Volume 28 — Howard's Practice Reports

This is a motion to continue an injunction restraining the defendants from executing or procuring to be executed a warrant issued by a justice of a district court in this city, in summary proceedings to remove a tenant under the statute for holding over.

Action by the plaintiff to recover of the defendants, who were sureties on an original undertaking on appeal, the amount of the judgment rendered on appeal, which the plaintiff had paid as an additional surety on such appeal.

<p>In order to preserve the property from serious loss, the court will appoint* a> receiver during the pendency of an action in partition.</p>

This action was for the conversion of personal property. The plaintiff recovered judgment in the sixth district court, in this city, against Tibbetts & Co., upon which an execution was issued, under which the sheriff levied upon the goods of Tibbetts & Co., and sold their right, title and interest. The plaintiff purchased at the sale and took possession.

This is an application for a mandamus to compel the board of supervisors of Albany county to audit the claim of the relator, for services rendered in the defence of Mary Hartung, who was indicted for murder. It appears from the papers, that on the 21st day of September, 1858, on motion of Samuel Gr.

This action is brought to recover a balance of account alleged to be due to the plaintiff’s testator for a large quantity of goods and merchandise purchased prior to the third day of August, 1861. The plaintiff’s bill of particulars shows the claim to be for a balance of an entire account extending through a period of four months, viz.: April, May, June and July, 1861.

This is an application for a certificate of the court showing that title to land came in question on the trial of this cause (Code, § 304, sub. 1). The trial took place at the circuit court in Genesee county, in June, 1864. In the complaint, the plaintiff set forth by metes and bounds, a description of certain real estate, which he claimed to own, and on which it was alleged the defendant had trespassed.

This cause was tried before Justice Hasten and a jury. Upon the trial, a verdict was directed for the plaintiffs. The defendant excepted. The exceptions were ordered to be heard at the general term, in the first instance. The general term ordered judgment upon the verdict. The facts sufficiently appear in the following opinion of the general term;

<p>Motion for a new trial on a case, after unconditional judgment.</p>

The defendant moves for his discharge from arrest under an order made by one of the justices of this court. From the affidavits read, it is shown that he was formerly the general guardian of the plaintiff’s intestate, who became of the age of twenty-one years the twenty-third of July, 1861.

This is an appeal from an order overruling a demurrer to the complaint in the above action. It appears by the complaint that Tennis H. Snyder and Peter Shufelt, on the 22d day of March, 1856, made a voluntary assignment for the benefit of their creditors to the defendant Wright, who accepted the trust and entered upon the execution thereof.

This action was brought in a justice’s court of Schoharie county, for damages on breach of warranty on the sale of a cow by defendant to plaintiff, whereby the plaintiff was deprived of the use of a new milch cow, which, by the terms of defendant’s contract, was to become a new milch cow in the month of April, 1863.

The complaint was for a libel. The libellous article was a pretended dream published in a newspaper in Sullivan county, of which the defendant is the proprietor. The libellous matter consisted in a statement in the dream that the plaintiff, who was a miller, had burned his mill to get the insurance money, and had sold wheat flour which was three-fourths stone peckings.

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

09 against the above defendants, William H. and Theodore R. B. De Groot, for a deficiency arising on foreclosure of mortgage and the execution issued thereon, and that plaintiff be restrained from issuing execution thereon.

<p>Where a sheriff receives rents from a defendant’s real property in an attachment suit, the court ponding the litigation, will order the amount thus received to be applied on incumbrances upon the property, where the plaintiff’s security is sufiicient without it.</p>

<p>Where a plaintiff files a notice of lis pendens, in an attachment suit affecting real estate, it is improper to include therein any real property which the sheriff has not levied upon under the attachment. And where such a notice includes other premises than those levied upon, it will he held inoperative as to such additional premises.</p>

Writ of error to the supreme court to bring up the record and judgment on the trial, conviction and sentence of the prisoner for the crime of murder

The defendant appealed in the first above cause from a judgment of Justice Bocees. In the second cause the plaintiff appealed from an order of Justice Rosekrans, made the fourth Tuesday of August, 1864, setting aside the plaintiff’s judgment for alleged irregularity. The place of trial is Saratoga county, fourth district.

This action was brought by the plaintiff to restrain the defendant from a further and continued use of the name of the “McCardel House,” in his business, or in or upon the building wherein the same was conducted, in the city of Albany, or in any other manner whereby the rights of the plaintiff are prejudiced.

<p>Appeal from order of Genesee county court, refusing to direct the sheriff to return satisfied an execution (for the conversion of exempt property) which he had against defendant Rowan, and the judgment in which case Rowan claimed passed to Andrews, receiver, to whom Rowan paid or tendered payment of the judgment.</p>

<p>Motion by defendant to set aside complaint and to be discharged from arrest, &'c.</p>

This was an appeal from a judgment rendered in the county court of Rensseler county, in favor of the respondent. On the 18th day of September, 1862, the respondent, Susannah Yates, entered into a contract in writing with one Daniel Smith, by which said Smith agreed to construct a house and furnish the materials therefor for said Yates, at the sum of $1,100, to be paid when called for, as the work progressed.

<p>In this case, this court on appeal from a judgment of the county court containing a case and exceptions, in an action originating in a justice’s court, field, that it could not set aside the verdict and grant a new trial on the ground that the verdict was against evidence—the motion for a new trial on that ground should first he made in the county court, before appealing to this court.</p> <p>But this court reversed the judgment of the county court, and granted a new trial in that court for an error in the charge of the comity judge.</p>

Action of ejectment for lot number 82, in great lot number 5, in the Hardenburgh patent, Delaware county—tried at the Delaware circuit in August, 1863. The jury rendered a verdict in favor of the defendant. The judge granted a new trial upon his minutes, costs to abide the event, on the same day the verdict was received, on the sole ground that the verdict was against evidence.

The action was mandamus to compel the defendants to open and work a highway. The defendants made a return to the alternative writ, and the relators pleaded to the return. The issues of fact were tried at the circuit, and a verdict rendered, and judgment ordered for a peremptory writ and costs in favor of the relators. For a full statement of the facts, see report of the case on the merits (26 How. 378).

<p>Both, legal and equitable claims against the estate of a deceased person may be referred under the statute.</p> <p>Where the plaintiff, a confectioner, in 1859, at the request of a married woman, whom he knew to have a separate estate, furnished her with articles for a wedding supper on the occasion of the marriage of her daughter, and subsequently she repeatedly promised to pay the debt out of her separate estate: Held, that her estate was not liable for the debt.</p> <p>Because, 1st. There was no evidence of an intent to charge her separate estate stated in the contract.</p> <p>2d. The consideration for the debt did not go to the direct benefit of her separate estate. (Sutherland, J., dissenting.)</p>

<p>A motion may foe made at special term to modify a judgment* after final judgment has fosen entered.</p> <p>The order modifying such a judgment is not aypealdblo to the general term.</p>

<p>A term fee of $10 is given by the Code (§ 307) for every term when the cause is necessarily on the calendar and is not tried; but when tried no term fee is allowed, but a trial fee instead thereof.</p> <p>When the merits of a cause are brought up, and the cause is placed on the calendar of the court, and the issues, whether of law or of fact, and whether arising on the pleadings or out of subsequent proceedings, are presented to the court, and by the court judicially examined, there is a trial within the meaning of the Code (§ 252).</p>

Motion to dissolve an injunction. The New York and New Haven railroad company brought this action against Robert Schuyler and numerous defendants, who were alleged to be holders of over-issued stock of the company fraudulently issued by Schuyler.

On the 25th August, 1862, the defendant Murray, who was then United States marshal for the southern district of New York, directed his co-defendant to arrest the plaintiff, which was done in the county of Suffolk, in this state, where the plaintiff resided, and the plaintiff was kept in prison some ten days. For damages for this arrest and imprisonment, the plaintiff has brought his action in this court, naming in his complaint Suffolk county as the place of trial.

<p>A sentence which is proper for burglary in the second degree, for which crime the prisoner was indicted, tried and convicted, will not be reversed for the reason that the court who pronounced the sentence probably supposed from an indorsement on the indictmént that he was convicted of burglary in the first degree.</p>

<p>A name which is used to designate an article and denote its quality, is never the subject of a trade mark, as f< Old London Dock Gin.</p> <p>But where the name of the manufacturer is appended to such title, and a style of bottle and label which have a general resemblance of form, symbols and accompaniments to those of the plaintiff, calculated to deceive the public, the plaintiff will be protected by injunction from such violation.</p>

<p>A person will not be appointed by the court a receiver who by his own acts or the position he occupies, stands in any improper relation to the cause.</p> <p>Nor generally will a person be appointed receiver, if objection be made by either party, where the court has no personal acquaintance with him.</p>

<p>On the 9th December, 1862, there was tried by a jury in the Kings county court, an action upon appeal from a justice, wherein Charles Frohue was plaintiff and appellant, and Isaac Levi was defendant and respondent. The jury on that day rendered a verdict in favor of respondent for $175.73 and costs. The costs were subsequently adjusted at $39.04, and on the 13th January, 1863, the judgment was entered in favor of respondent for $214.50, being entered by mistake for twenty-seven cents less than the true amount, which was $214.77. The plaintiff Frohue appealed to the general term from this judgment, and it was subsequently affirmed. Upon his appeal and to stay proceedings, he caused to be executed by defendants and filed an undertaking, reciting in it that the judgment was recovered on the 18th December, 1862, in the Kings county court, by Levi respondent, against Frohue appellant, for $214.11. This undertaking was filed on the 8th/January, 1863.</p>

<p>To entitle the plaintiff to alimony and counsel fee,.in an action for divorce for cruel and inhuman treatment, she must make it appear that she has been injured, and present a meritorious cause of action.</p> <p>A single instance of cruelty is not sufficient cause to authorize the court to interfere, although vague charges of cruel treatment are also made against the husband. The parties to a marriage contract should bear long and patiently with each other; they should exercise the most forgiving spirit, and seek by all possible means to reconcile their differences, before resorting either to the protection or the power of the law to redress their wrongs. They should become fully satisfied that there was no longer any possibility that the duties of their married life can be discharged.</p>

<p>This is an action for injury to personal property, and also for the conversion of property. Damages were laid hy plaintiff at $5,000.</p>

The defendants in this case appealed to the court of appeals, where the judgment was affirmed June, 1858. The cause was regularly on the calendar eight terms in the court of appeals, before it was reached. 1858, June 26th, costs were adjusted by the clerk of Saratoga county, and he allowed $80 for the eight terms in the court of appeals.

<p>Appeal from the judgment of the superior court of the city of New York.</p>

<p>A notice of appeal from a judgment of a justice of the peace, under section 371 of the Code, which states that the judgment is for too much, is not a compliance with the provisions of this section so as to allow costs to the appellant on his recovery of a more favorable judgment in the appellate court.</p> <p>If the respondent should offer to allow the judgmentto be corrected in this particular, and the appellant should accept the offer, the justice could not make any correction of the judgment. (The cases of Fox agt. Nellis, 25 How. Pr. R. 144; Wynkoop agt. Holbert, Id. 158; and Forsyth agt. Ferguson, 27 Id. 67, considered.)</p>

This action was brought to recover the amount of damages alleged in the complaint to have been done to premises of the plaintiff by the steam engine and machinery of the defendant’s marble works adjoining the same, and to obtain an injunction against the continuation of the injury.

<p>Appeal from judgment at Special Term.</p>

This is an action brought to recover the sum of $1,174. 01, being moneys advanced by the plaintiffs for the defendants for and on account of the brig Rogelem, of which the defendants were owners.

<p>Motion by defendants for an interpleader, under section 122 of the Code,</p>

Trial by the court. Action to recover the penalty of a bond given by the defendant Harrison, as a tavern keeper, and his sureties.

The plaintiff sued the defendant for damages for breach of covenant in this, that the defendant had conveyed to him premises in Fifty-eighth street, in this city, with full covenants of warranty, seizin, and against incumbrances, yet that on the premises there were divers assessments which he was compelled to pay, and now sued to recover.

Some time prior to the 16th day of September, 1862, the plaintiffs and defendants entered into a negotiation for the sale by the defendants to the plaintiffs of a lot of buffalo robes, which was consummated on the 16th of September, and a memorandum was signed by the defendants as follows: “New.York, September 16th, 1862. “ We hereby state that we have sold this day to Messrs. Murphy, Griswold & Co., 19 Murray street, about two hundred bales of buffalo robes, plain seas.

Appeal by plaintiff from an order made at the September special term of this court, at Norwich, Chenango county,' 1864, denying his motion for a readjustment of defendant’s costs. The action was tried before a referee at Norwich, who decided that the plaintiff was not entitled to recover, and that the defendant was entitled to a judgment against the plaintiff for costs.

Statement—The libellants filed their libels claiming $7,875 damages done to the schooner Mary C. Town, in a collision on the Potomac river, by the steamer Western Metropolis. The claimants filed eleven exceptions to the libel, eight of which were on matters of formal statement.

<p>Where the claimants file exceptions to a libel, the libellant has a right under the 24th admiralty rule of the supreme court, to move to amend his libel in any of the points excepted to, without submitting to the exception, as provided for in rule 94 of this court.</p> <p>Where the offending vessel in a case of collision is arrested in this district, this court has jurisdiction of the cause of action even though the collision occurred on the Potomac river, otit of the district.</p> <p>Cases of maritime torts committed upon navigable waters are cognizable in the admiralty within any district where the vessel may be apprehended.</p> <p>Where the claimant excepted to eight distinct matters of form in the libel, it was held that the points of exception embraced matters which are sufficiently explicit and certain to a common intendment, or are appropriately subjects of proof; and need not be set out in the pleadings.</p>

<p>When the trial of a causo is moved at the circuit, if the judge is satisfied from an inspection of Mispleadings that the trial of the issues of fact will require the examination of a long account, or if after a trial of a cause before a jury has been commenced at the circuit, it appears by the evidence that the trial will require the examination of such an account, the judge, of his own motion may direct a reference of the issues to a referee to hear and determine.</p> <p>And the court can direct a reference of any referable action on the motion of either party, whenever it is satisfied by legal evidence.</p> <p>Where the verified pleadings used on a motion for a reference show that the trial of the issues of fact in the action will probably involve the examination of a long account, the motion will be granted, notwithstanding the (otherwise valid) objection that the moving affidavit is made by the attorney and not by the party, without any excuse being shown why it was not made by the party.</p>

The action was to recover damages as well for a false and fraudulent representation made to the plaintiffs by the defendant, as for the fraudulent concealment from the plaintiffs of facts within the defendant’s knowledge. On the trial, before a justice of this court and a jury, it was proved that on the first of February, 1858, the defendant wrote and transmitted to the plaintiffs a letter, of which the following is a copy; “ New York, February 1, 1858. “ Messrs.

<p>In California, where a party enters into a written contract for the payment of a sum of money in gold coin of the United States,—such contracts being authorized by a statute of that state, he will be decreed to specifically perform such contract, and make payment in gold coin. And it is no defence to an action for such specific performance that the defendant has, before suit brought, tendered in payment to the full amount of his obligation, United States legal tender notes.</p>

This was an action against the defendant Kerr, as administrator of John Strahan, deceased, and his sureties, on his bond to the people of the state, given on the issuing of letters of administration to him in 1858.

<p>A cause of action in the nature of a creditor's bill, does not accrue until after the recovery of judgment and the return of execution unsatisfied, in the common law action. The statute of limitations, therefore,' is not a bar to such an action until six years from the return of such execution.</p> <p>Mere hindrance and delay is no objection to an assignment for the benefit of creditors. But if the primary and controlling purpose is to hinder and delay, then the statute is violated, and this may be the result even where the moral intention of the debtor is honest.</p> <p>Where debtors stop payment and close their business in consequence of a wide spread revulsion in trade, confident that with their assets they can pay all their debts, and do not then consider it necessary to make a general assignment for the benefit of their creditors; their assignment of a portion of their assets to a person for the avowed purpose of preserving it for their creditors at large, and to prevent any unequal advantage to creditors in other states, does not disclose any fraudulent intent in relation to their general assignment, executed nearly three months later.</p> <p>lb is not every kind of interference by an assignor with the property of the trust, that indicates a fraudulent intent at the execution of the assignment. Any suggestion offered by him which may be useful to the trustee, to the end that his property may go as far as possible in the payment of his debts and the satisfaction of his creditors, is the exercise of his moral interest in the disposition of his property which is justifiable.</p> <p>Where a general assignment for the benefit of creditors provides that the assignee shall retain, pay and disburse all the just and reasonable expenses, costs, charges and commissions of executingand carz*ying into effect the assignment, including a just, reasonable and laxoful compensation for his own services as such trustee:” Such provision does not invalidate the assignment.</p> <p>Where an assignment conveys to the assignee the partnership and the individual property of the assignors, with a direction to pay taxes, assessments, &c., to become due on the separate real property, such direction is not to be construed that such payments are to be made from the partnership fmds.</p> <p>A provision in such assignment that after payment of the partnership debts, the assignee shall pay all the private and individual debts of each assignor, is not an illegal provision. Bven if it appeared in the assignment that each assignor was individually insolvent, and that the property assigned by each was unequal in value, and the debts of each unequal in proportion, still the presumption is that the assignee would do his dutyand not pay the private debts of one partner with the property of the other, in the absence of any express provision to that effect in the assignment.</p>

This was an action to recover ¿66 lent in England, to be paid on the arrival of the parties in New York. • The defendant paid in court $30 (the par value), and claimed that was all the plaintiff could recover.

This was an action brought under the riot act of 1855 (Laws of 1855, ch. 428, p. 800), to recover damages against the city of New York, for the destruction of the plaintiff’s property by a mob, during the riot of July, 1863. At the trial before Judge Moncrief, the plaintiff was non-suited, but the general term (of the superior court) set aside the non-suit and ordered a new trial. The appeal was from that determination.

<p>Where the statute provides for double costsT it is unnecessary for an appellate court to mention them in their decision; and it is the duty of the clerk to tax them in the judgment.</p> <p>The death of a party in an action cannot change the rights of the other parties 5 it merely changes the title of the action) and a revival in favor of the representatives is permitted for the purpose of protecting the interests of the estate of the deceased.</p> <p>Where the defendant died in February) and the action was revived in March following, the term fees in" the court of appeals for the March and June terms were properly taxable, as one notice for the year in that court is sufficient.</p>

<p>Application by a receiver for instructions in regard to the management of the estate intrusted to him.</p>

<p>As a general rule, a court of equity will not restrain by injunction, the commission of an ordinary tort or trespass.</p> <p>The threatened trespass must be such as cannot be compensated "in damages at law, or it must be irreparable, to authorize an interference by injunction.</p> <p>A preliminary injunction had been granted to prevent the use of the plaintiffs’ road, and the defendants instituted legal proceedings to have the amount of compensation for such use ascertained, which were resisted by the plaintiffs.</p> <p>Held, that the injunction should be dissolved, even though it should be conceded that the threatened use of the plaintiffs’ road by the defendants would be technically a constantly recurring grievance, or a continuing trespass. At all events the injunction should be refused till the final hearing, when the subject of compensation can be considered.</p> <p>The statutory privilege to use a railroad, it must be presumed, is granted from public motives and for the public good, and the public, therefore, must be presumed to be interested in the speedy and constant .exercise of this privilege.</p>

This was an appeal from an order made at special term in February, 1864, discharging the defendant from attendance as a witness. The plaintiff had commenced a suit by the service of a summons and complaint.

This is an appeal from an order made at special term on the 22d of April, 1863, upon a motion made on the part of the defendant to set aside the report of the referee' therein, and any judgment that may have been entered thereon, and that said action might proceed to trial as though no reference had been ordered therein, on the ground that the referee did not make and deliver his report within sixty days from the time said action was finally submitted to him.

<p>Motions to correct the calendar at the circuits, should be made on the first day of the circuit, which generally occurs on Monday. It is too late to make such motions on Thursday of the first week of the circuit.</p>

Motion on the part of the defendant to set aside report of referee in favor of the plaintiff, and the judgment entered thereon, and subsequent proceedings, on the ground of irregularity.

<p>Where a defendant in moving to discharge an order of arrest, predicates his motion on the plaintiff’s affidavits, and to which he presents a response, he waives his right to object that the plaintiff’s affidavits are entitled in the cause.</p> <p>The laws of 1863 (p» 449), confers generally the authority to administer oaths and . affirmations to be read in evidence and used in any of the courts of this state, without prescribing any particular form of authentication. And it was not the intention of the legislature to impose upon Vice Consuls duties in respect to this subject not imposed upon others.</p> <p>■Therefore, where a jurat to an affidavit is in the usual form, and states that the deposition was subscribed and sworn to in the presence of the Vice Consul of Canada, and he so certifies under his seal of office, it is sufficient.</p> <p>The arrest of a person here in a civil action, for fraudulent representations in the purchase of property in a foreign country, of a foreign creditor, will beheld good, where such property or its proceeds are brought here by him, although he could not have been arrested for such acts in that country. The lex fori and not the lex loci governs in such cases.</p> <p>Affidavits to procure an order of arrest stating the material facts upon information and belief are sufficient, where they state the sources from which the information is derived, and the places of residence of the informants at such distance that it would be impracticable to procure their sworn statements in season to make a successful arrest. Especially where they contain positive and truthful statements enough to make out a prima facie case for arrest.</p> <p>Where the evidence produced for an order of arrest is satisfactory that the large credit a debtor enjoyed just previous to his sudden failure, was used fraudulently to obtain a large amount of property, the fruits of which he might enjoy to the detriment of his creditors, an order of arrest should be granted by the judge and retained by the court.</p>

The plaintiff sued the defendant before a justice of the peace of Schoharie county. The summons was returned by the constable personally served, and on the return day the plaintiff appeared and put in her complaint. The defendant then before answering the complaint, moved that the suit be dismissed and defendant be discharged, on the ground that the summons had not been served upon the defendant.

This was an action to recover a deposit of $600 made upon a contract for the purchase of two lots of land. The contract provided that if the title on examination should prove insufficient, the deposit should be paid back. The objection to the title was that certain proceedings in the supreme court for the sale of the interests of infant owners were defective.

<p>This is an application to amend or file a supplemental answer alleging adultery on- the part of the plaintiff., the' fact having been discovered after the issues were first joined.</p>

The plaintiff had commenced an action, which in the former chancery practice would have been a bill of inter-pleader, and he now, before the time to answer the complaint has expired, makes a motion for an order that the relief prayed for in his complaint be granted to Mm.

This action was commenced by the plaintiffs, two of the executors of Benjamin Rathbun, to obtain a judicial construction of his will. The defendants Laura Carroll, Jane M. Rathbun and George L. Rathbun (only children of Charles Rathbun, a son of deceased), appeared by Countryman & Moak, and the defendants Andrew R. Smith, Minerva E. Wood, Calvin P. Smith and Louisa Rathbun, by D. C. Bates, Esq. The case was tried at the Otsego special term, in July, 1861.

<p>This action was commenced by the plaintiffs, two of the executors of Benjamin Rathbun, to obtain a judicial construction of his will. The defendants Laura Carroll, Jane M. Rathbun and George L. Rathbun (only children of Charles Rathbun, a son of deceased), appeared by Countryman & Moalc, and the defendants Andrew R. Smith, Minerva E. Wood, Calvin P. Smith and Louisa Rathbun, by D. C. Bates, Esq.</p>

The above cases were both founded on the same circumstances, which were as follows : In November, 1863, Eire Engine Company Nó. 17, W. D., city of Brooklyn, built an additional story on their engine house. The work was done under contract made by the company with Snediker & Patton, builders, who sub-let the same to one Kenny.

This appeal was brought on behalf of the defendants, from an order of the general term of the supreme court in the sixth district, denying a re-taxation of costs (reported ante, p. 159). The relators moved to dismiss the appeal.

This action came on to be tried before one of the justices of this court and a jury; upon the plantiff resting his case, the defendant moved to dismiss the complaint, and the court granted the motion. The plaintiff excepted. Whereupon the exceptions were directed to be heard at the general term in the first instance, and the entry of judgment in the meanwhile to be suspended.

<p>This is an application by the defendants for a bill of particulars of the plaintiff’s demand.</p>

The plaintiffs respectively recovered judgments against the firm of Abbott, Pollock & Cochran, and after the return of executions unsatisfied, commenced an action against the judgment debtors and their assignees, to set aside an assignment. made by the firm of Pollock- &. Cochran (Abbott having previously sold out liis interest in the firm of which he was a. member to the last mentioned firm) to John Stewart and Cornelius Fiske, assignees, for the benefit of creditors.

<p>An injunction dissolved on the grounds: 1. That the affidavit and papers upon which it was granted were illegible; 2. That the injunction had not been served on the defendant personally; 3. That the papers had not been filed as required by the rule of court.</p>

This is an appeal from a judgment entered -upon the report of a referee in favor of the defendants.

The complaint in this action alleges that defendant Dakin, July 21, 1862, was indebted to plaintiffs upon his note dated March 1, 1862, in the sum of $3,140.82 and interest; that plaintiffs commenced an action in this court against Dakin on said note, July 23, 1862, and in that action an attachment against Dakin’s property was issued, he being a non-resident; that the attachment was directed to the sheriff of Tompkins county, who August 1, 1862, exe cuted the attachment by…

<p>Under section 121 of the Code, the representatives of a deceased sole defendant, in an action after judgment and pending an appeal thereon, have the right to have themselves made parties to the appeal.</p>