> <p>Since the act of March 20, 1860, married women may be sued in an action at law, and their liabilities enforced by judgment and execution in all cases when they arise in relation to their separate estate.</p> <p>Thus, where a married woman, in 1859, purchased cigars in her business of a grocer, which she was carrying on in her own name, and for which she gave her note, and which note in April, 1860, was renewed, signed by herself and her husband,</p> <p>Held) that though the original contract and note given under it were void, and did not divest the plaintiff of the legal title to the property, yet, by the act of 1860, authorizing the wife to carry on trade and business in her own name, she was capaciated to buy the cigars, and did buy them, by giving her note in 1860, whereby they became her separate property.</p>

<p>After a case or exceptions }).as been settled and filed with the clerk, it may be taken prima facie, in the further progress of the action, as evidence of the facts therein appearing.</p> <p>Where, in an action of trespass on land, the defendants justified on the ground that the locus in quo was a public highway, and one of them, as overseer of highways, had been directed by a warrant issued by the commissioners of highways, to go on and work the road, and that the other defendants were, by the directions of the overseer, aiding and assisting him,</p> <p>Heldy on a verdict and judgment for defendants, that they were entitled under the statute (2 JR. S., 617, § 24, 1st ed.) to double costs.</p>

<p>Appeal by defendant from a judgment at special term.</p>

<p>Section 119 of the Code, prescribing that ccone or more may sue or defend for the benefit of the whole,55 does not apply to a case where the right to assert or protect which the suit is brought, is not one which exists against them all, or the obligation which it is sought to enforce is not common to all.</p> <p>For instance, where from the complaint it was apparent that there were several kinds or classes of bonds issued by the corporation defendant, and that these bonds were held by persons who had received them for different considerations and under various circumstances, and alleged that in respect to the sole defendant, prosecuted with the corporation, that “ he is probably the largest holder of such bonds as are without consideration, or otherwise invalid, and that he is made a party as representing that class of persons,”</p> <p>Held, on demurrer, that these various bond holders could not be hound by a judgment to which they were not parties, merely because the person who was made a defendant was a holder of bonds, which were invalid for some of the various causes affecting them to a greater or less extent.</p>

<p>Application for a mandamus against the board of supervisors of the city and county of New York.</p>

<p>A sheriff may justify under a judgment by confession and execution, although the Judgment is defective in not conforming to the requirements of the Code. (§ 383.)</p>

<p>Application for a mandamus, by the commissioners of emigration.</p>

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

<p>Where an order of arrest has been granted» and remains in force after judgment, it is sufficient to support an execution against the person, unless the whole proceedings are void.</p>

This was an appeal by the plaintiffs, composing the banking firm of Duncan, Sherman & Co., of this city, from a judgment against them in favor of the defendants, and from an order of the special term denying their motion for a new trial on a case and exceptions.

Motion of plaintiff for delivery of the property taken in this action to him, and to set aside the defendant’s undertaking as insufficient, &c.

<p>When different instruments are properly in evidence for other purposes, the handwriting of such instruments may be compared by the jury, and the genuineness or simulation of the handwriting in question be inferred by such comparison. A witness cannot, however, take the place and usurp the functions of the jury. When the facts may or may not constitute larceny, depending upon the intent of the prisoner, this felonious intent is a question which can only be found by the jury. An exception to a charge of the court should point to the very error complained of, that, if committed inadvertently, it may be corrected.</p>

<p>If a judgment of foreclosure is erroneous as to directions contained therein as to costs and the distribution of procceds> the remedy is by appeal.</p> <p>Jt seems, that where mortgage creditors, on a foreclosure of a junior mortgage, put in an answer and compel the plaintiff to prove his case, when their rights might have been properly protected by appearance on the reference to compute the amount due, they unnecessarily increase the costs, and may be properly called upon to pay the costs consequent thereon.</p> <p>In such case a direction in the judgment ordering the plaintiff’s costs to be first paid does not prejudice the prior mortgage creditors.</p>

<p>Where in an action for divorce against the wife for adultery, it appeared that she abandoned her husband and child some four years previous, and was living notoriously with another man, her application for counsel fees and alimony was denied, although she denied the alleged adultery.</p>

In this case the plaintiff sued defendants’ firm on a promissory note made by some members of the firm, and indorsed by them to Seymour & Co. in blank, for paper furnished by that firm for the “Independent” newspaper, of which it was alleged the defendants were proprietors.

<p>An indictment under the act of March 23, 1860, prohibiting the sale of passenger tickets, except as therein mentioned, must state the port or place from which the ticket purports to entitle the person to a passage.</p>

<p>An assignment of property, for the benefit of creditors, executed by three partners, one of whom is an infant9 is void.</p>

<p>Under the statutes of this state relating to taxation, the personal property of a resident actually situated in another state or country, is not to be included in the assessment against him. On the other hand, the personal property of a nonresident, which is situated here, is liable to taxation with such exceptions only as the statute laws have made.</p> <p>But these rules apply only to property which is capable of having an actual situs, and has one within or without the state. Property merely in transit through the state is not taxable. Debts and choses in action in general follow the domicil of the owner. Ships at sea, if registered at a port within the state, have no situs elsewhere, and are to be assessed here.</p> <p>The relator, residing in the city of New York, was assessed in respect to capital invested in business in New Orleans, and in respect to chattels upon his farm in New Jersey: Held, that the assessment was erroneous.</p>

<p>A commission paid for accepting a draft, on a deposit of goods, where there is no loan of money, and where it does not appear to have been a cover for a usurious oontraot, is not usurious.</p> <p>Where the security given on the granting of an injunction is so small that the damages that might be sustained by its continuance could not be satisfied by the undertaking, it will be dissolved.</p>

<p>An application to a court of sessions for a new trial, upon the merits, or for irregularity, or for newly discovered evidence, must he made before judgment»</p>

<p>This is an action for damages for the unlawful conversion by the defendant of certain personal property claimed by the plaintiffs.</p> <p>The complaint alleges that the defendant caused some officer to carry away and sell such property while owned and possessed by the plaintiffs, and converted it to his own use. The answer put in issue the ownership and possession, and avers that they were the property of the American Plate Glass Company. It claims, also, that the sheriff of Kings county seized and sold them under executions upon judgments against such company, which wa's the conversion complained of. .</p> <p>The issues of fact were tried before a single judge without a jury, and on such trial it appeared by evidence that the company mentioned in the answer was incorporated under the general manufacturing company act, and was in operation in manufacturing glass during the years 1856, 1857 and 1858 ; that Lewis A. Sayre was its president, and it had also a secretary. It further appeared that the company had been embarrassed about six months before June, 1857, owing money to different persons, but principally to its president, which was known to the plaintiffs; that about June, 1851, Sayre transferred to the plaintiffs 2,500 dollars of the capital stock of the company, promising to make it good at par, and that the plaintiffs were in the habit of purchasing glass from the company; it also appeared, that a short time before the 1st of June, 1858, the plaintiffs entered into a negotiation for the purchase of 5,000 dollars worth of plate glass; Sayre then told them that the company was going to change hands, and those into whose hands it was going to pass wanted to have the plaintiffs’ stock cancelled; a few days before the 1st of June, 1858, the plaintiffs agreed to purchase such glass at a reduced price, paying half of the purchase money in cash, and half by their stock; Sayre told them that the money they so let the company have would discharge its indebtedness, except that to himself; the cash was paid partly in money and partly in notes, and the stock delivered.</p> <p>It further appeared that part of the glass so sold was then in the manufactory of the company, standing against its walls, and part undergoing the process of finishing in ovens; that two orders for it, drawn by the president upon the secretary, and by him accepted, were delivered to the plaintiffs, who commenced to carry it away about the 2d of June; that they continued removing it until the 5th of that month, when they had carried away about the value of 1,500 dollars;" that after one o’clock on that day they commenced placing red labels with their names, occupation, and address printed thereon, and continued so placing them until between four and five o’clock in the afternoon, when the glass was levied on by the sheriff of Kings county; it also appeared that the glass was sold at one price by the square foot, and had upon it cards containing the manufacturers measurement, and that the plaintiffs agreed to reduce the amount of their purchase from five to four thousand dollars, because it was thought the first amount would sweep away all the glass, and took the labels off a corresponding amount of glass; it finally appeared that the sheriff who levied on the glass in controversy, sold it shortly after-wards by the defendants direction, and received from him a bond of indemnity therefor.</p> <p>In contradiction of other testimony, the president of the company (Sayre) testified that he bought the controverted glass of the company, at the market price, without any resolution passed to that effect, in satisfaction of a debt due from the company to him, and he sold it to the plaintiffs. Some witnesses present at the levy testified they did not see the labels on the glass, and that they were at the sale, and did not hear the defendant direct the sheriff to sell the glass in question, or even see the witness there who testified to hearing such directions. Such testimony was not claimed on the argument to be, nor was it so preponderating as to any of such points as to render the decision in favor of the plaintiffs plainly against the weight of evidence.</p> <p>The actions in which the levy was made were begun in May, 1858, by serving a summons upon Mr. Sayre and the secretary of the company, and judgments were entered by default thereon, on the 8th June, 1858. One was on a note made in 1856, payable on demand; no time of demand was stated in the complaint in such suit; the other was on a claim of the president (Sayre) for a balance of account, also due in May, 1858, for nearly 58,600 dollars: notes of the company, which had previously lain over, were paid before the 1st of June, 1858,</p> <p>On the trial the defendants requested the court to hold:</p> <p>1st. That the title, at the time of the levy, was in the company, and no sale had then been made by it to any one.</p> <p>2d. That if such sale had been made to any one, it was to Sayre, for an antecedent debt, and that the company was insolvent at the time of the sale, and had refused to pay its notes in specie, and therefore the sale was void.</p> <p>3d. That if the sale was to the plaintiffs, it was void for the same reason.</p> <p>4th. That the sale was fraudulent and void, as against the defendant, a creditor of the company.</p> <p>After the decision was made and filed, by the judge who tried the cause, the defendant, in some way which does not appear, requested him to find on the questions of fact whether the company was insolvent or had refused to pay its notes in specie before the transfer to the plaintiff.</p> <p>The judge before whom the cause was tried, found, as a conclusion of law, that the plaintiffs were entitled to recover, and that the facts which he was requested to find after such decision were not in issue. The only facts found by him were as follows: that the goods in controversy were the company’s before June the 1st, 1858; that orders were delivered for it on that day and the next to the plaintiffs by the president of the company; that actual possession of other glass sold at the same time had been taken by the plaintiffs before the 8th day of June, 1858; that the plaintiffs had control of, were in the course of removing, and had labelled with their name the goods in controversy; that they paid a valuable consideration therefor, and the sale in question was binding on the company. The recovery of the judgments under which the levy was made, the fact of such levy, a purchase of the goods thereupon by the defendant, and his taking possession thereof, with notice of the plaintiffs’ claim, were among such facts found.</p> <p>Separate exceptions were filed to the facts so found; an exception was also taken at the trial to the exclusion of the question, “ What was the financial condition of the company?” put to Dr. Sayre, while under examination, before any evidence had been given of any sale other than that directly from the company to the plaintiffs, or for any other consideration than the money paid by them, as well as the stocks surrendered.</p>

<p>Where the undertaking, filed on granting an order of arrest, is not indorsed with the approval of the justice who granted the order, pursuant to rule 4, the order, on motion, will he vacated with costs.</p>

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

Motion to vacate order of 27th of December last, directing the plaintiff to complete his purchase under a mortgage foreclosure sale.

<p>A plaintiff cannot maintain an action in his own name for goods sold by his predecessor who has since died, although the plaintiff had a full power of attorney to transact any business connected with the business of the decedent. Upon the death of the principal, the power of attorney and agency of the plaintiff ceased.</p>

<p>Motion for confirmation of report of commissioners.</p>

<p>Motion for injunction, &c.</p>

<p>Until the time (ten days) or its extension expires, to file the ease after settlement, it cannot be noticed for argument. Extending the time to file a ease is equivalent to extending the time to print.</p> <p>Where the respondent served his notice of motion to strike the cause from the calendar, and for judgment, within the ten days which the appellant had to file his case, held'irregular.</p>

<p>Demurrer to complaint.</p>

<p>Motion by plaintiff to strike out defendant’s answer, setting up the defence of usury, on information and belief, to a' promissory note, containing the certificate of defendant that it was business paper.</p>

<p>Motions to strike out portions of the answer in each case.</p>

<p>A debtor applying for a discharge from his debts under the statute, must state fully the account of his property in which he has any interest, including such as has been transferred to a receiver under a judgment, or under an assignment for the benefit of creditors.</p>

<p>Where the plaintiff has filed a notice of the pendency of the action, it is as effectual against any disposition of the property alleged to be held in trust for, or in fraud of the rights of the plaintiff as an injunction would be. Especially'will an injunction in such case be denied where it appears that the defendant is entirely responsible to answer any claim of the plaintiff, or for any loss or damage he may sustain by any act, or breach of trust of the defendant.</p>

<p>It is no answer to the jurisdiction of the court, in an action upon a promissory note, that the defendant at the time of the commencement of the action was, and ever since has been, and still is, Envoy Extraordinary and Minister Plenipotentiary of the United States of America' to Brazil.</p>

<p>The court will not allow an amendment of an answer for the purpose merely of setting up the statute of limitations as a defence.</p>

This was an action for the foreclosure of a mortgage given to the grantor by the grantee, for the balance of purchase money.

The plaintiff is proprietor of a music hall in Broadway, .and the defendant is a danseuse.■ The defendant was engaged by the plaintiff in her vocation, at $50 per week, but some misunderstanding occurring between the parties, she transferred her services to the Melodeon. Plaintiff moves for an injunction.

Motion on the part of the receiver to be discharged on his paying to the plaintiff the balance of money remaining in his hands; and also a motion on the part of the defendant’s attorney for an attachment against the receiver, &c.

<p>In proceedings supplementary to execution, when the receiver has given ample security on his first appointment, there is no necessity for requiring him to give security over again in every proceeding which may be afterwards instituted.</p>

<p>Motion by plaintiffs to strike out several answers as frivolous and sham.</p>