Volume 23 — Howard's Practice Reports

The leading facts are as follows : An order was made in this action, on an affidavit on behalf of plaintiff’s assignor, by which the judge appointed E. Newcomb, Esq. to take the examination of defendant and return the same to the judge. The order contained the usual restraining clause forbidding a transfer or other disposition of the property of the judgment debtor not exempt from execution, and any interference therewith.

<p>The provisions of the will of Benjamin Marshall, and the facts material to the discussion, sufficiently appear in the opinion.</p>

This was an action brought by the plaintiff to recover the possession of personal property, the value of which, as sworn to by the plaintiff, was $60. On the trial of the cause, the jury found a verdict for the plaintiff for the return of the property, assessing the value thereof at $40. No damages were found for the detention of the property.

This is an appeal by the plaintiff, from a judgment entered in his favor against the defendant, upon the report of Hezekiah Baker, Esq., sole referee, April, 30, 1859, for $18.10 recovery, besides costs.

In this case, which was tried in November last, the plaintiffs had a verdict, and the judgment was stayed that the exceptions might be heard in the first instance at the general term. The action was brought upon the following agreement: “ For value received, I hereby guaranty to Messrs.

<p>An assignment for the benefit of creditors is not illegal by reason of its containing a trust “ to pay the legal and necessary expenses of the assignees, with a salary to each of them at the rate of $2,000 per year, while actually engaged in executing the trust, if that compensation do not exceed what the laws of the state allow to executors or administrators; if it should exceed that amount, then at the rate so prescribed for executors and administrators.”</p> <p>Nor is a trust illegal requiring the assignees (after having satisfied the preceding trusts) <e to pay all persons who had theretofore become bail or surety for the assignors, such sums as they may have paid and as may be legally chargeable to the assignors by reason of the liability devolving on such bail or surety, or to pay such sums as are requisite in law for the discharge of such bail or surety.”</p> <p>But where, as a question of fact, it was established by parol evidence uncontradicted, that the resort to an assignment by the assignors with the preference in favor of bail and sureties was made at the suggestion of a third party, on account of the rough urgency of creditors, for the declared object of effecting a delay of several years by the operation of this clause; and with the intent of thereby putting off creditors and gaining time to enable the assignors in the mean time to compromise with them,</p> <p>Held, that the assignment was made to hinder, delay and defraud creditors, and was void as against the plaintiff and other creditors of the assignors.</p>

This action was brought to recover the amount of a promissory note drawn for the sum of twelve hundred and fifty dollars. The pleadings are part of the case, and may be referred to by either party on the argument.

This case was decided at general term in the fifth district, (19 How., 481,) and re-tried before the same referee, who again decided it in favor of the plaintiff, and an appeal was again taken, which was heard at general term in the sixth district, and the judgment again reversed. The facts upon which this question arose were as follows : In May, 1858, one Walpole mortgaged the piano in question to plaintiff, due in one year.

<p>An informal and irregular ballot of a board of supervisors in making the selection and appointment of two newspapers for the publication of the session laws in their county3 (Sess. L, 1845, p. 305,) will not vitiate the selection of such papers, where the appointment is otherwise correct.</p> <p>At all events, a newspaper having received a less number of ballots for such selection, although regular and formal, but not named and included in the resolution of the board designating the two papers having the highest number of ballots, (although informally given,) cannot voluntarily go on and publish the laws, and then seek to compel payment therefor by mandamus against the board.</p>

Writ of error to the court of oyer and terminer. On the 11th of December, 1860, Simon Katz was indicted in the New York oyer and terminer for arson in the first degree, in setting fire to the dwelling-house (the lower part being used as a grocery,) corner of Attorney and Division streets in that city. The case was tried in January, 1861, in the oyer and terminer, Judge Leonard presiding.

The complaint in this action was for the amount of a promissory note made by the firm of Taylor & Van Syckle, on the 30th July, 1853, to the order of John I. Hollister, for the sum of $1486, with interest from date, who, for a valuable consideration, indorsed and delivered the same to the plaintiffs, and demanded judgment against the defendant, Rensselaer W. Van Syckle for the sum of $682.87, with interest and protest, as the balance due thereon.

This action was brought upon a joint and several promissory note, dated September 11th, 1851, for the payment of the sum of 12,553.11, with interest, on the first day of February, 1852, made by the defendant and one Andrew Bigham, payable to the order of, and indorsed by Bates & Griffin. The action was tried at a circuit court held in Rensselaer county, on the 27th day of December, 1860, before Hon. R. W. Peckham, and a jury.

<p>The comptroller of the city of Hew York cannot be compelled by mandamus to draw his warrant in favor of a claimant and pay him his claim (although liquidated) where the comptroller shows by his affidavit that no money has been raised or appropriation made by law for the payment of such claim.</p>

This was an action brought by the plaintiff as receiver of the New York Central Insurance Company, upon a note for $1,000, given by the defendant to be used as a part of the $100,000 original capital stock of that company. The answer admitted the making of the note.

An application was made to the court, under chapter 338 of Laws of 1858, to vacate an assessment. The facts appear from the opinion.

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

<p>In an action against a sheriff for a false return upon an execution, the sheriff, on the trial, cannot go behind the execution to show that it was void, or voidable by reason of being irregularly and prematurely issued. Nor is the plaintiff bound in such action to produce or prove on the trial the judgment record.</p> <p>A sheriff who levies upon goods under an execution as the property of the defendant therein, may, when he discovers that the goods belong to another, relinquish the levy, and return the execution nulla bona,</p> <p>Where in such case the good faith of the return is put in controversy, the burden of showing property in the goods out of the defendant in the execution is thrown upon the sheriff.</p> <p>And the sheriff is not estopped from showing property in the goods out of the defendant in the execution, where he has previously sold the property on a prior execution against the defendant and paid over the surplus moneys to the pur~ chaser at the sale who claimed the property at the time by virtue of a bill of sale from the defendant.</p>

Appeal by the defendant from an order sustaining a demurrer to a defence set up in his answer, The action is against the defendant, as sheriff, for the escape from his custody of a prisoner committed on a ca. sa., and is brought to recover the precise sum for which the prisoner was committed. The defendant stated in his answer, in mitigation of damages and as a partial defence, that the prisoner at the time of his escape was insolvent.

Motion to compel executor to pay costs upon the ground that he had unreasonably resisted the payment of the plaintiff’s demand against the testator. This action is upon five promissory notes, upon which Henry S. Wilkin, the testator, was indorser, and of which N. Denton Wilkin, the son of the testator, was maker, in all $9,315.

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

<p>Staying proceedings in other actions by injunction.</p>

The plaintiffs, on the first of February, 1862, attached funds of the defendants deposited in the city of New York by the defendants, to pay their eastern stockholders. The suit in which the attachment issued was commenced to enforce defendants’ liability as guarantors of the bonds and coupons of the Columbus, Piqua and Indiana Railroad Company, now insolvent.

The action was for a divorce dissolving the marriage contract, and the complaint (verified) charged repeated acts of adultery with one Christopher Perry. The answer (also verified) contained three alleged defences : 1. A general denial of the complaint, except that the parties were inhabitants of the state, and were married in 1840. 2. Physical incapacity on the part of the plaintiff to contract the marriage relation, known to the plaintiff at the time of the marriage.

The application was made upon the pleadings and upon affidavits. The affidavits were as follows : 1. The affidavit of the defendant’s attorney, detailing the proceedings in the suit, and stating deponent’s advice and belief that defendant was in indigent circumstances. 2.

This is an action to recover money lost by betting and gaming. The complaint alleges that about the first of October, 1861, the defendant received a certain sum of money belonging to or on account of the plaintiff, and which is now due him, “ contrary to the provisions of the statute against betting and gaming.” To this a demurrer is put in, assigning as grounds therefor that it does not state facts sufficient to constitute a cause of action.

<p>This action was brought by the plaintiff to set aside a marriage settlement executed by her in contemplation of marriage with the defendant C. F. Wetmore, to the defendant Daniel Holsman, and another in trust, on the ground of the infancy of the plaintiff at the time of executing such settlement, and of alleged misapprehensions on her part, of its effect. The complaint prayed that the defendant Daniel Holsman be directed to re-convey and re-transfer to the plaintiff the real and personal estate owned by her before her marriage, with all accumulations thereof, and that the said Charles Frederick Wetmore and Catharine Holsman Wetmore be divested of any rights or interest which they or either of them may claim to have acquired under said instrument. The case was tried in February last.</p>

The defendant, for a consideration, guarantied to the plaintiffs, the payment of all purchases of goods made of them after May 1, 1858, by Martin L. Ranney, not exceeding $500 in amount, based upon a credit of six months from the dates of the respective purchases. It is admitted that, between May 20th and July 1, 1858, six distinct purchases of goods were made upon the faith of this guaranty, based on the credit stated.

The material facts in the case, as found by the referee before whom the cause was tried, are briefly as follows : Leonard Appleby, Edwin D. White and Charles L. Van Wiclde entered into an agreement, by which White and Van Wiclde were to go to Buffalo and open a store as tobacconists, and Appleby was to stock it at New York wholesale prices. The business to be conducted in the name of White & Van Wickle.

<p>Where a mortgage is made to executors9 as such, and the money is payable to them and their survivors or successors9 and not to their personal representatives, one of such executors may receive payment and satisfy the mortgage of record, as well as all, and the register is bound to enter the satisfaction.</p>

This cause was tried in justice’s court, in Saratoga county, February 20, 1857. The following facts appeared on the trial: James Earl owned the horse in question, worth about $80, with other property, which was mortgaged to the plaintiff June 10, 1856. September 15,1856, Earl, and his son J. Emet Earl, gave a chattel mortgage upon the same property, to the defendants, to pay $81.63 for the amount of their note given to one Patrick McCarty.

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

<p>Appeal by the plaintiff from judgment in favor of the defendant at special term.</p>

<p>The court, on a motion, will not incline to grant as a favor what is not shown to be for the advantage of the party asking it, and when it is to be inferred that the motion is made for some concealed purpose.</p> <p>This principle applied to this case, where the defendant asked, on a re-adjustment of costs on appeal, to add the facts, in a new affidavit, in regard to which his original affidavit was held insufficient, and giving no reason why such facts were omitted; and where the costs of opposing the motion would be more than the amount of costs claimed as erroneously deducted.</p>

The prisoner was convicted in November, 1861, in the court of sessions of this city, of passing counterfeit money. He was indicted for a second offence. At the time the money was passed by the prisoner he had with him a man named Burns. Soon after the money was passed both were arrested. After the arrival of the prisoners at the station-house, a boy came in with a roll of bills, which he said prisoner had thrown away.

<p>Under the provisions of the Code (§ 167, sub. 6) an action for the recovery or assignment of dower may include the damages for withholding the same} or mesne profits.</p> <p>A widow whose dower has not been assigned is not a tenant of the land—she has no estate therein. Her right is a mere chose in action, which she may assert and enforce like other rights of action. And her right to a share of the rents and profits depends upon her recovery of an estate in the lands themselves.</p> <p>In an action by a widow for an assignment of dower and for her just proportion of the rents and profits thereof, all the heirs at law are proper parties to the action, although it is alleged that a part only of the heirs at law have been in possession, and have received the rents and profits of the whole premises*</p>

<p>Incorporated companies established for the purpose of transacting any business may maintain actions of libel, the same as individuals, affecting its business or property.</p> <p>Therefore, where the defendant published in his widely circulated Bank Note and • Commercial Reporter of and concerning the plaintiffs, a banking corporation, as follows: “ We would observe to those interested, that we see no reason why the Shoe & Leather Bank may not at any time be closed up by an injunction”— “After promising to quote the Merchants’ Bank at Trenton, I was informed that legal proceedings against the Shoe & Leather Bank were already under advisement,”</p> <p>Held, on demurrer, that these words were actionable per se, and that the plaintiffs could maintain the action of libel thereon without alleging special damage.</p>

<p>Appeal from taxation of costs.</p>

<p>Appeal from an order made under § 294 of the Code, directing the property of the judgment debtor to be paid over, in part satisfaction of the judgment.</p>

Motion by plaintiff at the Montgomery special term, November, 1861, before Mr. Justice James for a new trial upon the ground of surprise, and for newly discovered evidence. Motion denied. Plaintiff appealed to general term.

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

<p>An order of a county judge appointing the terms of the county court as follows s <e Terms of Cortland county court: I hereby appoint the terms of the county court to be held at the court house* in Cortlandville* on the fourth Monday of February* the fourth Monday of May* the second Monday of October* and the first Monday of December. The February and December terms are hereby designated as terms at which no jury will be required to attend. Dated January 9* I860.59 Held* that no term of the court of sessions was appointed by this order* consequently an indictment purporting to have been found at a term of the court of sessions during the year was quashed as unauthorized.</p>

<p>Motion to substitute Catharine Emerson plaintiff in these suits.</p>

Mary Hartung, the defendant in error, at the June term of the Albany county sessions, was indicted for the murder of Emil Hartung, her husband, by administering to him poison. She was tried upon the indictment at the January oyer and terminer, 1859, and found guilty as indicted, and on the third day of March, 1859, sentence of death was pronounced against her, and she was ordered to be executed on the 2'Tth day of April, 1859.

<p>A motion to open a default—an inquest, taken at the circuit, will be denied where the excuses are, 1st, absence of a material witness, and 2d, engagement of counsel before a referee.</p>

The defendant is a resident of the state of Illinois, and came to Buffalo as a witness in an action pending against himself in the superior court of that city. The trial of that action was concluded at about 2J o’clock p. m., and at 3 p. m. of the same day, the plaintiff commenced this action by the service of a summons.

<p>The plaintiff in error was convicted in June, 1857, of arson in the first degree, and sentenced to the punishment then prescribed by statute, which was death.</p> <p>An act of the legislature was passed in 1860, dividing murder into two degrees, and provided that every person thereafter convicted of murder in the second degree, should be sentenced to imprisonment for life; and abolished the punishment of death for arson in the first degree. It also made the punishment for murder in the second degree applicable to all crimes that were then punishable with death, except treason and murder in the first degree:</p> <p>Held, that although the punishment of the offence of which the plaintiff in error was found guilty, existing at the time of its commission, having been afterwards abolished, and a new and totally different punishment substituted in its place, the legislature intended the act of 1860 to apply the punishment of imprisonment for life to arson in the first degree, committed before as well as after the passage of the act, and as the change was a mitigation of the punishment, the act in this respect was not ex post facto. (This decision sustains that of Hartung agt. The People, 22 N. Y. R., 95; but whether the opinion in that case would sustain this decision9 quere ?)</p>

<p>Appeal from judgment at special term,</p>

<p>The facts of the case appear in the opinion.</p>

<p>The facts of the case sufficiently appear in the opinion. The intervention in the case was by a receiver appointed by the superior court, in an action brought by a mortgagee in possession, claiming to foreclose his mortgage, and to adjust and exclude the equities and claims of other mortgagees and claimants to the boat. The boat had been sold and the proceeds paid into the registry of the court, with the understanding that the same effect should be given to the proceeds as if they were the rern in the hands of the marshal.</p>

<p>The lien act relative to ships and vessels (2 B. S., 405, §§ 1 and 2,) embraces wharfage under whatever title it is used, unless the vessel is placed there in wrong of the owner. She is in pawn to the wharfinger for the wharfage, and the statute preserves the effect of the pledge for ten days after her removal, until a lien is filed. But wharfage can only be collected under the statute for the period the vessel actually occupied the wharf. It must be allowed as if the case waB without bargain as to terms and duration. But the parties may agree as to the rate of whafage to be charged, and their agreement will be so far upheld.</p> <p>It is not necessary that the claimants should plead in bar of the lien. The oms is on the libellant to make out in the first instance the facts constituting it.</p>

<p>In order to effect a lien under the statute against ships and vessels, (2 R. S., 493, 494, o. p.,) the debt must be created at the port where the vessel lies, and a specification of lien must be filed under the statute in that particular county. The lien debt is created, not by mere stipulation between the parties, but by applying to the benefit of the vessel those things which give existence to the lien. The lien debt comes into existence alone at the port where the constituents of it have been used or enjoyd by the vessel. Where the lien debt consisted of various items of work done on the vessel, partly while she lay in New York, and partly while traveling on her route to, and also at Kingston, cn the Hudson river, and it appeared that the specification of lien had been only filed in the county of New York, the court rejected all those items of work not done in the county of New York, even though the libellant proved that the agreement to do the work was made in New York.</p>

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

<p>Where a junior mortgagee bids off the mortgaged premises on the foreclosure and. sale of a prior mortgage, the court will not order the sheriff to give a deed to the purchaser until the whole of the purchase- money has been paid in, although a portion of the money which is not paid, in may belong to the purchaser as surplus money, and have to be shortly returned to him.</p> <p>The court, in such cases, will not depart from the customary modes of procedure, and especially where such departure tends to infringe on the general rules of the court.</p>

<p>In an action for the foreclosure and sale of mortgaged premises, where the mortgaged premises consisted, at the time of the mortgage, as well as at the time of the sale, of several parcels distinctly marked by separate use, it is the duty of the officer conducting the sale, to sell them separately, unless in the very special case intended to be provided for in the last clause of the 74th rule of this court.</p> <p>And where the referee has been requested to conduct the sale in such a manner and declined to do so, it is a sufficient reason for ordering a re-sale, unless it be shown that the case comes clearly within the aforesaid exception. The presumption is, that a sale in parcels will be most advantageous, and the contrary must be made to appear to sustain a sale in bulk in such a case.</p>

<p>The provisions of chapter 83, Laws of 1861, apply to all claims, whatever their form, which are required by law to be presented to boards of supervisors to be audited by them.</p>

<p>A demurrer to a complaint for an exeess of parties cannot be allowed; it is only in case of a deficiency of parties, that a demurrer will lie; and then the deficiency must appear on the face of the complaint.</p>

The plaintiff sued the defendant on a promissory note. Defendant set up that the plaintiff, being a citizen of South ■Carolina and an alien enemy, could not recover. Plaintiff demurred to the answer, on the ground that defendant, while alleging that he (plaintiff) was an alien enemy, still admitted that he was a citizen of the United States.

<p>It never has been held that the check of a party hound to pay, is a payment, if the check is not paid.</p>

This action was brought upon the following instrument in writing : “ For value received, I hereby guaranty to H. & W. Delafield, that the bond of the Newfoundland Electric Telegraph Company, No. 19, for two hundred pounds sterling, shall be of the value of nine hundred and sixty dollars, on the 7th day of March, 1855, at which price and at which date I will purchase the same if offered to me. New York, March 8, 1853.

<p>Construction of a clause in a will.—The testator* Isaac Myres* in the seventh clause of his will* made a bequest in these words: e( Seventh. I give* devise and bequeath unto my son Thomas M. Myres* and the heirs of my son Melancthon W. Myres, and their heirs forever, all the rest and residue of my real and personal property of whatever name, to be equally divided between my son Thomas M. Myres and the heirs of my son Melancthon W. Myres</p> <p>Held* that there being nothing in any other portions of the will suggesting any different understanding of this clause than must be given to it in a separate reading, it gives the property to Thomas M. Myres and the five children of Melancthon W» Myres in six equal parts; that is* the beneficiaries under this clause of the will take per capita and not per stirpes.</p>

In this case a summons for a money demand on contract was served on the defendant Soley, on the 12th of May, 1862, and he was at the same time arrested upon an order of arrest granted in the action.

This is an appeal from an order made by Mr. Justice Rosekrans, in proceedings supplementary to execution, punishing the appellants for an alleged violation and contempt before the referee, on their examination as witnesses in said proceedings. The appellants were neither of them parties to the action in which the proceedings were had. They attended on respondents’ request, and were sworn as witnesses.

<p>Motion in each of the cases for writ of prohibition.</p>

<p>Exceptions to the admission and rejection of testimony and to the judge9s charge at the circuit.—The judge properly excluded evidence to show what was the meaning of the words “ permanent policy” in a policy of fire insurance. There is no ambiguity in these words.</p> <p>The judge properly allowed a witness to testify that there was no renewal of the policy of insurance, where the witness was called to speak of a fact, and not in regard to the law.</p> <p>Evidence to show that the insurance company had permanent policies issued to other parties, and the practice or usage of the company in making such arrangements, was properly excluded.</p> <p>It is a settled rule that where a conversation between persons is offered in evidence, it is the duty of the party offering it, to disclose how it may be material.</p> <p>Testimony cannot be offered for the purpose of contradicting a witness where the attention of the witness has not been called to the subject in regard to which he is proposed to be contradicted.</p> <p>Where a witness gives testimony upon the plaintiffs examination, and in reference to a matter about which no inquiry has been made by the defendant, the plaintiff cannot be allowed to call witnesses to contradict him.</p> <p>A judge is not bound to adopt the precise verbiage of a request to charge the jury; it is sufficient if in effect he charges in accordance with the request.</p>

<p>Where the referees found as their conclusion of law that the services rendered by the plaintiff in forty-three suits, as counsel to the corporation, were no part of the duties imposed upon him by the ordinances of the common council, and that the defendants were indebted to the plaintiff in the sum stated—$32,256.91,</p> <p>Held, that as the referees did not find as a fact that these suits arose out of the business of the alms-house department, there was no foundation whatever for the legal conclusion that the services rendered in them formed no part of the plaintiff’s official duties.</p> <p>Everything asserted to support the judgment must appear in the statement of facts. The Code says that referees “must state the facts found and the conclusions of law separately.” No fact, therefore, is or can be implied from the conclusions of law; they follow as the result of facts separately stated.</p>

<p>It is well settled that process regular and valid on its face, emanating from a eouri or magistrate, or body of men having authority to issue it, and possessing jurisdiction of the subject matter to which the process relates, protects the minister rial officer executing it.</p> <p>When there is a want of jurisdiction arising from the omission to prove certain essential facts which the statute requires to be proven to any special tribunal or magistrate, as a ground for issuing, process, the proceeding will be held void in whatever form the question may arise.</p> <p>But when jurisdiction has been once acquired, any mistake by the magistrate or tribunal, concerning the proof or evidence submitted in the course of the proceeding, or the weight or importance which should be attached to such proof, only renders the act erroneous, and the proceeding will stand good until reversed.</p> <p>Where there is a parol demise by a landlord, of a part of the premises to a monthly tenant, and subsequently a lease is given by the landlord to another tenant for the whole premises, to commence on the first day of May thereafter, and at the same time the landlord notifies the monthly tenant that his term will expire on the said first day of May thereafter; the landlord, and not his lessee, is the proper person to institute summary proceedings for the recovery of possession of the premises by reason of the monthly tenant bolding over after the first of May»</p>

<p>An application by a party for a stay of the examination and proceedings in supplementary proceedings5 should be made to the referee3 and not to the judge who made the order appointing the referee.</p> <p>HI health or extreme mental excitement is good ground for postponing,the .examination, And a judge or referee should never put a party in peril by compelling an examination under circumstances of danger to health or intellect.</p>

<p>Motion for the modification of the report of a referee,</p>

This is a motion for a new trial upon a case made upon the ground that the verdict was against evidence. The action is on a promissory note drawn by the defendant Betts in favor of the defendant Thomas, indorsed by him and the defendant Potter. It was for $2,350, payable three months after date at the Mechanics’ Bank, and dated on the 18 th of September last.

<p>In summary proceedings to recover the possession of lands, the statute requires the affidavit to state the facts which warrant the removal of the occupant. These facts are, the tenancy, the non-payment of rent, and in case of sufferance, the notice to quit. (The decision in People, &c. agt. Ulrich, 2 Abb., 28, goes quite far enough, and has opened a door to much oppression in these proceedings.)</p> <p>Where, in this case, the affidavit showed that the person sought to be charged as tenant, was in reality the owner, and had conveyed his title so that it had vested in the person claiming to be landlord, and that the latter became entitled to the possession of the premises, and that Mitchell became the tenant at sufferance by reason of such transfers and assignments,</p> <p>Held, that if such a statement was sufficient to create a tenancy, it would scarcely be necessary to bring any actions to get possession of land from a former owner.</p>

<p>Motion by defendant to set aside execution against his person.</p>

This was an action to foreclose a mortgage. None of the defendants appeared, and judgment of foreclosure was obtained in the usual manner for a sale, &c. The sheriff of Oneida county duly advertised the premises to be sold April 21st, 1862, A stranger to the suit attended the sale, and bid off the premises for the amount of the judgment and expenses. No memorandum of the sale was made or signed by the bidder.

<p>The Revised Statutes (3 JR. 756, 5th ed.,) which provides that every issue of fact or of law joined in an action founded on any evidence of debt against a corporation, shall have a preference on the trial and argument thereof in any court where the same may he pending, is still in force.</p>

<p>Appeal from an order and from a judgment in this action, of the general term of the third judicial district.</p>

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

<p>Where an order of publication of the summons is made for six weeks, once in each week, the service is not complete until the expiration of the six weeks, or forty-two days, although the publication be made six times in as many successive weeks, short of that period. That is, the plaintiff cannot enter judgment until twenty days after the expiration of six weeks or forty-two days, when the service is completed.</p> <p>The city court.of Brooklyn should entertain a motion to set aside a judgment for irregularity, although the judgment has been entered upon an ex parte application to that court.</p>

Facts as substantially alleged by the pleadings. The plaintiff brought this action to recover a horse which he claimed had been wrongfully detained by the defendant. The defendant denied generally. 2d. Alleged that an infant son of .the defendant, without his authority, exchanged horses with the plaintiff for a horse belonging to the plaintiff, and a note.

<p>Whore a promissory note is given by a partnership firm to one of the members of the jifm for money advanced to the firm, the transfer of the note by the payee, after maturity, does not prevent the bona jide holder for value from recovering thereon against the firm* although it may be subject to any off-set the firm may have.</p>

<p>Construction of apparently repugnant clauses in a will.—It is a rule without exception, and which is not subject to any criticism, that the testator’s intention is to be observed, when it can be collected from the whole will, and that no part of the will is to be rejected, if it can stand consistently with the residue, and with the general intention disclosed by the whole instrument.</p> <p>The testator, by his will, gave to his widow the use, occupation and income of all his estate both real and personal, during her natural life. He then gave to two grandsons each $2,000, to be paid to them when they arrived at the age of twenty-one years, the interest to fee applied to their education and support, in such sums and at such times as their guardian might think proper, and the principal to be paid to them after they arrive at the age of twenty-one, or at the discretion of their guardian •, with a provision, that in the event of their dying before they came of age, so that if either leave children, such children to take their father’s share.</p> <p>Meld, that it was manifest that the testator intended by the legacies to his two grand children, to provide for their support and education during their minority; that the bequest of these vested legacies to the grand-children, with express time of payment, and the direction to apply the interest in the meantime, must control the general gift of the life estate to the widow and constitute an exception to it; so that these legatees are entitled to the interest on their legacies during their minority, and to the principal-when they become twenty-one, although the widow may still be living.</p> <p>The testator also gave to the widow of a deceased son $250, to which no time of payment was set, held, that this legacy was not payable until the determination of the life estate of the testator's widow. ¡</p>