Volume 55 — Barbour's New York Supreme Court Reports

The action was brought for the purpose: (1.) Of hav.ing a conveyance by James Bonner, of lot 10,1 East Payette street, Syracuse, to his wife, declared fraudulent and void as against the plaintiff’s judgments. ' (2.) Of establishing the priority of the lien of the plaintiff’s judgments upon said lot, over attachments issued by the defendants Crouse and others, and for the payment of the proceeds of the sale thereof in the hands of the sheriff, to the plaintiff, to apply on…

THIS action was brought on a policy of ^insurance for |5000, issued by the defendants to the plaintiffs, by which the latter were insured on their property, against all-loss and damage thereto, by fire, during the period of one year, commencing January 26, 1866. The buildings covered by the policy were wholly destroyed by fire on the 28th of May, of that year.

The action was to recover $3000, part of the consideration of a farm conveyed to the defendant, in the town of Saratoga Springs.

THIS is an appeal from a judgment entered upon the report of a referee. The referee found as matters of fact: First.

THE plaintiff sued the defendant, as survivor of the firm of It. J. Lawlor & Co., as acceptor of four drafts, of the dates, amounts, and falling due as follows: Date, Jan’y 5, 1861, for $1465.24, due Sept. 8, 1861. Feb’y 9, 1861, for 1552.65, due Oct. 12, 1861. March 16, 1861, for 1208.35, due Nov. 19, 1861. April 20, 1861, for 1580.19, due Dec. 23, 1861. . The complaint admits a payment of $2800 on April 12, 1864.

On the 6th of May, 1867, the plaintiff delivered to the First National Bank of New Orleans, for collection, a draft on A. Belmont & Go., New York, for $440.15 in gold, which said bank undertook to collect and pay to the plaintiff, less commissions. The New Orleans bank forwarded the same to the defendants, who received it on the morning of May 11th, and collected it.

The action was brought by a vendor, against the purchaser, to enforce the specific performance of a contract for the sale and purchase of real estate. The material facts are set forth in the opinion of Justice Clerks.

It was alleged in - said amended complaint, that the plaintiff is and, at the times hereinafter mentioned, was a corporation, duly incorporated and existing under and by virtue of an act of the congress of the United States, entitled “ An' act to provide a national currency, secured by a pledge of United States bonds, and to provide for the circulation and redemption thereof,” approved June 3d, 1864, and has capacity to sue by the above title.

Little. The referee found the following facts: 1. That the plaintiff is, and for more than seventeen years has been, the wife of Eobert H. Little. 2. That for fifteen years previous to and including the year 1865, her said husband was accustomed to give her, each year, a holiday gift, in money—in some years $500, in other years $300. 3.

rilHIS was an action brought by a wife against her husJL band for a limited divorce.' The parties were married in February, 1863. Previous to the marriage the plaintiff had been the defendant’s housekeeper. There were no children born of the marriage. Eo difficulty occurred between the parties until about January, 1866, when a young woman, known to both parties, came to their house as a visitor.

rnHIS action was brought to recover the value of sixteen JL bales of cotton, (being part of fifty-four bales,) shipped by the plaintiff from Cincinnati to Xew York, to be transported, as the plaintiff claimed, by the defendant upon its railroad and other connecting railroads, as a common carrier. The plaintiff alleged in his complaint that the defendants were and are a corporation, and acted, and are acting, as common carriers of passengers and property for hire.

Motion to dissolve an injunction. This action was brought by the Amoskeag Manufacturing Co., a corporation of New Hampshire, against William T. Garner and Samuel W. Johnson.

Mandamus. These proceedings were taken in the name of the People on the relation of the Metropolitan Board of Health against Thaddeus H. Lane, justice of the district court of the sixth judicial district of the city of New York.

A SEL SPICER and wife executed and delivered a mortgage to the defendant, to secure the payment of a portion of the purchase money of certain premises. A bond, executed by Spicer alone, accompanied the mortgage. One Baldwin, the agent of the plaintiff, negotiated the sale of a horse to the defendant, in exchange for the mortgage, under instructions from the plaintiff not to make the exchange unless the defendant would guaranty the payment of the mortgage.

<p>Writ or Error.—Witness.—Evidence.</p> <p>Where the court, upon the trial of an indictment, to permitted, after objection by the prisoner’s counsel, a witness whose testimony on behalf of the prisoner was material, to answer a question in effect asking him if he had been convicted of a criminal offense and sentenced to the penitentiary, for the purpose of impeaching his testimony,—Held, that a writ of error should be granted.</p>

The action was commenced in a justice’s court, and a trial was there had, and a judgment rendered in favor of the plaintiff. An appeal was taken, to the county court, and on the trial there, a verdict was rendered for the plaintiff. On appeal to the Supreme Court, a new trial was granted, on the ground that the plaintiff was not entitled to recover, with directions that the costs should abide the event.

APPEAL by the defendants from a judgment entered upon the verdict of a jury, and from an order denying, a motion for a new trial. The action was brought to recover damages for a malicious prosecution. The defendants brought an action against the plaintiff in one of the district courts of the city of blew York for fraud, in obtaining money by means of false and fraudulent representations.

11HIS was an application for a mandamus to compel the . defendants, justices of the court of special sessions in the city of Hew York, to permit the relator to practice, as an attorney at law, in the courts held by them.

APPEAL by the plaintiff from an order made at a special term, sustaining demurrers to the complaint, interposed by the defendants E. H. Rosekrans, and John H. White, receiver of the Adirondack Company. The action was brought by the plaintiff in his own behalf, and in behalf of all others, stockholders or creditors of the defendant, the Adirondack Es’tate and Railroad Company, who might choose to come into court and contribute to the costs and expenses of this action.

APPEAL by the defendants from a judgment entered at a special term on the verdict of a jury. The action was brought to recover damages for loss of services, and expenses, occasioned by the death of the plaintiff’s daughter, a minor, under the following circumstances: She was passing along Broadway, on the 27th of June, 1865, at the time when a pole or flag-staff standing in the city hall park was being cut or pulled down.

MOTION, in the first three cases, for the appointment of a receiver of the property of the Merchants’ Union Express Company, and in the first four cases for an order removing a receiver of a certain portion of such property, who was appointed by an order made in the fourth action.

ACTION to recover the value of certain shares of the stock of the Chatham Bank, and. of the capital stock of the Third Avenue Railroad Company, and coupon bonds of the United States government, loan of 1861, left by the plaintiff’s testatrix, and conceded to have been her property at the time of her marriage with the defendant.

” (Laws of 1860, p. 1007.) The relator was brought before a police justice as a disorderly person, on the ground that he had threatened to abandon his wife, Johanna, and had actually abandoned her. He was arrested on this charge, and brought before the magistrate, by whom he was examined. He denied the charge contained in the affidavit of his wife.

<p>Foreclosure. — Judicial Sale.—Sheriffs’ Fees Act of 1869.—Constitutional Law.*</p> <p>Section 1 of the act of 1869, entitled “ An Act in relation to the fees of the sheriff of the city and county of New York, and to the fees of referees in sales in partition cases,”—which directs all sales of real estate in that city, except in partition or where the sheriff is a party, to be made by the sheriff (2 Laws of 1869, 1377, ch. 569),—is unconstitutional, because, although the act is local, the subject of the section is not expressed in the title.</p> <p>A purchaser at a judicial sale, under a judgment which was within the jurisdiction of the court, cannot refuse to complete his purchase on the ground that the directions of the judgment, and the sale pursuant thereto, were irregular and unauthorized by law, in respect to the selection of the officer who made the sale.</p>

The complaint alleges that the plaintiffs are bankers in London, using the- firm name of J. S. Morgan & Co., and also have transactions through their agents at the-city of Yew York. That Franklin F. Randolph, during his lifetime, was one of the surviving members of the firm of E. R. Goodridge & Co. of Yew York, and had charge of its affairs, such last mentioned firm having originally consisted of Ezra R. Goodridge, Franklin F. Randolph and Francis Goodridge.

<p>When the question arises, in an action brought in this court, by a wife against her husband, pro causa adultery, as to the effect which shall be given here to a decree of divorce obtained, in a circuit court of Indiana, by the husband against his wife, as evidence, it is exclusively a question as to the jurisdiction of the Indiana court to make the decree.</p> <p>In determining that question, in the second action, the court has nothing to do with any allegations of fraud in instituting the action in, or procuring the decree of, the Indiana court.</p> <p>The fact that the defendant in the former action instituted a suit to set aside the decree in that action, for fraud, will not estop her, when plaintiff in the second action, from insisting, on the trial thereof, that the Indiana court never acquired jurisdiction of her person, so as to make a decree of divorce which the courts of this State are bound to regard as conclusive evidence of a decree valid as to her.</p> <p>The courts of this State will not regard a service or notice of the pendency of an action by publication in an Indiana newspaper, as giving a court of that State jurisdiction of a defendant who was, at the time, a resident of this State. a</p> <p>A decree for divorce should not direct the payment, by the defendant, of arrears of alimony previously ordered by the court. The plaintiff should be left to enforce the payment of such arrears in the ordinary way.</p> <p>In respect to permanent alimony, the better way is to direct a reference, to ascertain the amount which should be allowed. Yet a decree of divorce will not be reversed on appeal, because it orders the payment of a specified sum, without a reference.</p>

THIS action was brought by George Dexter, the buyer, against Norton, Slaughter & Co., the sellers, to recover damages for the… Held: as to the first ground of the motion, that even if the usage were to be interpreted as claimed by the defendants, so as to conclude the buyer; in general, from the privilege of enforcing a demand made after the lapse of the ten days, yet, in this particular ease, that rigor was waived, and the time extended, by the acquiescence of…

This action was brought by the Cleveland Fire Alarm ■‘Company against the Board of Metropolitan Fire Commissioners of the Metropolitan Fire Department, Charles T. Chester and John 1ST. Chester, to… Held: and which no one else could use. The plaintiffs thereupon sent the commissioners a protest against this mode of excluding all competition.

<p>A judgment entered upon the report of a referee will be reversed when it is entirely and clearly against the evidence.</p> <p>• Prior to May 9,1869, L., who was engaged in the business of manufacturing sewing machines, had. been in the habit of purchasing of the plaintiff materials for such business. On that day the defendant was employed by L. to act as his agent in said business. But he was never a partner of L., and never held himself out, to the plaintiff as such partner; and although the plaintiff was informed by a third person that the defendant had become a partner “in the concern,” yet he continued to deal with L. precisely as before, charging the goods to him in his books, making out the bills to him, and receipting them to him; and there was no pretense of charging anything to the defendant, or of claiming anything from him, until the solvency of L. became doubtful, when an alteration was made in the plaintiff’s books, amounting to a moral forgery; Sold that the defendant could not be made liable for the goods so furnished to L., it being clear, as a question upon the statute of frauds, that the entire credit was not given to the defendant. .</p> <p>Proof that a witness had previously told to others the same story he testifies to, is inadmissible for the purpose of corroborating his testimony. Hence the testimony of the plaintiff, showing that facts sworn to by a witness were previously communicated to him by the latter, can scarcely be regarded as any legal evidence to confirm the witness.</p> <p>Where a referee stated, in his report, that there were many circumstances tending to weaken and disparage the testimony of a witness, yet that in view of all the circumstances he felt impelled to believe him in a specified particular; Hdd that this was a proper case for the application of the maxim, Falsus in mo, falsus in omnibus.</p> <p>Where the testimony of a witness was improbable, and inconsistent with the surrounding facts; was contradicted by the defendant, and by the circumstances ; the witness contradicted and impeached himself, by his writings and acts; all the defendant’s witnesses contradicted him; the conduct of the plaintiff contradicted him; and he was sustained hy no witness and hy no circumstance; Reid that it would he a mockery of justice to sustain a judgment founded upon his testimony.</p>

THIS is an appeal from an order denying the defendants’ motion to dissolve an injunction. The motion was, upon the complaint, answer and affidavits, to dissolve an injunction granted herein, on the 19th day of June, 1869, restraining the defendants from proceeding with the construction of certain sewers in the city of New York.

THIS action was brought against the defendants, who were consignees of a cargo of wheat, laden at Oswego, on board of the canal boat of the plaintiff, and to be delivered to the defendants at the port or city of Hew York, to recover damages for the detention of the boat after its arrival at Hew York.

<p>A motion, for a new trial having been put upon the general term calendar, was noticed by both parties for argument, and on the case being called, the plaintiff’s counsel appeared, but no one appeared for the defendant. The plaintiff’s counsel expressing an unwillingness to take the defendant’s default, requested permission to submit the case, with his points, with liberty to the defendant to submit points in support of his motion. The court permitted him to do so, and made an order to that effect, took the case for decision, and directed notice of the order to be given to the defendant, which was given.</p> <p>Held, 1. That this proceeding could not be properly called taking a default; and that the order so made could not be vacated at a subsequent general lerm held by other justices, while the case still remained before the court, undecided, on the ground that the defendant’s default had been taken.</p> <p>2. That the proceedings taken at the first general term, whether called a submission or not, gave the judges then present and holding the term, not only power to make a decision or disposition of the case and motion, binding on the parties, but also made it their duty to decide or dispose of the same, whether the defendant did or did not avail himself of the privilege of submitting points.</p> <p>3. That if those judges had that power, and such duty was or had been imposed upon them, then the general term which made the subsequent order vacating the first, had no power to make the same; inasmuch as, when it was made, the motion for a new trial had not been decided or disposed of by the justices who had previously taken the papers for the purpose of deciding the motion.</p> <p>4. That it was the plain duty of the latter justices, notwithstanding the subsequent order, to decide and dispose of the defendant’s motion for a new trial.</p> <p>6. That irrespective of the question of the power of the justices of this court to interfere with the exercise of the official powers, or the performance of the official duties of each other, after the exercise of such powers and the performance of such duties, have attached in a particular case, and before they have been exercised or performed, the order last made should be vacated, on the ground that it must be presumed to have been made under a misapprehension of the prior proceeding, and the effect of it in possessing the justices who held the first general term of the case and motion of the defendant, for decision. Carbozo, J., dissented.</p>

<p>Marriage.—Divorcie.</p> <p>The parties being under engagement of marriage, the man objected to any ceremony, insisting that marriage without it was valid; and the woman acceded to his wish. While riding in a carriage, on the day fixed for the marriage, he put upon her finger a wedding ring, which she received as such, he saying, “ This is your wedding ring; we are married just ag much as Charles is to his wife (referring to his brother and his sister-in-law). I will live with you and take care of you all the days of ouz life.” He thereupon took her to a house where he had previously engaged board for himself and wife, and for some weeks they resided together thei’e as such.—Held, that this was a valid marriage.</p> <p>Such a marriage may be established by the testimony of the wife, if entitled to credit, and corroborated by other evidence.</p>

THIS is an action brought by the plaintiff to recover from the defendant five penalties for violations of the following section (being section 13) of the act of 1857. known as the excise law: “ Whoever shall sell any strong or spirituous liquors or wines in quantities less than five gallons at a time, without having a license therefor granted as herein provided, shall forfeit $50 for each offense.” The case was tried before his honor Judge Gilbert and a jury, at the circuit…

npHIS is an appeal from a judgment entered upon the JL report of referees appointed in accordance with the statute to hear and determine a claim against an executor, which was disputed. Upon the trial the plaintiff proved by William H. Hughes, and put in evidence, the following note made by the deceased: “ $600. Blooming Grove, May 16th, 1864. Twelve months after date, for value received, I promise to pay to Edwd.

Trial by the court. This action was brought by the attorney-general, upon his own information, in the name of the People, against the Albany and Susquehanna Railroad Company, Joseph H. Ramsey, and many other persons, named below, to determine a controversy respecting the management of the railroad company.

THIS was an action brought by the plaintiff against the defendant in a justice’s court, for the conversion of a quantity of potatoes; cabbages, apples and bags. The defendant denied the complaint, and alleged that he was a constable of the town of Greenfield, H. Y., and as such he took -the property in question by virtue of an execution against the plaintiff.

THIS was a suit in equity, brought by the plaintiff for the abatement and removal of an alleged public nuisance, claimed by the plaintiff' to be specially injurious to himself. The alleged nuisance was a bridge across Broadway, at the junction with Fulton street, in the city of Hew York.

The action was commenced in a justice’s court, to recover for damage done to the plaintiff’s land and crops by the defendant’s cattle, horses and hogs. The plaintiff recovered a judgment for '$20 in the justice’s court, and on appeal to the county court, the same was affirmed. The defendant appealed from the judgment of the latter court.

The action was against the makers and indorsers of a promissory note for $3000, made by Charles Burgess and C. P. Burgess, and indorsed by W. J. Moses and E. Sheldon. The makers appeared and put in answers, setting up a defense in no way connected with the question of stamps upon the note, and on the trial abandoned the defense which they had set up in their answer.

ACTION to recover the possession of real estate claimed by the plaintiffs as heirs at law of James Emerson, deceased. James Emerson, the father of the infant plaintiffs, died intestate, on the 14th of September, 1864, seised of about 107 acres of land, o.n which he resided, and leaving the plaintiffs his only children and heirs at law, and his widow, Esther B. Emerson, who continued in the possession of the said premises, with the plaintiffs, who constituted her family.

ACTION for the taking and detention of twenty-one cows claimed to belong to the plaintiff. The action was referred to a referee, who found, as facts, that on the 5th day of August, 1867, the plaintiff owned the cows in question, and that on that day they entered and trespassed upon the lands of the defendant, in the town of Palatine, Montgomery county. That while the said cows were so trespassing, the defendant seized and took them into his custody.

Thé action was commenced in this court by William G-. Fargo, as president of the American Merchants Union Express Company, against James H. MeVicker, a citizen of the State of Illinois.

The plaintiff, who was a soldier at Hart’s Island, having reserved his bounty, delivered a part of it ($320) to the Adams Express Company to carry to his brother, Martin Witbeek, Schenectady, N. Y., for safe keeping. That company brought it to the city of New York, and there delivered it to the defendants’ company. The latter carried it to Schenectady, and delivered it to its agent there, about December 5, 1865.

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

THIS is an action of interpleader, brought by the representatives of the Schenectady Bank, to settle and determine the rights of the defendants to twenty shares of the capital stock of said bank. The facts of the case are as follows: Prior to and on the 1st of February, 1859, John Eeed was a stockholder in the Schenectady Bank, holding a scrip certificate for twenty shares of its capital stock.

THIS action was brought against the defendant as maker of two promissory notes, one for $364.62, at one day from date, the other for' $100, at four months, both dated September 5, 1860. The notes were given in renewal of other notes, the consideration of which was liquors sold by the plaintiff to the defendant.

<p>APPEAL from an order made at a special term, in an equity case.</p>

THIS action was brought to recover damages for injuries alleged to have been inflicted on the plaintiff’s wife - by the defendant, which caused her death. Upon the trial of the cause, the statement made by the wife to the plaintiff, after she had returned to her home, was offered in evidence. This evidence was admitted to show who the person was that committed the assault; and the conversation as to the defendant was on the day after the assault.

APPEAL by the plaintiff from a judgment rendered at a special term, on a trial before Justice Clerk®, without a jury.

THIS was an action to recover damages for a personal injury, alleged to have been sustained by the plaintiff in consequence of the negligence of the defendant or its servants, by which he was seriously injured and permanently disabled. The action was tried before Justice E. Darwin Smith and a jury.

APPEAL by the defendant Aborn from a judgment entered on the report of a referee. The defendants and 0. 0. Peek & Co. were in the habit of exchanging blank notes, which were filled up by the holders as they were used.

APPEAL by the defendant Hoyt from an order made at a special term, overruling his demurrer to the complaint. The complaint alleged that for many years prior to, and at the time of, his death, Peter Masterson, the father of the plaintiffs, was the owner in fee of the lot situated at the southwest corner of Seventh avenue and Fifty-fourth street, in the city of Hew York, with the building thereon erected and being.

THIS action was commenced in a justice’s court, and was brought to recover damages for killing a cow, through negligence on the part of the defendants. The plaintiff recovered judgment for the value of the cow, in the justice's court, but on appeal to the Eensselaer county court was nonsuited, on the trial; and from the judgment on such nonsuit, appealed to this court.

<p>Where a person asserts a falsehood with a fraudulent design, and damage results therefrom, though he may have no interest even in the deception, it is good ground for a civil action. Intentional and purposed deception is consequently the very gist of an action against a vendor, for deceit in the sale of property; and this must in some way be made to appear, or no legal claim for damages is laid.</p> <p>If a vendor has knowledge of the character and condition of the property he is selling, and makes a representation respecting it which turns out to be false, the motive with which that representation is made is all important, when he is sought to be made responsible bn the ground that he perpetrated a fraud; and the fact whether he really believed, or had any justifiable reason for believing, that what he said was true, is a most legitimate subject of investigation; and in that, as in all those cases of imputed fraud where the motive is the subject of inquiry, the party charged with the fraudulent intent is permitted to be heard.</p> <p>In order to maintain an action for deceit by means of false representations, it is always necessary to aver and prove an intent to deceive; and whenever a party actually believes what he asserts to be true, he is not liable, although it turns out that what he affirmed was false in fact.</p> <p>Thus, where, in an action by the purchasers, against the vendor, to recover damages for deceit in the sale of a canal boat, the judge refused to instruct the jury that if they found that the defendant really believed that the representationg made by him, in regard to the boat, were true, their verdict should be for the defendant;, it was held that the judge erred in refusing the instruction asked for.</p> <p>The case of Bennett v. Judson (21 N. Y. Rep. 238) has always been considered to have" carried the doctrine of liability for an alleged fraudulent representation to the extremest verge of the law; and the courts have been very careful to discriminate and apply it only to the state of facts presented by the case itself. Ber Bacon, P. J.</p>

WRIT of error to the court of oyer and terminer for the county of Yew York, to review a conviction for murder in the first degree. The indictment was for killing John Smedick, a patrolman, in the city of Yew York, on the night , of July 23, 1868.

<p>MO TIOS" by the defendant Duff for a new trial, under section 268 of the Code of Procedure, as amended by the act of April 25, 1867. (Laws of 1867, eh. 781, § 9.)</p>

The plaintiff sued the defendants in a justice’s court, and complained that they negligently injured his canal boat by running their boat against it. The defendants, in their answer, denied the allegations of the complaint, and also alleged that the injury, if any, occurred by the negligence of the plaintiff. The cause was tried before a jury. It appeared that the plaintiff and one Van Burén, each owned one half of the injured boat.

<p>Where a party upon whose property a levy is made by virtue of an execution against him, sues the sheriff for such levy, the officer, in justifying, need not produce the judgment, but only the execution; and if upon its face the execution shows that it was issued upon a judgment in a case where the court issuing it had jurisdiction, it will protect him, whether the court be one of general or limited jurisdiction; and whether, in fact, the court acquired jurisdiction or not; and whether the judgment was regular or not.</p> <p>In such case, if the party against whom the execution issues would allege tfiat the judgment was void, for want of jurisdiction in fact, or that it was not regular, or such as the case warranted, he must attack it directly, either by motion to the court which rendered it, or by appeal.</p> <p>If the judgment rendered by a county court, on appeal from a justice’s judgment, reversing such judgment and granting a new trial, is wrong, in not fixing the precise time in which the new trial shall be had, or in adjudging costs against the plaintiff, who was the respondent on such appeal, under the provision of the Code allowing the county court to fix the terms, the plaintiff cannot take advantage of it, as against the sheriff, but should seek his remedy by motion or appeal.</p>

THIS was an action of ejectment, commenced in October, 1861, to recover tho undivided fourth part of one hundred (100) acres of land, lying in Deerfield, Oneida county, by the plaintiffs as the heirs at law of Henry A. Storring, their deceased father, and to which Henry A. Storring claimed title under the following clause of the will of his father, Adam Storring, which was executed on the 4th day of June, 1812, to wit : “I give and bequeath unto my well beloved wife FTelly,…

<p>Where the maker of a promissory note, ■when it arrives at maturity, pays to the holder the interest thereon in advance, for a definite period, and the latter receives the money and indorses it on the note as “ interest ” to the time specified, this, although there be no express agreement by the holder to wait for the payment of the principal till that time, will amount to-an extension of time, and will discharge a guarantor; where it is evident that it was the intention and-understanding of the parties that time should be given.</p> <p>When there is a mutual understanding between the parties, under such circumstances, that the time of payment shall be extended, it has all the binding force of an express agreement by the holder to wait.</p> <p>The cashier of a bank-is the financial officer thereof, and his agreements in behalf of his principal, in all matters relating to its business of discounting and banking are binding upon it, to the same extent as if made by a resolution of the board of directors.</p>

<p>Several persons jointly indicted are not entitled to demand separate trials, where none of the acts charged amount to a felony at common law, being for a riot, and for a riotous assault and battery; where there is no allegation that the intent was felonious, or that such weapons were used as would constitute the offense a felony.</p> <p>• Such an offense is merely a misdemeanor, at common law, and it is not made felony by statute.</p> <p>The provision of the Revised Statutes respecting assaults “ with knife, dirk, dagger or other sharp, dangerous weapon,” (3 R. S. 5th ed. p. 970, § 24,) does not reach such a case.</p> <p>On an indictment for a misdemeanor only, it is entirely in the discretion of the court to determine whether several defendants shall be tried jointly or separately ; and being so, the decision is final.</p> <p>Where it is apparent from the tenor of the whole indictment that each count relates to the same ’transaction, and they are only varied for the purpose of meeting the proofs to be given, the public prosecutor is not bound to elect any one count upon which to proceed to trial.</p> <p>Even in cases where it is, proper for the defendant to apply for such election, the application is addressed to the discretion of the court, and the exercise of it is not reviewable on a writ of error.</p> <p>In proving the guilt of the defendants, on a trial for riot, the regular and orderly way is, first to prove the combination, and then show what was done in pursuance of the unlawful design. But this is not an imperative rule; it rests in the discretion of the judge to prescribe the order of proofs, in each particular case, and, if he deems 'it expedient, under the special circumstances, to permit the prosecution first to prove the riotous acts, it will be only after the whole case on the part of the government has been openly stated, and the prosecution has undertaken to connect the defendants with the acts done. But it will be sufficient to fix the guilt of any defendant if it be proven that he joined himself to the others after the riot began, or encouraged them by words, signs or gestures, or otherwise took part in the proceedings.</p> <p>Even though the charge, or other decision, of the court below, be erroneous, still if the court above can see clearly that it could not prejudice the rights of the party objecting to it, the verdict will not be set aside. This rule applies as well to a bill of exceptions, or writ of error, as to a case.</p> <p>A charge, on a trial for riot, “ that if a crowd of three or more persons engaged in the attack on H., with a preconcerted intent to commit an assault and battery upon him, and did accomplish the unlawful act, and 'the defendants, or any of them, participated in that unlawful proceeding, then they were guilty of the crime of riot,” is correct, within all the authorities defining what constitutes a riot.</p> <p>It can be no defense to a person indicted for an assault upon a person unknown that the person assaulted becomes known, prior to, or at the time of, the trial; but it must appear that the grand jury knew such person at the time they found the indictment, and that it was found for an assault upon some other person, who was not made known to them.</p> <p>In such a case, the defendants, by allowing evidence of an assault upon a particular person, without objection for variance, will be held to have assumed that he was .the person unknown; where there is nothing to show that any other indictments have been found than the one then on trial.</p> <p>It is not unusual to convict persons who are jointly indicted, of different grades' of the offense charged; or to convict some of them and acquit others; except in cases where the conviction is of "an offense to constitute which, all must have participated.</p> <p>Where the jury, on an indictment for a riot and for a riotous assault and battery, find the defendants not guilty of the riot, a concert of action between them is not to be presumed, any further than the jury have found by their verdict ; and each is severally liable for his individual acts.</p> <p>It is no ground for a motion in arrest of judgment, in such a case, that of the six defendants, jointly indicted, three were convicted of an assault and battery, and three of an assault only.</p> <p>Nor is it a ground for such a motion that the verdict on an indictment for an assault upon an unknown person, is void for uncertainty, and cannot be pleaded in bar of a future indictment against the defendants, or either of them, for an assault charged to have been committed upon a particular-person.</p>

<p>In an action to recover damages for fraudulently adulterating milk by adding water to it, which was afterwards mixed with the milk of the plaintiff and others, his assignors, at a cheese factory, witnesses who- are farmers and dairymen, and well acquainted with the article of milk, are experts, and, as such, competent to testify whether the article delivered looked and tasted like milk and water or not.</p> <p>In such an action, the rule allowing exemplary damages cannot be applied. The settled rule of damages is one of compensation, merely.</p>

<p>Although a constable having an attachment against property already levied upon by the sheriff by virtue of an execution, may levy his attachment upon such property, yet he has no right to remove it from the custody of the sheriff and of the law ; and if, while he is attempting to remove such property, it is destroyed, he is liable to the sheriff, for the value.</p> <p>The plaintiff in an execution cannot lose Ms lien acquired by a levy upon the property of his debtor, without some fault on his part.</p> <p>An exception will not lie to the refusal of the judge to charge as requested, where there are no facts proved upon which the jury could legitimately find as desired.</p>