Volume 22 — Howard's Practice Reports

<p>A verbal agreement made by the parties to an action, and an entry thereof by the referee in his minutes, at the time, allowing the referee a specified sum for each meeting, and also double the amount for each meeting occupying over two hours, is substantially such an agreement in uriting as is contemplated by § 313 of the Code.</p>

The defendant, in substance, swears he has no money or property. During his examination he discloses that he sold his real and personal estate, receiving therefor about $8,000, in March, 1860. He is asked for the items of the expenditure of that sum. His memory will serve him, as he swears, only far enough to particularize about $6,000, but he knows that every cent of it has been spent, and he has none of it now.

<p>Where a bond and mortgage was given on real estate for $10,000, payable in one year without interest, for the purpose of raising a loan of money, and it was agreed that the mortgagees instead of giving the money thereon should give their three several promissory notes at six months for .the aggregate sum of $10,000, also without interest, and upon the receipt of which the mortgagor gave the mortgagees $500 as compensation for the advance or exchange of the notes for the mortgage,</p> <p>Held, on foreclosure of the mortgage, that judgment be entered declaring the bond and mortgage usurious, and dismissing the complaint with costs.</p>

This was an action against the late sheriff to recover damages for the alleged wrongful conversion of a large amount of personal property. It appeared that the plaintiff was the assignee of one Michael Mayer, and that the assignment was made for the benefit of creditors; the defendant seized the goods on an attachment issued in behalf of a creditor of the assignor who had not obtained a judgment at the time of the issuing of the attachment.

<p>Affidavits on a motion to change the place of trial, for convenience of witnesses, as well those opposed to the motion, should state what is expected to he proved by the witnesses.</p>

<p>In any case a judgment against a corporation is prima facie evidence in an action under the statute to charge the stockholders or trustees personally, that the debt exists or of the indebtedness, and the circumstance that recovery of judgment must be had before suit brought, only makes the judgment serve the further purpose of showing that the condition has been complied with.</p> <p>Under the statute, (Laws of 1848, ch. 40, § 9, p. 56,) a copy of the certificate of incorporation filed in pursuance of the act, certified by the county clerk, &c., is presumptive legal evidence of the incorporation, and of the appointment of the trustees.</p> <p>A trustee of a corporation organized under this act may resign his trusteeship. If he do resign he does not become liable for the debts of the company on the subsequent default or neglect of the remaining trustees to make and file the annual certificate required by the act. On his resignation his powers and duties as trustee cease.</p> <p>Where individuals with a view to the formation of a corporation under the act, are induced by false representations to consent, and as a step thereto, sign and file a certificate in the office of the county clerk, but discover the falsehood of the representations, and abandon the enterprise of forming the corporation before any stock is subscribed, and without filing any certificate in the office of the secretary of state, these facts will exempt them from liability for debts contracted in the name of the company, on a subsequent default to make and file the annual certificate required by the act under which they attempted an incorporation.</p>

The action is upon a note for $2,000, dated October 20th, 1853, payable on demand, made by the defendants, payable to the plaintiff. The defendant Potter was surety for the defendant Thorne, to whom the plaintiff advanced $2,000, the consideration of the note. In the fall of 1851, the then last year’s interest upon the note remaining unpaid, plaintiff called upon defendant Potter concerning it, and he said he would see Thorne, and the interest should be paid.

<p>The want of funds is no reason why a board of supervisors should not audit an account.</p> <p>An ordinance passed by a board of supervisors making a requisition upon them previous to the purchase of supplies necessary—like this: “No payment shall be made for bills incurred by any court or county officer in the purchase of supplies, unless a requisition, duly specifying the several items, shall have been made to the board of supervisors previous to the purchase,” &c., amounts to nothing against the provisions of the statute in relation to county charges required to be audited.</p>

<p>The libellants were owners of the barge Norway em* ployed in freighting coal upon the Hudson river. The steamboat was used as a tug in towing freighting vessels for hire up and down the river, between Port Ewen at the mouth of Rondout creek and Albany. On the 11th of November, 1856, the barge Norway, laden with coal on freight, •was taken in tow by the tug at Port Ewen, under a contract to tow her for hire to Albany. The tow, on its passage up the river when completed, consisted of eight boats loaded with coal, two attached side by side on the larboard bow of the tug, and two on her starboard bow, of the latter of which the Norway was the outside one, lashed and secured to the one intervening between her and the tug. The remaining four coal barges were lashed together side by •side, and secured by two hawser lines each about fifty fathoms long, passing from the starboard and larboard quarters of the tug to the larboard sterns of the extreme larboard boat and the one placed second from the extreme starboard boat, to the latter of which, after the tow xvas arranged in that manner, a small sloop was taken up and attached by a tow line of about one hundred feet in length to the stern of the last mentioned boat.</p> <p>There was evidence that some of the masters of this tier of boats on towage by the hawser lines, objected to the sloop being subsequently tailed on astern of them, as she in that position would impede the steerage of those boats. Upon the whole evidence, however, it appeared the masters of those boats, when they engaged their towage and took their places astern, were aware that the sloop was to be added to the tail of the line, and that the objections to her being brought into that position rested with the master of the particular boat to which the sloop was to be attached.</p> <p>The boats were also aware, when they were taken in tow, that another freight barge was to be taken up on the passage, at or near Tivoli, to complete the full tow for Albany. When the tug arrived at the former place, she stopped, and another small boat was tailed by a line to the stern of the outside barge, which was lashed to the starboard bows of the tug, and then the rear barges were hailed from the tug to know if all was ready behind. The answer was made from those barges that “ all was right, go aheadupon which reply the tug was put in motion, and after she and the barges attached to her side had safely passed the landing place, the starboard barge of those in tail, and which was owned by the libellants, struck against a dock or pier at the head of it, and was so injured thereby that shortly after she sunk, and with her cargo of coal became a total loss.</p>

<p>It seemsy that where a sheriff has become bail, (by the escape of a prisoner,) and has failed to surrender the principal in his exoneration within the time required by the Revised Statutes, (before the commencement of the action against him as bail,) but within the time required by § 191 of the Code, (within twenty days after the commencement of the action,) he is not wholly discharged from liability.</p> <p>That is, the 191st section of the Code is not a substitute of the Revised Statutes, as defining the whole extent of the sheriff’s liability in such cases. (The decision in this case reported as "McGregory,” in 17 How. Pr. R., 439, materially modified.)</p>

<p>The uncontroverted allegations in a complaint of a sale of goods by the plaintiff as the factor or agent of his principal, and the promise of the defendant to pay the plaintiff for them, are sufficient to vest the plaintiff with a right to collect and sue for the price in his own name.</p>

<p>Motion on behalf of an assignee of an executor to revive an action.</p>

<p>Where the judge at the circuit allows an amendment of the answer to meet the proofs in the case, the plaintiffs cannot demur to it for insufficiency; that advantage could be taken of it on the trial.</p> <p>But if in such case the plaintiff makes affidavit that he is taken by surprise by the amendment, and can not then safely proceed to trial, he may have time to reply to the amended answer, and the progress of the trial will be stayed for that purpose.</p>

It appears that the applicant came into the United States with his father, and at the time he was a minor under the age of twenty one years. That subsequently, before he attained his majority, and while he was residing with his father in the city of New York, his father was duly naturalized as a citizen of the United States.

<p>Where a letter mailed October 27th, sent by a creditor in the city of New York to his debtors residing in Connecticut, which contained a promise to give time for the payment of an existing debt for such reasonable length of time as would allow a draft to be sent for its payment, and requesting an answer to be sent by return mail, whether the proposition would be accepted or not, which letter was received on the 29th of October, and the debtors mailed an answer containing a draft, on the 3d day of November, and the creditor before the receipt of the draft had commenced suit,</p> <p>Held, that the plaintiff having waited sufficiently long to allow the terms of his proposition to be met, and a reasonable time having elapsed for the receipt of an answer in due course of mail, was at liberty to regard his proposition as rejected, and to proceed at once. The letter of the plaintiff regarded as a mere courtesy to the defendants to enable them to pay the debt in a manner most convenient to them before suit brought. The courtesy called for immediate and prompt action.</p>

<p>In an action to recover rent for the use and occupation of premises, it is not necessary to aver in the complaint how the relation of landlord and tenant arose between the parties.</p> <p>If there is an omission to state the time when the defendant Occupied the premises, and the rate at which the rent is claimed, or the period of time during which the rent is in arrear, such defects are not available on demurrer; they can be corrected on motion to render the pleading more definite and certain.</p>

On the 8th day of April, 1858, there, was delivered to the American Express Company, a box of goods for transportation, marked “ J. H. Scott, Lyons, Iowa,” for which the company gave a receipt, expressing their undertaking to forward and deliver the articles. The receipt does not disclose the name of the shipper or owner of the package. There was a charge upon the package of $167, which was to be paid by the consignee on the delivery of the box to him.

<p>On an appeal from a judgment; on the report of a referee, where it appears that the referee wrote an opinion in the case, but it is not printed with the case nor presented to the court, the argument of the cause will he postponed until the next general term, that the opinion may he properly presented.</p>

This is an appeal from a judgment rendered by the supreme court in the first district, in the month of May, 1860, dismissing the certiorari issued in this matter to the commissioners of taxes and assessments for the city of New York, and affirming the action of said commissioners in assessing the personal property of the appellants for the purpose of taxation.

<p>Motion to strike out defendant’s answer as sham. The motion is founded on complaint, answer, affidavits and letters therein referred to.</p>

Motion to strike out the third defence as sham, and for judgment on account of the frivolousness of the remaining portions of the answer, and for general relief.

<p>In order to avoid a secret agreement made between the debtor and one of the creditors who signs a composition deed, it is not necessary that the agreement should call for any additional security, or for a payment above the amount of the original indebtedness; but it is sufficient if the agreement calls for a payment greater than that secured to the creditors by the composition.</p> <p>Where the action was brought on notes given by the debtor to two of his creditors for the whole amount of indebtedness, in pursuance of an arrangement made between them that these creditors should assist him in procuring a compromise with his creditors,</p> <p>j3‘$ld} tlmt the agreement was void and the notes given under it were void»</p>

<p>Where a testator hy his will gave a life estate to his father in a house and lot in the city of New York, and charged thereon an annuity to the mother of the plaintiff (his wife,) and then devised the same unto the plaintiff (his son,) after the decease of my father, and when the said child shall become twenty-one years of age, and becomes married and has children,” and in case of his the said child’s decease before that period, and after my father’s decease, then the said real estate” is given over to others,</p> <p>Held, that on the termination of the life estate, the estate became vested in the devisee, and he was entitled to the absolute possession on his attaining the age of twenty-one years. That is, the devise when the said child shall become twenty-one years of age,” is not a condition precedent to the vesting of the estate in him; but in case of his the said child’s decease before that period, and after my father’s decease,” is a condition subsequent on which the estate was to be divested.</p> <p>The words and becomes married and has children,” should be read “ or becomes married and has children,” to effectuate the clear intention of the testator from all the provisions of the will; and this change is clearly authorized by the authorities of this state and in England, whenever it becomes necessary to give effect to tho intentions of the testator.</p>

<p>A motion for alimony, in an action for divorce by the wife, may be made upon affidavits, and before a copy of the complaint has been served. But in such case the affidavits must allege in substance, all the facts necessary to make a good complaint in the action.</p> <p>Where it does not appear that the laws of another state authorize the courts therein to grant a divorce to an innocent defendant—the wife, upon proof of adultery of the plaintiff—the husband, the pendency of such action, is no obstacle to granting the plaintiff—the wife, alimony in an action for divorce brought by her in this state against her husband.</p>

The plaintiff, in his complaint, alleges that Edward Cook, in his life time, and on the 13th day of January, 1859, recpyered a judgment in this court agajngt gaid Litchfield, for $2,374.52 ; the docketing of it and filing a transcript thereof; the issuing of an execution and its return unsatisfied, in Cook’s life time; the subsequent death of Cook, leaving a last will and testament, which has been duly proved, &c.; that the plaintiff is his sole acting executor ; that more…

This is an appeal brought to review the proceedings and determination of a justice of the peace in summary proceedings, between landlord and tenant.

<p>In an action in which the right to arrest grows out of the extrinsic facts, and does not follow from the nature of the action itself, an execution against the person cannot be issued unless an order of arrest has been obtained in the action before judgment. (.Following the case of Kendenbnrg agt. Morgan, 18 Hoiv. Pr, It., 469.)</p>

<p>Where the contract as averred in the complaint was, “ that the defendant agreed with the plaintiff to manufacture in a good, skilful and workmanlike manner, and deliver to the plaintiff 50,000 slats and 4,500 frames, for which the plaintiff agreed to pay the defendant $470,"</p> <p>Held, that the contract not stating any time within which the work was to he done and delivered, nor when payment was to be made, the law supplied these omissions—the defendant was entitled to a reasonable time within which to manufacture and deliver, and the plaintiff bound to pay on delivery; the conditions being mutually binding.</p> <p>No action can be sustained by either party for a breach of such a contract without averring in the complaint and proving on the trial, (unless admitted,) performance or tender of performance on the part of the party seeking a recovery.</p>

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

<p>The executor or administrator of a deceased joint debtor or owner of real or personal property, cannot be joined in an action with the survivor, for a debt due the joint debtors or for an injury to their joint property.</p>

<p>Where the faot is alleged in terms in the complaint, that the plaintiff was duly appointed receiver) which if denied in the answer of the defendant, the plaintiff would be bound to show by dompetent evidence the facts necessary to constitute him a lawful receiver, the allegation in the complaint will be considered sufficient. It is doubtful, however, whether this question can he raised by demurrer. The remedy of the defendant seems to be under § 160 of the Code, to have the complaint made more definite and certain.</p> <p>Where the complaint contains but one count or statement of a cause of action, which states facts constituting two or more distinct causes of action, the remedy is not by demurrer for duplicity, but by motion to strike out all but one cause, or to compel the plaintiff to elect by which he will abide.</p>

<p>Demurrer by defendants to the complaint in this, action.</p>

The action was brought to foreclose a mortgage given by the defendant John Justice and wife, to the plaintiff, dated June 1st, 1854, upon two pieces of .land situated in the town of Greece, Monroe county, one being the north half of seventy acres lying in the southeast corner of lot No. 9, in township No. 2, short range, west of the Genesee river, in Phelps & Gorham’s purchase : The other being the southeast corner of the same township, containing 35 acres—to secure the…

<p>Appeal from a judgment of a district court.</p>

Motion by the plaintiffs in this action, and the plaintiffs in five other actions, and by the defendant Sawyer to set aside eleven judgments perfected against the defendants upon the confession of the defendant Converse, upon various grounds.

Motion by defendant Bond to set aside attachment against property issued by a justice of this court. The motion is founded upon the insufficiency of the affidavits upon which the attachment was issued. No affidadavits or other evidence is presented in support of the motion, contradicting, explaining or avoiding the facts contained in the affidavits on which the attachment was issued.

<p>Appeal from an order of special term denying an application by the commissioners of emigration for a mandamus to the board of supervisors of Richmond county.</p>

Motion on behalf of defendant for an order requiring plaintiff to give security for costs, &c. The moving affidavit shows that the action was put at issue by the service of an answer to the complaint, on the 19th December, 1858, since which no proceedings have been taken therein, and that neither party has noticed the cause for trial.

<p>If the corporation of the city of New York is indebted to an individual on any contract, or for any services performed, and its proper officers refuse to pay him* or to do anything necessary to enable him to obtain his money out of the city treasury, his only remedy is by action,</p> <p>A proceeding by mandamus against the Mayor to compel him to perform an act (countersign a warrant drawn by the comptroller) which, when performed, is intended for the protection of the corporation, and not for the benefit of the relator 3 although the result would be beneficial to him in facilitating payment of his demand, cannot be sustained. (The full extent of the doctrine laid down in the case of the People ex rel, Reynolds agt, Flagg, 17 Barb,3 503, doubted,)</p>

This action was commenced in April, 1859, to recover from the defendant $50 for one quarter’s rent, due 1st May, 1858, of a house belonging to the plaintiff, and occupied by the defendant; also to recover $68.75 upon a claim for prior rent of the same house, due from the defendant to Messrs. Weeks & DeForest, and by them assigned to the plaintiff.

<p>Motion by defendant to strike out the plaintiff’s reply.</p>

<p>Motion by the relator for a mandamus against the commissioners of emigration.</p>

<p>Where the plaintiff admits the defendant’s counter-claim, and takes judgment for the balance, it is not irregular to enter up judgment without serving a notice of assessment by the clerk.</p>

This was an action in the nature of “ quo warranto” to try the title of the defendants to the office of “ Trustees of the Theological Seminary of the Associate Reformed Church,” and to have the relators declared entitled to such office. “ The trustees of the Theological Seminary of the Associate Reformed Chuch” are a body corporate, created by an act of the legislature, (Laws of 1836, p. 744.) The power to elect trustees of said corporation is vested by the said act, in the…

<p>It is not necessary that an attachment for commitment, for disobedience of an order made by a judge in supplementary proceedings, should be issued by the same judge who made the order; it may be issued by another judge, or by the court itself. (Following the case of Wicker agt. Dresser, 13 How. Pr. JR., 331; and in opposition to Shepherd agt. Dean, id., 173.)</p> <p>The abolishing imprisonment for the non-payment of costs does not apply to a judgment debtor in supplementary proceedings, who is in contempt for not paying a judgment and costs under an order previously granted.</p>

This action was brought on a contract for the sale of plaintiff’s farm, by which the plaintiff claimed to recover $2,000 as liquidated damages for the failure of the defendant to perform on his part. The cause was tried by the court, without a jury.

<p>A submission of a pending suit to arbitration is a discontinuance of the aetioB»</p> <p>Effect may be given to the submission by motion, as well as by plea or answer.</p> <p>The submission discharges the action, but not the cause of action, and this even though the arbitrators fail or refuse to take upon themselves the duties of the submission.</p> <p>In such case the party is put to a new suit on the original cause of action.</p> <p>The parties may qualify the submission so that it shall not operate as a discontinuance of the action without an award according to its terms.</p> <p>And a party may waive such discontinuance, and will be deemed to have waived it in case he thereafter proceeds voluntarily in the action.</p>

Action for a libel. Motion by plaintiff to strike out the several answers of the defendant as irrelevant, and in case that motion should not prevail, to strike out a part of one of the answers as irrelevant and redundant.

<p>A court of equity will not lend its aid to restrain by injunction the commission of any act injurious to the plaintiff, where compensation in damages can be recovered at law.</p> <p>Where the plaintiff and one of the defendants entered into a contract by which the former was authorized to take possession of a certain hotel and furniture, and conduct the business for the joint profit of the parties; for which he was to receive as compensation one-third of the net profits—the title to all the property, both that then in the hotel, as well as that which might be afterwards purchased, belonging absolutely to the defendant, with an election to the plaintiff, after June, 1865, to terminate the agreement, when he was to have one-third of such property as might have been purchased and paid for from and out of the receipts of said business,</p> <p>Held, that the plaintiff was not entitled to an injunction to stay the foreclosure and sale of two mortgages given upon said property by the defendant prior to the agreement with the plaintiff. As respected all the property covered by the two mortgages, except such as might have been purchased out of the profits of the business since the agreement, the plaintiff clearly had no claim. And his interest in, or claimed ownership of the subsequently acquired property, was of too remote, doubtful and uncertain a character to enable him to receive the aid of the court in his behalf.</p>

<p>The character and form, of the action of ejectment has not been essentially changed by the Code. It is still a possessory action to be brought against the actual occupant, with liberty to any other person having an interest, to apply to be made a party.</p> <p>In an action of ejectment, the landlord is not a necessary party, and cannot be joined as defendant with the tenant in possession.</p> <p>There is no case which decides that under any circumstances a person out of possession can be made a party against Ms consent.</p>

This was an appeal from a district court judgment rendered for plaintiff in an action for the claim and delivery of personal property.

<p>An attachment for the purpose of taking the property of debtors in the hands of an assignee, held under an assignment for the benefit of creditors, cannot be sustained on the ground of alleged fraudulent transactions of the debtors prior to the making of the assignment.</p> <p>The attachment must be sustained on the ground that the assignment was a fraudulent assignment or disposition of the property of the assignors within the meaning of the Code, (§ 229,) which means actual or moral fraud.</p> <p>It seems, that an assignment may be held fradulent and void on its face, as hindering or delaying creditors within the provisions of the Revised Statutes, and yet not alone justify an attachment under the Code, as a fraudulent disposition or assignment of property.</p>

This action was brought to recover $381 and interest, money paid to the president of the company under protest and by coercion.

<p>Although it is well settled that an aetion brought by A. B., president of a banking association, is merely a description of the person, and is the aetion of A. B. individually, yet it is equally well settled that where A. B. thus describes himself, and then avers that he prosecutes the action for the benefit of the association, is sufficient to show that the action is prosecuted for and in behalf of the'assoeiation.</p> <p>Therefore where in the latter ease it is averred that the plaintiff is the holder and owner of the note in suit, it is sufficient to show that the banking association is the holder and owner, for whose benefit the plaintiff prosecutes.</p>

On affidavits of the pendency of a motion in this action, and that it is necessary for, the plaintiff to have the deposition of each defendant, to he used on the motion; that each of them has refused to make his deposition voluntarily, and that each of them resides within the jurisdiction of the court, the court issued a summons requiring each defendant to attend before a judge of the court, to make his said deposition.

Hamilton, one of the defendants, and others, judgment creditors of said Hamilton, to open the sale of certain mortgaged premises, which sale had been made under and in pursuance of a judgment of foreclosure of a mortgage upon such premises, on the ground that the judgment was entered for too large an amount, and that the sale was for a grossly inadequate amount. When the appeal was moved on,

Motion by defendant to dismiss an appeal from an order made at a special term denying plaintiffs’ motion for a new trial on a case. After the order was made denying a new trial, the defendant entered a judgment on the verdict for costs against the plaintiffs. The defendant’s counsel claimed that the plaintiffs should have appealed from the judgment, and could not appeal from the order refusing a new trial after the entry of the judgment.

This action was brought by Isaac Soverhill, as committee of the person and estate of Coonrade Morrison, a lunatic, after direction by this court, by order granted at Albany on the 30th day of June, 1855.

<p>A person perfectly solvent can make by deed, a settlement of his property upon his children, without doing injustice to any creditor then existing.</p> <p>As between the parties, natural affection is a sufficient consideration to support the deed.</p> <p>The delivery of a deed need not be to the grantee; it may be to a stranger for and in behalf of the grantee, and if unconditional will take effect instanter.</p> <p>The defendant David Austen, while perfectly solvent, executed deeds to his three daughters, to secure to them and their issue certain real estate, and delivered them to Mr. Nicoll, who gave the grantor receipts therefor stating that they were received by him in escrow; and two were to be delivered to two of the daughters at and upon the death of the grantor, or at such earlier period as he (the grantor) might designate, and the other to be delivered to the other daughter after the deaths of the grantor and his wife, or at such earlier period as might be by either of them designated.</p> <p>Held, that the right of revocation on the part of the grantor was inconsistent with these agreements and trusts, on the part of Mr. Nicoll; and after accepting the receipts the grantor would not have been permitted to revoke or reclaim the deeds even as gifts.</p> <p>Held, also, that from all the facts and circumstances disclosed in the case, it was .apparent that the grantor intended the deeds to take effect presently and irre~ vocably by the delivery to Mr. Nicoll, for the use of his three daughters.</p>

The plaintiff’s statement of facts : This action was brought in justice’s court, to recover damages against the defendant for the wrongful conversion of a promissory note owned by the plaintiff. The makers of the note were the defendant and one William A. Lampman. The note was transferred to the plaintiff before the same became due, and some eight or nine years before suit brought. The note was a joint and several note for $100, with interest.

<p>Motion by plaintiff to set aside judgment entered in favor of defendant William Walker for costs, or for re-adjustment of the costs, &c.</p> <p>The leading facts, as established by the affidavits read on the motion, are as follows : The action was originally commenced on the 18tli day of April, 1849, by the plaintiff, against the defendant William Walker, and Charles Colt, Jr., to recover the value of certain personal property taken and sold by the deputy sheriff of Livingston county, on an execution issued upon a judgment recovered by said William Walker and Charles Colt, Jr. against Reuben Gardner. These original defendants appeared and answered jointly by one attorney, setting up in their answer, among other ■ things, the judgment and execution in their favor against said Reuben Gardner, and the levy upon and sale of the property in question by virtue of the execution, and alleging the title to the property to be in said Reuben Gardner at the time of the levy.</p> <p>The defendant Colt died April 9, 1860. By an order made at special term on the 4th Monday of December,</p> <p>1860, upon the plaintiff’s motion, the action was allowed to proceed against the surviving defendant William Walker, and Ephraim Cone and William Walker as executors as aforesaid.</p> <p>At the Livingston circuit, commencing in January, 1861, the action was brought on for trial. After the plaintiff had concluded his evidence and rested, the defendants moved that the plaintiff be required to elect which of the defendants to proceed against, whether the defendant Walker in his individual character, or the said Walker and Cone as executors of the original defendant, Charles Colt, Jr. The motion was granted, and the plaintiff elected to proceed against the executors of Colt, and upon the defendant’s motion the complaint was dismissed as against the defendant Walker. The trial then proceeded against the defendants Walker and Cone as executors of Colt. The cause was submitted to the jury, who failed to agree upon a verdict, and were discharged for that reason. The cause has not been since tried, but remains undisposed of as against the executors of Colt.</p> <p>The defendant Walker procured the costs in his favor as an original defendant, to be taxed upon regular notice, by the clerk of Livingston county, on the 15th day of March, 1861, at $95.41. The plaintiff’s attorney appeared before the clerk, and objected to the right of the defendant Walker to recover in the action costs against the plaintiff at any time to any extent, and especially while the action was pending against the executors of Colt. He also objected to the allowance of certain specified items of costs in case the defendant Walker was entitled to costs at all..</p> <p>The defendant Walker proceeded to enter judgment for the costs so taxed, and has issued execution therefor. This motion is to set aside such judgment and execution, or for re-adjustment of the costs.</p>

<p>A surrogate obtains jurisdiction of the estate of an intestate, not by the citations of the proper parties before him, but by the residence of the intestate.</p> <p>Where the intestate before his death deposited with the defendants as brokers, $675.75 as ticket agent of a railroad company, which money was mingled with that of the defendants and became undistinguishable, and the defendants a few days subsequent to the death of the intestate paid over to the company an equivalent amount, taking an indemnity,</p> <p>Held, on an equitable accounting by which a balance of $150 only was found to be due the company, that the payment over to the extent of the remainder, was in law a conversion of the money by the defendantsand the company having no just right either legal or equitable to it, could give no valid discharge on its receipt.</p> <p>Held, also, that interest on the remainder was properly allowed against the defendants.</p>

The facts of the case were as follows, viz : The plaintiff was the owner of a canal boat, and sold and delivered the same to the defendant, who gave back to the plaintiff a chattel mortgage to secure the purchase money. The mortgage was over-due, and plaintiff claimed that there was due thereon about the sum of $240, and attempted to take the boat upon -the mortgage, unless defendant paid the same.

<p>A fraud committed in contracting a debt for the sale of goods for which the action is brought, subjects the offender to an arrest for the amount of the obligation incurred by him, whether such fraud would avoid the sale or not.</p> <p>Where it appeared that the defendant purchased goods for cash, and got them into his possession, with an intent either to forthwith convert them into property not capable of being readily reached by execution, or to sell them to a bona fide purchaser to prevent a stoppage in transitu, held, & fraud in buying the goods, for which an order of arrest might be issued.</p>

This action was brought to recover the possession of a lot of land situated in Cortlandville, on which there was a store. The plaintiff had title in fee to the lot on the 28th day of February, 1848, and on that day he executed and acknowledged a warranty deed of the same to Daniel Schemerhorn, which deed purported to convey the lot in fee, for the consideration of $3,200.

<p>Motion by defendant for an order requiring the plaintiff to give security for costs, &c.</p>

<p>Where a court of equity interposes to compel a trustee to give up property purchased in his own name for his own benefit, which, belonged or rightfully belonged to the trust estate, it does so in aid of and to protect the right of the cestuU que trust.</p> <p>Where the cestuis que trust are not of that class over whom a court of equity watches with such vigilant guardianship as not to permit them to transfer or dispose of their rights, that they can act for themselves; and where it appears by the averments in the answer to the complaint that they have acted for themselves and relinquished their rights and interests in the subject matter of the litigation, their trustees can have no claim in their behalf.</p> <p>Where the answer is a full and complete denial of the equity of the bill, an injunction will not be allowed.</p>

This action was commenced in July, 1856. The summons and complaint were served July 1st, 1856. An answer was served July 19th, 1856. An amended answer was served August 7th, 1856. A reply was served August 25th, 1856. The complaint is for the balance of an account for goods, wares and merchandize sold and delivered by the plaintiff to the defendant, and demands judgment for $61.61, and interest from May 7th, 1856.

Motion to compel purchaser to complete his purchase of premises situate on Thirty-third street in the city of New York, bought on a foreclosure sale. The defendant Barnard, who was the owner of the premises, executed a mortgage thereon to the plaintiffs. The property was subsequently conveyed to Wakeman Hull, subject to the mortgage. A suit to foreclose the mortgage was commenced by the mortgagees, on the 10th day of January, 1861.

<p>Motion by defendant in each case for an order that plaintiff file security for costs, &c.</p>

This was a motion to stay all proceedings in the present action, until the costs of a former action for same cause in the marine court (wherein there was judgment of non-suit) were paid, as also costs of the present motion. The railroad, by their attorneys Abbett and Ashmead, appeared in support of the rule, and cited several cases showing that it had been the uniform practice, since the case of Hacker agt.

<p>A justice of the peace is not prohibited by statute from lawfully rendering a judgment, on the day a general election is held, in a cause that has been tried before and submitted to him on a previous day. (Parker, J\, dissenting.)</p>

<p>Where a receiver was appointed for the benefit of the 3d, 4th and 5th mortgage bondholders of the defendants, and a motion on behalf of the 4th mortgage bondholders was made for an order direeting the receiver to pay the interest coming due upon their bonds, out of the receipts of the road, to the exclusion of other indebtedness and against the consent of prior mortgagees, upon the ground that the bonds secured by the 4th mortgage were so drawn that the principal becomes due and payable if the interest is not paid,</p> <p>Held, that the motion be denied. There is no rule of law or equity which allows the funds of an insolvent corporation to be diverted from a proper application of them, because it may be deemed expedient for ulterior purposes to make such a use of them. ,</p>

Statement of facts by defendant: The first cause was founded upon a note of $500, found by the executor among the assets of the testator.

This is a motion by the defendants for a re-taxation of costs, on the ground that the clerk has allowed items not taxable. The facts are stated in the opinion.

Motion on the part of Robert L. Dorr, grantee of a lot of land in Dansville, Livingston county, formerly owned by William Welch, one of the above named plaintiffs, to set aside the sale of said lot made under an execution in favor of Alonzo Bradner, assignee of the above named defendants, on the 8th of August, 1861. The lot was conveyed to Dorr after the judgment had become a lien on the said land. Griswold purchased of Welch, and Dorr of Griswold.

<p>A motion to set aside a summons for irregularity will tie denied with costs* where the notice of motion does nob specify the grounds of the motion* or in what the irregularity consists.</p>

<p>A motion founded on irregularity of any proceedings* cannot be made where the irregularity complained of is not specified in the notice. (See to the same effect the case of Perkins agt. Mead, p. 476.)</p> <p>Stringent terms imposed on the defendant on opening the judgment by default against him* where his best excuse was that both he and his attorney neglected to attend to the case.</p>

Where a bank, as a condition of the discount of a promissory note, requires that the party shall have another note discounted having the same time to run, and shall leave the proceeds of the latter note in the bank to the credit of the party until the notes become due, and requires the deposit of a check of the party on this money bearing date the day the note will be payable, it is a clear case of usury.

Statement of facts by appellant: The plaintiffs are a foreign corporation, created under and by virtue of the laws of the state of Wisconsin. This was an action of replevin, commenced on the 15th day of January, 1861, to recover possession of six hundred barrels of flour, which the plaintiffs claimed by virtue of a special property therein.

Motion by defendant to discharge a writ of ne exeat, upon which she has been arrested and held to bail by the sheriff of Jefferson county. The defendant is a feme covert, now an inhabitant of Canada, where her husband resides. In January, 1860, she was residing with her husband at Watertown, in this state, and, as is alleged, received from the plaintiff $600 for safe keeping for him, only $50 of which she has repaid.

<p>Where an action is commenced for alleged violations of the “Act to suppress intemperance and to regulate the sale of intoxicating liquors, passed April 16, 1857, to recover a penalty given by the act, by any other person than the board of commissioners of excise, although prosecuted in their name, the defendant cannot move to dismiss the complaint, although he shows by proof that no complaint had been made to the excise commissioners previous to the commencement of the action that the defendant had violated the statute, and that the commissioners had not authorized the commencement thereof.</p> <p>It is for the commissioners alone to object that their names have been improperly used in bringing the action, (Léonard, J., dissenting.)</p> <p>The only relief the defendant can have is an order to stay proceedings until the further order of the court, and perhaps a further order for security for costs, on showing a state of facts that would prevent his collecting them from the plaintiffs. (This decision reverses the main point decided at special term in this case, 22 How., 312.)</p> <p>Note.—Section 30 of this act reads as follows: “ In case the parties or persons whose duty it is, by the provisions of this act, to prosecute, shall neglect to prosecute for any penalty provided by this act, for the period of ten days after complaint to them that- any provision of this act has been violated, accompanied with reasonable proof of the same, any other person may prosecute therefor in the name of the board of commissioners of excise."</p> <p>In some of the sections of this act the penalties prescribed are to be sued for and recovered by others than the board of commissioners of excise. Take, for instance, section 8, which requires necessary accommodations for travelers, and “ for every neglect or default in having either of the articles herein required, such keeper shall forfeit $10, to be recovered by the overseers of the poor for the use of the poor."</p> <p>Now, suppose a suit for this penalty should be brought by a third person in the name of the board of commissioners of excise, without producing any evidence that the overseers of the poor had neglected for a period of ten days after complaint made, and reasonable proof of the violation of the section, to prosecute for the penalty, and the defendant should move to dismiss the complaint on proof showing that the overseers of the poor had prosecuted him for the same penalty, .and that the party prosecuting in the name of the commissioners of excise had not complied with the statute authorizing him to prosecute, could there be any doubt but what the court would consider that the defendant had a most vital interest in the question, and that his motion should be granted with costs'? And why would the court grant his motion? Not because he had been prosecuted by the overseers, although that would be a good plea in abatement to a second action, but because the plaintiff, in bringing the action in the name of the commissioners of excise, had violated the statute—one of the proofs of which was that the overseers of the poor had properly brought an action for the same cause.</p> <p>It would seem, therefore, that the defendant would have the same interest, and would be entitled to the same remedy, to get rid of an illegal and irregular action brought against him under this statute, whether he had or had not been prosecuted by the proper party for the same cause. And it would make no difference in the application of this principle, where the sections of the statute authorize the action to be brought by the board of commissioners of excise instead of the overseers of the poor or any other party; as the defendant might show the same state of facts in one case as in the other; the question being, whether the defendant has not a sufficient interest to entitle him to object, and to have something to do with the matter” before being called upon to answer an irregular proceeding brought against him in plain violation of the statute? Any other person might as well prosecute in his own name, in such case, as to use the name of the board of commissioners of excise, one having just as much standing in court as the other, and that just none at all.— Rep.</p>

The defendant, on proof that the plaintiff had assigned the demands in suit absolutely to one Ballou, and on notice of motion given by the defendant’s attorneys to the plaintiff’s attorneys, moved for an order requiring the substitution of Ballou as plaintiff of record.

Motion to set aside a summons. This motion is made upon the complaint and the affidavit of Simon Stettiner, who states that he is the person served with the summons and complaint, and is the co-partner of the defendant Kamps, under the name and firm of Stettiner and Kamps, and that there is no person named Henry Stettiner who is a member of that firm ; and the complaint shows that the action is for goods alleged to be sold to the two defendants.