Volume 38 — Howard's Practice Reports

Appeal by the plaintiff from an order made at special term. This action was originally brought in the supreme court of the state of New York, by William G-.Fargo as president of The American Merchants’ Union Express Company, against a citizen of the state of Illinois.

This is an appeal from an order made at special term, granting a peremptory mandamus, requiring the defendants forthwith to assemble and audit and allow the relators claim of $300 against the town.

<p>Upon a suit brought in a court of the United States, upon an undertaking given in an action in a state court, conditioned to pay the judgment if a motion for a new tria1 is dsnied, if it appears that the undertaking was merely an additional security foi the payment of the judgment, and that the defendant has appealed from the order denying a new trial and that the state court has upon motion stayed proceedings upon the judgment pending the appeal, the defendants can, by an auxilliary suit iu equity, obtain a stay of all proceedings upon any judgment that the plaintiff may recover iu a suit on the undertaking pending the appeal in the state court.</p>

<p>The act of congress of 1790, declares that the record of a judgment (authenticated in a particular manner) shall have the same faith and credit, as it has in the state court from whence it was taken. And this court has decided, that congress having declared the effect of the record, by declaring what faith and credit shall be given to it, it is only necessary to inquire, in every case, what is the effect of a judgment m the state where it is rendered.</p> <p>The policy of the law in Illinois will not permit the owner of personal property to sell it, and still continue in possession of it. If between the parties, without delivery, the sale is valid ,• it has no effect on third persons, who in good faith get. a lien on it; for an attaching creditor stands in the light of a purchaser, and as such will be protected. "“ k</p> <p>As the effect of a levy, judgment and sale of attached property in the state of Illinois is to protect the attaching creditor, if sued in the courts of that state, and these proceedings are produced for his own justification; they ought also to produce, when he is sued in the court of another state, for the same transaction, and he justifies in the same manner, the same protection; even though.it appear that the owner of the property attached and the attaching creditor are both residents.of another state; and also that the owner had, previous to the attachment, given a chattel mortgage upon the property which was unknown totfye attaehingcreditor at the time of the levy of the attachment, although it came to^his knowledge before the attachment proceedings were completed. {Reversing S. G. New York Supreme Court, 34 Barb., 457, and the New York Court of Appeals, 2 Keyes, 119 .fr</p>

<p>The written memorandum of*a contract of purchase and sale of property, demanded by the statute of frauds, requires parties, a subject-matter, and a consideration. Where the memorandum fails to show who were the contracting parties—which was the seller and which the buyer, it is defective and void.</p>

<p>Relief by an injunction against trespass, is three fold ; 1st. Admission or.adjudication of plaintiff’s right. 2d. Admission or adjudication of defendant’s wrong; and 3d. Inadequacy of a remedy at law. If the trespass amount to an actual ouster, it is remediable by ejectment; if it fall short of ouster, then by trespass, and in neither case will an injunction lie, in the absence of any special equity in the case. A complaint in the case for an injunction, may be dismissed, on motion, without an answer for want of equity, on its face.</p> <p>Where it appears on the face of the complaint, that the plaintiff is not entitled to relief by injunction, as a part of the final judgment in the case, there is no authority to issue or uphold a preliminary injunction.</p>

It appears from the complaint, that the plaintiff is seized in fee of two tenths of certain parcels of land described in the complaint, and that the defendant is so seized' of eight tenths. .

Houghton brought an action before a justice of the peace, in trover, for the conversion of a case of boots, alleged to have been delivered to the defendant through a mistake, and which the defendant converted to his own use, and demanded j udgment in his complaint for $33. The defendant in his answer, set up three defenses, as follows: First—A general denial.

In this case now pending before me at Chambers of this Court, the petitioners have been adjudicated bankrupts. There are some thirty creditors, nearly half of whom have proved their claims. Silas C. Evans, of New York City, a brother of one of the petitioners (previous to the first meeting of creditors), proved his claim in due form, according to law, amounting to $22,000. ' Gfeorge Evans & Son, also proved a claim amounting to about $9,000.

<p>Motion for substitution of attorney for defendant, and to open the j udgment in this action &c.</p>

<p>Where the object of the action by the plaintiffs, for an injunction) is to prevent the defendants from dispossessing them for non-payment of rent, and from collecting rent which has become due, and for which a draft has been given, the injunction cannot be sustained—no fraud, surprise or undue advantage being shown.</p> <p>Plaintiffs have remedies at law which are entirely adequate to their emergencies. If any counter-claim exists to the draft, it can be set up in any action brought to compel its payment; and if any proceeding for the non-payment of rent by the defendants be adopted against the plaintiffs, the payment of the rent would not debar the plaintiffs from securing any debt of a similar character due from the defendants, it appearing that they are entirely solvent.</p>

The complaint alleges that Myers, Canfield & Son, as copartners, leased certain premises of plaintiffs for a term of years. The lease contained covenants on the part of the tenants to pay the rent. The premises were occupied by the partners. During the term, Myers, Canfield & Son dissolved.

<p>11 Every national banldng association, state bank, or state banldng association, shall pay a tax of ten per centum, on the amount of notes of any person, state bank, or state banking institution, used for circulation, and paid out by them, after the 1st day of August, 1866; and such tax shall be assessed and paid in such manner as shall be prescribed by the commissioner of internal revenue.” (Act of Congress, July 1st, 1866; 14 XT. 8. St., 146.)</p> <p>This law is not repugnant to the Constitution of the United States, as being a direct tax, which requires to be apportioned among the states agreeable to the constitu- ‘ tion; because it is not a dvrect tax, within the meaning of the constitution. Nor is it unconstitutional as impairing a franchise granted by the state; for it is not the franchise of the banks which is sought to be taxed, but the property created or con* tents made and issued by them.</p> <p>The power to tax may be exercised oppressively upon persons, but the responsibility of the legislature is not to the courts, but to the people, by whom its members are elected; go that if a particular tax bears heavily upon a corporation, or a class of corporations, it cannot, therefore, be pronounced contrary to the constitution.*</p>

<p>A sheriff has no authority or right to employ an auctioneer to sell property upon execution levied upon by him and charge a commission therefor, in addition to his poundage, to be deducted from the proceeds of the sale.</p> <p>Nor can a sheriff charge as a disbursement, after levying; and taking property upon execution, any sum for the services of a watchman to keep and take care of the property. There is no authority, any where, for either of these charges.</p>

This action was brought to obtain a perpetual injunction restraining the defendant from carrying on the business of a blacksmith in and upon the premises known as No. 201 Ninth street, in this city. The plaintiff is the owner and occupier of the adjoining building, known as No. 203 Ninth street. Upon the first floor and in the basement of the plaintiff’s building he carries on the business of a dealer in pianoforte materials, and of covering pianoforte hammers with felt.

<p>Where it appears from the report of commissioners for the appraisal of damages for taking property, that there was no irregularity committed by the commissioners, and no error existed which would authorize the court to set aside the proceedings, this court on appeal must affirm the order confirming the report; although affidavits were used on the motion for confirmation of the report to show error, t is well settled that no affidavits can be used on a motion to confirm the report of the commissioners, nor on the appeal from the order of confirmation. The court, in such case, must act solely on the report of the commissioners.</p>

<p>A partial failure of consideration, upon a contract for the sale of lumber of different qualities, can be set up only in the answer by way of recoupment of damages. If not so set up as a defense, pro tanto, proof of a failure to perform the contract, where there has been a delivery of the lumber, cannot defeat a recovery; consequently if such proof is offered to show an inferior quality of lumber; it is, under the pleadings, properly excluded.</p>

In this case the plaintiffs charged Gen. Butler with seizing their banking-house, in New Orleans, and appropriating to his own use $60,000 in gold. They obtained an attachment against him, and the general’s counsel moved to remove the cause to the United States courts.

Motion by defendants for an order vacating an injunction and orders granted by a justice of this court, without previous notice to the defendants, at a special term of this court, at Delhi, in the county of Delaware, on the 23d day of November, 1869.

On reading and filing the complaint herein, and the affidavits of Joseph. H. Ramsey, Charles W. Douglas, Jackson S. Schultz and Ossian D. Ashley, and on motion of Mr. Henry Smith, on behalf of plaintiff, and it appearing to the court that there is good cause for so doing, it is ordered, and the several defendants (and all other persons to whom this order relates) are severally enjoined and restrained (till this court shall otherwise order,) as follows : 1.

<p>The rale is well settled, that a judge granting an order in an action, can, of his own motion, or upon the application of the party aggrieved, vacate the order complained of.</p> <p>A suit in equitv, and an injunction granted, restraining the defendants, who are perfectly solvent, from taking possession of personal property, to which they are entitled to the custody, will be dissolved, upon ex parte affidavits.</p>

This was an action to recover the value of a money parcel, which the plaintiff caused to be delivered to the defendant’s company at New York, about December 3,1864, to be carried to Schenectady and delivered to Martin Witbeck, his brother. The -plaintiff was a soldier, at Hart’s Island. Having received his bounty, he delivered a part of it ($330) to Adams Express Company to take to his brother, Martin Witbeck, Schenectady, 3ST. Y. for safe keeping.

<p>If, after a cause has been once properly placed on the calendar for a short cause day, and is not reached for trial on that day, or is moved off without any day being assigned, and it does not appear on the calendar for the next short cause day, either party may, at the opening of the court on that day, move the court to place the cause on the calendar, and when the cause is reached for trial, take the default of the other party, if he fail to appear. The default so taken will be regular; and this, although the other party, on the afternoon of the day before, inspected the calendar in the clerk’s office, and did not find the cause thereupon, and for that reason did not attend.</p> <p>A like procedure may be had where the court sets down a short cause for a particular short cause day, and the same does not appear on the calendar for that day.</p> <p>Hereafter, the fact that in such cases the cause does not appear on the calendar as made out by the clerk, and published in the newspapers of the day, before the one on which the cause is called, nor on the calendar published on the morning of that day, will not be taken as an excuse for failing to appear on the trial} or if appearing, for failing to be ready; and this, even though the party so failing may have examined all of such calendars, and found that the cause was not thereon.</p>

<p>Where the defendants had paid for the money loaned them, nearly the amount of the note in suit at the time of the original loan, and on the different renewals, to the lender; Held) that it was gross usury—the jury having found by their verdict that it was the money of the lender.</p>

This action was brought against the defendant as a common carrier, to recover the value of a trunk of the plaintiff, lost, as is alleged, by the negligence of the defendant, at its depot at James Slip, New York. The defendant answered by a general denial of the complaint. The cause was tried at the Suffolk circuit, October 7, 1868, before Mr, Justice Gilbert and a jury.

<p>The opening a/nd widening of a street in the city of Syracuse is not such an improvement as the common council are prohibited from making without the application or consent of the owners of the property upon the line of the improvement.</p> <p>Where it appears from the report of the commissioner's appointed to assess the damages for the land proposed to be taken in such case, that they directly adjudicated upon the plaintiff’s right to damages for the land proposed to be taken from him, and reported generally,fezcept in three instances where they either named or described the owners, that as to the other property taken “ the owners thereof are fully compensated for the benefits to the adjoining land owned by them respectively</p> <p>Held, that this award was warranted, in substance, by the statute under which the commissioners proceeded,as that empowered them to deduct the benefits from the damages, {Laws, 1857, chap. 136, § 2.) And it has been settled that the owner’s right to compensation, which the constitution has secured, may be satisfied in that way. (Griffin agt Mayor, Sc., of Brooklyn, 4 Comst, 419.)</p> <p>It was not necessary to the validity of the action of the commissioners that the plaintiff should be named in their report. All that was required was that it should appear that his right to compensation had been considered and adjudicated by the commissioners. The constitution requires only that the owner shall be justly compensated for this property when it may be taken for this purpose; and that can be done as well by describing or referring to him, as it can by naming him.</p>

<p>A justice’s judgment, rendered on the verdict of a jury, for the defendant, in an action of trespass, will be reversed by the county court on appeal, where it appears that the plaintiff would be entitled to nominal damages only.</p>

The action was to recover $3,000, part of the consideration of a farm conveyed to the defendant in the town of Stratoga Springs.

The motion is to punish the respondent, John S. Beecher, for contempt of court, in violatieg an order of injunction, and in disturbing the possession of a receiver appointed by order of this court.

The two causes were reached in a regular call of the calendar, and moved for trial by the plaintiff; the defendant thereupon moved, that the plaintiff be restrained from proceeding to trial and… Held: for the amount of the damages demanded in the complaints. The plaintiff did not have his costs taxed, and made no demand, -for the damages and costs, and declined to take the bank check from the clerk.

<p>Where the grantee of lands holds the legal estate in the premises, and there is nothing in the conveyance to him which would give notice to any one that he holds it only in trust for another, there can be no doubt that a foreclosure and sale by advertisement, pursuant to the statute, of a mortgage, given by him without the knowledge or consent of the cestui que truet, would vest in a bona fide purchaser, under the foreclosure sale, without notice of the trust, a title which would cut off the equity of the cestui que trust although no notice of the nroceedings were served on him.</p> <p>But the trustee in such case would be liable to the cestui que trust for the loss he sustained by his wrongful act in mortgaging the premises ,* and it would be no answer to such alleged liability that he supposed he was acting for the cestui que trust when he executed the mortgage.</p> <p>Therefore, for this reason, the trustee has such &jpecunia/ry interest in the question, as wi7l authorize him to bring an action, in his own name, to restrain the foreclosure of such mortgage.</p> <p>The trustee is also “a trustee of an express ti'Ust,” and can sue without joining with him the person for whose benefit the action is prosecuted (Code § 113). Por he not only held the legal title to the land in his own name, for the benefit of another, but the very mortgage in question was executed by him in his own name,‘not for his own benefit, but for the benefit, as he supposed, of his cestui que trnst.</p> <p>The Code (§ 113) says, that “ a trustee of an express trust, within the meaning of this section, shall be construed to include a person with whom, or in whose name, a contract is made for the benefit of another? - ....</p> <p>It is error to dismiss the plaintiff’s complaint on the ground that the cestui que trust was not made a party. It is enough that he was entitled to commence the action alone, or in conjunction with the cestui que trust If he has a standing in court in either way upon the pleadings, the complaint cannot be dismissed.</p>

<p>Appeal from judgment at special term.</p>

The defendant was convicted at the Schenectady Oyer, 1868, of the crime of arson, in the third degree. The specific oflense charged in the indictment, was that on the 4th of April, 1867, he feloniously, in the night time, set fire to a certain grist mill, the property of one Frederick Whittlesey.

The motion is for an order directing the county clerk to discharge of record certain mechanics’ liens.

This action was commenced before a justice of the peace. The plaintiff complained against the defendant for cutting and carrying away from her premises, a quantity of hay to her damage of seventy dollars. The answer was a general denial. On the trial before the justice, the plaintiff failed to recover, and a judgment was entered for the defendant. The plaintiff appealed to the county court and claimed a new trial.

The above entitled cause is now pending before me. That it appears by the schedules annexed to the petition of the above named petitioner for adjudication of bankruptcy and the amendments of the same, that the assets consist of a small amount of money, a few notes, and a large number of book accounts, amounting in the aggregate to about $17,000. .There is no proof before me that any part of either of the notes or book accounts are collectable.

<p>Where a prisoner is detained in prison, in execution of a sentence already pronoun' ced upon him by the court, the provision of the habeas corpus act, which declares that “ during the session of a court of oyer and terminer, no prisoner detained in the common jail of the county upon any criminal charge, shall be removed therefrom by any writ of habeas corpus, unless such writ shall have been issued by such court of oyer and terminer, or shall be made returnable before it,” does not apply to such a case.</p> <p>The court which sentenced the prisoner, has no longer jurisdiction over him, consequently where a judge of another court, other than the court of oyer and terminer,—which may be in session at the time, issues a writ of habeas corpus to bring up the prisoner before him, the officer in custody of the prison upon whom the writ is properly served, must produce the body of the prisoner, according to the mandate of the writ.</p>

This action was brought by the plaintiff to recover compensation tor work and labor performed by her for Christian Bennett, the defendant’s testator during a period of more than nine years, commencing in April, 1852, ending in June, 1861.

<p>Where a person acting as an attorney, assumes to appear for a defendant in a justices court at the joining of issue and on the adjourned day, (without authority in fact) and is not sworn or questioned as to his authority to appear, either by the justice or the plaintiff, there is no appearance by the defendant which concludes him; consequently any irregularity or jurisdictional objection by him is not waived. Such appearance, however, concludes the plaintiff.</p> <p>'The return of a constable to the service of a summons is a certificate in both the technical and 1 beral sense of the term; and consequently requires a stamp under the U. S. internal revenue act. And the omission of the stamp renders the certificate invalid and of no effect.</p> <p>Congress designed by the amendment of 1867, to the internal revenue law, to provide two distinct things in the section as amended: One was to punish a party making certain instruments, with intent, &c., by fine: the other object was to punish or deter, from omitting the stamp, where there was no ment to evade <&c., by invalidating the instrument.</p> <p>Where the defendant does not appear in the action, an adjournment for more than eight days, either on motion of the justice or at the plaintiff’s request is irregular and the justice loses jurisdiction.</p>

<p>A new trial will be granted in the following cases, where it is moved for in time.</p> <p>1. Ef evidence material to the verdict, during the progress of the trial, was either improperly received or rejected.</p> <p>2. If the judge has misdirected the jury, or omitted to direct thém at all, on some point of law material and relative to the case.</p> <p>3. Where the judge is disqualified by reason of pecuniary interest in the subject matter before the court.</p> <p>4. If the successful party, or any officer of the court, or the jury have been guilty of gross misconduct.</p> <p>5. If a mistake has been made in entering the verdict.</p> <p>6. If the damages awarded are glaringly excessive or palpably insufficient.</p> <p>7. Where it is made out that the verdict was by surprise, or that new mate, rial evidence has been discovered subsequent to the trial.</p> <p>8. Where the verdict was procured by fraud, perjury or conspiracy.</p> <p>9. Where the verdict is manifestly against the weight of evidence.</p> <p>10. Generally, upon satisfying the court that there has been a miscarriage of justice.</p> <p>11. Cases of false verdicts, without corruption or bad intentions of the juries—they may have heard too much ot the case before the trial, and imbibed prejudices, without knowing it.</p> <p>12. Where the case may be intricate, and the jury have been so long engaged in it, as to distract and confound their attention. Most generally verdicts include legal consequences as well as propositions of fact, and in drawing inferences from facts, the jury may mistake and infer directly contrary to law.</p> <p>In this case, a new trial was denied on the ground that the evidence which was claimed to be newly discovered, was not in fact newly discovered, because, 1st the source of it was known in the transaction from the start, and during the two former trials. And, 2d, the evidence thus sought, if given, would be entirely im material.</p>

<p>Mutuality of obligation, is not essential to the obligatory power of a contract. An agreement under the statute of frauds will bind the party who subscribed it, although there may be no legal remedy at his suit against the other by reason of this latter party having omitted to subscribe it. A subscription by the agent of the party charged is sufficient.</p> <p>A contract was made as follows: “ New York, March 31, 1868. Sold to Sterling Oil Worksfor account of Mr. D. Brown & Sons, one hundred and sixty thousand (160,000) gallons, crude petroleum, gravity 40-17, at eleven and three-quarters (Ili) cents per gallon. To be delivered to bulk lighter at yard free of expense. Tank measurement; quality and quantity to be accepted at the time of delivery at yard.</p> <p>“ Sellers option during the month of May next, at the rate of forty thousand (40,000) galions per week through the month. D. Bkown & Sons.</p> <p>“ Stamped and executed in presence of, H. C. Ohlbn, Broker. Terms cash.”</p> <p>Held, that this was binding on the defendants as a contract, and especially so as they had explicitly admitted it in the pleadings in the action.</p> <p>Under this contrast the defendants are obliged to notify the plaintiffs at what “ yard” and at what time, they propose to deliver the oil, before any obligation is incumbent on the plaintiffs to send their lighter for the oil.</p> <p>It is a settled doctrine that the duty of action—of delivery, or demand, or tender, is on him who reserves to himself an option. Therefore the plaintiffs were not bound to pay, or tender payment for the oil, before the defendant had delivered or offered to deliver it. Readiness and willingness on the part of the plaintiffs to pay for the oil, were sufficient, without proof of payment or tender of payment.</p> <p>This contract obliges the defendants to deliver 40,000 gallons a week, and their option only applies to the day of the week on which they might delivei>-not the option to deliver the whole 160,000 gallons on the last day of May—which falling on Sunday, they might deliver the whole on the first day of June. They expressly agree to deliver the whole 160,000 gallons in the month of May, and a delivery on the first day of June would not satisfy their contract.</p>

<p>This was a motion to postpone on account of an absent witness.</p>

<p>Common receipts are not “ personal property” within the statute defining larceny; consequently larceny cannot be committed thereof.</p> <p>But certificates of stock of an incorporated company, are within the statutory definí* tion of personal property," and are the subjects of larceny.</p> <p>On a trial for grand larceny in stealing such certificates of stock, it is incumbent on the people to prove the value'of-the stock; and in the absence of any evidence upon the subject of such value, the court must presume it to be nominal - merely.</p>

The complaint in this cause contained three counts; one for assualt and battery; one for entering on the premises of plaintiff and injuring to his barn; and another for converting certain sheep. Issue was joined and the same was brought to trial at the October Jefferson circuit: Evidence was given under each count of the complaint, and a verdict rendered in favor of the plaintiff for $20. After verdict the defendant entered up judgment for costs.

<p>This court is not authorized to hear a motion for a new trial at general term, on a case or exceptions, where the decision of the court filed under § 267 of the Code, does not authorize final judgment but directs proceedings before a referee or otherwise, under the amendment of § 268 in 1867, where the interlocutory decision or judgment was made before the amendment</p>

Motion made at general term to set aside an order made at a previous general term reversing a judgment entered upon a report of a referee.

<p>'Where a petition and application to a county judge, under the act of 1869, for the purpose of bonding a town for a certain sum, to aid in the construction of a railroad, purports to be signed by a majority of the tax payers of the town, whose names appeared on the last] preceding tax list or assessment roll of said town, in pursuance of the provisions of said act, no tax payer, thus consenting, by his signature, to the object of the application, after a knowledge of all the facts, can ever withdraw such consent</p>