Volume 33 — Howard's Practice Reports

<p>Appeal from order of special term setting aside order of arrest.</p>

In this case an injunction was granted restraining the defendants from interfering with, or hindering the plaintiff in his business as a butcher; and the defendants severed in their answer. The injunction having been dissolved, the action was ordered to be discontinued on payment of taxable costs.

An injuntion was granted restraining the defendants from interfering with, or hindering the plaintiffs in their business as butchers, and the defendants severed in their answer. The injunction was subsequently dissolved, and the action ordered to be discontinued on payment of taxable costs.

These were actions to restrain the defendants, who constitute the Metropolitan Board of Health, from enforcing an order made by them against the fat-boiling establishments of the plaintiffs. The order required them to discontinue their business until the mode of conducting it was so altered that no offensive odors should escape into the external air. Temporary injunctions were granted, and the. motion was for a continuance till the trial of the actions.

Motion to dismiss the writ of error, on the ground that it does not appear from the record that the supreme court of the United States had jurisdiction.

Appeals from orders made at special term denying motions for a new trial The action was to recover damages for injury to plaintiffs’ property by water. They occupied, as tenants, the first floor of the building on the north-west corner of Broadway and Worth street, in this city. The upper parts of said building were occupied as offices ; one of said parts, being upon the second floor, was occupied by George Gifford, as a law office.

This action was commenced in the city court of Brooklyn, for the purpose of restraining the defendants from constructing a sewer in a certain street in that city caEed Butler street, and from interfering with or molesting the plaintiff in the use and enjoyment of the territory comprised in the south half of said street; and that certain proceedings taken to open said Butler street, be declared nuE and void.

A case agreed upon, without action, has been submitted, for the purpose of obtaining a decision as to the validity of a certain section incorporated into the tax law at the last session of the legislature, which the plaintiffs claim to be unconstitutional and void, and ask that the defendants be restrained from executing any of the powers, duties and privileges, conferred thereby.

The plaintiff in error was indicted for administering, or causing and procuring to be administered to one Julius Denny, a deadly poison, with intent to Mil. He was convicted and sentenced at the St. Lawrence oyer, February, 1865.

The action is upon a joint and not several undertaking, given in an action, and executed by the defendant Balcom, and one Milton W. Skiff. Skiff is not a party to the action, and Balcom demurs for this cause.

<p>The provisions of the act to create a metropolitan sanitary district, &c., passu! February 26,1866, mating the expenses of doing certain work therein provided for, or thereafter to be ordered, &c., a several and joint personal charge against each of the lessees and occupants of buddings, and also a lien upon all rent and compensation due or to grow due for the use of any portion of such premises, does not authorize a tenant, without action, and upon notice merely, to pay his rent, due to the landlord, over to a contractor (who is an assignee of the board), for work done upon the premises, although such contractor has a lien, under the act, upon such rent, and has recovered a judgment therefor against a co-tenant of the premises.</p> <p>By this act, a lien may be created for any work done .or performed, &c.; but it is defective in not stating how the lien is to be enforced. Therefore, it can only be enforced by biS in equity, by which the interest of the parties who are owners or tenants could be divested.</p> <p>The payment by the tenant of the rent due to the landlord to the contractor, being an attornment to a stranger, is absolutely void by statute, and affords no defense in proceedings by the landlord to recover the rent.</p>

This action was brought to recover damages for injury to a cargo of wheat on- board of a vessel on the Erie canal, in the year 1860, caused by the negligence of the defendants in their- transportation of it as common carriers from Buffalo to New York. The plaintiffs claimed such damages by a title derived from the consignees of such cargo (Messrs.

<p>Where the only evidence before a referee, to sustain his_ findings of fact and conclusions of law thereon, is conflicting, and of equal weight, or rather with no circumstances to detract from the weight of, or corroborate that on either side, and where the determination of the facts in issue either way, must depend upon who has the affirmative, the court has a right to infer that the ultimate finding, if not in favor of the party having the negative, was based on a wrong rule of evidence.</p> <p>Where the finding of a referee, that the contract upon which the action is founded, was conditional, is not borne out by the evidence, and if the report is only sustainable upon that ground, the court will set it aside.</p> <p>The foundation of the plaintiff’s cause of action, as set out in the complaint, consisted of a promise by the defendants to pay his assignor one-half of their profits in buying and selling certain articles of merchandize (spices) ; and alleged the consideration to have been an agreement by the plaintiff’s assignor to provide them “ with what information he might obtain,” respecting the probable action of the United States congress “ in regard to duties on spices, and advise them respecting the probable future condition of the market resulting therefrom,” claiming such agreement as one for a co-partnership, and for an accounting.</p> <p>The answer admitted the making of a conditional promise by the defendants to pay the plaintiff’s assignor three-eighths of the profits of their dealings in spices, if certain representations previously made by him were true (stating such representations). The answer averring that the payment of such net profit was “ a compensation to him for imparting his said knowledge to the defendants That the information so given by him, and all such statements and representations were untrue at the time he made them ; and he knew them to he untrue at the time he made them; and made them fraudulently, to procure money from the defendants.</p> <p>The referee found that the promise of the defendants was a conditional one, as alleged in the answer. And also found as a fact, that the representations made by the plaintiff’s assignor were untrue :</p> <p>Held, that the arrangement between the parties was evidently not a co-partnership as between themselves, as by it the plaintiff’s assignor acquired no interest in the goods bought; was not liable for any losses ; and only received a part of the net profits as compensation for information, either then communicated or to be afterwards communicated :</p> <p>J.VM, also, that the mere addition of the condition set forth in the answer to the promise of the defendants, would not defeat the plaintiff’s right .to recover under the complaint, although it might impose upon him the necessity of establishing in advance the truth of tho representations made by the plaintiff’s r-i-i nor. It would, however, be roongnant to any averment, that the promise v . rmi-p» in the faith of the huth of such i epresentations:</p> <p>He- , , -.hat it is illegal ;o p: cilicatc fraud in malting a contract, of one by whose very terms the truth of the matter alleged as a deceit, is made a condition of its obligation.</p> <p>Where a conditional contract rests in fieri, and nothing has been done or is to be done under it, until its final performance, and a question arises as to its obligatory character, proof of fraud seems superfluous, until the occurrence of the contingency constituting the condition is established:</p> <p>Held, also, that the proof of the affirmative, establishing the statements alleged in the answer, rested with the defendants, as such statements formed no qualification or part of the contract, but were extrinsic matter forming part of the elements by which it might be defeated if it were established :</p> <p>Held, also, that the referee was misled, by not keeping in view, in reference to the burden of proof, the distinction between evidence relating to the terms of the contract itself, and that relating to extrinsic matters affecting it, such as the making and falsity of the representations in question:</p> <p>Held, also, that the plaintiff ought not to be deprived of whatever rights he has, under the promise of the defendants to pay his assignor a proportion of the profits, merely upon such evidence as that before the court, of untrue representations made to obtain such promise.</p>

<p>In an action under the second subdivision of section 33 of the Code, this court has no jurisdiction whatever, unless the defendant is a resident of the city of New York, or if he he a non-resident, is personaHy served with summons within the city.</p> <p>Therefore, where the defendant is a non-resident of the city, the issuing of. an attachment and levy upon his property thereunder, before the service of summons in the action upon him, does not give the court any jurisdiction, either of the subject matter of the action, or of the person of the defendant; and the levy of the attachment is whoHy void and unauthorized.</p> <p>And sections 8 and 227 of the Code, do not extend the jurisdiction of this court, in terms or by implication, to such cases, where the defendant is a non-resident, and has not been served with summons in the city of New York.</p> <p>An affidavit to procure an attachment, which wholly omits to state the grounds of the cause of action, constitutes a defect of jurisdiction which cannot be remedied by amendment; and the attachment wiH be set aside.</p> <p>There is no statute, either in express terms or by implication, requiring a motion to vacate a warrant of attachment to be made before judgment.</p> <p>The motion of the defendant to open a default, and the order of the court granting it, but aHowing the judgment entered to stand as security, does not preclude the defendant from moving to set aside the void attachment in the action.</p>

<p>Where the complaint alleged that the plaintiffs, assignees for the benefit of creditors, had united in an agreement with the defendant, to sell, and the defendant to purchase, certain real estate conveyed to them in trust, for a certain sum, subject to incumbrances, of which the defendant agreed to pay a certain sum to the assignees (plaintiffs) out of the proceeds of the sales of the property, to satisfy certain judgments against it, for which the assignees had become personally responsible, and the receipt of a sufficient sum by the defendant for that purpose is averred, a cause of action in favor of the assignees, in their representative capacity, is fully stated.</p> <p>It is very well settled that a trusie.e cannot divest himself of the obligation to perform the duties of the trust, without an order of the court, or the consent of all the cestuis que trust.</p> <p>Therefore, the assignment by one trustee of his interest in the estate to the other trustees, and his renunciation of the right to act, does not divest him of the character and duties of a trustee. And an action brought by and in the name of the remaining trustees, in their representative capacity, is defective for want of parties..</p> <p>Trustees constitute in law but one person, and must join in bringing an action. They cannot act separately; all must unite.</p>

<p>This is an appeal from an order at special term, denying a motion for a commitment, for not obeying a mandamus.</p>

<p>A plea in abatement, that A. and B. were co-partners, and should have been co-defendants, is not sustained by evidence that B. was such partner. The defendant, by his plea, must give the party a better writ—he must state precisely and truly who were the parties to the contract; and if he fails to do this his plea fails also.</p> <p>A release executed between parties, and signed by a subscribing witness, cannot be introduced on a trial as evidence, unless proved by the subscribing witness. The law on this point remains unchanged.</p> <p>Where the plaintiffs waive the tort, and bring their action of assumpsit at once for the value of the goods sold on a credit, they do not avoid the contract of sale, by proving on the trial that the credit was obtained by the defendants by fraud, and that, therefore, the sale was one for cash.</p>

This action was brought by the plaintiff against the defendant for the conversion of personal property, alleged to have been taken from the plaintiff’s possession 30th March, 1866.

Appeal taken by the defendants from the judgment entered against them on the verdict of the jury rendered in favor of the plaintiff, at the second trial of the case.

(Reported 1 Daly, 89.) The plaintiff sues to recover damages sustained by him in consequence of injuries inflicted on his infant son by the negligence of one of the defendants’ servants. The defendants deny the plaintiff’s allegations, and say that the injuries were occasioned by the carelessness of the boy.

<p>Where in an action to recover the balance of the contract price of work done on a building, the issues tried were, 1st. Whether a sum was paid by the defendants to the plaintiff, exceeding the work actually done by him;</p> <p>2d. Whether the defendant sustained damage by the unworkmanlike and unskill ful performance of such work;</p> <p>3d. Whether such work was not completed within the time agreed on; and,</p> <p>4th. Whether the defendant sustained damage by the abandonment of such work ■ by the plaintiff?</p> <p>And it appearing on the trial before a jury, that the contract price for the whole work was to be $1,500: The Court asked the witness (one of the defendants) under examination, the following question : Q. “ $1,500 would be a contract for a rough job ?” Defendants’ counsel objected, and. excepted to this question. A. Yes, sir. By the Court. “$1,500 for a building of this dimension is little enough.” Defendants’ counsel excepted to this remark:</p> <p>JTeld, on a motion for a new trial, that these'exeeptions were well taken, and enti- ' tied the defendants to a new trial, with costs to abide the event. (Joses, J.</p>

Action to recover the last instalment upon a contract made by plaintiff ’s assignors with defendants, to build a school house for them. A claim was also made for extra work. The whole contract price was $2,921, payable in five instalments, as the work progressed, upon the certificate of the committee on school houses, or of some one by them designated, that it had been completed to their satisfaction.

<p>Where an affidavit, made by a defendant on confessing judgment, verifying the judgment, swearing not on information and belief, but positively, that the amount of the judgment is due the plaintiff; and where, on motion to set aside such judgment, his affidavit made more than seven years after the entry of .the judgment, impeaching that judgment for fraud in the amount due, is substantially denied by the plaintiff, there is no reason for departing from the ordinary rule, that the party asking for relief must make out his case by a preponderance of proof; a balanced case is not enough.</p> <p>The provision of the Code, that a judgment reversed at general term “ shall not he deemed to have been reversed on questions of fact, unless so stated in the judgment of reversal,” does not apply to orders made on special motion, upon affidavits.</p>

Action against the makers and indorser of a promissory note. Qn the 10th of June, 1859, the defendant Morrell, made the promissory note in suit, dated Canajoharie, June, 1859 (a blank being left for the day of the-month), whereby they promised to pay $50, thirty days after date, with use, to the order of Benjamin K. Nellis, at the Canajoharie Bank. They also procured it to be indorsed by Nellis, for their accommodation.

<p>The county clerk of the city and county of New York, is not liable for damages re suiting from errors, inaccuracies or mistakes in his certificates of searches, under the act of 1853 (Sess. Laws 1853, p. 265), unless the loss to the party by which such damages accrued, is the direct consequence of such error or mistake.</p> <p>Where the owner of real estate in the city of New York, for the purpose of procuring a loan of money thereon, caused the usual written requisition to the county clerk to search for judgments against the property, to be delivered to him, who made the requisite search, and certified its correctness in the usual manner, and thereupon the loan of money was obtained on bond and mortgage upon the premises, and subsequently it was ascertained that a certain judgment upon the property had been overlooked and not returned by the clerk, upon which judgment the premises were thereafter sold, and the owner was compelled to pay some $100, over and above the amount of the judgment, in order to compromise and settle the matter:</p> <p>Held, that the county clerk was not liable in damages for the loss to the owner, which had thus occurred. His loss occurred from the non-payment of the judgment, and not from the error in the clerk’s return. He obtained the loan for which he applied, and nothing was abated from it on account of this incumbrance.</p>

The case shows that George W. Niles, one of the defendants, recovered a judgment against the plaintiff’s intestate, Thomas Butler, May, 22, 1847, in the New York common pleas, for $141.84; that in September, 1864, Niles commenced supplemental proceedings on this judgment; that on the 26th of September, 1862, Niles commenced a creditor’s suit upon the same judgment, to reach certain property held in the name of Harriet E. Butler, in which it was claimed her husband had an…

<p>In an action for money lost at gaming, the plaintiff complained as follows: “The plaintiff complaining, shows that the defendants, on or about the 13th September, 1865, won at gaming, of the plaintiff, the sum of $861, whereby the defendants became indebted to the plaintiff in the aforesaid sum, and the plaintiff immediately thereafter demanded the said sum of the defendants. And the plaintiff alleges that an action accrued to him to recover,” &c.</p> <p>Held, that this complaint was not good as a declaration in debt under the Revised Statutes, nor as a complaint under the Code. The allegations omitted are: “That the money was lost and paid or delivered to the defendants,” whereby an action accrued. . This defect is not waived by the defendants answering. It is an insufficiency of statement of facts to constitute a cause of action.</p> <p>The statute gives the plaintiff this remedy, and jre must pursue the course thereby prescribed, to attain it.</p>

This action is brought to recover the value of a barouche sleigh, of which the plaintiff claims to be the owner, taken and converted by the defendant. The material facts appearing on the trial were as follows: One R. D. Cornwell and Harriet Cornwell (wife of one James Cornwell) were partners in the livery business at Homer, in the county of Cortland, and, as such, were the owners of certain real and personal property.

<p>Appeal from the judgment of the supreme court at general term, upon denying a motion for a new trial on a case and exceptions taken by the defendant at the circuit.</p> <p>The facts are stated in the opinion of the court,</p>

Appeal, by persons interested on the part of the defendant, from an order made at , the Tompkins special term, in January, 1867, granting leave to issue execution on the judgment against the defendant. The judgment was rendered in favor of the plaintiffs, against the defendant, on the 13th day of January, 1852, in this court, for $1,049.84.

This was a motion to dismiss an appeal to the general term of this court, from an order made by the county court of Madison county, denying plaintiff’s motion for re-taxing a bill of costs by the county clerk of said county. The only papers served by the plaintiff’s attorneys, upon defendant’s attorneys, were a notice of appeal and a notice of - argument.

This is an application for an order directing the clerk of Lewis county to record certain deeds offered to him for record. The deeds -purport to have been executed by parties living in the county of Lewis, of lands in that county, and were all acknowledged by the grantors .in the county of Lewis, before a notary public appointed for and residing in the county of Oneida.

.- The facts appearing on the trial of this action are as follows: In March, 1857, the defendant and one Stephen B. Conover entered into mutual written contracts, whereby the defendant agreed to sell and deliver to Conover all the peach-blow potatoes that he, the defendant, raised the then coming season, in good merchantable order, delivered on the boat at 12s. per barrel, and he agreed to plant ten acres or more.

This action was commenced in August, 1866, against the above named railroad company, to recover forty-five dollars damages claimed by the plaintiff because of his having been, as he .alleged, improperly ejected from one of the defendants’ railroad cars by the conductor, for refusal to pay fare.

<p>Where an appeal is taken to the general term from a judge’s order at chambers requiring a judgment debtor in supplementary proceedings to pay the judgment, &c., the whole merits of the case are open to review. But it must be a very clear case, to authorize the general term to interfere, on the ground that the, decision of the judge is against the evidence'before him. *<</p> <p>Prior to the amendment of section 292 of the Code in 1867, a judge of the supreme" court, who granted an original order in supplementary proceedings for the" examination of a judgment debtor residing in another judicial district, had power and jurisdiction, at his chambers, in Ms own judicial district, to make any other necessary order to continue and consummate the proceeding to a" fiual determination. (Postee, dissenting.)</p>

The complaint alleges a lease to the defendants Norton and Studley, of the first floor and basement of the buildings' Nos. 100 and 102 Liberty street, with a covenant on the part of the lessees to use the premises for the storage and sale of india rubber goods, and that the same should not be used for any purpose deemed extra hazardous, on account of fire ; that they would not assign the lease, or let or underlet the premises without the written cc%$tent of the plaintiffs,…

<p>Under the acts of the legislature passed for the more effectual prevention of fires in the city of New York, no wooden or frame building within the fire limits can be raised, enlarged or built upon, except only that brick front frame dwelling houses and wooden dwelling houses may he raised, under a penalty of $500.</p> <p>In permitting the raising of dwelling houses, the acts intended that snch buildings only as were used and occupied as dwelling houses at the time the raising took place, and such as were in.good faith to be so used and occupied, should come within the exceptions mentioned in the acts. Buildings originally erected for dwelling houses, but which have for years ceased to be’used and occupied for such a purpose, do not come within such exceptions, and are not allowed to be raised.</p> <p>This penalty of $500 applies to every violator of the acts, whether he be the owner of the land in fee or be the lessee thereof, or has<a qualified or contingent interest therein by virtue of some agreement or contract in writing, or in any other manner.</p>

.The question presented in this court for adjudication is, can the city judge of the city of New York, under any existing law, out of court, issue the writ of habeas corpus ? The appellant claimed for the city judge such authority, as being vested in him by the provision of the law giving him, ecc officio, the powers and functions vested in the recorder of the city of New York.

This action was tried by a referee, who made a report in favor of the plaintiff, upon which judgment was duly entered up, from which the defendants appealed to this court. In preparing the case for review in this court, the defendants’ attorney inserted quite a number of findings of fact besides those embraced in'the referee’s report, with exceptions thereto in the usual form. .

This was a motion to vacate an order of arrest of the defendant. The action was upon contract, for goods sold and delivered, and work done, and materials furnished. ■ The ground of such order.was that the debt was fraudulently contracted, and that the defendant had assigned and disposed of his property with intent to defraud his creditors.

<p>The general term of the supreme court, in this case (29 Hew. 71) held that: “Where a policy of insurance on chattels contains a clause that, ‘ in case of any sale, transfer or change of title in the property insured, such insurance shall ho void, and cease.’ The execution of a chattel mortgage on the property by the insured to a third person, without notice to the insurance company, or their assent obtained, avoids the policy. And that the sale of the mortgaged property, under the power contained in the mortgage, to the mortgagee, and possession by him without notice to the insurer, avoids the policy. Where the insured has no interest in the property at the time of the loss, the policy is void, although the loss is by the terms of the policy made payable to a third person having an interest in the property.”</p> <p>The court of appeals decide, that the chattel mortgage given by the insured was notified to the insurance company’s agent, and duly acknowledged;</p> <p>That the subsequent foreclosure and sale of the mortgage, without the knowledge or assent of the person holding the policy of insurance, did not impair or affect the rights of the latter under his contract of insurance with the insurance company;</p> <p>That the original insurers having allowed the policy to expire, so far as related to any interest they might have in it, it was renewed by the person holding the policy to cover his interest either as owner or mortgagee, and for which he paid the premium; and that the insurance company, by taking this premium, assumed the risk and were liable for the loss thereunder.</p>

This action is brought by the people of the state of New York against the defendants, to prevent encroachments in the Hudson river, on the westerly side, adjoining the shore of Hew Jersey. The complaint avers that the defendants are a body corporate under the laws of Hew Jersey.

This action was commenced in a justice’s court in Clinton county, in which there was a judgment for the plaintiff, from which there was an appeal to the county court of Clinton county. Another judgment was obtained in the county court, for $99.99, besides costs; from which an appeal is taken to this court.

Action in the supreme court, to recover possession of fifty acres of land in the town of Brant, in the county of Erie, and damages for withholding the same. On the trial at the Erie circuit, in March, 1860, before Justice Marvin and a jury, it appeared that one Sweet formerly owned the premises, and was the common source of title.

It was an action by plaintiff as a licensed pilot of the port of New York by the way of Sandy Hook, under existing pilotage laws of this state, to recover the sum of $57.60, due as pilotage of defendant’s steamer Empire City, into the port of New York, the plaintiff having offered his services to pilot the vessel into port, and having been refused.

Action for taking and converting personal property. The following facts were found by the referee: In the fall of 1857, Zachariah Smith carried on a hotel in the city of Oswego, in which was certain personal property, a part of which was incumbered by a mortgage executed by Smith to one Hart, and another part was mortgaged to the plaintiff.

The action was trespass,' for the wrongful act of the defendant in entering upon premises leased and occupied by the plaintiff, and substantially expelling him from possession and breaking up his business, which was that of a wine merchant. The cause was tried at the New York circuit, before- Mr. Justice Lott, and a verdict was rendered for the plaintiff, on conflicting evidence and under instructions, with which both the parties were satisfied.

The defendant was indicted, tried and convicted, at the Yates county sessions, for a breach of the act to suppress intemperance, and to regulate the sale of intoxicating liquors. Held: that a license to sell liquor, &c., by a nonresident of the town, would afford the licensee no protection. Exceptions were duly taken, and he was convicted.

The facts were these : On the 11th June, 1855, James R. Gandall, the plaintiff in the first above entitled action, recovered a judgment in the supreme court, by confession, against the defendant, Charles Finn, for $1,506.50, which was on that day docketed in the office of the clerk of the county of Washington.

Action upon a promissory note for $100, made by defendant’s assignor, April 9,1835, and payable in one year from date. Suit was commenced thereon 28d September, 1854, eighteen years after note matured, and seven years after the death of the maker, and the appointment of the defendant his administrator. There were two indorsements on the note in the handwriting of the payee, but no evidence that the payments had been made as indorsed.

The facts in this case, as shown by the return, are¡ that at the October term of this court in 1861, in a case in which the present appellants were respondents, after hearing counsel for both parties, a judgment was pronounced reversing the judgment of the supreme court appealed from, “ without costs, and without prejudice to any future application for letters testamentary,” and that the notice of appeal and return thereto, and the judgment of this court, should be remitted…

James McGregor died in February, 1853, leaving a will with a codicil annexed, by which three of his sons, the respondent, the appellant and Gregor, were appointed executors. The will was admitted to probate in December, 1855, after a contest before the surrogate. An appeal was taken to the supreme court, and from that court to the court of appeals, from that order, and much other litigation arose under the will, delaying the issuing of letters testamentary.

The respondent applied to the commissioners of highways of the town of Westfield, Richmond county, to lay out a highway in said town. Said highway was laid out by the commissioners, and the appellant and three others, brought separate appeals from the entire order, to the county judge of the county; referees were appointed, and the four appeals were heard together by them, the appellants all appearing by the same counsel.

This is an appeal by the defendants from a judgment in favor of the plaintiffs, rendered in an action of ejectment, tried before. Justice Deodatus Weight and a jury, at the Schoharie circuit, in June, 1857. The recovery was for sixty acres of land in Morris and Ooeyman’s patent, lying in the town and county of' Schoharie.

Motion by plaintiffs for an injunction to restrain defendants from keeping hackney coaches on the public stand in front of the plaintiffs’ livery stable, opposite the Central Park.

. Motion to open or set aside a judgment, and for a new trial. This action was commenced in July 1857, by Angelina Amory against James Amory, to procure a divorce upon the ground of the alleged adultery of the defendant. The defendant, by his answer, after denying the marriage, alleged as a separate defense, that, at the time of the supposed marriage, the plaintiff was the lawful wife of one William A. Williams, who was then living.