Volume 26 — Howard's Practice Reports

<p>The party making and uttering a certificate off " good,” written upon the face of a bank check or other negotiable paper designed for circulation,, stands in the relation of an acceptor, with all the responsibilities incident to that relation. The certificate means nothing less than this, but it means something more. It imports that the drawer has funds, or means convertible into funds, in the hands of the drawee at the time, which shall be retained and devoted to the payment of the paper on presentation.</p> <p>A general and correct definition of the term agency” implies the power to do just what the principal has authorized, and no more.</p> <p>If the power to act is conferred by writing, then the instrument will define what the power is, and the extent of it; and if by parol instructions to do a particular act or series of acts relating to a particular business or subject, then the authority must be ascertained from the express instructions given, and such implied authority as may be necessary to give them effect.</p> <p>If the agency arises, as it must in many cases, where there is no written authority, and no express parol instructions, from the relation which the agent maintains towards his principal," and the nature of the employment, it is obvious that the extent of the powers to bind the principal must depend upon other elements— such as the character of the relation; the nature of the employment; the custom and usage of the business; and the recognition and acquiescence; which must each of them, enter largely into the consideration of the extent of the agent’s authority. And this principle is peculiarly applicable to the class of agencies represented by the officers of corporate companies.</p> <p>In determining the nature and extent of the authority which this latter class of agents may rightfully exercise, the courts may take judicial notice and recognize the general course of the "banking "business as it is now conducted, and the universal practice of those employed to conduct it. They may know that the circulating notes are signed by the presidents and cashiers; that the deposits are received and paid out by the clerks, tellers and cashiers; and the certificates of deposits, and the certificates upon the face of checks drawn by the dealers and depositors, are signed by the same class of officers, or by one of them.</p> <p>The authority of this class of agents to do these acts within the walls of the banking institutions and at their counters, is never the subject of inquiry or examination. It is never doubted or questioned, but is presumed from the nature of the employment and the necessities of the business.</p> <p>The rule that he who deals with the agent of another is bound to look into the agent’s commission for the measure of his authority, must have a qualified application to an agent with a general power, coupled with a limitation not patent or open to common observation.</p> <p>Therefore, where the teller or other proper officer of a banking corporation, representing it and doing its business at the counter, certifies checks of its dealers and depositors drawn upon it in the usual form under a general power to certify, such banking corporation is responsible to holders in good faith and for value, notwithstanding private directions not to certify in the absence of funds without special permission.</p>

This action was commenced in favor of Charles A. Robbins, against the defendants, to recover of them the value of certain goods, which it is claimed were delivered to the defendants, to be conveyed to Muscatine, in the state of Wisconsin.

<p>Where the plaintiffs are non-residents, and there ate two or more defendants, they cannot appear separately and each require a bond to Mm as security for his costs. The statute requires only one bond which should run to " the defendants,” and is for the benefit of them all*</p> <p>The penalty is to be at least two hundred and fifty dollars* and may be required in such larger sum as the court or judge may deem proper.</p> <p>Whether where one defendant had appeared and procured a bond to be filed, another defendant who had not moved, could except to the surety or obtain a new bond in an enlarged penalty ? Quere ?</p>

<p>Motion to modify the judgment in this action.</p>

<p>Where the report of a referee is so materially defective as not to pass upon all the issues referred to him, the court at special terms although it has the power to send back the report for this reason, will not exercise it, where an exception has been taken to the report on this ground. The general term can reverse the judgment and order a new trial on this exception.</p> <p>Where the referee has stated the facts separately upon which he rests his legal conclusions, the objection that he should have found other facts should be reserved for the decision of the appellate court upon the case and exceptions.</p>

<p>The common council of the city of New York have no authority, under the act of the legislature, passed April 6, 1832, entitled “An act to amend an act entitled an act to incorporate the New York and Harlem Railroad Company,” passed April 25, 1831, to grant to or permit said railroad company the right to lay or construct a railroad track or tracks in Fourth avenue, Madison avenue, Union square, Broadway, Fulton street, John street, Whitehall street, in the city of New York, or any of them:</p> <p>Because, 1st. Such a route would be an entirely new and independent route, as much so as if pursued under independent authority from the legislature; it being in effect a parallel route, which the legislature have in the 16th section'of the act of 1831 reserved to themselves the right to grant to a distinct corporation.</p> <p>2d. Nor is the proposed new route in any just sense a mere extension of the original railroad, as provided by said act of 1832.</p>

Judgment was recovered by the plaintiff against all the defendants. It was paid by defendant Wodrig, and assigned to him by plaintiff. Wodrig issued execution against the other defendants, which was returned nulla bona. On the 3d of October, 1862, Judge Parker made an order in supplementary proceedings, requiring defendant A. L. Starring to appear before Mr. Fassett, as referee, on the 26th of October, and appointing Fassett referee to take and report the evidence.

This was a motion made to vacate a judgment claimed by defendants’ counsel to have been irregularly entered against the defendant Snediker, on the 4th day of September, 1863, for the sum of $3,838.

The plaintiff seeks to set-off two judgments obtained against the defendant Niles, of which he claims to be assignee, against a judgment obtained against him by that defendant, whereof the defendant Lee claims to be assignee. The former judgments were obtained in June and July, 1859, by Francis Morris, as plaintiff, and assigned in November, 1862, to the plaintiff. The latter judgment was recovered in May, 1841, for $141.84, and assigned to the defendant Lee in October, 1862.

The plaintiff, a railroad corporation, has a railroad running through certain streets in the city of New York, and in its course passing through Fourth avenue between Twenty-third and Fourteenth streets. The defendants are the proprietors of a railroad running from Fourth avenue west on Twenty-third street, and from Fourth avenue east on Fourteenth street.

<p>A controversy which is clearly one of legal cognizance, will never be the subject of equitable jurisdiction, unless facts are stated to show that a perfect remedy at law cannot be obtained.</p> <p>Mere assertions, threats and designs, made against a grantee of real estate and the party/in possession, cannot be deemed a cloud upon the title. (Unless it be a, thunder cloud.)</p> <p>If the owner of real property is injured by any false claims or representations in relation to it, he can probably maintain an action for damages against the wrongdoer, if he has incurred any; but the equitable jurisdiction of the court cannot be interposed*, and before it will interfere in any way in relation to the disputed title, the party in possession must patiently await the commencement of legal proceedings against him.</p>

This action was brought in the supreme court to recover the value of certain goods that the plaintiff alleged the defendant forcibly and wrongfully took from his possession and carried away, at the city of Brooklyn, in November, 1857.

<p>A person charged in execution in a civil cause, and held in custody by virtue thereof, is entitled to apply for a discharge from his imprisonment under 2d Revised Statutes, 31, article 6, as well where he is on the limits as in close custody. (Bylandt agt. Comstock [25 How. Pr. R. 429], so far as it decides to the contrary, disapproved.)</p>

On the 30th day of December, 1856, Charles B. Huntington was convicted of forgery at a court of special sessions, and sentenced to state prison for a period of years, which he served out. After the expiration of his term of service, the relator Lord obtained judgment against him, and an order of arrest having been granted in the action, he was charged in execution against his person in the county of Westchester.

Judgment having been entered in this action against the defendant, on the 18th August, 1863, he, on the 21st September, appealed therefrom to the general term, by the service of a notice of appeal on the plaintiff’s attorney and on the clerk of the court. The plaintiff’s attorney refused to receive the notice of appeal, on the ground that an undertaking had not also been filed and served.

This is an appeal from an adjustment of costs. An attachment against the property of the defendants had been granted by a judge of the court. On motion at special term the attachment was vacated and set aside. .On appeal to the general term the order vacating the attachment was affirmed. The plaintiffs having obtained judgment against the defendants in the action, the clerk allowed the sum of sixty dollars as an extra allowance to the plaintiffs under section 308 of the Code.

This action was brought to recover for nine months’ services, rendered by plaintiff (his wife assisting him) in teaching a school, in school district No. 12, in the towns of Almond and Hornellsville, at the prices of fifty dollars per month for the first three months, and sixty dollars per month for the last six months. .

Statement of facts, by the appellant: The plaintiff sues to recover damages sustained by her in consequence of injuries received by her on the 12th June, 1862, by stepping into a vault-hole in front of premises Nos. 68 and 70 Lispenard street, owned by defendant.

Appeal to the county court of Chautauqua county from a judgment rendered by a justice of the peace. C. R. Lockwood, for respondent, moved to dismiss the appeal, because no revenue stamp was affixed to the notice of appeal.

This action was for the foreclosure of a mortgage, and was tried by a justice of this court, without a jury. On the 30th of May, 1860, Michael Cunningham executed and delivered the mortgage in question to Samuel W. Dunscomb, to secure the payment of the sum of fifteen hundred dollars, part of the purchase money for the conveyance of the same premises by Dunscomb to him on the same day.

<p>Under the act of 1863, amending the Revised Statutes relating to “ summary proceedings to recover the possession of land,” the affidavit upon which the process is issued by the district courts in the city of New York must be sworn or affirmed to before the cleric or his deputy. If not so sworn to, all subsequent proceedings, with the affidavit, are void.</p>

This case came up on argument before the court on demurrer interposed by the defendant Charles N. Barnes to the plaintiff’s complaint.

Petition by defendants, under the Revised Statutes, for a discovery of papers as evidence in the cause, alleged to be in the possession of the plaintiffs.

Case agreed upon by parties, and submitted pursuant to section 312 of the Code. The Bank of Coxsackie recovered a judgment in the supreme court, against Charles Painter and others, for five hundred and twenty-eight dollars and ninety-eight cents damages and costs, which was entered and docketed in the office of the clerk of the said county of Greene, on the 14th day of August, 1861.

Action for divorce by reason of alleged adulteries. The defendant answered another action pending in this court for the same cause. On motion, this answer was stricken out, as sham and irrelevant, by order entered July 22, 1863. An appeal from this order was taken to the general term.

This is an application for a counsel fee to the defendant’s attorney to aid her in defending the action, and for temporary alimony. The defendant in her answer not only denies the charge of adultery, but alleges the commission of adultery by the plaintiff, and asks for affirmative relief.

An application was made for a mandamus requiring the commissioners to lay out a certain highway in conformity to the report of referees appointed under the statute by the county court.

The term of the court of general sessions, at which the prisoner was tried and sentenced, was commenced on Monday the second day of December, 1861, and was continued until the fourth day of January, 1862, when the sentence was pronounced. The prisoner was tried and found guilty by the jury on the 11th day of December, 1861.

This action was in the nature of a scire facias, calling on the defendant to show cause why execution should not issue on three judgments recovered against the defendant, of which the plaintiff became the assignee. Two of the judgments were for costs recovered against the defendant in actions brought by him against A. L. Linn, in which he was a defeated plaintiff. It is unnecessary to notice the third judgment, as all claim on it was withdrawn by the plaintiff on the trial.

This action was brought to recover the amount due on one hundred and forty coupons, originally attached to twenty bonds issued by the Columbus, Piqua & Indiana Railroad Company, the payment of which was guaranteed by the defendants by written indorsements on the bonds, guaranteeing the payment of principal and interest.

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

<p>The common law right of the husband as tenant by the curtesy is not abolished by the acts of 1848 and 1849, for the more effectual protection of the property of married women; but is subject to be defeated by a disposition of the property by the wife during her life by deed or will.</p> <p>An action of 'partition cannot be prosecuted by or in behalf of an infant as plaintiff, without the appointment by the court of a next friend, pursuant to the act of 1852.</p> <p>Such next friend must give security, as required by that act.</p> <p>An appointment of a guardian to protect the interest of an infant plaintiff in partition, under section 116 of the Code of Procedure, is a nullity.</p> <p>Nor will partition be ordered upon the application of an infant, unless it be made satisfactorily to appear that the interests of the infant require such partition or sale.</p>

Motion by plaintiff for an attachment for contempt against a witness called on the part of the plaintiff, for refusing to testify in an action.

<p>An action to recover penalties by " The Board of Trustees of the Fire Department of the Eastern District of the City of Brooklyn,” which are authorized to be brought in their own name, under the act of 1860 (Laws 1860, ch. 472), must be brought in the individual names of the trustees, with the addition of their name of office—not by the designation of their official title merely.</p>

The defendants were makers of a note payable to the order of the International Insurance Company for $1,000. P. J. Avery, the president of the company, obtained the possession of this and other notes to the amount of $42,000, and the secretary of the company indorsed them to him. He subsequently procured from the finance committee a settlement or arrangement, by which they assented to the transfer. The plaintiff purchased this and other notes before maturity.

This action was brought to recover damages for the alleged malicious arrest of the plaintiff. On the evening of the 6th of July, 1861, a quantity of silver, of the- value of about $200, belonging to the family of Mr. Henry Erben, was stolen from their dwelling house, 46 W. Thirty-eighth street, between the hours of eight and ten o’clock.

Motion by defendants to continue a stay of proceedings pending the appeal taken by them from the order of sale and reference made in this action. .

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

<p>Where, in an action between partners to settle copartnership matters, it becomes evident to the court, on examination of the issues, that the several interests of the parties will, on the trial, involve much contradiction—perhaps questions of veracity—of mistake or fraud in the drawing of the papers, &e., and is manifestly an inquiry which business men, accustomed to examine facts, should decide, the court will direct the issues to be tried.by a jury.</p> <p>And it is no objection to the granting of a proper application of this kind, that it is not made within ten days after issue joined, as provided by a general rule of the court. The court always deviates from the general rules whenever in its judgment a proper case is presented.</p>

This action is in equity to enforce the collection of a judgment held by the plaintiff against the real property formerly owned by Mary Christie, the judgment debtor, and now claimed by the defendant, Mary J. Beach. The plaintiff, in 1860, recovered a judgment in this court for $1,117.91, against Mary Christie, the payment of which she endeavored to evade. With that purpose, and prior to the recovery of the judgment, she conveyed her farm to Alexander S. Beach and wife.

<p>In this case the opinion of the court, by Judge Wright, preceded by the opinion of Judge Smith, taking the same views, written in 1862, when the court were equally divided on the case, is published ante page 124. We now publish the opinion of Judge Denio, written in 1862, taking an adverse view of the case, and also the dissenting opinion of Judge Emott, written at the time of Judge Wright’s, in 1863, taking substantially the same grounds with Judge Denio. A little reflection will show the vast importance of the questions involved in this case, especially when it is considered that the legislature, at each successive session, throw off in great profusion franchises to corporations and associations, without much apparent reflection upon the binding force they involve upon the state as well as upon those accepting the franchises.</p> <p>Judge Denio holds, in this case, upon the principal question, that the state, through the law-making power, contracted with the bridge company that if it would build and maintain the bridges in question, the law would not permit any other person to put up a bridge over the stream within two miles either way from such bridges. The chartering of another company, with authority to construct a bridge within that distance, was a plain violation of the bargain, and as it was a contract within the protection of the constitution of the United States, the second charter was null and void.</p> <p>Judge Emott holds that the 31st section of the act of 1805 confers upon the plaintiffs two distinct privileges; one, that it should not be lawful for any person to have any other bridge or ferry within a certain distance of that authorized by the act; and the other, that it should not be lawful for any person to pass the bridge of the corporation without paying toll. These privileges are given in the same terms and in immediate succession. Both these grants must receive a similar construction. If the interpretation applied by the defendants to that part of the section forbidding the establishment of another bridge or ferry, be correct, the residue, which confers upon the plaintiffs the right and the power to exact tolls for the use of their bridge, must be construed in a similar manner. If the legislature are not forbidden by the clause now in question from authorizing the construction of another bridge within the limit of two miles, they are equally at liberty to authorize any person to pass the plaintiffs bridge without the payment of tolls. This would leave the most vital and valuable part of the plaintiffs' franchise, notwithstanding the impealability of the statute conferring it, wholly at the mercy of subsequent legislatures. It is a consequence which would hardly be contended for by any lawyer, and yet it is difficult to see how it could be escaped, if the principles of construction for which the defendants contend are to be adopted.</p> <p>It seems clear that where the legislature agree that an act shall not be lawful, or be done, they agree that they will not do it, or make it lawful or permissible for others to do it.</p>

Judgment of foreclosure and sale, in the usual form, having been entered, the premises were sold by Samuel Johnson, referee, on the 11th of March, 1853, at public auction, to John Thursby and others, for $30,050, and the 10 per cent, was deposited, by Thursby, to whom the other purchasers assigned their interest in the bid. At the sale the usual printed terms of sale were used, and the purchasers signed at the foot thereof the usual promise to complete.

<p>Where the commissioners of highways of two adjoining towns, in different counties, assemble together in joint board, and unite in an order laying out or refusing to lay out, altering or discontinuing, or refusing to alter or discontinue, a road or highway, their judgment and determination cannot be reviewed by appeal to a county judge of one of the counties.</p> <p>It seems, that in the absence of any provision of the statute for review in such a case, the determination of the joint board of commissioners must be considered final, and equivalent in all respects to an order of one board of commissioners affirmed by three referees on appeal.</p>

This is an appeal from an order sustaining a demurrer to the second, third and fourth defences of the answer.

Motion by defendant to set aside an order obtained by the plaintiff that the case made in this cause be deemed abandoned.

An alternative mandamus was issued, directed to the defendants as commissioners of highways of the town of Cherry Valley, setting forth the-proceedings whereby a highway was laid out in the town, and commanding the defendants to open the highway or show cause, &c. The defendants made a return to the alternative writ, alleging three distinct grounds or reasons why they refused to open the highway, as follows: 1.

Motion to set aside all proceedings in this action on the ground that it does not appear in any manner upon the copy of the summons served, that any United States revenue stamp was affixed to the original summons and can-celled, as required by the United States Statute.

<p>On the trial of an action to recover possession of real estate, the plaintiff introduced in evidence a judgment roll of this court, by which it appeared that in an action in this court against the plaintiff in this action, by which the plaintiff in that action claimed title to the premises, it was adjudged in that action that the title to the premises was legally in the defendant, the plaintiff in this action, whereupon the court considered that the judgment given in evidence was conclusive as between the parties of the plaintiff’s right to recover the premises, and gave judgment for the plaintiff, and the defendant moved for a new trial, on exceptions, including this ground, with others, which was denied by the genral term, for the reason that the question of title was res judicata. And after the decision of the general term, the court of appeals reversed so much of the judgment which was given in evidence in this action, as determined any question of title between the parties.</p> <p>Heidi that the defendant in this action was entitled to his motion to set aside the order denying the motion for a new trial, together with the judgment which had been entered; also, allowing a re-argument of the remaining points contained in his exceptions.</p>

<p>When the plaintiff unites in the same action, a claim which is not disputed with one that is, the defendant, under section 385 of the Code, may remove from the controversy the undisputed claim, by the offer provided for under this section, and thus make the subsequent costs depend upon the result of the litigation in regard to the disputed claim. But the offer must be fully equal to the sum actually and really due to the plaintiff, or he is not bound to accept it.</p> <p>The “more favorable judgment ” mentioned in section 385, which the plaintiff must recover to entitle him to costs, does not mean, in the case of a money demand upon which interest is accruing, a sum greater at the time of the report or verdict than the sum offered. If the verdict or report is made up of principal and the interest which accrued thereon, in determining which is most favorable to the plaintiff, the interest which accrued intermediate the time of the offer and the time of the rendition of the judgment, is to be rejected therefrom.</p> <p>Thus, in this case, the sum named in the written offer was $357.44, and the sum found due the plaintiff by the referee was $377.17, being $19.73 in excess of the sum expressed in the offer, but as this excess was not equal to the interest from the time of the offer to the date of the report, the plaintiff failed to obtain a more favorable judgment.</p>

<p>A guardian or committee of a lunatic appointed under and in pursuance of the laws of another state, where the lunatic and guardian reside, cannot be recognized by our courts, on an application by the guardian for property belonging to the lunatic in this state.</p> <p>Foreign executors and administrators may apply here for, and receive, letters testamentary and of administration; but our laws have never extended such a privilege to a foreign guardian or committee of a lunatic. Such an appointment can. only be made under proceedings instituted in this state to ascertain the fact of. lunacy.</p>

The plaintiff’s assignor (John C. Boak) was employed by the defendants as manager of their carpet department in their store in this city, at a salary of $1,400, for. one year from the 9th of January, 1860. On the íth of July, 1860, Boak was discharged by the defendants from, their service.

<p>The statute requiring a referee to make his report in sixty days after the cause is submitted to him, &c., contemplates that some step shall be taken in the cause after the expiration of the sixty days, indicating an intention to disaffirm the right of the referee to make and deliver his report.</p> <p>Where neither party take any such action, until the referee has made and delivered his report, they waive their right to proceed in the action as if no reference had been ordered. (This agrees with the cases of Livingston agt. Gidney, 25 How P. R. 1; and Foster agt. Bryan, ante 164.)</p>

<p>Where a surety signs an undertaking in an action of claim and delivery of personal property, and his sufficiency as bail is excepted to, and he fails to" justify, and after the period allowed for the justification has elapsed, and after another surety has been substituted, the plaintiff’s attorney countermands the exception, the first surety, notwithstanding the countermand, is not liable.</p>

This was an action of trespass brought before a justice of the peace to recover the amount of a tax paid by the plaintiff. The defendants were assessors of the town of Granville in the county of Washington, and the complaint alleged that they assessed the plaintiff without jurisdiction of his person or property. The answer alleged that the plaintiff was a resident of said town and liable to be assessed therein. (See Mygatt agt.

<p>In an action upon a money demand, where the defendants set up a judgment in their favor rendered by a court of concurrent jurisdiction for the same cause of action, as a bar, it is competent to go behind the record of that judgment and show by proof aliunde, that it was not given upon the merits, but on the ground that the action was prematurely brought, and-therefore not a bar to the present action.</p>

This was a motion to set aside an inquest and subsequent proceedings upon the following facts : The plaintiff’s attorney resides at Croton Falls, in Westchester county, and the office of the defendant’s attorney, to which notices to him were directed to be sent, is in the city of Brooklyn. There is a regular communication by mail between those places daily, except on Sunday.

Appeal by defendant from the decision of the special term denying defendant’s application to remove the cause to the circuit court of the United States. (Reported ante, p. 33.)

<p>Where an express company show by prima facie evidence that they either delivered a box of goods to the authorized agent of the person to whom it was addressed, or that the seller of the goods from whom the company received, the box had sanctioned the delivery to such alleged agent; in either case the company are discharged from liability to the seller for the non-delivery of the goods to the person to whom the box was addressed.</p>

This action was brought in November, 1863, by the plaintiffs, a mining company of the city of New York, operating in California, and owning the celebrated tract there known as “ Las Mariposas,” to clear up certain clouds on the title to said tract arising from an agreement made between Mark Brumagim, Trenor W. Park and John C. Fremont, in February, I860, for the purpose of saving to the then owner of the tract, John 0.

<p>Under the laws of 1840 (p. 327) and 1844 (p. 402) costs are distinctly allowed on every certiorari•</p>

<p>An alien widow cannot be endowed of lands of her husband, who was a naturalized citizen of the United States at the time of his death, where the marriage took place prior to the act of the legislature of this state passed April 30, 1845, when both husband and wife Were aliens, and the widow never having been a resident of this country.</p>

The plaintiff by this action seeks to have her dower ad-measured in the lands whereof William E. Burton died seized in Hudson street, in the city of New York, whereon Burton erected his residence, and in which he died.

This action was brought by the receiver of an insurance company, to recover the amount due on a premium note made by the defendant in the name of one Snow, and which note was signed, 1ST. D. Snow, sheriff of Chan, county, by A. Z. Madison, dep. shef.

This appeal is brought from a judgment of the St. Lawrence county court reversing the judgment of a justice of the peace. The action in the justice’s court was to recover damages for a breach of warranty, on the sale of a horse, that the animal was without a fault, and that she was kind, gentle and good to work. The justice rendered judgment in favor of the. plaintiff for $60 damages and costs.

This action came on for trial at the Monroe circuit, on. the 17th day of October, 1863, before the Hon. T. A. Johnson, Justice. A jury trial was waived, and the case tried by the court.

This action was brought upon a judgment alleged to have been recovered against the defendant, in the old court of common pleas of St. Lawrence county, in 1844.

This was an action brought for the false reading of a summons by a person deputized as a constable, so as to name a day different from the return day mentioned in the summons, whereby the defendant therein was misled, and judgment passed against him without any defence, to his damage by reason of losing his offsets, &c. The defendant assigned his claim for damages to the plaintiff in this suit, who recovered before the justice and a jury, and thereupon the defendant appealed…

Appeal by plaintiff from judgment of county court reversing the judgment of a justice of the peace. Bush delivered a sewing machine to the defendant to try', and if upon trial he should be satisfied with it, to keep, for $45, to be paid in a short time afterwards. Subsequently the defendant expressed satisfaction with the machine to Bush, and paid him $20 of the price.

This is an action in the nature of a creditor’s suit, brought to set aside an assignment, and also to reach certain household furniture alleged in the complaint to belong to one of the then judgment debtors, and to be held for his use by another of the defendants.

<p>Where the plaintiff’s son is hired by the defendant for two months, at $15 per month, to work on his farm, and at the end of five days, the defendant discharges him, saying he do’nt want him any longer, the plaintiff can recover the full two months wages.</p> <p>The defendants son, on going to the plaintiff, saying “his father (defendant) had sent him to hire a hand,” is a sufficient general authority to make such a contract of hiring.</p> <p>The appellate court will not charge a justice of the peace with improperly denying an application for an adjournment of a cause, and not giving any reasons for it at the time, without such error affirmatively appears. It will be inferred, in the absence of anything to the contrary, that the justice openly stated his reasons for refusing the adjournment.</p> <p>The whole of a justice’s judgment will not be reversed for an error of the justice in allowing a small item of claim—the remaining part of the judgment being correct. The appellate court have full power, under the Code, to reverse in part and affirm in part a justice’s judgment for entire damages. (To the same point and effect is Staats agt. Hudson R. R. Co. 23 How. 463.)</p>