Volume 34 — Howard's Practice Reports

Action to recover the possession of a horse, the property of the plaintiff, wrongftdly- detained by the defendant. The defendant took possession of the horse about October 37, 1866, and retained him about a week. Theplaintiff demanded the horse two or three times, and the defendant refused to deliver him up. The plaintiff) on Satin-day, November 3d, caused his attorney to prepare* the papers in this action.

<p>Where the articles of a copartnership prescribe a specified period of its continuance, no one of the partners can, by any purely voluntary act or acts done by him, work its dissolution.</p> <p>Such acts may be sufficient to authorize a court of equity to decree dissolution on the application of the other partners; and that court may on the application of even the party committing such acts, notwithstanding such commission by him, decree a dissolution, if there are other causes justifying it, and it would be for the benefit of the partnership itself.</p> <p>A purely voluntary assignment made by a partner, of his share and interest in a part-</p> <p>■ nership, limited to continue for a specified period, does not of itself dissolve the partnership, nor furnish a cause for which a court of equity will, on the application of the assignor, or of the assignee, decree a dissolution agains't the consent of the other partners.</p> <p>But an assignment made bona fide, by such partner in failing circumstances, to secure or pay debts due by him, is not to be regarded as a purely voluntary one within this rule.</p> <p>The powers of partners in reference to dissolution of pamerships, folly discussed.</p>

<p>In an action of crivt. con., where the arrest of the defendant ie based upon the nature of the action itself, and not upon extrinsic circumstances, and is supported by affi•davits, it is not the rule of this court to vacate the order upon affidavits introduced by the defendant denying that there is a cause of action; as it would be trying the merits in advance upon ex parte affidavits.</p> <p>There might be such a clear case made on a motion to discharge from arrest, as would justify a judge in vacating the order of arrest, although it would be virtually a disposal of the merits of the action ¡ but? it would be only in a case removed from all doubt, and upon a state of facts‘which would justify the judge to non-suit at the trial.</p>

<p>Where goods are purchased upon credit through false representations of the vendee as to his pecuniary condition, the vendor may disaffirm the contract of sale and sue for the fraud. But he must offer to return the notes or securities taken from the vendee, as a consideration for the purchase. In such case the property is not changed, and no title passes to the vendee.</p> <p>In an action for wrongful conversion of personal property a warrant of attachment may issue.</p> <p>Where an attachment is sought upon the ground that the defendant has assigned or disposed of, or is about to assign or dispose of his property, with intent to defraud his creditors (Code, § 227), the facts should be such at least as to justify a deduction from them of such fi'audulent intent.</p>

The action was brought in a justice’s court by the plaintiff as commissioner of highways of the town of Baldwin, in the county of Chemung, to recover a penalty of five dollars, for obstructing a highway, under 1 11. 8. 521, section 202.

This action was brought by the plaintiff to recover damages for injuries received by his horse while traveling on the defendant’s road. The defendant answers by general denial. It being admitted that the defendant was a corporation, organized, &c., as set forth in the plaintiff’s complaint, the only questions remaining to be litigated, were: 1st. The defendant’s negligence; and, 2d. The amount of damages sustained by the plaintiff on account of such negligence.

<p>Where a person under an agreement to purchase two lots of land, subject to the payment of a certain mortgage thereon, and to build a building on each, lot, at a certain time and under certain conditions, upon the performance of which he is to receive a deed in fee of the premises ; and after the buildings are partially built, he, by fraud and misrepresentation induces the mortgagee to release one of the lots, without any consideration therefor; a court of equity will restore the mortgagee, as far as possible, to his former condition as to the security, by decreeing that the purchaser pay in money to the mortgagee one-half the amount of the mortgage; although the purchaser alleges that the remaining lot and building are ample security for the whole mortgage money.</p>

This action is brought to obtain a cancellation of a certain judgment against the plaintiff’s testator, now held and owned by the defendant.

<p>A party has no right to annex any condition to the performance of a contract not specially provided for in the contract.</p> <p>Note.—The Note to the case of White agt. Calder, 33 How. Pr. Reports, 392, was made to the wrong case—it erroneously appearing in that case that it was an appeal from the N. Y. Superior Court; when the fact, as we understand it is, that case was in the Supreme Court, and tried at the Delaware circuit, before Judge Balcom.</p> <p>The Note made in 33 Sowcvrd, was intended to apply to a cause in the N. Y. Superior Court (the title of which is not recollected), tried before Judge Bakbottb, and •is correct, with the exception that it was a sealed verdict, and the fine imposed upon the jurors was $250 each,'instead of $500.—Rep.</p>

The action was commenced to reach the property of one Osborn, the judgment debtor of the plaintiff. The complaint averred the recovery of the judgment for $2,309.93, against Osbom, on a demand originally incurred by the firm of George Clow & Co., which firm consisted of said Clow and Osborn. That execution on such judgment .was issued and remained unsatisfied, except for the sum of $175.64, and that the balance of the judgment remained unpaid.

■ Appeal from two orders made at special term adjudging that the defendant and Rundle, one of the firm of Ruggles & Rundle, who hired the defendant’s premises, and was in possession from first of-, to about the 18th of July, 1862, and Guessner & Taylor, who were also the tenants of the defendant, and were in possession from October 1, 1862, until the 18th day of October, 1862, were guilty of a contempt in violating the injunction order made in this action, restraining the…

Motion by plaintiff to set aside or vacate an order made at a special term of tMs court in March, 1867, referring the case back to the referee, before whom the action was tried, to amend Ms report in a particular manner specified in the order or otherwise, as he might tMnk correct, and staying all proceedings in the action on the part of the plaintiff until the referee should amend his report, and giving the defendant thirty days after service of a copy of the amended…

Action of ejectment to recover the possession of certain lands in the village of Fredonia, in the county of Chantan qne. The trial was had in that county before Justice Davis, without a jmy, and resulted in a judgment for the defendants, which judgment was affirmed at a general term of the supreme court. From the latter judgment the plaintiff appealed to this court. The facts are sufficiently stated in the opinion of the court.

<p>The plaintiff is entitled to notice of the application hy the defendant for the removal of an action from the state courts into the circuit court of the United States, under section 12 Of the judiciary act of 1798.</p> <p>Prior to the service of the notice of application, the defendant, it seems, must cause his appearance to he entered, and file his petition in the proper clerk’s office, in the county named in the complaint as the place of trial.</p> <p>Where the defendant, before service of notice of retainer, appeared in open court, at a special term held in another district, and after entering his appearance in the minutes of the court, presented his petition for the removal of the action into the circuit court of the United States, and obtained an ex fpwrte order of the court for such removal:</p> <p>Held, that the order was irregular and void, for want of authority to make it</p>

<p>The provisions of the Revised Statutes (3 R. S.p. 15, § 51, &c.), must be construed as abolishing all trusts in land paid by one person, when the conveyance is given to another, whether for the benefit of the party paying the money, or for another, except where the conveyance is so taken without the knowledge or assent of the party whose money is so used, and excepting also the trust in favor of creditors. These provisions of the statute vest the title to the property in the alienee.</p>

<p>Where in an action against a common carrier for damages by reasion. of negligence and fault in carrying the plaintiff for hire, where there is sufficient evidence to make it the duty of the jury to determine whether the plaintiff's sickness and loss of time were occasioned by the fault of the defendant, his agents or servants, the jury are authorized to allow him compensation therefor, although the plaintiff has given no evidence upon that point.</p>

<p>For any abuse by the Board of Health of the city of New York, of their authority, if they act judicially, as stated in the first subdivision, section 14, of the statute by which they were created (Laws 1866, chap. 74, § 14), such as, 1st. Making an order originally for the abatement of an alleged nuisance without evidence, or for refusing to revoke it, on overwhelming or uncontradieted evidence of its being erroneous, a writ of certiorari would afford a remedy.</p> <p>2d. For refusing to fix a day for hearing of the party affected by the order a mandamus would lie; and,</p> <p>3d, For the usurpation of jurisdiction in cases where not warranted by the statute, a writ of prohibition would furnish a corrective.</p> <p>The authority and duties of the Board of Health under said first subdivision of the said fourteenth section, differ so widely from those created under the second of such subdivisions, as to justify the constitutionality of the former, even if the latter were defective.</p> <p>This board are, by the statute, vested with the preliminary right of determining their jurisdiction, for the purpose of a hearing and final adjudication; and their decision upon such jurisdiction is final, if there is any evidence before them, tending to sustain it.</p> <p>Their provisional order granted under the statute, may become final by the failure of the parties interested and notified to demand a hearing. _And whatever objection may be made in cases where no service of notice of the order is made, it will not apply in a case where the party is notified.</p> <p>Abundant means are provided by the statute for obtaining the sufficient proof 'which the hoard are to take without leaving their office, or uttering a word themselves of accusation. Therefore, such a notice of accusation, or obtaining evidence in advance, with such opportunity of being heard with evidence, and such a notice of final determination, as the statute prescribes and furnishes, is an exercise of judicial power, and binding, unless prevented by some positive constitutional prohibition.</p> <p>The following objections to the constitutionality'of the exercise of power by the Board of Health, under the said first subdivision of section fourteen of the statute, that such proceedings violate “ the law of the land,” required to be observed by section 1, article 1, of the constitution of this state; and are not “ due process of law," under the 6th section of the same article cannot be mantained, to wit:</p> <p>1. That the functions of accuser and judge, are blended in the same body,</p> <p>2. That no process is served, or notice of the proceedings given to the parties interested,</p> <p>3. That the judgment precedes the trial;</p> <p>4. That the accused is not confronted with witnesses against him;</p> <p>5. That the testimony is not under oath; nor the ordinary rules of evidence observed ; and,</p> <p>6. That no means are afforded to the accused to compel the attendance of witnesses.</p>

The affidavits show that the plaintiff, a resident of Canada, on the 11th day of August, 1854, recovered a judgment in the courts of this state for $270.07, against the defendant in an actio a on the case in trover; that said judgment was docketed the samé day in Oswego county, and became a lien on certain real estate of the defendant in that county; that an execution was issued the next day, and duly returned nulla bona; and the reas’on stated is, that the said real estate…

This was an action brought by The People agt. Benjamin , Brandreth and six others, upon a bond dated May 28, 1860, by which they became securities that the bank of Sing Sing would repay all moneys deposited with it to the credit of the treasurer of the state. The facts are fully stated in the opinion of the court.

Action for damages. The complainant alleged that he was the holder and owner for value, of a large amount of bank bills issued by a banking corporation of the state of Georgia; that the defendant was a director in said bank ever since January 1, 1857 •, that prior to January 1, 1861, the bank was solvent and able to pay all its debts; that after July 1, 1861, the bank became, and has ever since been insolvent and unable to pay its debts; that this insolvency was caused by…

The complaint alleged the incorporation of a bank by the state of Georgia, in 1830 j the issue of bills from 1831 • to 1863, to the amount of $1,500,000, which the plaintiff holds to the amount of $100,000 ; that payment had been demanded and refused; that at the time of issuing the bills, the bank had a capital of $500,000 in gold and silver coin, and other property; that the defendant some time before 1854, was elected a director, and continued to act as such till January…

Motion on behalf of defendant before answer, to set aside the complaint “ as inconsistent with the summons.” The summons is in forra “ for a money demand on contract,” and asks judgment for a sum specified therein. The plaintiff' by his complaint, claims to recover damages for the breach of a contract entered into by defendant with him for the construction of a piece of machinery, which, as is alleged, was not completed by the defendant within the time fixed in the contract.

This is an appeal from an order of the general tern of the supreme court in the fourth district, made in a case brought before the court by common law certiorai. Proceedings were taken under the statute to lay out a public highway through the enclosed lands of the relator, Gilbert Robertson, and one Stephen Timmerman, in the town of Argyle, Washington county, which resulted in an order by the commissioners of highways of the town laying out the proposed road.

The plaintiff commenced an action against the defendant for false imprisonment, alleging that she was arrested, brought before the magistrate and imprisoned, without any cause for same. An order of arrest was made in this action, under which the defendant was taken, and is now held in custody. Defendant moves for an order vacating the order of arrest.

<p>Proceedings to enforce the responsibility of the stockholders of a bank under the act of 1849, providing for winding up the affairs of the bank, are to be confined to stockholders ; and the court is not to exercise jurisdiction over any who do not come within the definition of that term, as given in the second section of that act.</p> <p>Where a judgment obtained under these proceedings, declared the defendant's testator to have been a stockholder in the bank, and directed the collection of the amount thereof, out of the assets in the hands of his executors, the defendants, when ife appeared from the record itself that it had not been ascertained that the estate was chargeable, at the time the judgment was rendered—-the report of the referee being that the executors individually were chargeable as stockholders; which report was ratified and confirmed by the court:</p> <p>Held, that the court in rendering judgment against the estate, acted without authority, and the judgment was void for want of jurisdiction,</p>

Motion by defendant to dissolve injunction, and motion by plaintiff for an attachment against the defendant for the violation of an injunction order issued in the above entitled action, by Hon. George Wolford, county judge of Albany county, November 21, 1863, restraining the defendant, Ms attorneys, &c., and commanding them to desist and refrain from pedling, selling, or offering to sell, tobacco in papers or packages, in large or small quantities, whether prepared for…

<p>Where a soldier has "been honorably discharged, under an order of the war department mustering the regiment in which he served, out of service, such discharge exempts him from the performance of further military duty, even if he stands as a drafted man in another company at the time of his discharge from the army.</p> <p>A court martial is a court of special and limited jurisdiction. It is called into existence for special and temporary purposes, and when these purposes are attained, it is dissolved and disappears. No general duty or power, with respect to the colectiou of the fines is conferred upon the president of the court; and he is required to exercise such power as- is given him in a specified way, and within a specified time.</p> <p>The first warrant shall be drawn within thirty days after the fines have been imposed, and the same may be renewed, or a new one issued at any time thereafter, within two years from the time of imposing the fines.</p> <p>A warrant against a person issued on the 25th day of June, 1867, reciting that the fine was imposed upon the 25th day of April, without specifying the year, is defective upon its face, and does not justify the holding the person fined under it.</p>

<p>In granting an order to compel a party to make an affidavit to "be used on a motion, under section 401 of the Code, the judge must be satisfied by competent and sufficient proof, First. That the party applying for it intends to make or oppose a motion; and Second. That it is necessary for him in making or opposing such motion to have the deposition of some person who refuses to make a voluntary affidavit.</p> <p>It is usual to take the affidavit of the attorney applying for the order, as competent and sufficient proof of these matters.</p> <p>But where it appears from the affidavit upon such application, that the motion intended is merely to make an answer more definite and certain; or that the person whose depostion is required is incompetent; or that the real object of the applicant is, under the guise of a motion, to obtain an examination which he otherwise could not get, the court is bound to refuse the order.</p> <p>Such an ex parte order affects the right of the opposite party, which authorizes him to move to set it aside, as he has a right to attend on the examination with his counsel and to cross-examine; and besides such attendance subjects him to trouble and expense.</p> <p>The order in this case set aside, on the ground that it appeared from the pleadings and papers, that it was not intended for the legitimate purpose of obtaining depositions to he used on a motion, but for some other purpose ; such perhaps as enabling the plaintiff to ascertain what line of proof it will be necessary for him to prepare to meet on the trial.</p> <p>Besides, the plaintiff had waited before making his application, until his cause had been twice called for trial, and it could have been tried on its merits sooner than the motion could have been determined.</p>

In 1853, the plaintiff’s testator owned a farm in fee, situate in the town of Niagara, across which run a small stream of water, supplying water for stock, &c. The defendants, a railroad corporation, having located its road through said farm, obtained from the testator a conveyance of the necessary land for its construction, and also the right of constructing its road through the adjoining farm, situate above the plaintiff, owned by Yoght.

<p>Where moneys are raised in cities and districts for school purposes, the schools of the several incorporated Orphan Asylum, Societies within the state, other than those in the city of New York, are entitled under the act of 1850, to distribution thereof in the same manner and to the same extent, in proportion to the number of children educated therein, as the common schools in their respective cities and districts.</p> <p>But moneys devoted by the constitution of the state for the support of common schools, cannot be lawfully appropriated to the support of such asylums, or forth© support of common schools therein, as the latter is not a common school within the constitutional meaning of the term “ common schools.” (People agt. Board of Education,Brooklyn, 13 Barb. 400; People exrel. Brooklyn Orphan Asylum agt, Board of Education, Brooklyn, Ms. Court of Appeals.)</p>

<p>An order extending time to answer, supersedes a prior motion noticed to strike out portions of the complaint, where there is no reservation in the order of the right to make such motion.</p>

<p>In an action against a railroad company to recover damages for injuries arising from negligence, where from the evidence there is no doubt of the negligence of the party injured contributing to the injury, the plaintiff should be non-suited.</p> <p>And this rule applies to an action brought on behalf of a child six years of age, who sustains the injury.</p> <p>“ It was equally necessary for th& plaintiff to establish the proposition that he himself was without negligence and without fault. This is a stern and unbending rule, which has been settled by a long series of adjudged cases, which we cannot overrule if we would.” (Per Gridley, J. Spencer agt. Utica and Schenectady R. R. Co. 5 Barb. 337.)</p>

This is an appeal by the plaintiff, from an order of the supreme court, made at general term, in the fourth district, reversing a.judgment in favor of the plaintiff, rendered on the verdict of a jury, and ordering a new trial. The facts are stated in the opinion of the court.

<p>On habeas corpus, the judge before whom it is returnable will not review the decision of the judge of another court made upon full argument, that the warrant upon which the defendant was arrested was properly issued and the defendant was legally held, where the same objections to the warrant and arrest are relied on upon the habeas corpus. The remedy of the defendant in such case is by certiorari’</p>

<p>An application, under section 199 of the Code, for the refunding of money deposited in lieu of hail, on the arrest of a defendant, cannot be made until hail has been put in and justified.</p>

This action has been referred to a referee; and on or about the eighth day of August, 1866, the plaintiff’s attorney served a notice of trial by mail upon the defendant’s attorney, giving notice that it would be brought to trial before the referee, at Batavia, on the twenty-third of that month.

Motion by plaintiff for judgment, pursuant to section 247 of the Code, for frivolousness of the answer of the complaint.

<p>An owner of real property is liable for injuries caused to third persons by its defects, notwithstanding the premises are at the time in possession of a tenant, if the defects existed when the tenant took possession.</p> <p>Note.—The case of Little agt. JDenn, ante, page 68, we are informed should not have been reported; as at that term (June, 3864), the judges of the court of appeals were equally divided on the case, and a re-argument was ordered, and afterwards, at the January term, 1866^ upon such re-argument, the judgment of the supreme court was reversed, and the case as thus decided is reported in 34 N. Y. R. 452. Through some mistake probably, Judge Johnson’s opinion was published in the newspapers, from which we took it as an unreported cafe.</p> <p>The case of Batterman agt. Finn, ante, page 108, is a dissenting opinion, instead of the opinion of the court, which is reported 32 How. 501.—Rep.</p>

<p>The lien of a levy made under an execution issued on final judgment obtained in a state court, before the filing of a petition of a creditor to declare a debtor an involuntary bankrupt, is preserved by the bankrupt act, and is to be respected by the United States District Court, sitting in bankruptcy, whether the said court takes to itself the administration of the property on which the lien is imposed, and applies it towards the satisfaction of the lien, or whether it allows the state officer who is executing the process of the state court to do so.</p> <p>But it mkst appear that the judgment and execution of the state court are obtained bona fide, and without collusion with the debtor.</p>

This is an appeal from the judgment of the general term, affirming a judgment of the special term denying a writ of mandamus. The, alternative writ was issued in September, 1856, and the issues of fact formed was tried at the Cayuga Circuit in January, 1858, before Mr. Justice Welles, who directed judgment for the plaintiff.

<p>When this case was before this court on a former appeal (34 W. Y. 30), tho reversal of the judgment was put on the express ground that the supreme court committed an error in holding that Ketehnm’s directorship in the company* barred' the claim of the firm of which he was a member. No new facts were elicited on the re-trial to change the case; consequently the rule of stare decisis, if of any value, should be adhered to in this case, when the precise question is again presented in the same court, between the same parties, and Upon substantially the same facts.</p>

<p>The collection of wharfage under the act of 1860, April 10, chapter 416 laws of 1860, can only he made in the manner pointed out in the 217th section of the act of April 9th, 1863, which is by a warrant to distrain the goods and chattels found on board of the vessel, for wharfage accrued under section 1 of the said act of 1860, and on the pier or bulkhead, for that accrued under section 3 of same act.</p> <p>It is not proper to bring an action to enforce such a lien. A receiver will be denied in such an action, even though a case therefor, as well as of wharfage and lien, is made out by the plaintiff.</p>

* In August, 1865, Tack Brothers & Co., residing and doing business in the city of Philadelphia, delivered to the defendants, at their office in that city, a telegraphic dispatch, addressed to the plaintiff at the city of Hew York, directing him to contract to sell for them five hundred (500) barrels of petroleum, at fifty-one and a half cents a gallon, deliverable from September first to September fifteenth, sellers’ option, and requested an immediate reply.

The plaintiffs, in the complaint in this action, allege that they were appointed trustees to receive subscriptions and donations for the Troy University, which was thereafter to be legally organized and incorporated 5 'and that a subscription agreement was prepared and signed by the defendant and others, a copy of which was annexed. The plaintiiis claimed to recover the amount subscribed by the defendant.

This is a proceeding commenced under chapter 318 laws of 1842, by Andrew Boyd, one of the assessors of the town of Groveland, Livingston county, NeW York, against Mary and Margaret Gray, to enforce the payment of a tax levied against them in said town.

. Appeals from orders made by the county judge of Albany county in the above actions, in proceedings supplementary to execution, requiring Elizabeth Whipple, the wife of John Whipple, to pay the amount of a judgment in each of said actions against her husband, the defendant therein, and the costs of the.proceeding.

Motion to dissolve injunction. In this case, an injunction had been gra&ted by a county judge, restraining the collection of a tax for school purposes, levied and imposed by Collins, as trustee of the school district. Defendant Yan Yoorhes was the collector of the district, and was proceeding to enforce such tax. The motion was to dissolve the injunction.

<p>Where the plaintiff, as stockholder of an incorporated company, brings an action against a portion of the directors of the company, including the president and vice-president, for damages sustained by reason of the fraudulent over-issues of the stock of the company by the defendants; to be entitled to recover, he must prove satisfactorily to the jury that the certificates of stock bought by him did not represent genuine stock, or any part of the stock of the company, hut constituted part of the over-issue not authorized by its charter.</p> <p>Then the burden is on the defendants to remove the inference deducirte from these facts, hy showing that the plaintiff's certificates were issued on the surrender, or on the transfer of genuine stock. This might be difficult, hut, if so, or even actually impossible, the defendants should not be heard to complain, when their own admitted culpability creates the dilemma.</p> <p>Where it is established by competent evidence that the defendants have issued false certificates of stock of the company, authenticated by them as genuine, and thrown them upon the market with fraudulent intent, they are liable to every hol3.ee' to whose hands they may come by fair purchase. In such case, the doctrine, which is undoubtedly true, that a vendor of property guilty of fraud on its sale, or who sells with a warranty, is liable only to his vendee, and a subsequent purchaser acquires no right of action therefor, does not apply.</p>

<p>In an action for a separation from bed and board forever, on the ground of cruel and inhuman treatment, the continuance of cohabitation by the parties for a limited time, after the last act of cruelty proved, is not, as in the case of an action for divorce, conclusive of the fact of condonation.</p>

<p>On an application for a writ of certiorari to remove a conviction from a court of special sessions to the court of sessions, it is not a valid objection to the conviction, to state in the affidavit:</p> <p>1st. That the conviction is erroneous, for there was no complaint or affidavit ia writing under oath, made against the defendant before the issuing of the «amsní, upon which he was arrested.</p> <p>It is not necessary that complaint be made in writing in any case, before the issuing of the warrant.</p> <p>2d. That there was no complaint on oath made before his arrest and the issuing of the warrant.</p> <p>Warrants issue on examination made by the magistrate, and not on complaint or oath, as such, and complaints are not required to be on oath, although the examination must be.</p> <p>3d. That the magistrate failed and refused to reduce the testimony given, or any part thereof, to writing.</p> <p>It was not the duty of the magistrate to reduce the testimony to writing; it was necessary for his own protection, and for other reasons besides this, he ought to have so reduced it. But the defendant could not be injured by such omission; nor could his legal rights be affected by it.</p> <p>4th. That the magistrate failed and refused to note any exceptions made by the conn» eel of said defendant.</p> <p>Exceptions were entirely unnecessary on the trial of this defendant. Any erroneous ruling of the justice whatever, against the objection-of the party, would have been sufficient to bring the error to the notice of the appellate court. Besides formal exceptions are never taken in any court not of record.</p> <p>5th. That said trial, examination, conviction and sentence of said defendant, took place and were had in a private room, and not in public, nor in the usual court room of the magistrate, and without the consent of the defendant.</p> <p>A trial is not necessarily not public, because it is conducted in a private room, or is not in a court room. The trial in this case, was conducted in a room adjoining part of the regular court room of the justice in the city hall, and is used for public purposes: it being in fact the office of the justice, in a public building, furnished to him by the public for the transaction of public business.</p> <p>The statute providing that the sitting of every court in this state shall be public, and every citizen may freely attend the same, was not violated in this case.</p>

<p>1. Under the statue (2 Rev. Stat. 534, O. P. § 5), relative to contempts, two methods of proceeding against a party who is guiliy of a contempt in refusing to obey a judgment in a civil action are provided:</p> <p>(1.) The court shall either grant an order on the accused party to show cause why he , should not he punished for the alleged misconduct; or,</p> <p>(2.) Shall issue an attachment to arrest such party, and to bring him before the court to answer for such misconduct.</p> <p>2. If the proceeding by attachment is adopted, the party is to be arrested and to be personally brought before the court, unless he gives hail. On being brought before the court, or appearing pursuant to his hail bond, interrogatories are to be filed and administered, if he denies the contempt.</p> <p>Under this mode of proceeding, no order for punishment of the accused by fine or imprisonment can be made, unless he shall have been personally "brought before? the court, or voluntarily appeared there.</p> <p>3, If the proceeding by order to show cause is adopted, and it is to enforce a civil remedy, if the party in default has already had the opportunity of contesting hia liability to perform what the proceeding seeks to compel him to perform, such proceeding is in effect hut the execution of the judgment or order against him.</p> <p>3. It is a proceeding in the action, and all the papers are to be entitled in the action. The order to show cause, in the absence of any statutory provision to the contrary, is governed by the practice of the court in regard to orders to show cause, both in respect to its service and the further proceedings upon it.</p> <p>Under such practice, it is good service to serve it on the accused party’s attorney in the action, even after judgment.</p> <p>5. Under sections 418 and 285 of the Code, the papers to bring the party into contempt, necessary, in this case, to be personally served on the defendant, are the certified copy of the judgment and the summons, and the underwriting of the rgfereo requiring the defendant to appear before him and make the conveyance.</p> <p>When these are personally served, if the defendant refuses to comply, he is brought into contempt.</p> <p>6. The 12fcli section (2 R. S. 278, O. P.), which provides that “ contempts committed in the immediate view and presence of the court may be punished summarily, and in other cases the party charged shall be notified of the accusation, and have a reasonable time to make his defense,” is by the succeeding 14th section held not to apply to any proceeding against parties or officers, as for a contempt to enforce any civil right or remedy.</p> <p>7. In a proceeding by order to show cause, interrogatories are not necessary ? for, if the court have obtained jurisdiction of the person of the defendant in the manner above provided, it retains that jurisdiction, for all purposes of enforcing the judg* ment, until its requirements are fully performed and executed,</p> <p>8. After judgment obtained, no matter wi at would have constituted a defense to the judgment, and if in due time and manner brought before the court would have prevented it, can be allowed as a reason why it should not he enforced.</p> <p>9. There is a manifest distinction between proceedings to enforce criminal contempts and those to enforce civil remedies.</p> <p>10. The case of Pitt agt. Davison (37 Barb.p. 100) reversed, and Pitt agt. Davison (12 Abb.p. 385) affirmed), and Davison's Case (13 Abb.p. 129) sustained.</p>

<p>When demand is made by the mortgagee of the amount secured to be paid by a chattel mortgage payable on demand, and is refused, the legal title to the mortgaged property becomes absolute in the mortgagee.</p> <p>After such demand and refusal, the mortgagor cannot charge the property by a second mortgage. Under such circumstances, a subsequent mortgagee would take no interest in the property, and would have no right to redeem by offering to pay the first mortgage. k</p> <p>A mortgagee of chattels, whose title has become absolute, is not bound to foreclose his mortgage. To extinguish the equity of redemption, he should do so.</p> <p>A refiling of a chattel moi tgage by the .mortgagee, after his legal title to the property ha8 become absolute, is no waiver of the forfeiture as against a subsequent mortgagee» who had taken his mortgage previous to such refiling, with the hnowledge of the forfeiture.</p>

<p>The court of general sessions of the city and county of New York, have the power to grant new trials upon the merits and on the ground of newly discovered evi deuce. The act of 1859 (Laws of 1859, ch. 339, § 4), which grants to the courts of “sessions of the several counties of the state, the power to grant new trials, extends to the court of general sessions in the city and county of New York.</p> <p>A prosecuting officer cannot be compelled to elect upon- which count, in an indictment for homicide," he will ask a conviction, the indictment containing several counts, alleging a killing in three different ways. A general verdict of guilty is not repugnant, inconsistent or void.</p> <p>Construction of the act of April 12,1862, as' to what constitutes the difference between the two degrees of murder.</p> <p>Premeditation proves a malicious intention when applied to a homicide, and when the killing occurs with an intent to effect death, however instantaneously, the intent is formed prior to the commission of the deed.</p> <p>The legislature intended the application of the term “premeditated” to an intent formed on the instant of killing.</p> <p>Intoxication must result in a fixed mental disease of some continuance or duration, "before it will have the effect to relieve from the responsibility for crime.</p>

On the twenty-third day of February, 1867, an action arising on contract was commenced in this court by the plaintiff against the defendants. At that time the defendants were a banking association, organized under the provisions of the act of congress passed June 3, 1864, to provide a national currency, located and carrying on business at the village of Medina, in Orleans county.

<p>The act organizing the metropolitan police district makes it the duty of the board of police to protect “ strangers and emigrants/* in the streets of the city of New York. The superintendent of police and the captain of the precinct will not be restrained; by injunction, from placing policemen in front of a public house, in which guests have been repeatedly subjected to unjust, exorbitant and illegal charges, and from giving warning to “ strangers ” about to enter “ to be careful.”</p>

<p>In an action before a justice of the peace for trespass on land, the plaintiff,.™ his complaint, described bis .entire farm of seventy acres by metes and bounds, and alleged the trespasses to have been committed thereon, and claimed damages in gross “ for the several aforesaid trespasses and grievancesand the defendant interposed a general denial, and then set up a separate defense, alleging title in himself to a certain portion of the premises, describing it by metes and bounds, and alleged that “ some or one ” of the alleged trespasses were committed on that piece of land. The justice discontinued the whole action ;■ and on the trial in the supreme court, no evidence was given of any trespass on this particular piece of land, and no question of title was raised by the proofs, and it was found that the trespasses were committed on the plaintiff's land, as to which there was no question of title, and the damages awarded amounted to some $26:</p> <p>Held, that the defendant was entitled to costs. (See Hall agt. Hodskins, 30 How. 15.)</p>

On the 8th of November, 1855, the defendant made two promissory notes, each for five hundred dollars, payable resjsectively in six and twelve months after date, to his own order. The complaint alleged that, through successive indorsements, the notes were transferred to the plaintiffs; that they were not paid; and that after both had matured, and on or about the 11th of February, 1857, the plaintiffs commenced an action upon the six-months note.

This action was brought to recover the difference between the contract price of a quantity of glazed wire, and the price such wire brought at auction sale, after the defendants had refused to accept a delivery.

This was an action to recover damages for the act of the defendant in enticing the plaintiff’s son, Nathaniel, away from the service of the plaintiff and inducing him to go into the army of the United States for the term of three years, as a substitute for the defendant, who had been drafted for such service. The plaintiff’s son was seventeen years old when he entered the army as a substitute for the defendant, in September, 1863.

<p>The Code only requires, in order for the issuing of an attachment against non.resident debtors, that the action should be for the recovery of money, that the same should be on contract, that the plaintiff should specify the amount of the claim and the grounds of the demand.</p> <p>The cases which have been decided, as to the form of the summons, should not be considered as controlling in regard to the issuing of attachment It is not necessary that the affidavit upon which a warrant of attachment is issued should show the issuing of the summons', it is enough if the summons was issued when the attachment is obtained.</p> <p>The attachment is not void for omitting to state “ that it was issued in an action then pending.”</p>

<p>Robertson, Ch. J., and S. B. Garvin and j. M. Barbour, Justices.</p> <p>Appeal by the defendant from-a judgment for plaintiff at special term.</p>

Lawrence county. Nathan Ford died in 1829, leaving a will of real and personal estate, which was duly proved before the surrogate of St. Lawrence county, and letters testamentary were granted to the executors therein named, all of whom died on or before April 2d, 1842, and letters of administration with the will annexed were issued to Chilion Ford, the respondent. He w.as superseded as such administrator on 13th July, 1850, and Edwin Clark and David B. 0.

.October IS, 1866, John Crouse and others recovered a judgment in this court against one Marinda Wheeler, a married woman, for $723.24. The venue was laid in Onondaga county. A transcript was duly docketed in Wayne county, where the said Marinda resided, and an execution issued to that county and returned nulla bona. The defendant was examined before a referee, upon an order made by Judge Morgan, and it was found that she had some $900 in cash in her possession.

<p>The eases of Bush agt. Prosser (14 N. Y. R. 347) and Brisby agt. Shaw (12 id. 67), settle two principles in the law relative to actions of libel and slander, under the Code:</p> <p>Burst. That mitigating circumstances may be pleaded in connection with a general denial, and with or without a plea of justification.</p> <p>Second. That all matters which tend to disprove malice may be pleaded in mitigation of damages, although they may tend to prove the truth of the words complained of.</p> <p>But these principles require that the defendant, seeking to mitigate damages by pleading facts and circumstances which induced him to believe the charge to be true at the time he made it, must state such facts and circumstances as would reaBonably induce, in the mind of a person possessed of ordina/ry intelligence and ¡mow* ledge, a belief of the truth of the charge.</p> <p>The pleadings should show that the defendant, at the time he made the charge, hneio the facts and circumstances on which he relies. •</p> <p>Also, the defendant should either expressly aver that such facts and’circumstances induced a belief in the truth of the charge at the time he made it, or that the facts and circumstances should carry with them a. reasonable presumption that he believed the charge to be true.</p> <p>Questions as to whether there was no malice in making the charge, or if any, to what extent, are eminently proper to be' submitted to the jury. The Code has made no change in the previous law on this subject.</p> <p>As mitigatory facts may now be pleaded, the rule governing the admission of evidence thereof should be applied as far as possible to the pleading.</p> <p>One of these rules of evidence is, to admit proof of any fact which might possibly bear on the question of malice. Another is, that, if there is the slighest doubt in the mind of the judge as to whether the facts proposed to be proven tend to disprove “malice, to admit the evidence and submit the question to the jury under proper instructions.</p> <p>These rules should now be applied upon a motion to strike out parts of an answer setting up facts and circumstances in mitigation of damages.</p> <p>Where the absence af averments, in an answer, forbids any presumption that, by any reason of the facts and transactions alleged, the defendant believed the charge to be true at the time he made it, such allegations will be stricken out on motion.</p> <p>Where the allegations in the answer tried to show-that the words were uttered in the feat of passion, caused by the present acts and conduct of the plaintiff, they may be retained.</p>

<p>Under the Code, the property of colorations created by or under the laws of this State, cannot be attached.</p>

<p>The amended charter of 1857, of the city of New York, provides that, to make the proceedings of the common council legal and binding, they must be advertised for a certain specified time in the corporation newspapers.</p> <p>Where a newspaper was designated as one of such papers, with instructions that it should publish the proceedings of the different boards, and services thereunder were performed before the law of May 4, 1866, called the tax levy law, was passed, and the plaintiff's rights had accrued and were vested:</p> <p>Meld, that the 10th section of the act of May 4,1866, could not act retrospectively so as to affect the plaintiff's right to recover for such services»</p>

<p>Section 10 of the* act of May 4,1866, providing that the mayor, &e., of the city of New York, shall not he liable upon any contract or expenditure, &c., made by any hoard or officer of the corporation, not expressly authorized by that act, is unconstitutional and void, as embracing a subject not contained in the title of the act, and is no answer to an action for services of an attorney performed for the corporation. (Nee Wood agt Mayor, Sc., ante, p. 501.)</p>