Volume 29 — Howard's Practice Reports

<p>A sheriff cannot be allowed an additional compensation for executing an attachment over and above his prescribed fees, unless he is put to trouble or incurs expenses in taking possession of or in preserving the property attached.</p> <p>Where a sheriff attaches the interest of a defendant in a mining company, and the parties thereupon compromise the claim* for a specified sum, the sheriff is entitled to the fees prescribed by the Revised Statutes for his services, as follows • Fifty cents for the service of the attachment; nineteen cents for a copy of the attachment, and twelve and a half cents for returning it. He is not entitled to poundage, because he has not attached any property he could sell by virtue of the attachment.</p>

The. complaint in this action alleged the making of a bond by the defendants, in the penalty of $1,600, conditioned to pay $3,800 on the 21st of May, 1865, with interest payable half-yearly. The complaint further alleged that a half-year’s interest became due on the 21st of November, 1863, which remains unpaid, whereby the defendants became liable to pay to the plaintiff the sum of $1,600, the penalty of the bond.

Action to recover five promissory notes amounting to $4,582.41, made by the defendants, composing the firm of Graydon, McCreery & Co. On March 1, 1861, the plaintiffs, holding the notes in suit, made a composition with the defendants and others of their creditors, by which they agreed to accept in full, fifty per centum of their notes, payable at an average of twelve months from April 1,1861; they to deposit their notes with William Watt until the fifty per centum should be…

This was an action to recover damages for the breach of covenant for quiet enjoyment, in a lease for a term of years. It was tried before Hasten, Justice, and a juiy. Tlie jury rendered a verdict for the plaintiff for nineteen hundred and forty-one dollars. The general term ordered judgment for the plaintiff upon the verdict. The facts of the case and the questions raised by the exceptions taken at the trial, are stated in the opinion of the court.

<p>Whenever on a disputed question of fact there is a conflict of testimony, the preponderance must be overwhelming to authorise a court to disturb the finding either of a jury, or a justice who tries the cause without a jury.</p> <p>Where, in an action to recover a penalty for a violation of the excise law of 1857, for selling strong and spirituous liquors without license, the evidence showed that the witness called for gin, and in answer to this call a liquor was given to him, the precise quality of which he could not discriminate, but thought it was whiskey:</p> <p>Held, that the defendant being charged with selling strong and spirituous liquors • without license, and the complaint specifying gin and whiskey, among other liquors, which he had sold, the evidence was sufficient to establish a violation of the act. Besides the defendant was not at liberty to deny that the liquor was gin, when he furnished it in answer to the call for that liquor.</p> <p>Where a board of excise, for the purpose of ascertaining an offence under the excise law, and bringing to conviction the offender, employ and pay informers and witnesses to go upon his premises and purchase and drink spirituous liquors thereon, the seller thereupon violates the law, and becomes liable to its penalty, where he has no license from the board of excise to protect him.</p> <p>If the board of excise can be considered as particeps criminis with the offender, they are not in pari delicto with him; for a penalty is imposed by statute upon one party and not on the other; and the delictum not being equal, there is nothing to prevent the statute from being enforced against him.</p> <p>It seems, that the board of excise in such ease is not even a particeps criminis with the person violating the statute, as they are in effect a corporation, representing the sovereign power of the state, engaged in administering and enforcing its penal laws, and the mode adopted by them to compass this object is the same in principle as that which the state or any of its functionaries, or any municipal body resorts to when it offers a reward for the detection of crime.</p>

The plaintiff by summary proceedings recovered a judgment before a justice of the peace on the 18th day of April, 1863, that the defendant surrender the possession . of a farm to the plaintiff, and also for costs.

This is an action brought by the plaintiff upon a policy of insurance issued by the defendants to the firm of “ Sturtevant,- Sons & Go.” upon certain machinery for the manufacture of paper, in Ogdensburgh, St. Lawrence county.

The complaint contained substantially the following averments : That the defendants, keepers of a gambling room in Syracuse, wrongfully won and obtained from the plaintiff one hundred and forty dollars on the 4th day of January, 1864, and other days during that month, by ¡haying with him at the game of faro, being a game of chance, at which game the plaintiff and defendants staked and bet various sums of money during that time; that the plaintiff staked and bet and lost,…

Motion of plaintiff to set aside judgment upon the report of a referee dismissing the complaint. The affidavit showed that an order was granted at special term to refer the action, but it did not appear whether the reference was to try the issue or to take the testimony. No order of reference was entered, but the judgment roll contained an appointment of a referee signed by a judge of the court, to hear, try and determine, the. issue.

Motion on the part of the defendant for an additional allowance of costs, under section 309 of the Code. The plaintiff in-his complaint claimed $41,740, for money paid, &c. The defendant put in an answer, among other things, setting up a counter-claim, and the plaintiff put in a reply thereto. The action was tried at the Monroe circuit, where the plaintiff recovered judgment.

The cause was tried before *r a referee, and judgment perfected upon his report, which was docketed June 21st, 1862, for $31,589.09. Damages ..................... $31,462 30 Costs__________________________ 126 19 $31,589.09 From this judgment an appeal was brought to the general term, where the same was affirmed at the general term of this court, held in September, 1864.

This action was brought to recover the amount of the following promissory note : “$2,400. Rochester, July 15, 1862. “ Twenty days- from date, for value received, I promise to pay Geo. W. Cothran or bearer, twenty-four hundred dollars, with interest semi-annually, at Niagara County Bank, Lockport, N. Y., being balance due on settlement. (Signed) “ S. A. Collins.” The answer alleged payment to a holder of the note.

For a statement of the facts and evidence in this case see next ante. After the exceptions in this case, which were ordered to be heard at general term in the first instance, had been argued, and previous to a decision thereof, the plaintiff noticed a motion at special term for a new trial on a case, on the ground that the verdict ivas against evidence.

This is an appeal from an order of the St. Lawrence county court. The facts were these : An action in the nature of trover was brought to recover the value of a cow. The answer was a denial of the complaint. The evidence was of a contract to purchase a cow by plaintiffs of defendant, at $17, $5 paid down, and the balance to be paid when taken away; defendant to keep the cow two weeks free of charge, and one week longer if desired, for pay, when she was to be taken away.

<p>The complaint shows that one Robert Perry, in 1833, purchased the premises of the state, and took the surveyor general’s certificate, which entitled him to a patent on payment of the purchase price. He paid up in full on the 19th day of September, 1836, but neglected to take out a patent. He went into possession under the surveyor’s certificate, and remained in possession until the defendants took the title.</p> <p>In September, 1854, he mortgaged the premises to the plaintiff and one James Stewart, to secure the' payment of $600. Default having been made in the payment of the mortgage debt, the mortgagees foreclosed the mortgage in equity, and obtained the usual decree for a sale of the premises to pay the debt. Judgment of foreclosure was entered March 31st, 1856. The premises were sold under this judgment at public auction, and the plaintiff became the purchaser. The report of sale was duly confirmed, and a conveyance made to the plaintiff of the premises under the judgment of foreclosure, September 15, 1856. This judgment was appealed to the general term by Perry, and the judgment was affirmed.</p> <p>It also appears by the complaint that on the 19th day of April, 1841, Perry gave another mortgage on the same premises to Edgar G. Perry, to secure the payment of $200, which has never been paid, and that on the 21st of June, 1861, the plaintiff purchased it and took an assignment. The plaintiff claims that he took the whole interest of Perry to the surveyor general’s certificate, and to the premises described therein, by virtue of the foreclosure of the mortgage first above described, and the assignment of the prior mortgage, and that he thereby became equitably entitled to a patent from the state.</p> <p>The complaint- then charges that Perry in fraud of the plaintiff’s interest, assigned the surveyor general’s certificate to Nancy L. Hutchinson, the wife of Daniel P. Hutchinson ; that Daniel P. Hutchinson procured him to make the assignment by artful contrivances, which he was enabled to practice by reason of his being his confidential adviser. She afterwards took out a patent, and obtained the legal title. The plaintiff, among other things, demands judgment that she be required to conyey the premises to him as the lawful and equitable owner thereof. The complaint also demands various other remedies which it is not necessary to notice, and also general relief. To this complaint there was a demurrer, upon the ground that the facts did not constitute a cause of action, and for defect of parties.</p>

<p>Where an officer arrests a person for felony on telegraphic or other satisfactory dispatches, without warrant, it is his duty, equally as if the arrest had "been made by warrant, to take the arrested party without any unnecessary delay ' before some officer who can take such proofs as may bo offered, or if the circumstances will justify it, hold him for further examination.</p> <p>If this is not done with reasonable diligence, the party arrested can apply for a habeas corpus, calling on the officer to show cause why he is detained. And on the return of the writ; the rule is thatzwhero the arrest is upon suspicion and without warrant, proof must be given to show the suspicion to be well founded. If no such proof is offered; it is the duty of the officer to discharge the party.</p>

<p>An agreement to receive and enjoy a sum of money promised* can be no valid consideration for the promise.</p> <p>Where the defendant" promised to pay the trustees of New York Central College $100* in five years, or their authorized agent—they agree to apply it for college purposes Held, that there was no sufficient consideration expressed in the instrument itself to sustain the promise.</p> <p>But where it was shown that the defendant had signed a separate cotemporaneous agreement, whereby he certified that he had " this day signed $100 for the N. Y. Central College, which he agrees to pay in five years, on condition that said college holds its doors open upon all moral subjects, and that they will use their influence on the students, if the subject of the mortality of the soul should be presented for discussion in the lyceum, to have them attend and hear the said discussion, and investigate it as they would any other moral subject; and also that the college chapel will be open with three weeks’ notice on the sabbath, for any suitable Christian person to preach on that subject<</p> <p>Held, that this agreement was a sufficient consideration for the defendant’s promise.</p>

Demurrer to complaint. This action was instituted to obtain leave to issue an execution upon a judgment which was rendered before a justice of the peace, and docketed in the county court, so as to make it a judgment of the latter court.

An action was heretofore brought against the defendants as joint makers of a promissory note, and process served on Wm. F. Eldridge only, and judgment taken therein to be collected of the joint property of the defendants, or of the separate property of Wm. F. Eldridge only. The present action is brought against both defendants—the complaint alleging the recovery of the former judgment, and that no process was served in this action on said defendant Wm.

This action was brought to recover the amount of four promissory notes, amounting together to $4,007.94, and the same are correctly described in the complaint. The action was commenced by the service of a summons and complaint on the defendants above named, on the 28th March, 1862. The other defendants were not served, and did not appear. The action was tried by and before Hon. T. W. Clerke, Justice of this court, on the 23d March, 1863, without a a jury.

<p>A summons issued by a justice of the peace does not require a United States revenue stamp.</p>

<p>A sheriff has no right of action against hail* under section 203 of the Code* until he has sustained damages from the liability as bail which the law imposes upon him; that is* damages by reason of failure of bail to justify* or other bail to be put in. And such damages must be averred and shown.</p> <p>Whether the sheriff may assign his right of action which he may have against bail. Quere ?</p>

Action for assault and battery. Defendant appeared and put in answer by attorney. On the trial of *the issue at the January circuit, 1865, it appeared that the defendant was only twenty years of age in May preceding the trial. The plaintiff had a verdict, but no judgment has been entered.

The action is upon a promissory note made by the two defendants, Anson B. Hoyt and George Hoyt, copartners, of the firm of Hoyt & Brother, payable to the order of Belding Hoyt, another defendant, and indorsed by hint, and also by the other defendants, dated 22d June, 1861, payable three months after date, and payable at the People’s Bank. The note was discounted by the plaintiffs. The defence is usury.

Motion at Owego special term, March, 1865, to set aside judgment, and for leave to appeal. In addition to the facts which appeared on the motion made November general term, 1864 (28 How. 436), by defendants, who appeared by Countryman & Moak, to strike the cause from the calendar, and by defendants, who appeared by Mr. Bates, for leave to appeal as against them, the affidavits show the following facts : All parties appeared on the trial by their respective attorneys.

- Demurrer to complaint. The charter of the city of Buffalo authorizes the common council to cause streets to be graded and paved, and sewers and crosswalks to be built, and the expense thereof to be assessed upon the lands deemed benefitted thereby; but provides that no street shall be graded or paved when the expense thereof will exceed two hundred dollars, except upon the application of a majority of the property holders liable to be assessed to pay for the same, nor…

<p>A county judge clearly has jurisdiction in proceedings supplementary to execution.</p> <p>Where a judge before whom proceedings supplementary to execution are pending, makes an order appointing a receiver of the debtor’s property, and files the same, together with the testimony taken on tho examination of the judgment debtor, in the county clerk’s office, beforethe examination of the judgment debtor is finally concluded, the judge docs not thereby lose jurisdiction of the person of tlie judgment debtor, nor his power to commit him for contempt in refusing to answer questions on his further examination.</p> <p>In analogy to the former practice in chancery upon filing a creditor’s bill and tho appointment of a receiver, the judge may now appoint the receiver at any time while the proceedings are pending before him, in his discretion. ■</p>

This action was brought to set aside a judgment in favor of William L. Shardlow, and three assignments of property and accounts made to him by Shardlow & Kirk, on the ground that they were fraudulent, or made to hinder and delay creditors. Upon the trial, it appeared that the firm were indebted to William L. Shardlow to an amount equal to the judgment.

<p>Evidence on the part of the insured, that the risk was thereby greatly decreased, is competent.</p>

Motion to strike out complaint for departure from summons. The complaint stated that plaintiff and defendant were engaged in several speculations in the purchase and sale of wheat and flour, as partners ; that there was a loss sustained in their operations, and that the defendant’s portion of such loss amounted to $404.70, over and above all his advances, claims and offsets, and demands judgment for that sum, together with a prayer for such further or other relief as to the…

■This action was brought to procure judgment of separation from bed and board, and the separate maintenance of plaintiff, on the grounds of cruel and inhuman treatment and desertion by defendant. The defendant’s answer denied all the allegations of cruel and inhuman treatment, alleged justification in denying plaintiff admission to his house.

Motion to dissolve injunction. The action was an equitable one to stay waste, and for an account of the waste committed. The defendant was in possession as tenant, from year to year, of a lot of 200 or 300 acres of land, part of which was covered with valuable pine timber. The defendant’s lessor had a life estate in the land, and the plaintiff the reversionary interest therein, after the termination of the life estafe.

<p>Where a mortgagee and purchaser under a statute foreclosure, retains in his hands surplus moneys arising from the sale, after demand made by the next oldest judgment creditor who is apparently entitled to it, without giving any reason for retaining such fund, ho retains it at the peril of paying costs and interest personally, although the mortgagor and junior judgment creditors at the samo time also demand from him such surplus, claiming to be entitled thereto.</p>

The plaintiff was the holder of five bonds of the Milwaukee and Mississippi Railroad Company.

Twenty-two petitions under act of 1858 (extended to embrace Brooklyn in 1862), to have assessments on petitioners for repaving with Belgian pavement vacated. Fulton street, having then a cobble-stone pavement, was repaved with Belgian pavement throughout its whole length. But the centre of the street, between the railroad tracks there laid, was not so repaved.

Pr. R. 139). The action is tort, for converting an instrument called an engineer’s transit. The order of arrest was made upon the affidavit of the plaintiff, in which he stated that sometime in October, 1854, at Giver’s request, he loaned to him the “ transit,” and that Giver was to return the same to him in the spring of 1855, or pay him the value thereof. It is then stated that Giver neither paid for or returned the property, but converted it to his own use.

<p>Where under section 154 of the Code, the plaintiff fails to reply or demur to the new matter in the answer constituting a counter-claim, the defendant is not entitled to a judgment for the full amount thereof, unless the plaintiff fails to establish his cause of action, and he can only recover the excess over .the plaintiff’s recovery, where the plaintiff succeeds as to any part of his claim.</p>

This action was brought to recover the possession of the leasehold premises No. 186 Clinton Place, and ivas in the nature of an action of ejectment.

This action was commenced in October, 1863. The complaint in substance charged the defendants with an assault upon the plaintiff, and with having imprisoned him in a certain station house in Brooklyn, without any reasonable or probable cause therefor. The defendant Mills, is a private citizen. The defendant Switzer, is a patrolman in the police force of the metropolitan police district of the state of New York, doing duty in the 44th precinct of said district.

<p>During the pendency of ah appeal from an order directing the answer to be made more definite and certain, the defendant obtained an ex parte order extending his time to answer until ten days after the hearing and decision of the appeal» On appeal from an order denying a ‘motion to vacate the latter order, the general term modified the order so as to direct a stay of proceedings on the part of tho plaintiff until the decision of the appeal from the first order.</p>

In the adjustment of the plaintiff’s costs in this case, the clerk of Niagara county allowed him $21.92 for traveling and attendance fees, as ■ a witness in his own behalf. His affidavit produced before the clerk showed him to be a necessary and material witness in his own behalf on the trial of this cause, and that he attended solely as a witness, and was sworn and examined as such.

<p>The superintendent of The New York State Inebriate Asylum, who has power to receive and retain all inebriates who enter said asylum either voluntarily or by the order of the committee of any habitual drunkard ” (Laws of 1857, vol. Ijp. 431), has no right to keep a voluntary patient in the institution by force; although such patient on^entering the institution signed the requisite agreement under the act to remain there for one year, which time has not expired.</p> <p>No contract which deprives a person of his liberty can be specifically enforced by the judgment or order of a court; and as a general rule force cannot be used to compel any person to perform such contract.</p>

The plaintiff brought this suit to recover for the purchase price of three hundred wine roots or plants, sold and delivered to the defendant on the 10th day of November, 1863.