Volume 4 — Howard's Practice Reports

<p>Motion to set aside judgment, and to allow defendants to put in answer.</p> <p>The summons and complaint were served on the defendants on the 29 th and 30th of December, 1848, personally. The answer was served by depositing the same in the post office at Troy, on the 21st January, 1849, directed to the plaintiff. The answer was returned upon the ground that it was not served in time. Judgment was entered by the clerk on the 23d day of January, 1849. The defendant, D. W. Ackley, swears that he made no memorandum of the time of service of the summons and complaint, and when he sent word to his attorney of the commencement of the suit, he was under the impression that the time for answering expired on the 21st January, 1849. The attorney of the defendants states that when the summons and complaint were handed to him he was informed that they were served on the 1st January, 1849. The action was brought for services rendered by the plaintiff as solicitor and counsel for the defendants.</p>

—Motion to set aside execution. The judgment in this suit was perfected against the defendants, Wing, R. 0. Wheeler and T. B. Wheeler, on the 17th January, 1849; and an execution was issued thereon on the 22d of January, 1849. The suit was commenced in the spring of 1847. No process was served on A. K. Wheeler. After the execution was issned, and on the 24th of January, the sheriff called on the defendant, R. C. Wheeler, and showed him the execution. R. 0.

<p>In cases where service by mail may be made, double time (forty days) is allowed to serve an amended answer or reply, of course, and without costs.</p>

<p>The court will not allow a party to suffer by the omissions or mistakes of a clerk, attorney, or other officer of the court, where a substantial right is involved.</p> <p>Thus, two written statements duly verified, were filed by an attorney with the clerk of the county, for the purpose of having judgments entered by confession (against the same defendant) without action, pursuant to chap. 3, of title 12, of part 2, of the Code of Procedure. And the clerk entered in the judgment book, judgments of the Supreme Court for the respective amounts confessed, with costs; but omitted to endorse the same upon the statements as directed by § 331. On a subsequent day another written statement against the same defendant, by a different attorney, was filed with the same clerk, and judgment by confession thereon was perfected regularly in all respects, pursuant to the code aforesaid—the last mentioned attorney knowing of the omissions in the two first causes. On a day subsequent to the entry of this last judgment, the attorney in the two first causes consented that the clerk re-enter the two first named judgments by making the proper endorsements &c.; to perfect the same regularly—which was done—making them subsequent in entry and lien to the judgment first regularly entered.</p> <p>On a motion in behalf of the plaintiffs in the two causes first mentioned for an order requiring the clerk to endorse on the statements as of the time they were (rriginalhj filed and that the judgments be entered in the judgment book and docketed as of the same day; the order was granted, and the re-entry vacated.</p>

Motion to set aside summons and complaint. The summons and complaint were served on the defendants on or about the 11th August last. The complaint was not verified as required by the 133d section of the Code of Procedure, and for that reason the defendants move that it be set aside, &c. The plaintiff now moves to amend by verifying the complaint.

This suit was commenced in the late Court of Common Pleas of Erie County, against the defendant for mal-practice as a physician and surgeon.

The complaint is upon a promissory note made by defendant Bellows to the defendant Sackett or order, and endorsed by Sackett and the defendants Downs and Seelye.

This was an action of trespass, commenced before a justice of the peace. Floyd sued Rice for taking and selling a set of harness. Held: that it was a question of fact, whether the harness belonged to the plaintiff, Floyd, or to Thomas Biggs, the defendant, in the execution under which it was taken and sold. That the testimony as to Floyd’s ownership, was all on one side.

<p>A motion may be noticed for a day in term (special) other than the first, if a sufficient excuse appear upon the moving papers.</p> <p>The acts of a clerk in adjusting and settling the amount of costs, under § 11 of the code, (not being a regular and orderly taxation as under the former law) are not necessarily final and conclusive, because no review is expressly given in the act. The court has, as one of its incidental powers, the right to control the legal acts, and compel a performance of legal duty of all its inferior officers. And the exercise of this power is peculiarly necessary in the formal and proper entry of the judgment.</p> <p>Where a party is entitled to the costs of a circuit, (for attendance, &c.) he should move the first opportunity after the circuit adjourns. (5 Wend. 82; 1 Howard’s Pr. R. 105; 2 Wend. 288;</p> <p>T Wend. 519.)</p> <p>Where only the plaintiff notices the cause for trial, and has it in his power to try, but for any reason does not choose to do so, he cannot recover the costs of the circuit.</p> <p>Service of notice on Saturday for Monday (intending to be a two days’ notice) to settle and adjust costs, before the clerk, held to be insufficient. There should be two full business days. It seems, that Sunday intervening should be excluded in the computation of the time for service, where the time is less than one week.</p> <p>Costs of the motion will not be allowed, where the notice of motion asks for more than the party is entitled to.</p>

<p>In the computation of time for service of notice of motion, &c., five days is sufficient (under the code) for any number of miles under one hundred. The code intending to require five days’ notice for fifty miles, and six days for (additional fifty,) one hundred miles, and so on. An injunction cannot be granted (on motion) under the first branch of § 192 of the code (original) without the complaint contains a demand for it, as part of the relief sought. Mor can it be granted under the second branch of that section, unless the act to be prevented shall “tend to render the judgment,” which is sought to be obtained, “ineffectual.” It seems that, under this latter branch of the section 192, the necessity should arise during litigation.</p> <p>Thus, where plaintiffs moved for an injunction, to restrain the defendant from proceeding in action of ejectment, and demanded in their complaint (after setting out an agreement to convey the premises to plaintiffs,) relief as-Mows: “Wherefore, the said plaintiffs demand judgment that said J. M’C. shall fulfil his said agreement, and give them a deed of the above described premises, and that their costs be awarded to them on this complaint.” Held, that an injunction could not be granted under the code, § 192.</p>

<p>As to acts done by a lunatic or drunkard before'the issuifrg of a commission, and which are overreached by the retrospective finding of the jury, the inquisition is only presumptive, and not conclusive evidence of incapacity. But all gifts and contracts made by him after the actual finding of the inquisition, and until he is permitted to resume the control of his property, are utterly void.</p> <p>While, therefore, the commission remains unrevoked, the lunatic or habitual drunkard cannot make a valid will without permission of the court. The existence of the commission will be held conclusive against the validity of the will.</p> <p>An application to the court for an order to remove this technical objection is addressed to the discretion of the court, and may be made e» porie, or on notice to the committee and next of kin, as the court shall direct.</p>

King's county Oyer and Terminer.—Before Judge Strong and Justices Hughes and Wright, The defendant had been indicted during the pendency of the act relating to excise and to licensing retailers of intoxicating liquors, passed May 14th, 1845, for selling by retail strong and spirituous liquors and wines, in Brooklyn, after the electors of the city had voted, pursuant to the third section-of that act, that no license should be granted for such purposes.

—The bill in this cause was filed previous to July 1,1848, to foreclose a mortgage given in 1837, due and payable in 1844. Defendants Allendorphs put in answer to the amount due, and John Mynders as to the priority of his mortgage, to the plaintiffs’ mortgage. An order of reference was entered by consent, referring it to a sole referee, “ to hear the proofs and allegations of the parties, and to determine the matters in controversy in this suit.”

The complaint was founded upon a promissory note and verified by the oath of the plaintiff’s attorney to the effect that he believed.it to be true, and it was served on the 24th March, 1849. ■ The answer denies the substance of the complaint and sets up payment ;; and is .verified in the same manner -by the attorney for the defendant. It' was served on the 11th day of April, 1849, the day on which the amended code was passed.

—This action was commenced under the code, and tried at the last December circuit in Columbia. The plaintiff obtained a verdict upon which a judgment was rendered. The defendant made a bill of exceptions and appealed to the general term. The cause was argued, and decided in favor of the plaintiff, at the general term held in Poughkeepsie in May last. In entering up final judgment, the clerk inserted $45 for the plaintiff’s costs on the appeal.

In April last the plaintiff commenced an action before a justice of the peace of the county of Saratoga.

This was a motion for judgment on account of the frivolousness of the demurrer to the complaint. The complaint sets forth a contract, entered into between plaintiffs, who were partners under the firm of J. B. Enos & Go., and the defendant Thomas, whereby the latter agreed to deliver to the plaintiffs a certain quantity of wheat to be manufactured into flour, for which the plaintiffs agreed to return a stipulated quantity of flour.

—This was a motion to strike out of the judgment certain costs alleged to have been improperly inserted therein by the clerk. The action was tried by a referee, who made a report in favor of the plaintiff, upon which judgment was perfected. The defendants appealed to the general term, and upon such appeal the judgment was affirmed.

This was an application on behalf of the plaintiffs to require the defendants to give them an inspection and copy of certain papers and documents relating to their defence.

'—-This was a motion, for judgment on the ground of the frivolousness of the demurrer to the complaint in this action, under the 247th section of the code. The action is brought upon a draft dated April 5,1849, payable ten days after date and drawn by the defendants upon the Commercial Bank of Albany, and payable “ to the order of W. B. Storm, Cashier,” for $300.

—On the 18th September, 1848, the defendant made his promissory note in writing to Wilson and Calkins for the sum of three hundred dollars, payable at the Troy City Bank, two months after date, and Wilson and Calkins on the same day endorsed and transferred the said note to the plaintiff who then and there became the owner of it. When the note became due it was protested for non-payment, and an action was brought against the maker and endorsers.

—The action in this case was for an assault and battery, and was commenced after the act entitled, “ an act to simplify and abridge the practice, pleadings and proceedings of the courts of this state,” passed April 12,1848, took effect, and before the amendment of that act on the 11th of April, 1849. Two of the defendants appeared and answered, and the cause was tried, at the present circuit, when the plaintiff recovered a verdict of six cents damages.

<p>In cases of libel, no more costs than damages can.be recovered, if the recovery is less than §50. (§ 304 amended code, 4th sub.) But, in every such case, the prevailing party is entitled, besides his costs, to necessary disbursements and fees of officers allowed by law. (This case decides the same question as the next preceding, with the additional point that all necessary disbwrsemenis may be allowed.)</p>

—This was a motion to strike out a part of the defendant’s answer, upon the ground that it is irrelevant and redundant. The action is brought upon two checks upon the Mechanics’ and Farmers’ Bank, alleged to have been made and delivered by'the defendant to the Canal Bank, one on the 5th of October, 1844, and the other on the 13th of October, 1845.

—This action was brought to recover damages for fraudulently concealing, upon the sale of a span of horses by the defendants to the plaintiff, their vicious propensities.

—This was an application fbr an additional allowance for costs under the 308th section of the amended code. The action was for taking a quantity of flax. It was tried by a referee. The plaintiff, in his summons and complaint, claimed to recover $500.

<p>—This was an action upon a promissory note signed by Castle Seeley and Garret Tollee as principals, and Uathan Clark, Jr. as surety. The defendants were all served with a summons in the usual form, stating that if they should fail to answer the complaint, &e., the plaintiffs would take judgment for the amount of the note, with interest. None of the defendants having answered, the plaintiffs are entitled to judgment. A motion was made on behalf of the defendant Clark, upon an affidavit stating that he is a mere surety for the other, defendants, upon the note; that provision may be made in the judgment for an execution in Ms favor, against the other defendants, in case he is obliged to pay the judgment.</p>

—A motion having been made in this cause before Mr. Justice Willard, to vacate an order holding the defendant to bail, and the same having been denied, the defendant appealed from the order denying the motion to the general term. Upon the appeal, the decision of the justice was reversed, and the order to hold to bail vacated.

—The complaint is for the foreclosure of a mortgage made by the defendants on the 10th of May, 1848. It is alleged that the mortgage was executed by the defendants to secure a part of the consideration money due for the same premises that day sold and conveyed by the plaintiff to Eliza Ann Shepard, in fee. The defendants also united in a bond to the plaintiff, conditioned to pay the same sum.

—This is an action on contract for the recovery of money only, and the complaint is not sworn to. The question is, in what manner is plaintiff to obtain his judgment.

<p>—The appeal in this cause was taken from a decree of the Supreme Court in Equity—Sixth Judicial District. The cause was brought to a hearing upon pleadings and proofs, and the decree entered November 21st, 1848. The question in the cause involves the construction of the will of Sydney Smith. The Supreme Court decided that the trusts in the will should be declared void in toto, and the property be allowed to descend, as in case of intestacy, with proper directions in the decree for reference, and taking an account, &c. The decree was accordingly so entered; after declaring the general terms thereof, it was referred to Stephen Cambreleng, Esq., to take and state an account of all the personal estate of the said testator, &c., and how much was due to the complainant Nancy Harris, and the defendant Josiah C. Cady, respectively, as heirs-at-law of the said testator, &c. The last clause of the decree was entered in these words: “ And it is further ordered, adjudged and decreed, that the taxable costs of all the parties to this suit be paid by the executors of said will, out of the personal estate of the said testator; and that all farther questions and directions he reserved until the coming in of the report of the said referee."</p> <p>This cause was called upon the calendar of this court, July 21st, 1849.</p>

—At the last May term of this court, a motion was made to dismiss the appeal in this cause, on the ground that the return had not been filed. The motion was granted, unless the return was filed in twenty days, &c. At this term this motion was made by respondent, on notice to have the cause placed upon the calendar as of the day the return should have been filed, if it had been regularly filed after the notice of appeal was served. The motion was not opposed.

—The order appealed from in this case was an order on a re-hearing at general term of the Supreme Court, vacating an order of reference to ascertain the amount of damages occasioned, by a temporary injunction.

—This was a motion to change the place of trial from Rensselaer to Mew York. The action was brought for entering upon the premises of the plaintiff, at Waterford, and taking possession, by virtue of a pretended execution, of divers articles of personal property—and the plaintiff claimed damages for the expense he was caused in moving to set aside the execution. The affidavits were voluminous, and the facts sufficiently appear in the opinion of the court.

<p> —Demurrer to Complaint. </p>

—Motion, to change the place of trial from Erie to Rensselaer county. The summons and complaint in this cause were served on the 8th day of May, 1849. The defendant’s answer was served on' the 23d of May. On the 9th day of June, the plaintiff served a demurrer to a part of the answer, and on the 12th day of June a reply to the residue was served.

—Motion for $100 costs against the plaintiff's attorney. The husband, whose wife was an infant, united with her in bringing an action against the defendant for a demand claimed to be due her before her marriage. The action was in their joint names and the husband, before the commencement of the suit, being himself of fob age, was appointed next friend for his wife, and, in addition to being named as plaintiff, was also in the proceedings styled next friend.

—This action is brought to recover damages for the breach of an alleged promise of marriage. The summons is in conformity with the first subdivision of the 129th section of the code, and specifies $5000 as the sum for which the plaintiff will take judgment, if the defendant fail to answer.

<p>In an affidavit upon which an order of arrest is to "be founded, (§ 481) two things must bo made to appear: 1st, that a sufficient cause of action exists; 2d, that it is among those specified in the 119th section.</p> <p>It is not sufficient for the party making- the affidavit to state that “his case is one of those mentioned in section 1Í9.” It must appear from the facts stated that it is such a case. It is not necessary that the affidavit should state that “an action has been, or is about to be commenced.”</p> <p>It is not necessary that the name of the party to be arrested should be stated. If unknown, he may be designated as the real defendant in the suit or proceeding, and whose name is not known, or by any name. (§115.)</p> <p>The entitling the affidavit in a suit (which, under the former'practice, was fatal,) may now be disregarded, under § 116 of the code, as not affecting the substantial rights of the adverse party. - -</p>

At chambers. Motion for judgment, upon a frivolous demurred', under section 247 of the code.—The complaint in this cause, after the title of the cause, is as follows: “ Erie county.

—The judgment was obtained in this action, in December, 1842. Sundry payments were made thereon leaving due, as the plaintiffs contend, on the 10th March, 1849, the sum of $368.50, with interest from that day. On the 4th May, 1849, the plaintiff’s attorney issued a writ of scire facias quare executionem non ; which the defendant, at the late special term in Columbia county, moved to set aside, on the ground that it is a remedy abolished by the code.

—On the 15th of December, 1842, the plaintiffs recovered a judgment against the defendant for §2240.33 damages and $46.33 costs, upon which they claim a balance of §363.50 yet due. A motion is made for leave to issue execution to collect this balance. The defendant denies that anything is due upon the judgment;

<p>The second section of the act of April 1,1848, (Sess. Laws of 1848, p. 301,) which reads as follows: “The real 'and personal property, and the rents, issues and profits thereof, of any female now married, shall not be subject to the disposal of her husband, but shall he her sole and separate property as if she were a single female, except so far as the same may Be liable for the debts of her husband heretofore contracted,” declared unconstitutional and void, being in violation of the first section of article one of the constitution of this state, which reads as follows : “Ho member of this state shall be disfranchised, or deprived of any of the rights or privileges secured to any citizen thereof, unless by the law of the land or the judgment of his peers.” It also contravenes the 6th section of article one of the constitution of this state,, the last clause of which reads as follows: “No person shall be subject to be twice put in jeopardy for the same offence; nor shall be compelled, in any criminal case, to be a witness . against himself; nor be deprived of life, liberty or property, without due process of law;nor shall private property be taken for public use, without just compensation.”</p> <p>Held, that there is nothing in the constitution of the United States which invalidates this statute, for the reason that there is nothing prohibiting- a state Legislature from taking away vested rights, unless they arise out of a contract; and as the marriage</p> <p>relation is not created by what is understood to be a contact in the strictest common law sense of that term, and is not what in popular language and common parlance is understood by the word contract—the Legislature always having power to dissolve it—it is not a contract within the spirit and meaning of the prohibitory clause of art. 1, seo. 10,1st sub. of the Constitution of the United States.</p>

—This was a motion by defendant to set aside a judgment and subsequent proceedings for irregularity merely. The capias was returned as though personally served on the defendant, (in August, 1848,) by the sheriff; although it appeared that, in fact, it was not served on him at all, but, if served, was on the wrong person. The proceedings were all regular, on the part of the plaintiff, to obtain judgment.

—The defendant, Delmonico, as administrator, &c., presented a petition setting forth that he was the owner, by assignment from the plaintiff, of the mortgage to foreclose which this suit had been brought; that in 1844 a decree had been entered in the suit by default, but it had not yet been enrolled; that the premises were liable to three prior mortgages, one to Bishop Hughes for $24,000, and two to John Targee for some $10,000; and that there was due on the mortgage in this…

—Motion on the part of the defendants to strike out certain portions of the complaint as being redundant and irrelevant. The action is for false imprisonment.

Question of Costs referred by the Clerk of Oneida County, for advice.— This was an action brought under the Code of Procedure, for an assault and battery. The cause was noticed for trial by both parties, and was on the calendar at the late, Oneida Circuit.

—Stephen Reed and others filed their petition under the statnte (2 R. *S. 316,) praying for partition of certain lands, and in it averred that partition of the same premises had been made among the parties in a suit in chancery, by a decree entered in 1845, that a bill of review was afterwards filed, and such proceedings thereon had; that in 1849 a decree was entered, setting aside the former decree of partition, and claiming that thereupon the several parties were restored…

G. W. Gray, on behalf of the defendant, moved for judgment (or “ for such other relief,” &c.,) on the ground that the reply was not verified, though the answer was.

Otsego Special Term.—The defendant regularly took exceptions at the trial of the cause, and the bill of exceptions had been duly sealed. The plaintiff had perfected judgment, and the defendant had brought an appeal. The suit was commenced before the enactment of the code, and the plaintiff moved to quash the appeal, on the ground of an alleged irregularity in the manner of bringing it, and the giving of security.

<p>—The appeal in this cause was from a judgment in the Superior Court of the city of Hew York, and from an order denying an application for a re-settlement of the bill of exceptions therein. The return of the Superior Court was filed April 11, 1849.</p> <p>At the last July term of this court, a motion was made by the respondent, on notice, to dismiss the appeal, so far as it related to the order appealed from. The motion was granted, with costs of the appeal and of the motion. The remittitur, containing the entire return upon the appeal from the judgment as well as from the order appealed from, was thereupon sent to and filed in the office of the clerk of the Superior Court. The respondent then gave notice to the appellant, requiring him to cause the proper return, upon the appeal from the judgment, to be filed with the clerk of this court within twenty days, or that he would be deemed to have waived the appeal. On the 11th day of September, upon affidavit of service of notice, and a certificate of the clerk that no return had been filed since the remittitur was sent to the clerk of the court below, the respondent entered a rule with the clerk of this court, dismissing the appeal for want of prosecution.</p> <p>At this term, the appellant moved, upon notice, that the remittitur and order entered on the 11th of September be vacated.</p>

—This was a motion to set mA an order dismissing the appeal in this cause. The appeal was from an order of the surrogate of Hew York, made on the 10th day of June, 1848, disallowing a claim of the appellant against the estate of Isaac Lawrence, deceased.

—This was an action commenced by summons and complaint for the partition of lands. Commissioners having made partition, the plaintiff’s counsel moved to confirm their report. The defendants’ counsel opposed, upon the ground that no notice of the proceedings on the part of the commissioners had been served upon the defendants’ attorney.

—The plaintiff having presented to the defendants a claim against the estate of which they are executors, the same was referred pursuant to the 36th section of the statute relating to the duties of executors and administrators. The referee reported that there was due to the plaintiff $294.32. The plaintiff, at a special term of this court, moved, under the provisions of the 41st section of the same act, that he be allowed costs as against the estate. The motion was denied.

The plaintiff alleges'in his bill, that on the 22d May, 1848, he recovered a judgment against the defendants for $400 debt and $25.63 damages and costs; and that the judgment was docketed in the clerk’s office of Rensselaer county, on the same day.

—This was a motion on the part of the respondent to set aside or open a default taken by the appellants on the 17th July, at the last July term of the court, held at Horwich, H. Y. The attorneys and counsel for both parties resided in the city of Hew York.

<p>The 460th section of the code (amended) provides that “ an appeal may be taken from any final decree, entered upon the direction of a single judge, in any suit in equity, pending in the Supreme Court on the first day of July, 1841, within ninety days from the time this act shall take effect; but this section shall not apply to cases, where a rehearing has already been had or ordered, and such appeal shall .be taken in the maimer provided in sections 321 and 348.” No suit in equity was pending in the Supreme Court on the first day of July, 1841, but not until the first Monday (5th) of July, 1841. (Const., art. 14, § 6.)</p> <p>On a motion to dismiss an appeal, in a suit commenced in the Court'of Chancery, because the appeal was not authorized by § 460 of the code: held, that such a construction should be given to this section (which is the familiar rule in construing statutes) as would best answer the intention the makers- had in view—which -intention should be collected from the cause or necessity of making the statute, and which should not suffer it to be eluded. And it was undoubtedly the intention of the Legislature, in this section, to restore the right to a rehearing in suits in equity pending on the first Monday of July, 1841, where it had been lost, by extending the right of appeal ninety days from the passage of the - code, and that this section should be construed to be applicable to all suits in equity pending in the Supreme Court on the first Monday of July, 1841.</p> <p>Section 460e is not unconstitutional. It is merely a provision extending the time for bringing an appeal It affects the remedy only.</p> <p>.Where the collection of costs is coerced, and the payment is not voluntary, it does not de- ■ priye the party paying them of his right of appeal.</p>

—Mason, More-hose and H. Gray, Justices. This society sued Stoddard in a Justice’s Court upon a subscription to the society to purchase a school-room to be converted into a house of religious worship.

—This was a motion for publication of the summons, as in case of an absent or concealed defendant, in an action for rent. It appeared by the affidavits of the sheriff of Albany, (in which county defendant resided,) and his deputy, that they had not, with the utmost diligence, been able to serve the summons. That they went to the defendant’s residence, but his wife fastened the door, and refused admittance.

—Motion to set aside the proceedings of plaintiff after judgment, because the complaint was sworn to before the plaintiff’s attorney. The defendant treated it as a nullity.

—In this case, among other objections taken to plaintiff’s proceedings, it was insisted that the summons was irregular in not stating in what court the action was pending. Ho court whatever was named in the summons. It was answered that the code did not require this, nor were the forms so in our new books of practice. A complaint had also been subsequently served, in which no reference to any court was made, except that the title began “Sup.

—This was a motion to set aside the defendant’s answer and for judgment on the ground that the answer was “ false, sham and fiivolous.” The complaint was upon a judgment alleged to have been recovered on the 5th May, 1837, by one Clark Baker against the defendant; and the plaintiff alleged that after the recovery thereof, said Baker, for a valuable consideration, assigned said judgment to the plaintiff, “ who is now the legal owner of the said judgment, and the moneys due…

This suit was commenced in a Justice’s Court in Delaware county and the cause tried before a justice and a jury, and resulted in a verdict for the defendant, upon which a judgment was entered, and the defendant appealed to the Delaware County Court, and in which court the judgment of the justice was reversed and a new trial ordered, and the defendant appealed to this court, and the cause was noticed for argument at the last March general term at Delhi, and the court refused…

—The complaint in this action was filed for a divorce on the ground of adultery. The defendant moved for an allowance for alimony, and to enable her to defend the suit. £$he swore, in her affidavit, that she was not guilty of the charge, and that she had been told by the plaintiff she could not remain at his house.

—Motion for retaxation of costs.—The suit was commenced by bill in equity to restrain waste, and an injunction obtained. On the coming in of the answer, the defendant moved to dissolve the injunction, which motion was denied.

—Paige, Willard and Hand,' Justices. Appeal by the defendants Tuckerman and others from an order of Justice Willard appointing a receiver of the rents and profits of the real estate of the personal property of the Port Henry Iron Co.

—This is a motion made to set off one judgment against another, and the motion is founded on affidavits from which the following facts appear: On the 22d day of March, 1849, the plaintiff recovered a verdict against the defendant for $55, at the Delaware circuit held by me, and prior to which time, to wit, on the 1st day of October, 1847, one Allen H. Davis recovered a judgment in the Supreme Court, against the said Samuel Ferguson for $67.78, and which was recovered for the…

—In this case S. D. Van SCHAAOK, Esq. presented for taxation a bill of costs made out according to the provisions of the code. A. Taber, Esq., opposed the taxation on the ground that the bill ought to have been according to the fees allowed in chancery previous to the code. The bill amounted to over $130. It was agreed that if made out under the Revised Statutes it would be about $40 less.

—The summons and complaint were served upon the defendant, September 10th, 1849. On the 29th of the same month, an answer was served upon the plaintiff’s attorney, which required a reply. On the 2d day of October following, a reply was served. On the 22d of the same month, the defendants served an amended answer, which also required a reply; and on the 26th of the same month the plaintiff’s attorney served an amended complaint.

0. Gray, Pratt, Gridley and Allen, Justices.—This is an appeal by the defendantfrom an order made by a county judge under chapter 2, title 9, part 2, of the Code of Procedure.

<p>—Judgment reversed, venire de novo, by the Supreme Court; costs to abide the event.</p>

—Judgment affirmed in part and reversed in part, and neither party, as against the other, to have costs in this court.

<p> —Judgment reversed, venire de novo ly the Supreme Court, costs to abide the event. </p>

<p>Judgment of the Supreme Court reversed, and that of the Common Pleas affirmed.</p>

<p> Judgment affirmed. </p>

<p> —Judgment affirmed. </p>

<p> —Judgment affirmed. </p>

<p>Section 125 of the code gives the court power to change the place of trial (in transitory actions) in the cases provided by statute. Section 49 of the Judiciary Act of 1841, is the statute to which this section of the code refers (Lynch v. Mosher, ante, page 86;) and provides that the court may, in a proper case, order any issue of fact joined in a cause to be tried in any county other than that named in the declaration (or complaint.) But such an order does not carry with it a change of the venue, (3 Howard’s Pr. R. 11, 12 ; ante, page 81 and 86.) Nor change the place for maMng motions in the cause.</p> <p>Section 401 of the code is a revision and substitute for § 51, of the Judiciary Act, (which required all motions to be made in the county in which the venue should be laid, or in an adjoining- county,) and extends the territorial limits within which a motion may he made, to the entire district in which the action is triable.</p> <p>Motions are therefore properly made in a cause in the district (or an adjoining county) in which the venue is laid, although the cause may have been tried in another district, by an order of the court changing the place of trial.</p> <p>It seems that there is no statute under which' the court can order an issue of law to be tried out of the county originally specified, in the complaint, or that substituted under § 126 of the code.</p> <p>There being no guide or test by which'tb determine what is within § 308 of the code a difficult or extraordinary case for additional allowance, it seems that it is the safest practice to deny the allowance in all,doubtful cases, and to grant it only in those which, on account of their peculiarities or difficulties, plainly distinguish them from the great mass of litigated suits. (Sn,n, Justice.)</p> <p>A referee’s certiácale"*that “ the investigation and trial of the cause involved difficult ques- ■ tions of law; and which required and evidently received much examination and preparation on the part of the counsel of the respective parties,” is not such evidence as to authorize a court to make an additional allowance. The court must know what the facts " 'are which constitute such difficulties.</p>

On the 22d October, 1849, proof was made before Willard, Justice, that execution had been issued to the sheriff of Saratoga county, upon a judgment in favor of the plaintiff against the three first named defendants (the judgment roll being filed in the Saratoga clerk’s office, and two of the above defendants being non-residents of this state,) and against the same defendants to the sheriff of Schenectady county, where the defendant Chevalier resides, for $103.28, and that…

This was an action of slander, tried at the Dutchess circuit, in October, 1849. A verdict was rendered for the plaintiff of six cents. In entering up the judgment, the clerk inserted the plaintiff’s disbursements and officer’s fees, to the amount of $77. 12. The defendant now moves to strike out this allowance upon the ground that it is not allowable under the code.

<p>Demurrer to the plaintiff’s reply to the answer of the defendant Ira Allen. The following facts appear from the pleadings. The plaintiff and Silas L. Jones, being the owners as tenants in common of the premises described in the complaint: on the 11th day of October, 1843, executed a mortgage upon the premises to David Buel, Jr., to secure the payment of $400. The mortgage was assigned on the 1st day of May, 1847, to Porter G. Dennison, and on the 9th day of April, 1849, to the defendant William L. Jones. On the 4th of April, 1848, the plaintiff filed his bill against Silas L. Jones, for the purpose of having a partition of the premises, and also for the purpose of charging the share of Silas L. Jones in the premises with the payment of the mortgage; alleging in the bill that the mortgage was given for the benefit of Jones, as the principal debtor therein, and that the plaintiff executed the mortgage as security for Jones. A decree was made in that suit on the 3d of April, 1849, confirming the report of commissioners appointed to make partition whereby a portion of the premises was allotted to Silas L. Jones, and the residue to the plaintiff. By the terms of the decree, the portion allotted to Jones was charged with the payment of the mortgage. Ho notice of the pendency of the suit for partition was filed until the 13th of March, 1849. The notice then filed stated that the hill had been filed for the purpose of obtaining a partition and division of the premises therein described among the owners thereof, according to their several and respective rights and interests therein.</p> <p>On the 14th of September, 1848, Silas L. Jones and Ms wife conveyed to Zebulon Jones the equal undivided half of that part of the premises which, in the partition subsequently made, was allotted to the plaintiff. The deed was recorded on the 2d day of October, 1848.</p> <p>On the 6th of September, 1848, Silas L. Jones and his wife conveyed to the defendant, Allen, the undivided half of that portion of the mortgaged premises, which, in the partition, was allotted to Silas L. Jones. This deed was also recorded on the 2d day of October, 1848.</p> <p>William L. Jones, as assignee of the mortgage, commenced proceedings by advertisement under the statute for the foreclosure of the mortgage, prior to the commencement of this suit, which was on the 8th day of June, 1849. It is alleged in the complaint that Allen, when he purchased of Silas L. Jones, assumed the payment of the mortgage as a part of the consideration to be paid by him and the plaintiff, claims, that upon any sale which may be necessary to satisfy the mortgage, the portion of the mortgaged premises conveyed to Allen, be first sold, and next, that the other half of the same premises be sold.</p> <p>The defendant, Allen, in his answer, alleges that “ at the time of commencing this action, Zébubn Jones was, and that he still is, the owner in fee of an equal undivided half of that portion of the mortgaged premises allotted to the plaintiff by the decree in partition ; and that he is, and was, from the date and delivery of the deed to him by Silas L. Jones, united in interest with the defendant, Allen, and the owners of the land covered by the mortgage, in respect to the mortgage and its liquidation and payment out of the lands covered thereby; that “ with the said Zebulon Jones, if at all, joined as defendant and not without such joinder, the defendant, Allen, is liable.”</p> <p>It is also denied that the defendant, Allen, undertook, promised or agreed to pay off or satisfy the mortgage, or any part of it, as a j>art of the consideration of his purchase. The other statements in the answer are not material to the question presented by the demurrer.</p> <p>The plaintiff, in his reply to the answer of Allen, says “ that if Zebulon Jones had such interest as is described in the answer of the defendant, Ira Allen, in the .premises in question, such interest would not be affected by having the premises sold to the said Ira Allen, as mentioned in the complaint, first sold under the said mortgage, as it is not alleged or pretended, in and by the answer of the said Ira Allen, that the said Zebulon Jones has any interest whatever, in the premises which, by this action, the plaintiff herein seeks to have first sold under said mortgage, but the plaintiff denies that the said Zebulon Jones has any interest whatever in the premises mentioned in the complaint in this action.</p> <p>The defendant, Allen, demurs to “ so much of the reply as seeks to avoid the joinder of Zebulon Jones as a defendant by denying “ that the said Zebulon Jones has any interest whatever in the premises mentioned in the</p> <p>complaint in this action.” The grounds of demurrer are, that the reply does not show how Zebulon Jones became divested of his interest acquired by virtue of the deed from Silas L. Jones, and having an interest, he is a necessary party to a complete determination of the rights of the parties, and the defendant, Allen, is interested in having him before the court.</p>

This was an application, on affidavit and notice, under rule 6, for an attachment against the sheriff of the city and county of Hew York, for not returning a writ of fieri facias. The motion was resisted on the affidavit of the under sheriff of Hew York, showing that a return was duly endorsed on the execution, which was enclosed in an envelope, directed to the clerk of the county of Albany, and mailed at the Hew York post office.

In this case Mr. C. L. Austin moved to set aside a judgment and showed that the defendant had a good defence on the merits and that judgment had been entered in consequence of a misapprehension as to the effect of a stipulation that had been given to him extending the time to answer.

In this action the plaintiff recovered $350 damages. On the 15th January inst., while the defendant’s attorney was absent from home, the plaintiff left at his office a copy of his bill of costs, with a notice of taxation before the clerk on the 17th inst. Defendant’s attorney did not return until after the taxation.

Demurrer to the answer of the defendants, Allen and Jones, in each of these suits.

<p> Decree affirmed. </p>

<p>(Decree affirmed.)</p>

<p>(Decree affirmed.)</p>

<p>(Decree affirmed.)</p>

<p>(Judgment affirmed.)</p>

<p>(Judgment affirmed.)</p>

In this case an injunction was allowed on the complaint without notice, and served on the defendants in August last, by which they were commanded to desist from cutting or removing any timber or wood from the premises therein described. The plaintiff moved for an attachment against one of the defendants for disobeying the injunction—and the defendants moved to vacate the injunction. The facts sufficiently appear in the opinion of the court.

This is a demurrer to a complaint. The complaint alleges that at and before the committing of the grievances in the complaint mentioned, the plaintiff was seized and possessed, in fee, of a certain lot and a store thereon, in the village of Fort Edward, in the county of Washington, in which store they carried on the general business of country merchants—that the defendants were, at the same .time, possessed of certain lands near to and adjoining the said store and lot of the…

This was a suit brought by the wife against her husband to recover possession of a house and lot in the city of Mew York, claimed to be the separate property of the wife by deed from her husband. When the cause was called in its order on the calendar, the defendant obtained judgment dismissing the complaint. Motion was now made to set aside that judgment on the allegation that the plaintiff had a meritorious cause of action.

<p>An execution may be issued against the person of a judgment "debtor, where the judgment was recovered in an action for criminal conversation with the plaintiff’s wife. Such an action is for an “injury to the person” of the plaintiff under section 119 of the code.</p>

On the 15th Hovember, 1849, the account of B. Slosson, Esq., as late district attorney of Ontario county, was taxed by Hon. Mark H. Sibley, county judge, &c. at $743.97. The bill as presented, amounted to $837.19, of which $9.47 was disallowed by the county judge, by the consent of Mr. Slosson, as having been erroneously charged. The farther sum of $83.75 was also disallowed against the remonstrance of Mr. Slosson, leaving the amount at $743.97, which was taxed as above.

<p>In this case the defendant was sued for an act done as sheriff of Columbia county, and recovered judgment against the plaintiff. The defendant’s counsel now moved for double costs, under the provision of the Bevised Statutes.</p>

—B. Pond, for defendant, moved to change the place of trial from Schenectady to Herkimer upon affidavits, showing material witnesses in the latter county. He said it was clear from the recent decisions, and the 47th rule of court, that the motion was not premature.

The affidavit showed that the defendant, as attorney for the plaintiff, had collected several sums of money from different individuals ;• that the defendant was at the time an attorney of this court; that plaintiff demanded payment, which was refused by defendant on the pretence that Ms account for services rendered exceeded the amount of the money collected.

<p>Appeal from the taxation by the clerk of the costs of the plaintiff at the late Oneida circuit, on the post ponement of the trial of the cause.</p>

This was an action of partition. The commissioner’s fees had been taxed at $185, in the bill of costs made out by O. A. Pugsley, Esq., the attorney for plaintiff. J. L. Van Valkenburgh, who was one of the commissioners to make partition, applied for an order that Mr. Pugsley-pay him his share of the commissioner’s fees, viz. $61.66, or that an attachment issue.

—Willard, Justice. A motion is made on*!he part of the defendant to set aside a judgment by default, entered by the plaintiff in the Montgomery clerk’s office, on the 29th October last. The defendant contends that the judgment was irregularly entered.

This was an action for assault and battery; issue was joined in May, 1849. Since the commencement of this suit another action had been brought in the Albany Mayor’s Court by the defendant against the plaintiff for slander, on which a trial had been had and a verdict was rendered for six cents damages.

<p>The cov/rt and not the referee, must take the order for an extra allowance under § 308 of the code; so held, where the referee who tried the cause found a verdict for plaintiff, and then found “that the causemos unreasonably defended within the meaning of section 308 of the code.” (See Gould, agt. Ohctpin, ante, page 185.) This extra allowance cannot be granted on am ex pa/rte application to the court.</p>

<p>Motion to set aside report of referee for irregularity.</p> <p>The action in this case was founded on a promissory note. The defence was, that the note was given for the price of a lot of self-setting sawmill dogs purchased by the defendant Gwinits of the plaintiff, which the plaintiff warranted to be a good, useful and permanent machine, if well used, but which the defendants alleged was a useless and imperfect machine. The referee overruled the defence and reported in favor of the plaintiff for the whole amount of the note. • The irregularity of the referee on which the motion was founded, was, his examination of the sawmill ■ dogs in company with two of the principal witnesses of the plaintiff, one of whom was the plaintiff’s son-in-law, and receiving from them explanations in regard to the machine. This examination occur-</p> <p>red after the hearing had commenced and had been adjourned to a subsequent day, and was without the knowledge or consent of the defendants.</p>

This is a motion to set aside the execution in this cause. The judgment in the cause was docketed November 19th, 1839, and on the 30th of October, 1840, an execution was issued upon the judgment, and the same was returned unsatisfied.

Motion by defendant to amend the judgment-record by incorporating therein the bill of exceptions, and for a stay of proceedings. This suit was commenced before the original code took effect. It was tried at the October circuit, 1848, for Washington county. The plaintiff recovered a verdict. The defendant, according to the old practice, made and served a case to enable him to move to set aside the verdict.

The defendant is a constable and was sued for acts done by him by virtue of his office. The cause was referred, and the referee made a report for the defendant. He now moves for an order directing the clerk to insert in the judgment double costs.

<p>This is a motion for a new trial on the ground of newly discovered evidence and surprise, and was argued at the St. Lawrence special term in August, 1849. The action was assault and battery and false imprisonment brought against Chittenden and three others, for discharging a loaded gun at the plaintiff, whereby he lost a leg, and for unlawfully arresting and imprisoning him. The occurrence took place at Hopkinton, St. Lawrence county, in February 1848. The cause was tried before Harris, J., at the St. Lawrence circuit in June, 1849, when a verdict was found for the plaintiff, against all the defendants for $2000. It was not pretended that Chittenden fired the gun, but he was sought to be implicated with the other defendants, all of whom were in a crowd surrounding the plaintiff, when he was arrested, and one of whom discharged a loaded gun at the plaintiff. The defendant Chittenden was connected with the transaction, by the testimony of one Young, introduced on the part of the plaintiff, at the close of the case on the second day of the trial, who swore that Chittenden gave the word “ fire.” The fact is positively denied by Chittenden, and he has given satisfactory proof that at the time the word fire was given, he was not among the crowd, but in his own store, at a distance from the affray, and taking no part in it. He swears that he was taken by surprise by the testimony of Young. Other facts are stated in the opinion of the court.</p> <p>The motion was argued by</p>

<p>In an action of slander, where the plaintiff recovered less than $50 damages, held, that he was entitled to recover the fees of officers cmd disbursements, in addition to the amount of costs equal to the verdict.</p> <p>(The cases of Taylor v. Gardner, cunte, p. 61; Newton v. Sweet, ante, p. 134, and JBelding v. Conkliii, ante, p. 196, commented upon and the latter concurred in.</p>

Motion on behalf of the defendant Cooley, for a commission to take the testimony of defendant Bradford, of the town of Elyria, in the state of Ohio, as a witness for defendant Cooley. The affidavit upon which the motion is founded is in the usual form to obtain a commission to examine a foreign witness.

The defendant is a corporation, created by the laws of Connecticut. The only proceeding yet taken in the action, is the issuing and service of a summons. The service was made by delivering a copy to John W. Leeds, in the office of the defendant in the city of ¡New York. Leeds is the president of the company, and resides in Stamford in Connecticut, being temporarily in ¡New York on business, when the service was made.

<p>This was an application by the plaintiffs for an order that the defendants give the plaintiffs an inspection and copy, or permission to take a copy of certain books, papers and documents described in the petition, and alleged to be in the possession or under the control of the defendants. The petition states that the books, papers and documents “ are necessary to enable the plaintiffs safely and properly to prepare for trial, and that they contain evidence material to the merits of the action.” It also alleges that the books, &c. are in the possession, or under the control of the defendants, and then proceeds to set forth the facts in respect to which it is supposed they will furnish material evidence.</p> <p>The petition is verified by the affidavit of the plaintiffs’ attorney, who-states that he believes the matters set forth in the petition to be true; that he has stated the case to the plaintiffs’ counsel, and is advised by him that the discovery sought is necessary, to enable the plaintiffs properly and safely to prepare for trial, and he believes it to be true. He farther states that none of the plaintiffs’ officers are in this state, and that the books, &c., are not in the possession or under the control of the plaintiffs, as he is informed and believes.</p> <p>The defendants produced an affidavit of George Monteath, one of the defendants, stating that the issue was joined in January, 1849, and that the action has been noticed for trial at several circuits since, and is now noticed for trial at a circuit to be held in Albany on the first Monday of December; that the drafts sought to be recovered in this action were fraudulently made and loaned to the Canal Bank, shortly prior to its failure, by Thaddeus Joy, who was then an agent of the defendants, and without their knowledge or authority, and that the facts were concealed from the defendants, until after the failure of the bank; that the books were kept by Joy, and, up to the time of his resignation, most of them were so kept by him that none of the defendants had access to them, or any knowledge of their contents; that he, the deponent, is now the defendants’ agent, and has the entire charge of their affairs, and that he has not in his possession or under his control all the books, &c., specified in the petition.</p>

Motion on the part of plaintiff for re-adjustment of costs, or for such other relief, &c. The action was commenced under the Code of Procedure of 1848. The defendant was sheriff of the county of Steuben, and the action was brought against him for acts done as such sheriff through one of his deputies, in levying upon and selling certain personal property. Issue in fact was joined 80th January, 1849.

<p>A case cannot be turned into a Mi of exceptions or special verdict, after judgment of the Supreme Court upon it, without a stipulation to that effect at the trial, or its being made a part of the order or entry of the verdict.</p> <p>So held, where the verdict was taken subject to the opinion of the court upon a case to be made, and judgment for defendant ordered thereon at the general term; no such stipulation or reservation having been made at the trial.</p>

<p>Motion to discharge the defendant from a ca. sa.</p>

<p>A motion may be made to refer a cause under § StO of the Code, immediately on receiving a reply to the answer, and the party is not bound to wait twenty days to see if the defendant will amend Ms answer.</p>

<p> Decree affirmed. </p>

<p> —Decree affirmed. </p>

<p> -—Judgment affirmed. </p>

<p> —-Decree affirmed. </p>

<p> —Judgment affirmed. </p>

<p> Judgment affirmed. </p>

<p> —Judgment affirmed. </p>

<p> •—Judgment affirmed. </p>

—Decree of the Chancellor reversed, and decree declaring that Henry B. Wardell holds the assigned property as trustee for the complainants to the extent of their debt, and that he pay the same, together with their costs in the Court of Chancery out of the funds in his hands.

<p> —Decree affirmed with costs to be paid by the appellant personally. </p>

<p> Judgment affirmed. </p>

Decree of the Court of Chancery and also that of the assistant vice chancellor reversed, and the hill dismissed, with costs in the Court of Chancery.

<p> Judgment affirmed. </p>

<p>— Order affirmed.</p>

<p>This is an action commenced, under the code of 1848, against the defendant as sheriff of Columbia county, for the escape of one Frederick Curtis. The complaint sets out the recovery of a judgment by the plaintiffs in the Columbia County Court, on the 14th November 1848, in favor of the plaintiffs, against the said Curtis for $51.96 ; that on the 25th November 1848, a ca. sa. was issued thereon, under which Curtis was arrested and imprisoned by the defendant until the 14th Feburary, 1849, when the defendant wrongfully, and against the will of the plaintiffs, suffered the said Curtis to escape, &c.; wherefore the plaintiffs demand judgment for $51.96.</p> <p>The defendant’s answer does not put in issue the judgment, execution, and imprisonment of Curtis, but in effect admits them. It sets out that Curtis, after his commitment, was admitted to the liberty of the jail limits, and that afterwards, without the knowledge, permission or consent of the defendant, the said Curtis, on the 13th February, 1849, escaped from the said limits, and on the 17th February, 1849, that the said Curtis departed this life, before the commencement of this action. It was conceded that the action was commenced by the plaintiffs against the sheriff on the 17th February, 1849, in the afternoon, and that in the forenoon in the same day, the said Curtis died at his residence, ten or twelve miles from the jail, not having retened to the limits after his said escape on the 13th February, 1849.</p>

This was a bill in equity, filed in this court, in October, 1847. The cause was put at issue by a replication, and was brought to a hearing on pleadings and proofs, in October, 1848, at the Washington special term; and was then referred, by the consent of the solicitors to a sole referee “to hear the same and report thereon.

The plaintiff moved to strike this cause from the circuit calendar with costs. The following facts appeared in the affidavits presented to the court. Jefferson county was designated in the complaint as the place of trial. The answer was served 12th November, 1849. Defendants’ attorneys moved to change the place of trial to Rensselaer, and the motion was granted on 3d December, 1849. Nothing was said about costs of motion in the order changing the place of trial.

'—Motion by defendant for an order or judgment dismissing the plaintiff’s complaint in the nature of a judgment of non pros, on account of the non-service of a copy of the complaint. The action was commenced by the service of summons, without the complaint, on the 18th of August last. On the 23d of August, the defendant, by his attorney, demanded a copy of the complaint, and a copy not having been served in pursuance of the demand, this motion is now made.

The summons and complaint were served on 5th February last. On the 22d of the same month the defendants’ attorney served an order made by the county judge of Sullivan county, giving the defendants “twenty days additional time in which to serve an answer in this cause.” On the 11th of March defendants’ attorney served a demurrer to the complaint.

The plaintiff obtained a report of referees in his favor, and thereupon entered judgment for the amount reported due, with costs; and an appeal was brought and perfected upon that judgment. A motion was made by the defendant for a rehearing on the judgment record (in which a case setting out the evidence taken by the referees was incorporated,) upon the ground that the questions arising on the case involved no point of law, but were questions of fact exclusively.

before Edmonds, Presiding Justice; Edwards cmcZMiTCHELL, Justices.—The plaintiff moved, at special term, to strike out certain parts of the answer because they were immaterial, impertinent or scandalous. On the motion the question was sent to a referee, who reported, allowing four exceptions and disallowing the residue of the exceptions, some nineteen in number.

<p>'—On the 6th day of December 1848, the above named appellant brought an appeal to the Schoharie County Court, from a judgment rendered against him by a justice of the peace. The county judge refused to hear the appeal, on the ground that</p> <p>he had been consulted as counsel, and filed his certificate under 31st section of the Judiciary Act, by which jurisdiction was vested in the Supreme Court. The Supreme Court, at February term, 1850, reversed the judgment of the justice. The costs were taxed on due notice by the clerk of Schoharie, who allowed to the appellant:</p> <p>For proceedings before argument, $15 00</p> <p>For argument, 30 00</p> <p>And for five different terms that the cause was on</p> <p>the calendar, and not reached, 50 00</p> <p>These items were objected to, and the respondent moves for a re-taxation.</p>

This is a motion to set aside a judgment and for leave to serve the answer, &c. Mr. Cowles, the defendant’s attorney lives at Roxbury in the county of Delaware, and Mr. Champlin, the plaintiff’s attorney, resides at Hobart in the same county.

<p>Before OAKLEY, Chief Justice, and Sandford and PAINE, Justices.</p>

Mr. Lott appeals from an order of Justice Edwards, setting aside plaintiff’s judgment for irregularity, on the ground that the judgment was en- tered up and roll filed within ten days after .the decision of the justice to whom the question of fact was submitted for trial.

Welles, Johnson and Selden, Justices. This is an appeal from an order made at a special term of this court held in the county of Seneca, in October, 1849, denying an application on the part of the plaintiffs to substitute the names of Beverly Robinson, trustee under the will of William James St. John, John Henry Herbert St. John, and the People of the State of Hew York, as parties, plaintiffs, in place of the said William James St. John, who has died since the commencement…

Before Justices Watson, Parker and Wright. A demurrer had been interposed to a part of a reply. On argument before Mr. Justice Harris, at special term, judgment was given for the defendant, with leave to the plaintiff to amend on payment of costs. The remaining issue of fact was undecided. Within the time limited for amending, the plaintiff appealed from the judgment on the demurrer.

This was a motion, made to set aside an execution issued against the defendant, under the following circumstances. The plaintiff recovered a verdict against the defendant in an action of assault and battery, for thirty dollars, on the 18th of April, 1850, and the judgment was perfected on the 26th of the same month for the damages and. thirty dollars costs.

'—Plaintiff complained for the wrongful taking and conversion of sundry articles of personal property, comprising a numerous list of small articles. Defendant answered as follows: “ Above named defendant answers to the complaint of plaintiff in the above entitled action, and denies each and every allegation alleged in plaintiff’'s complaint.”

In October, 1849, the plaintiff brought two actions against the defendants in these suits respectively, before a justice of the peace of the town of PoestenMll, in the county of Rensselaer.

On an affidavit that younger issues had been tried at the King’s circuit, defendant moved that complaint be dismissed. On the part of the plaintiff, it was shown that the place of trial designated in the complaint was the county of Hew York. To this the defendant answered that in due time after the service of the complaint, he had demanded in writing that the cause be tried in the county of Kings, where both parties reside.

This was a motion by the plaintiffs for judgment, on account of the frivolousness of the demurrer to the complaint. The facts stated in the complaint, and the grounds of demurrer, sufficiently appear in the opinion of the court.

<p>This was an action brought by the wife against her husband for limited divorce on the ground of cruel treatment.</p>

This was a motion to vacate an injunction which had been granted by the county judge of Columbia. On the 4th day of January, 1839, Henry Hoysradt and Adam A. Hoysradt executed their bond to Aaron Vanderpoel, conditioned for the payment of $2500 with interest; and to secure the payment, John H. Hoysradt and Sarah his wife, executed a mortgage upon their interest in a certain farm in Kinderhook.

This was an action of ejectment which was commenced by summons returnable January 16, 1847. On the 15th. January, 1847, the summons was served on George Lincoln, secretary of the corporation. On or about the same day, the attorney for the plaintiff served on each of the trustees of this society a copy of declaration, the title of which, was of January term generally.

This was an action for an assault and battery. It was tried at Herkimer circuit in April last. The plaintiff recovered a verdict against Eobinson of $25 damages; but the defendants Myers and Bankins had a verdict of not guilty. The defendants appeared by different attorneys, and pleaded separately.

This was a suit brought to recover possession of real estate, situated in the county of Columbia, being virtually an action of ejectment.

The plaintiff brought an action under the code, to recover the possession of real estate contracted to be sold by him to the defendant, alleging that the defendant had failed to comply with the conditions of his contract of purchase. The defendant denied the breach of the agreement, and had a verdict in Ms favor.

This was an appeal from the County Court of Schoharie. The cause was noticed and put on the calendar by both parties, at the general terms of this court, held in September and November, 1849, but not reached. It was again noticed by both parties and placed on the calendar at the last February general term.

<p> —Decree of the Chancellor affirmed. </p>

<p> Judgment affirmed. </p>

<p> —Judgment affirmed. </p>

<p> .—Judgment affirmed. </p>

<p> .—Judgment affirmed with double costs. </p>

<p> —Judgment affirmed. </p>

In chambers, before Mason, Justice.—This was a habeas corpus, granted to inquire into the cause of the imprisonment of the petitioner, Henry D. Smethurst.

This was a motion to strike out the demurrer, or the answer to the complaint in this action, or to compel the defendant to elect by which of said pleadings he would abide. The complaint contains but a single cause of action.

<p>Assessors have jurisdiction and may legally assess “all lands wider water,” reserved to the owner in leases, (Van Rensselaer’s Manor,) situated within their respective towns.</p> <p>If the owner is a non-resident of the townt and the lands under water are occupied by others, (using the water,) the assessment may legally be made against the owner, or it may be made against the occupants. There is no statute designating the manner in which lands, owned by a non-resident of the town or ward, and occupied by others, shall be assessed.</p>

Before Justices Parker, Harris, Watson and Wright. This was an action' of trespass for taking and disposing of personal property. It was tried at the Eensselaer circuit, February, 1849, before Mr. Justice Harris. It appeared upon the trial that the defendant, Sharp, was collector of the town of Greenbush, and had taken the property in question to satisfy a tax against the plaintiff.

The venue in this case is laid in the county of Erie. This motion is made for an order changing the place of trial to the county of Ohautauque, for the convenience of the defendant and his witnesses. An answer has been served containing new and special matter, but no reply has been served, and the time to reply had not expired. The plaintiff’s counsel takes the preliminary objection that a motion to change the place of trial cannot be made till after the issues are joined.

<p>A demurrer will not lie to a part of an entire defence. As, where the plaintiff selected from the answer several sentences, forming a part of the statement of one entire ground of defence, and demurred to that, and replied to the residue; demurrer was overruled. (See Shewn v. Wheeler, ante, page 313.)</p>

—An order was made at a special term,‘pursuant to rule 65, appointing a guardian to sell a piece of real estate, belonging to five infants. It directed separate bonds to be given by the guardian to each of the infants with sureties, and fixed the penalties respectively at $925, $1130, $1242, $1475, and $1675. Bonds executed in the form prescribed by this order are now presented for approval; the same persons being sureties on all.

<p>Oneida Special Term.—Motion for an allowance under the 808th section of the code.</p>

before Morse, Barculo and Brown, Justices. Mr. Scrugham, district attorney of Westchester, moved to strike the cause from the calendar, upon the ground that the defendants having taken exceptions, and been duly notified to prepare papers for the hearing, had failed to do so.

<p>—The plaintiffs are the general assignees of Samuel W. Brown (now deceased.) This action is brought under the following circumstances. Brown, in his lifetime, procured to be discounted by the Bank of Utica three notes, amounting in the aggregate to three thousand dollars; two of which were made by himself, and one was made by Brown and Rossiter. At the time of getting the notes discounted, he placed in the hands of the bank as collateral security, a bond and mortgage made by S. Churchill, on which was due something over $3000. The notes were not paid at maturity; but, after-wards, the bond and mortgage were paid up, satisfying the notes and leaving a surplus in the hands of the bank of $89.42. This sum has been demanded by the plaintiffs; and also the notes, on the allegation that Brown’s property having paid the note of Brown and Rossiter, Ms assignees are entitled to the possession of it, as evidence agamst Rossiter. The complamt sets out the above facts, and demands judgment for the $89.42 ; and that the notes be delivered up to the plamtiffs. To this complamt the defendant has demurred for misjomder of actions.</p>

Motion to set aside a return to a certiorari. Proceedings were instituted in June, 1847, by Foote and wife, against Peck, before Grosvenor S. Adams, then one of the judges of the Greene Common Pleas, to recover the possession of land, under the statute relating to summary proceedings, on the ground that the term of the tenant had expired, and also that he held over after default in the payment of rent.

—Motion for reference. The complaint sets forth that the plaintiffs occupied one of the shops belonging to the Sing Sing Prison, carrying on the business of plane-making; that the agent of said prison caused to be put, into a wooden building adjoining, a steam engine and furnace, and machinery connected therewith ; that a negro convict was employed to take charge of said engine-room and of the making the fires; and that by reason of the careless and negligent manner in which…

—In this case the plaintiff appealed to the Court of Appeals from the judgment of this court and perfected his appeal.

—Justices Morse, Barculo and Brown. In this case Justice Wright made an order on the application of the defendant, refusing to strike out certain matters contained in the complaint, which defendant’s counsel moved to strike out as redundant and irrelevant. The defendant, thereupon, appeals from that decision to the general term, and contends that this court should now strike out those facts which the justice refused to strike out.

<p>Where a case has been tiled without a jury, or by a referee, a review upon the evidence appearing upon the trial, either of the questions of fact or of law, can be heard before a special term; such terms having power to grant or refuse a new trial.</p> <p>Such review is brought before the court by a case made and settled according to the rules of the court.</p> <p>A bill of exceptions taken on the trial, or in pursuance of § 268 and 212 of the code, is parcel of the record, and can be heard only on appeal at a general term.</p> <p>A case reserved under § 264, 265, can be heard only at special term, either upon the judges’ notes or upon a case as he shall direct.</p> <p>A rehearing i^a proceeding different firom a bill of exceptions, case reserved, or motion for a review, and is to be understood in the sense in which the term was used prior to the code.</p> <p>What costs are recoverable on the case reserved, motion for review, or rehearing ? Quaere.</p> <p>(This case accords with the views taken in Leggett agt. Mott, ante, page 325; and Lusk agt. Lusk, ante, page 418.)</p>

<p>An appeal from, a sv/rrogate’s order, admitting or refusing to admit a will to probate, should, in the first instance, be heard at general term.</p>

—This action was commenced by summons and complaint, in January, 1849. It was brought to recover of the defendant money collected by him, as attorney for the plaintiff. The plaintiff in her complaint, as amended, demanded judgment for $255. The defendant, on the day of the service of the copy of the amended complaint, served upon the plaintiff’s attorney, an offer in writing, under section 385 of the code, to allow judgment to be taken against him for $125.

<p> —Judgment affirmed. </p>

<p> —Judgment reversed, and venire de novo by the Supreme Court; costs to abide the event. </p>

<p> —Judgment reversed, and venire de novo by the Supreme Court; costs to abide the event. </p>

<p>—Judgment reversed, and venire de novo by the Supreme Court; costs to abide the event.</p>

<p> —Decree affirmed. </p>

<p> —Judgment affirmed. </p>

<p> —Judgment affirmed,. </p>

<p>.—Decree affirmed. Submitted upon printed arguments and points.</p>

<p> '—Judgment affirmed. </p>

<p> —Judgment affirmed. </p>

<p> —Judgment reversed, venire de novo, by New Yorlc Oyer and Terminer. </p>

<p> —•Judgment affirmed. </p>

<p> —Judgment affirmed. </p>

<p> —Decree affirmed. </p>

<p> —Judgment of the Supreme Court reversed, and that of the Superior Court affirmed. </p>

<p>—This was. an action of assumpsit brought by Winter against De Peyster and Whitmarsh, in the Superior Court of New York, in 1842, upon the following bill of exchange:</p> <p>“ Exchange for $3000. “ Columbus, Geo., March 8, 1841.</p> <p>Ninety days after date of the first exchange, second unpaid, pay to the order of Messrs. Kimbrough & Smith, three thousand dollars, value received, and charge the same to account of Your ob’t. s’ts.,</p> <p>“Kimbrough & Smith.</p> <p>“ To Messrs. De Peyster &r Whitmarsh, New York.”</p> <p>(Endorsed, Kimbrough & Smith.)</p> <p>“ Rec’d June 12,1841, from Messrs. De Peyster & Whitmarsh twelve hundred dollars on ac. of within bill of exchange, same as cash, on 9th of June. “John Gr. Winter.”</p> <p>The declaration contained five counts. The first and second, counted specially upon a letter of credit given by De Peyster & Whitmarsh to Kimbrough & Smith. The third count was upon an acceptance of the bill of exchange. The fourth and fifth were the common money counts.</p> <p>The defendants demurred to the first and second counts, and took issue upon the other three. Judgment was rendered to the defendants upon demurrer.- The issues of fact were then tried before Vanderpoel, Justice, November term, 1843. Upon an order of discovery, the defendants produced in evidence, sworn copies from their books and papers, among others, the following letters, which were relied upon by the plaintiff as constituting De Peyster & Whitmarsh and Kimbrough & Smith, special co-partners:</p> <p>“New York, 31st Oct. 1840.</p> <p>“ Messrs. De Peyster & Whitmarsh: Grents.—On the 19th instant we drew on you, 4 months date, under' guarantee of Thos. R. Smith, Esq. for twenty-five hundred dollars; before maturity of this draft you will receive either a check or consignment of cotton, to cover the amount.</p> <p>“It is our intention to consign to you here, orto your order in Liverpool, all such cottons as we may control for shipment to either port, and to use our exertions to make such shipments as large as possible. For the promotion of this object we propose to make advances on Georgia or Florida, to the extent of three quarters of the fair market value of such cottons, and to draw on you at not less than sixty days sight, for the amount of such advances, forwarding at the same time, either river or ship bills, lading and invoice. We further propose to make occasional purchases of small lots of cotton on joint account with you, when such lots offer at prices which, in our opinion, may be paid without risk of loss; for the amount of which we also propose to draw as above.</p> <p>“ In cases of advances we propose to divide equally all profit in shape of commission or exchange. In that of purchase, each party to charge the usual commission and the profit or loss to be equally divided. It is understood that all shipments shall be covered by open policy in this city. “ Very Eespectfully, “ Kimbrough & Smith.</p> <p>“No advances to be made on shipments for Liverpool, except the vessel is ready to receive cargo.”</p> <p>“New York, November 3d, 1840. “Messrs. Kimbrough & Smith: Gents. We have to acknowledge your communication of yesterday, and beg to add that our views agree with yours, except with regard to the insurance, which we shall expect to effect here on all property against which drafts are to be accepted by us. Having already so fully and freely exchanged our views and wishes, as to your operations with us, we have now only to ask your keeping us fully advised of any and all purchases, and of shipments either to Liverpool or this piece; and especially of the drafts you are drawing, and on what account. In furtherance of the above, we shall duly honor your drafts at not less than sixty days, to the extent of twenty thousand dollars, provided the same be drawn before the 1st June next.</p> <p>“Very Eespectfully, “De Peyster & Whitmarsh.”</p> <p>A number of letters were then introduced, as evidence, from Kimbrough & Smith, to the defendants advising them of various shipments of cotton, drafts drawn, &c., up to the time of the draft in suit.* The following is an extract of a letter dated Columbus, 7th March, 1841, from Kimbrough & Smith to the defendants, in relation to the draft in question, to wit: “We also make further draft at 90 days’ date, for $3000, making the amt. for which we draw on the 200 bales as per statement below; all which please honor.</p> <p>“Very Eespectfully, . “Kimbrough & Smith.”</p> <p>This draft was protested, for non-acceptance.</p> <p>The plaintiff next offered in evidence the examination of Isaac Prall, . taken under a commission, to prove the negotiation of the draft to the plaintiff. This testimony is important, as showing the point upon which the whole case was finally decided. To the first interrogatory, he stated (substantially) that he was twenty-eight years of age; resided at Columbus, Georgia; his occupation was clerk. Knew the plaintiff; did not know defendants. To the second interrogatory, he answered (substantially) that he knew the draft in suit; that it was drawn on the 8th March, 1841, in Columbus, Ga., by G. W. Smith, of the firm of Kimbrough & Smith, and another bill was drawn the same day for the same amount as a duplicate. To the third interrogatory, he answered as follows: “he saith the said bill was negotiated to Messrs. Davis & Plume, them brokers, of the city of Columbus, by the payees thereof, on or before the 5th day of March 1841, in the city of Columbus, for and in consideration of the amount of money expressed on the face thereof, less thirty days’ interest at 8 per cent, per annum. The same was endorsed by G. W. Smith, in the name of Kimbrough & Smith.” To the fourth interrogatory, he answered (substantially) that the bill was taken and received upon the exhibition of a letter of credit, containing an agreement in relation to bills to be drawn by Kimbrough & Smith on the defendants ; he could not produce the letter; it purported to- be written by the defendants; was not acquainted with their handwriting, &c. To the fifth interrogatory he answered as follows: “he saith the said bill was negotiated to the plaintiff through Messrs. Davis & Plume, who had his funds for that use, on the 8th March, 1841, for the amount expressed in said bill, adding one per cent, prem.” The remainder of the answer related to the contents of the letter of credit of the defendants. To the sixth interrogatory he answered, that the purpose of Kimbrough & Smith in negotiating the draft, was to raise money, which he believes was invested in cotton. To the seventh interrogatory he answerd, that Kimbrough & Smith made shipments of cotton to Apalachicola, to be reshipped to defendants at Mew York, to meet this bill and others, &c.</p> <p>These answers contain the substance of Trail’s testimony, upon direct interrogatories, bearing upon the point in the case.</p> <p>The defendant’s counsel then read his examination on the cross-interrogatories. First, answered, that he was not interested. Second: the answers were made upon his own knowledge of the facts stated. Third: knew there was such a draft; had it in his possession as the book-keeper of Davis & Plume. Fourth: “he had fully answered this question, but would repeat, the said bill was sold to or contracted for to Messrs. Davis & Plume, by Gr. W. Smith, for the amount expressed on the face, less 30 days’ interest off at 81-2 per cent, per annum, for money for the purpose of buying or paying for cotton already purchased.” Fifth and sixth: he had already answered in the direct interrogatories. Seventh: he knew of no authority given to the persons who took the bill for plaintiff’s account, than that they were acting as his general agents. Eighth: “ the said bill was first purchased from Q. W. Smith with the money of Davis & Plume, the plaintiff did have money in the hands of Davis & Plume, at the time of the negotiation to the amount of $7000, the money placed in their hands prior to the drawing of said bill, to be invested in northern exchange.” Ninth: the plaintiff had not to his knowledge claimed, nor did not then claim of the persons referred to in the fifth direct interrogatory the amount of the said draft, or any part thereof, nor did he hold them liable. The answers to the remainder of the cross-interrogatories were principally in relation to the letter of credit, and the buying and shipping cotton by Kimbrough & Smith to the defendants.</p> <p>The defendants moved for a non-suit, which was denied, and they excepted:—the judge intimating his intention to reserve all the questions for the consideration of the court. The defendants then called a witness, a book-keeper of the defendants, in 1841, and proved the payment endorsed on the draft ($1200,) which was paid to plaintiff by the defendants as all the proceeds of sales on account of Kimbrough & Smith of which they were possessed up to that time. That the draft was presented for acceptance to defendants and protested for non-acceptance. It was afterwards presented for payment, the day after it was due.</p> <p>The defendants’ counsel requested the judge to charge—That the plaintiff could not recover upon the bill as an accepted bill. 1st. The letter of credit was not an unconditional promise to accept under the statutes. 2. The terms upon which the defendants agreed to accept, had not been complied with; the defendants were sureties and the plaintiff was bound to show a strict compliance with those terms. 3. The drawers and drawees of the bill were not partners, nor in any manner jointly interested in the drawing thereof; but even if they were, still, the mere drawing of the bill was not an accejDtance thereof. 4. There was no condition annexed to the consignment, nor any directions given as to paying the bill out of the proceeds thereof, which could by the receipt of cotton in any manner constitute an acceptance of the bill.</p> <p>That the plaintiff was not entitled to recover under the common counts of bis declaration, even though there was a partnership between the defendants and Kimbrough k Smith, because, 1. The plaintiff never lent and advanced any money to the defendants nor to Kimbrough & Smith, for-their use. The plaintiff’s dealings were entirely with Davis & Plume, the endorsers and holders of the bill, and in no way with Kimbrough & Smith; the plaintiff obtained the bill by discounting, the same. 2. The bill was a general bill, and was at most a mere equitable assignment of the moneys in the defendants’ hands, belonging to the drawers; it did not assign the cotton, nor the proceeds thereof, so as to give the plaintiff or other holder of the bill a right of action against the defendants for money had and received.</p> <p>The court charged, that by the letters between Kimbrough & Smith, of October 31, 1840, and November 3, 1840, which, by the order made on the affidavit for discovery, appeared to apply to each other, the defendants and Kimbrough & Smith became jointly interested as co-partners in the consignments of cotton therein contemplated to be made, as to advances thereon or joint purchasers thereof, and were liable as such for the acts of each other in the scope of that special co-partnership. That the defendants were apprized by the letters of Kimbrough & Smith to them, of March 5, 6 and 7, of the terms on which the consignments therein mentioned were made to them, and of advances by bills drawn on the defendants by Kimbrough & Smith, including the bill in question ; and that by receiving the said consignments and selling the same after such notice, they had in law adopted the same as a co-partnership transaction; and if the jury should find in fact that the money for which the bill in evidence was given was applied to the advance on or purchase of the cotton which was so consigned, or to the repayment of such advance or purchase, and was the plaintiff’s money, then the defendants were liable in this action under the issues joined between the parties, and the plaintiff would be entitled to recover the amount of the bill, crediting the payment thereon with interest from the time it fell due.</p> <p>Defendants’ counsel excepted to each and every part, and the whole of the charge. The jury rendered a verdict for the plaintiff of $2230. In November term, 1844, the court, on argument of the bill of exceptions, denied a new trial. The defendants carried the case to the Supreme Court, where, in November term, 1847, in the first judicial district, the judgment of the Superior Court was affirmed. No written opinion was given by the Supreme Court.</p>