Volume 58 — Howard's Practice Reports

<p>Action against executor — Complaint need not amr his appointment' as-such—Demurrer to complaint.</p> <p>Where a complaint, in an action to foreclose a mortgage executed hy the defendant, as executor, alleges that he executed it as such executor: Held, that the complaint was sufficient, and that it was unnecessary to allege the defendant’s «íipomferasraí as executor; he is presumed to he such as he has described himself.</p>

The plaintiffs sued Bristol, defaulting county treasurer, and Ms sureties to recover $5,194 county funds and $7,997 funds of infant heirs. Judgment was rendered by the referee for $6,130 county funds and costs. Both parties appealed. The defendants appealed “ from the said judgment and every part thereof,” and excepted specifically to the finding of fact and conclusions of law upon which the referee based Ms judgment. The general term affirmed the judgment, with costs.

<p>Taxes and assessments—when cou/rt will intervene to prevent sale of lands for non-payment of tax — Remedy by injunction.</p> <p>Where the statutes provided that “all real and personal estate liable to taxation be estimated and assessed by the assessor at its full and true value, as they would appraise the same in payment of a just- debt due from a solvent debtor,” and when the assessors had completed their roll they were required to make an oath which contained this clause: “ We have estimated the value of the said real estate at the sums which a majority of the assessors have decided to be the full and true value thereof and at which they would appraise the same in payment of a just debt due from a solvent debtor,” instead of which the oath of the assessors, appended to the assessment roll, read: “We have estimated the value of the said real estate at the sums which a majority of the assessors have decided to be the fair proportionate value thereof and at which, in the some ratio, they would appraise the same in payment of a just debt due from a solvent debtor:”</p> <p>Held, that such a departure from the statute vitiates the entire assessment, and where a county treasurer had, under the provisions of the statute, advertised for sale the lands of the plaintiff for an unpaid tax, he is entitled to the preventive remedy of an injunction to restrain the sale of the same.</p> <p>Where a deed, given by a public officer, is prima facie evidence of title, a party should have a preventive remedy, because there is then, if such deed is given an apparent cloud resting upon the title of the owner, which extrinsic evidence only can remove.</p> <p>Where, as in this case, the treasurer’s deed is, by law, made “presumptive evidence ” that all the statutory provisions have been complied with, and if the plaintiff’s property is sold and conveyance executed, the title in the purchaser will be, apparently and presumptively, complete, and can only be attacked and overthrown by affirmative evidence given by the plaintiff, the court is authorized to intervene by injunction and restrain the sale.</p>

<p>Trust deed— Change of investments—when not allowed—Parties.</p> <p>Where a deed of trust directs, in plain terms, in what particular securities funds coming into the hands of the trustees shall he invested and how, until so invested, they shall be held, the court cannot, by its judgment, defeat the intentions of the creator of the trust, and the benefici aries thereunder, by directing different investments.</p> <p>Without the consent of those beneficially interested in the trust, investments directed to be made in first mortgage securities, cannot be made through the judgment of the court, in those .of an inferior lien.</p> <p>For the purpose of securing such change in investment, the trustees do not represent the beneficiaries, and an action to this end cannot be prosecuted in their names, the beneficiaries not being parties defendant, and having no opportunity to be heard in relation to the propriety of granting such relief.</p>

<p> Justice’s courts—Jury—i/rregula/rities in obtaining, for which judgment mil be reversed. </p> <p>The proceedings by which a jury is to be obtained in a justice’s court are purely statutory and should be strictly complied with, otherwise the judgment rendered cannot be sustained.</p> <p>The justice is limited by the statute to a certain course of proceedings; and unless those proceedings are adhered to, or waived by the party who has a right to insist on them, the judgment is irregular and void.</p> <p>A venire for a jury issued by a justice of the peace to the defendant at his request out of court, and in the absence of the plaintiff and without giving him notice, is irregular, and for such irregularity the judgment will be reversed.</p> <p>Where it appeared that after the twelve names of the jurors summoned and present had been folded and put into a hat the justice drew out all twelve names at the defendant’s request; then he called the twelve names and the jurors all answered, whereupon plaintiff’s counsel requested the justice to put all the names back again and draw out six to make the jury, which request the justice refused:</p> <p>Held, that the refusal of the justice to deposit the twelve names in the hat again and draw out six, orw after another (as required by the statute), to compose the jury, when requested by plaintiff’s counsel so to do, was a fatal error and one for which the judgment will be reversed.</p>

The action was tried in the New York marine court. The trial was by the court without a jury. The facts appear in the head-note and in the following opinion of the trial judge:

<p>Practice—Settlement of case of Ur trial of feigned issues —Appeal from order of settlement—Motion for new trial after verdict on feigned issues—Motion for new trial on ease and exceptions after judgment— Oode of Procedure, section 1003, qucere.</p> <p>Where, on action brought to foreclose a mortgage of real estate, issues of fact are settled and tried by a jury, and after verdict application is made to the court before whom the trial was had for judgment on “the pleadings, proofs and answers of the jury to the questions submitted,” and the trial judge “approved and adopted” the verdict, but made emendations and additions thereto and certified other findings, using in their support the evidence before the jury, to which findings exceptions are filed, it is error in the trial judge to strike from the case the evidence before the jury and the exceptions thereto.</p> <p>He should, in settling such a case, present, to be inserted, so much of the evidence as was requisite to show the grounds óf alleged error, and so much as related to his additions and emendations to the verdict.</p> <p>The trial judge could not properly limit the review by striking from the case the proceedings had before him, on which the appellant predicates error. It does not lie with him, in settling the case, to hold that the grounds of alleged error were untenable, or that they could not be considered by the appellate court.</p> <p>Such case being in equity the judge was not absolutely bound by the verdict. He could have disregarded it and have made findings in accordance with his own views of the case.</p> <p>Qumre, whether, under the last clause of section 1003 of Code of Civil Procedure, a party in an equity case is not bound by the verdict if he fails, before final judgment, to move to set it aside and for a new trial. The trial judge in an equity case, where the issues are tried before a jury, should hear the motion for new trial on the case made. If he shall decide that such motion cannot be made after judgment, his decision can be reviewed on apppeal. (Per Boarpman, J.)</p> <p>Order allowing amendments striking out evidence taken on the trial before the jury reversed, and case and exceptions sent back to the trial judge for resettlement.</p>

Plaintiff served her complaint in May, 1879. Just before the time for answering expired, the defendant served a notice of motion to strike out certain irrelevant allegations of the complaint, and to compel plaintiff to separately state and number the counts of the complaint, and on same day obtained an order extending the time to answer, without prejudice, however, to the said motion.

<p>The right of sepulture—How far religious corporations may control and regulate interments in their burial grounds—Bights under contract or convey a/nce of bv/nal plots — when mandamus the proper remedy.</p> <p>A religious corporation has full power, when they have parted with no rights by conveyance or contract, to control and regulate interments in the grounds which they hold for that purpose; and if the doctrines of the church of such corporation forbid the burial of the bodies of any other religious persuasion, they may properly, in such cases, exclude those therefrom.</p> <p>In this case the defendants had entered into a contract or conveyance as follows : “ Office of Calvary Cemetery, New York, December 1, 1873. Received from Mr. Denis Coppers, seventy-five dollars, being amount of purchase-money of a plot of ground, eight feet by eight, in Calvary Cemetery. D. Brennan, Superintendent, &c.: ”</p> <p>Held, that, looking at the objects and purposes for which the defendants held and owned the lands known as “ Calvary Cemetery,” and the language of the instrument, it is reasonably clear that the writing was intended to confer not merely the use of, or easement in, the land, for the purposes of burial, hut to convey the ownership of the soil, not for any and every use, but for the sole and only one of burying the dead:</p> <p>Held, also, that where the owner of such a plot of ground had died, and his relatives sought to place his body in such plot, it is not in the power of such church corporation, to prevent its deposit therein, upon the ground that the deceased was of another religious persuasion, or for the reason that he was a member of the masonic or any other order.</p> <p>When vaults or burying lots have been conveyed by religious corpora tions, rights of property are conferred upon the purchasers. The right is like that to any other real estate, and it is as perfect without sepulture as it is where the grantee has used it for that purpose.</p> <p>Mandamus may properly issue where a religious corporation refuses or attempts to prevent the burial of a person in a plot of ground, for which he has paid the purchase-price and received a conveyance thereof from such corporation. It properly issues to compel a corporation to do that which, by law, it is required to do, especially when no other adequate remedy exists.</p>

<p> Action against trustee of manufacturing company—Complaint—Separate causes of action. </p> <p>In an action brought by a creditor of a manufacturing corporation against a trustee for a liability imposed by the fifteenth section of the act of 1848 for the filing of a false report, the complaint should show that the debt, for which the defendant is sought to be made liable, was contracted while he was a trustee.</p> <p>Where the complaint alleged that the defendant was, on the 18th day of January, 1877, and “before that date,” a trustee:</p> <p>Held, not to be an averment that he was such trustee, in the year 1876, when the debt was alleged to be contracted.</p> <p>The filing of a false report on successive years gives rise to a separate cause of action as to each year.</p> <p>The allegations in one cause of action cannot be supplemented by those in another and separate cause in the same complaint, unless they are connected therewith by appropriate statements.</p> <p>Yictory Webb, &c., Company agt. Beecher (55 How. P. JR., 198) applied.</p>

The testator died in 1859 leaving his will in which he first gave to his executors, in trust and with power of sale, his farm and also his farm stock and implements, with direction to sell them, except two cows and househould furniture which he bequeathed to his wife. He gave to his wife $200 per year during her lifetime, and to his son Amos $100 per year during his lifetime.

29 Broadway, in the city of Mew York, and from tearing down or removing from the front of said building the signs of the plaintiffs.

<p>Written agreement— when may be controverted or va/ried by pa/rol evidence.</p> <p>The rule that when an agreement between parties is reduced to writing, it cannot be controverted or varied by parol evidence, applies only to parties to the agreement. But when persons not parties to the agreement, and in no way connected therewith, are interested like judgment creditors, for example, to show what the agreement was, they may resort to parol evidence to show what the real transaction in fact was, notwithstanding the writing.</p>

On the twentieth October last Lnman Woodmansee and Abraham Garside, creditors of Amos S. Eodgers, obtained a warrant of attachment from judge Donohue, in the supreme court, against the property of the debtor on the following affidavit: City and County of Yew Yobk, ss.t Abraham Garside, being duly sworn, deposes and says that he is one of the plaintiffs in the above entitled action, and a member of the firm of Woodmansee fc Garside, doing business .in the city and county of…

<p> Metra allowance—when not granted. </p> <p>Where, after an action of foreclosure was at issue and had been noticed for trial, the defendant tendered the amount of the mortgage, interest and costs, a statement of which had been rendered by the plaintiff’s attorney and the tender being accepted, it is too late thereafter to apply for an extra allowance. Had the tender been conditionally received it might be otherwise.</p> <p>New York Mre amd Marins Insurance Gorrvpa/ny agt. Browned (9 How. Pros. B., 398) distinguished.</p>

<p> Husband, and wife—Action maintainable by husband against his wife for conversion of his property. </p> <p>A husband may maintain an action against his wife for taking and converting his property.</p>

Patbick Dowd, late of Brighton, Monroe county, made his will March 20, 1863. He bequeathed to- his wife, Elizabeth Dowd, all his personal estate, and the use, for life, of all his real. He authorized his executors, “ together with his wife,” to sell and convey his real estate, and to deposit the avails of the sale in one of the savings banks in Rochester.

In this action plaintiff obtained an attachment against the property of the defendants. Defendants having filed an undertaking made a motion to discharge the attachment. Plaintiff opposed the motion on the ground that the undertaking had been executed before defendants’ attorney as notary. In reply, defendants’ attorney claimed that the undertaking -had been executed before he appeared in the action as attorney.

<p>Patent— Priven wells — Grounds for a reissue of a patent—what is not new matter within the meaning of the statute— Though one claim is invalid it does not prevent a recovery on the other.</p> <p>Where the petition for a reissue of a patent sets forth that by reason of an insufficient or defective specification the original patent is inoperative or invalid, and that such error arose from inadvertence, accident or mistake, and without any fraudulent or deceptive intention:</p> <p>Held, that this is a ground of reissue set forth in section 53 of the act of July 8, 1870 (16 IT. S. Stat. at La/rge, 305), and the decision as to the fact set forth belongs exclusively to the commissioners of patents, and his action conclusively establishes that fact.</p> <p>Where it was urged that the original specification stated the invention to be “ a new and improved pump filter,” while the reissue specification states the invention tobe “an improvement in pump filters;” it being also contended that the original claims the whole and nothing else, while the reissue makes two claims, neither of which claims the whole or includes the collar or head-piece “B,” and that the first two sentences above cited in the reissued specification are new matter in violation of section 53 of the act of 1870:</p> <p>Held, that these two sentences cannot properly be called “new matter ” within the meaning of the statute. They do not at all relate to the description or operation of the apparatus of the patentee.</p> <p>Held, further, that the difficulties stated to have existed in prior pointed pump tubes may well have been known to the patentee from hearsay, although the first driven well point he may have seen was his own. As the patentee’s pump tube is a pointed pump tube, and as it does overcome such difficulties in clogging in such a tube, the presumption is 'that'it was made to overcome such difficulties, and, therefore, that such difficulties had been heard of by the patentee.</p> <p>:It is further urged that the original specification describes the invention as applicable to all pump filters, whether used upon points for driven ■wells or upon well tubes used in open wells or cisterns or streams, while the reissued specification introduces new matter by confining the invenition to driven wells only. It is contended that in this there is a violation mot only of the provisions of section 53 of the act of 1870 in regard to new matter, hut a violation of the provision of that section, that in case of a machine patent neither the model nor the drawings shall he amended, except each by the other:</p> <p>Eeld, that as the same idea is found in the original specification and drawing, taken together, there is no new matter in the reissued specification or in the reissued drawing.</p> <p>Where the claim of the original patent was this: A pump filter composed of the parts A, B and C, substantially as and for the purposes described, it is urged that such claim included the three distinct parts, A, B and C, in combination, embracing the whole of the structure described; that there is no suggestion in the original specification that the patentee had invented any combination or parts less than the whole, and that each of the claims of the reissue is for a combination of parts less than the whole, and is, therefore, void:</p> <p>Eeld, that, under the decision in the Oorn Planter Patent (28 Wallace, 181), the reissue in the present case cannot be held to be void. The drawings of the original and the reissue being the same, and the two specifications describing the same mechanical structure, with the same mode of operation, it must be held to be lawful to reissue the patent with claims to combinations of fewer elements than were contained in the combination claimed in the claim of the original patent. The original claimed a general and larger combination, and the reissue claims sub-combinations which enter into such general and larger combinations. Such a reissue is sustainable on the ground that the reissue was for things contained within the apparatus described in the original patent.</p> <p>Eeld, further, that it is of no importance that the wire gauze “0," may not, by itself, have been new; or that the open grating or ground "A,” may not, by itself, have been new; or that any other ingredient of the combination claimed in the reissue may not, by itself, have been new so long as the combinations, as claimed, were new.</p> <p>That the two claims of the reissue do not claim combinations, but claim merely aggregations of parts, is not regarded as a tenable objection. The object of the combination claimed in the first claim is to enable the structure to be driven into the earth, and these serve for a pump and a filter without being injured in driving. Nothing less than a combination of all the elements in such combination will accomplish all the objects which such combination will accomplish. So, too, the grating and the wire gauze of the second claim act in combination in controlling the passage of the water from the outside of the grating to the interior of the wire gauze.</p> <p>Eeld, also, that although the second claim is invalid for want of novelty, the plaintiff can recover on the first claim under section 60 of the act of July 8, 1870 (16 E. S. Stat. at Laa'ge, 207; now section 4922 of the Eemsed Statutes), although no disclaimer has been made as yet to the second claim, provided that, prior to the entry herein as to such first claim, they make a disclaimer under section 4917 of the Revised Statutes, as to the second claim, it not appearing that there has been heretofore any unreasonable neglect or delay to enter such disclaimer; but as such disclaimer was not entered before the commencement of this suit, the plaintiffs will not be entitled to recover any costs of this suit.</p>

<p>Motion to remove action to United States circuit court.</p>

<p>On the 29th day of April, 1873, the defendant entered into an agreement in writing with the plaintiff to convey to her, on May 15, 1873, certain buildings known as Nos. 309 and 311 East Thirty-eighth street, New York city. The premises, in accordance with the terms of the contract, were to be conveyed subject to a mortgage amounting to $8,000, and which she, the plaintiff, assumed and agreed to pay.</p> <p>Rinaldo, in accordance and compliance with the terms of his contract, on May 15, 1873, by deed duly executed by himself and wife, conveyed said premises to Mrs. Lynch, subject, however, to the mortgage given to secure the payment of the sum of $8,000, and which mortgage Mrs. Lynch, the plaintiff, in and by said deed, assumed and agreed to pay.</p> <p>At the time of the delivery of the deed (May 15, 1873) interest had accrued on the mortgage since December, 1872, although it was not due or payable, according to its terms, until June 30, 1873.</p> <p>There were some taxes and assessments on the property remaining unpaid which Rinaldo arranged satisfactorily with Mrs. Lynch, but nothing was said by either party about the payment of any interest on the mortgage, which semi-annual interest was to become due about two months after the passing of the title, to wit, on or about June 30, 1873.</p> <p>The plaintiff claimed to have paid the semi-annual interest which became due on June 30, 1873, and brought this suit to recover the portion thereof from December 30, 1872, till the time of the delivery of the deed on the 15th of May, 1873, on the ground that he contracted and agreed with her, as she alleges, in the month of May, 1873, for a good and valuable consideration, to pay the same. But no such agreement appears in the written contract the parties executed, or in the deed subsequently delivered in pursuance of such contract, and no satisfactory evidence to support such an agreement was offered on the trial.</p> <p>The cause was tried before judge Yah Bbtjht and a jury at trial term, in January, 1876, and resulted in a dismissal of the complaint.</p>

This was a return made by the city of Utica, &c., to a common law writ of certiorari issued to review the proceedings of said city and its officers in levying a local assessment to pay the expense of repairing a sewer. The facts are stated in the opinion.

<p> Reference—when should not he ordered—Long account. </p> <p>A reference should not be ordered where the issue is properly upon an agreement and its performance, although upon the issue of performance the plaintiff may be called upon to prove the payment of many items of expense, as he cannot recover upon them.</p> <p>Where there is an important question of fact to be determined before the matter of the account will become one of importance, a reference should not be ordered.</p>

This is a motion for a mandamus to compel the hoard of supervisors, acting as a hoard of county canvassers, to send hack to the ward inspectors the returns, or statements, for correction and a recanvass.

<p>Right of the board of aldermen to judge of the election of its own members— Courts no power to pass upon the question of title to office.</p> <p>Prior to 1873 the charter of the city of New York provided that each board of the common council should “be the judge of the election returns and qualifications of its own members ” (Laws of 1857, vol. 1, page 875):</p> <p>Held, that the decision of the board of aldermen in such cases could not be reversed or set aside by the court.</p> <p>Reid, further, that the change in the phraseology of the charter of 1873 does not give to the court the power, in an action in the nature of a quo wm'ranto, to pass upon the question of title to the office of aider-man where the board has declared in favor of such right.</p> <p>The charter makes the judgment of the board the subject of review by any court of competent jurisdiction, or, in other words, it permits an appeal to a court of competent jurisdiction from the judgment of the board. But the judgment of the board cannot be reviewed in an action to which the board is not a party, and in which the record of that board is not before the court.</p> <p>It is the office of the writ of certiorari to correct errors of a judicial character committed by an inferior tribunal or body, and that writ brings the record before the court for examination and review, and such writ should be returnable before the general term. In cases of this kind a circuit judge, in a circuit court, cannot sit as an appellate tribunal to review the judgment and decision of an inferior tribunal.</p>

<p> Demurrer to complaint—Improper joinder of carnes of action </p> <p>A cause of action, arising out of a breach of contract on the sale of real estate, cannot be united in the same complaint with a cause of action arising from the wrongful conversion of personal property; nor can a cause of action for the latter be united with a claim for an accounting between principal and agent, or banker and his customer, with regard to dealings in money.</p>

<p>Mortgage — equitable lien — effect of— release of part of moi'tgaged premises.</p> <p>K. conveyed to N. certain lands fronting on One Hundred and Twenty-first street, in the city of New York, at an agreed price. At the same time it was agreed between them that N. should erect eleven houses on said lands, and that K. should advance, from time to time, as the houses progressed, to N. certain moneys towards their erection, for which advances it was further agreed that K. should receive from it a mortgage on each of the eleven houses for one-eleventh part of the money so advanced. Afterwards, when part of the moneys so to be advanced had been paid, N. executed to K. a mortgage on the whole of said property to the amount of the advances that had then been made. This mortgage, it was agreed, should be held as security till all the advances should have been made, and till the eleven separate mortgages should •be executed. Subsequently the whole of the agreed advances having been made, eight of the houses were sold by N. to various parties (among them the premises in question), on each of which, except the premises in question, the respective purchasers executed a mortgage (which was transferred to K.) for the proportionate amount advanced by K., who thereupon released his prior mortgage as to such house. N. also executed like mortgages on the remaining three houses, whereupon K., in like manner, released his lien as to those, so that the entire prior mortgage was released, except as to the house in question, and that was sought to be charged only for its proportionate amount of such advances under the first mortgage. The conveyance of the premises in question was recorded in August, 1878. It was made subject "to two mortgages on said premises, amounting in the aggregate to the sum of $5,000.” The first of the said two mortgages was one for $4,000, which is not in question here, and there was no other mortgage except the one in question on this house. In September following the conveyance in question, the last of the agreed advances was paid. The purchasers of the house in question claim: 1st. That the releases executed by K. of the ten other houses operated as a discharge of their house. 2d. That the receipt by him of the ten separate mortgages on the other houses, which, in the aggregate, were for a larger sum than the original mortgage, but were less by the sum which was the proportionate share of the premises in question, and which is sought to be recovered of the advances made, if the last payment made subsequent to the date of the deed to the grantees of the premises in question was deducted from the aggregate amount of said ten mortgages.</p> <p>Held, that the mortgage was a valid and subsisting lien on the premises in question for the amount claimed, to wit, the proportionate amount of the advances made, deducting the amount of the last payment on account of the advances from the aggregate of the separate mortgages, and deducting the remainder from the general mortgage left the sum claimed as due.</p> <p>The general rule that after alienation of a part of the mortgaged premises the remainder becomes primarily liable for the whole mortgage and that the portions alienated are liable only in the inverse order of alienation, and then only to the extent remaining due when the premises precedently liable have been exhausted is fully recognized,.</p> <p>But the rule of charging lands in the inverse order of alienation or holding a portion remaining apparently covered by a mortgage discharged in consequence of the release by a mortgagee with notice of other portions which were primarily liable is a mere rule in equity The release to a subsequent purchaser is not a technical discharge of the lands previously conveyed. Neither is it an equitable release or discharge, unless upon the principles of natural equity and justice it ought thus to operate.</p> <p>A mortgagee is not bound, at his peril, to ascertain if the mortgaged premises have been aliened or mortgaged subsequent to his mortgage before releasing a part of the mortgaged premises. Recording a conveyance is not notice to him ; it is notice only to subsequent purchasers in good faith and for a valuable consideration.</p> <p>Where a mortgagee, before releasing part of his mortgage security, employs an attorney to search the title and prepare the release and such attorney found of record certain conveyances, such knowledge is equivalent to knowledge by the mortgagee even if the attorney failed to communicate such information to his client.</p> <p>R., under his contract with N. was compellable to execute the release upon recovering the separate mortgages. The record of the mortgage covering the whole of the eleven houses was notice to the purchasers of the premises in question of a lien which, under certain circumstances, might have been enforced against this lot for its entire amount. If they had not notice of the contract between K. and N, they were put upon their inquiry in regard to it and by due diligence could have ascertained its terms.</p> <p>The contract between K. and N. constituted an equitable mortgage and .gaveK. in equity an equitable lien which could be enforced against subsequent purchasers to the extent actually due under it.</p>

<p>Application for the appointment of commissioners to determine the “ points and manner ” of crossing the track of the Troy and Boston Railroad Company.</p>

' The defendant, who was arrested on the 27th day of July, 1878, by virtue of an order of arrest, gave bail for his appearance when required (Code of Civil Procedure, section 575, sub. 3), and was thereupon released from custody.

<p>Arrest— What is afine or penalty as used in subdivision 1 of section 549 of the Code of Civil Procedure.</p> <p>In an action brought to recover a debt owing the plaintiff by an association, upon the statute making the trustees of the association who fail to • file a report liable for the debts of the association :</p> <p>Seld, that, the liability to pay such debt is not a fine or penalty in the sense in which those terms are used in subdivision 1, section 549 of the Code of Civil Procedure, so as to subject the party to arrest.</p> <p>To subject a party to arrest the cause of action must be a fine or penalty, and not something of a penal character.</p>

By his last will and testament, made the 5th day of January, 1865, the testator, Ernest Giraud, after the payment of his debts, gave and devised unto his executors all his estate, real and personal, to have and to hold the real estate unto them and their successors during the joint lives of Adele and Eugenie, two sisters of the deceased, and the life of the survivor, in trust, however, to receive the rents, issues and profits of the estate, and to take charge of and manage…

Motion to consolidate three actions of foreclosure. The mortgage in the first action covered fifty acres of land, which, after the execution of this mortgage and the two mortgages affected by the second action, had been sold to the defendant, Lewis Delamater. The second mortgage in the second action covered 150 acres, embracing the land affected by the mortgage in the first action.

<p>Stenographer’s fees — What fees court stenograph&rs cure entitled to change to counsel for fvnnishing an official copy of the stenographic miriutes of a trial— Oode of Oivil Procedure, sections 86, 289.</p> <p>Court stenographers are only entitled to charge to counsel for furnishing an official copy of the stenographic minutes of a trial ten cents per folio of 100 woi’ds by actual count; and on application of the attorney he will be ordered to write out his minutes and make out bis bill at such rate. He cannot require an attorney to pay in advance for such copy.</p> <p>Attorneys as well as stenographers are officers of the court and subject to its orders; and in any case where it should be made to appear that an attorney had wrongfully refused to pay the legal charges of the stenographer, the court will protect the latter by a summary order against the attorney.</p>

<p>Motion for leave to revive action against the executors of the defendant.</p>

<p>Grantor and grantee—Oovencmt to pay a mortgage — When it cannot he released.</p> <p>An oral agreement, made contemporaneous with the delivery of a deed of real estate, as between the parties, that the grantor would take a reconveyance of the property and release his grantee from covenants in the deed, should be clear in respect to its terms, and as to the contingencies upon which a reconveyance could be justly insisted upon, and should he made and carried out in good faith.</p> <p>Where the grantee of the premises acknowledged his liability under the covenant in his deed to pay a mortgage upon the land, by paying to the mortgagee a part of the principal, and obtaining an extension of time to pay the residue, without the consent of the mortgagor, by which the mortgagor was released, and by thereafter paying interest on the balance due to the mortgagee and his assigns, and promises to pay the balance without reservation:</p> <p>Held, that he could not thereafter obtain from his original grantor, under an alleged antecedent agreement, a valid release from his covenant to pay the mortgage.</p> <p>Develin agt. Murphy (56 Sow. P. 2Z., 326) distinguished.</p>

<p>Evidence — Pa/riies—when cannot he examined as a witness “concerning a personal transaction or communication between the witness and the deceased person ”— Gode of Oivil Procedure, section 829.</p> <p>In an action for goods sold and delivered, where the defense was payment, the plaintiff being the survivor of the firm, the defendant cannot be allowed to testify over plaintiff’s objections that he paid the bill in question to the deceased partner (Code of Oivil Procedure, see. 829).</p> <p>And this, although the plaintiff, after testifying in his own behalf to the sale and delivery of the goods, also testified, without objection, that no part of the bill had ever been paid.</p>

<p>Insolvent insurance company—Receiver's right to immediately receive the funds upon the conversion of the company’s securities into money — Mandamus.</p> <p>The general rule of law is that where a statute requires something to be done, and there is no specification of the time of performance, the duty required becomes a present one to be immediately performed.</p> <p>Accordingly, held, that a receiver of an insolvent insurance company, appointed pursuant to chapter 902 of the Laws of 1869, when the securities of such company are converted into money, is entitled to the immediate possession of the same; and the superintendent of insurance cannot retain the moneys until the receiver is ready to distribute, but must pay them over to the receiver at once.</p>

This is a contest between different claimants for a sum of money admitted by the city to be due on a contract for regulating, &c., Eleventh avenue, made by the defendant, Michael Gavin, Hovejnber 1, 1875. There is no contest as to the amount, the city conceding that there is due the sum of $12,178, with interest from January 19, 1878.

In February, 1874, the defendant was register of deeds, in and for the city and county of Few York. About that time one George H. Scott applied to plaintiff through his attorneys, Van Schaick, Gillender & Thompson, for a loan of $4,000 upon premises situate on One Hundred and Sixth street, in the city of Hew York. It was agreed between the parties that the loan should be made, and should be a first or prior lien upon the premises above mentioned.

The petitioner having been imprisoned under an execution against his person, applies for his discharge under a writ of habeas corpus, on the ground that the process under which he was arrested does not specify the county to which an execution against his property was issued.

The parties are husband and wife. The plaintiff alleges adultery on part of the defendant, and asks for a decree of divorce. The defendant appears and denies the adultery. On the plaintiff’s motion, the defendant was ordered to pay seventy-five dollars to the plaintiff “towards the expenses of this action,” and to be paid in twenty days. A proper demand of payment was made on the defendant to perform order, and he neglected and refused m toto.

Daly, dated December 4, 1878, adjudging the plaintiff guilty of contempt, and committing him to Ludlow street jail for his refusing to pay certain fees of a referee which he had stipulated to pay in a certain contingency, and which contingency had happened.

This is an action on a general guardian’s bond, given by him on his appointment as such, by the surrogate of Monroe county. The condition of the bond was in conformity with the provisions of the statute, relating to the appointment of a guardian by surrogate. The plaintiff was also a legatee, under the will of his mother. The legacy was of the value of $450 and over. The legacy was paid over by the surrogate to the guardian.

<p>Answer — effect of a verified answer upon a hearing of a contested application for an injunction—Effect of a denial of the allegation of the complaint, except as afterwards admitted to be true— Oode of Owil Procedure, section 630.</p> <p>In an action for a dissolution of a copartnership, it is almost a matter of course to grant an injunction and appoint a receiver.</p> <p>Under section 630 of the Code of Civil Procedure, upon a hearing of a contested application for an injunction order, or to vacate or modify such an order, a verified answer has the effect only of an affidavit.</p> <p>Under this section the court has the power to determine the weight to he given to the denial contained in the answer, in the same manner and to the same extent as it has to determine other questions arising upon conflicting affidavits.</p> <p>Where the answer alleged that “the defendant denies each and every allegation in the complaint contained, and not hereinafter specifically admitted or denied, or not hereinafter specifically admitted or avoided:”</p> <p>Held, that a denial in this form is neither a general or specific denial, and is a form of denial in no way provided for hy the present system of pleading.</p>

<p>Voluntary trusts — when they will not he enforced.</p> <p>Where a father deposited his earnings in a savings bank, in his own name, as trustee for his children severally, in sums to draw the largest inter- . est, but, under circumstance's which make it clear that he did not intend thereby to part with his ownership of, or interest in, the moneys, or the right to control the same:</p> <p>Meld, that no such trust was created by such deposit, in favor of the children, as would enable them to take the same from the control of their father.</p> <p>Also, that whether a trust was created was a question of fact, in determining which the court would give effect to the purposes and objects which the settler had in view in making the deposits.</p>

Application to judge Westbbook to punish Dickinson for contempt in refusing to answer certain questions put to him by a committee of the board of supervisors of Schoharie county.

, Appeal from an order of the Erie special term, in both of the above entitled actions, exonerating the sheriff, the defendant in the second action, and the bail pnt in by the defendant in the first action, from liability in said actions, upon paying the costs of the second action, and the costs of opposing the motion, and ordering the said second action to be discontinued on payment of said costs.

Stock—Subscription and payment both necessary to make a complete contract on which action may be maintained. Held: that this did not legally amount to a payment of “ten per cent of the par value of the stock subscribed in cash,” as required by the statute, and that it gave no interest in the stock and the company could not sustain an action for the cause.

<p>Motion to set aside judgment for irregularity, on the ground that defendant had no notice of the application therefor.</p>

<p> Divorce a mensa et thoro—what necessarry to be shown to entitle a wife to a decree for alleged cruelty and, abandonment. </p> <p>To entitle a wife to a divorce a mensa et thoro, under the first and second subdivisions of the statute (2 B. S., 147, see. 51), there must either be actual violence or a reasonable apprehension of bodily injury.</p> <p>Wounded susceptibilities will not suffice ; occasional outbursts of passion will not do ; nor mere abuse, however gross.</p> <p>Words of menace, however, are sufficient, if they be of such a character, and accompanied by such circumstances, as to justify a belief in their seriousness. That is, they must impress the person to whom they are addressed, not as idle words, not as a form of intemperate expression, but as importing action, and in that sense conveying the reality of a threat of bodily harm.</p> <p>Jeopardy to health also comes within the rule.</p> <p>Although words in form threatening were uttered, yet where, upon a patient and thoughtful review of the entire evidence, the court are satisfied that the language used was a mere exhibition of coarse and vulgar passion, that the defendant never for a moment contemplated physical violence, and that the plaintiff never believed herself to be in the slightest jeopardy:</p> <p>Held, that the action should be dismissed.</p> <p>To justify a judgment for limited divorce on the ground of abandonment, such circumstances must appear as manifest a settled and determined purpose in the husband to withdraw from the wife permanently his society and protection, and to withhold from, her the means necessarry for her support.</p> <p>A decree for maintenance is but an incident to one for a separation, and the circumstances under which such a decree (*. e., for maintenance) may be made, must be of such a nature as would in themselves justify a direction of a separation.</p>

<p>Stenographer’s fees—What fees official stenographers of courts are entitled to charge to counsel for an official copy of minutes of trial— Code of Oml Procedure, sections 86, 289.</p> <p>The fee allowed by law to official stenographers of the court for furnishing a copy of the stenographer’s minutes of a trial to counsel is ten cents per folio (_WolUmngWright agt. ffiostrand, post 184).</p> <p>It seems that, under section 86, the stenographer may require payment of his fees in advance (This is adverse to Wright agt. Wostrand, post 184).</p>

<p>Oertiorari—not allowable before final order is made—What is a final order under the statute (Laws of 1879, chapter 307) " to provide for the summary investigation of unlawful or corrupt expenditures by officers of towns,” &c.</p> <p>A writ of certiorari should not he allowed before a final order is made.</p> <p>The defendants are railroad commissioners of the town of Oobleskill, in the county of Schoharie, and proceedings were taken against them under chapter 307 of the Laws of 1879, entitled “ An act to provide for the summary investigation of unlawful or corrupt expenditures by officers o'f towns or incorporated villages, and for restraining.the same. ” Objection was made to such proceeding on the ground that they were not town officers, and, therefore, not amenable to the provisions of said act. This objection was overruled and they were directed to account.</p> <p>Held, that the order directing the investigation to proceed was not a final order. The final order to be made is one “ restraining and prohibiting such unlawful or corrupt expenditure, appropriation, squandering or ’waste of such moneys ” (these which .came into their hands as officers of the town) "under penalty, for disobedience, of fine or imprisonment, or both, in the discretion of the court.”</p> <p>The final order must be that which ends the proceeding, and cannot be any of these, which must be made during progress.</p>

Augustus Cleveland, the testator, died in the city of Paris, in France, on the 8th day of March, 1878. On the 11th day of November, 1856, he made a last will and testament by which he disposed of his estate real and personal.

This was an action brought to recover $12,000, in American gold, transmitted by plaintiffs to defendant, with instructions to purchase silver with the amount and to ship the silver to plaintiffs.

<p>Divorce —'Mow far parties competent as witnesses — Code of OMl Procedure, section 831.</p> <p>Under the provisions of Rule 78, a defendant in an action for divorce cannot he permitted to testify in her own hehalf, to contradict the plaintiff, in respect to the matters as to which that rule allows the plaintiff to testify.</p> <p>Although the amendment made to section 831 of the Code of Civil Procedure, in 1879, is very broad, it seems such amendment has not removed the restriction heretofore imposed by statute, as to parties to an action for a divorce testifying in their own behalf.</p>

The defendant is a national bank, incorporated and organized under title 62 of the Revised Statutes of the United States, and is located in New Berne, North Carolina. The plaintiff is a stockholder in the bank, and entitled to recover certain unpaid dividends. The defendant is a solvent corporation, and has no place of business, or agent within this state.

<p>Answ&r— Sufficiency of denial —Effect of insufficient denial —Erivolousness.</p> <p>A denial in an answer, “upon information and belief,” is not authorized by the Code, and is insufficient.</p> <p>Where there is no sufficient denial for the purposes of the action, the complaint is admitted. Pacts set forth as a defense in an answer, inconsistent with the complaint, cannot be construed as a denial, so as to prevent the allegations of the complaint from being taken as true.</p> <p>A pleading will be held frivolous where there is a decision in point adverse to its sufficiency.</p> <p>That the answers were interposed in good faith, if frivolous, will not furnish any defense to a motion for judgment on such answers, but is good reason for allowing an amendment.</p>

<p>Motúm for new trial on the judge’s minutes—when and where to be made — Practice — Code of Giml Procedure, sections 997, 998, 999,1003.</p> <p>A motion for a new trial, made upon the minutes of the judge presiding at the trial, can only be made before him at the same term in which the trial was had.</p> <p>For the purposes of such motion, it is not necessary to make a case. The proceedings being fresh, the judge’s minutes are presumed to disclose the error, if. any exists.</p> <p>When a motion for a new trial is made at special term, it should be founded upon a case made and settled according to the rules and practice of the court. In no other way can it be well determined by a judge, other than the one who tried the cause, what transpired at the trial and what questions distinctly arose.</p> <p>An omission to move fora new trial on the minutes during the trial term, under section 999 of the Code of Civil Procedure, cannot he cured hy a subsequent direction of the judge before whom the trial was had, after the end of the term, that such motion he made at the special term upon the minutes of the judge who presided at the trial.</p>

The plaintiff presented her claims for her services. performed for the deceased, at his instance and request, to his executors and they disputed it and rejected it and a reference was agreed upon and approved by the surrogate. A motion was made to confirm the referee’s report and for costs, and it was granted at special term. A motion was made, upon a case and exceptions, to set aside the report, and denied at special term.

<p> New York city—Damages by change of grade of streets—Powers of assessors to alter lists—Mandamus. </p> <p>A person who, after the filing of the map changing the grade of a street, erects a building upon a lot fronting thereon, is not entitled to compensation for any damage sustained when the street is graded to conform with the new grade.</p> <p>The board of assessors of the city of New York have power to alter or change the list of awards and assessments in cases of manifest error or mistake, even after the list has been advertised complete, and may do so of its own motion.</p>

<p>Appeal from an injunction order restraining the defendant Ingersoll from issuing a warrant (in summary proceedings) to remove the plaintiff from certain premises, and restraining the defendant Cummings from taking any further steps to dispossess the plaintiff.</p>

This is a summary proceeding under the statute to dispossess the tenant from the premises No. 41 West Forty-fifth street, in the city of New York, rented with the furniture therein, for a term commencing August 1, 1878, and ending May 1, 1879, at $1,800 a year, payable monthly in advance.

This is an action of ejectment by plaintiff to recover an alleged dower interest, as the widow of one Christopher Jordan, in one acre of land in Rochester, Mew York, against the defendant, a purchaser under a partition sale. Summons was served on defendant October 26,1877; complaint, ■ -oher 15, 1877.

<p>Costs— JSonrresidents—when required, to furnish security for costs.</p> <p>A non-resident need not furnish security for costs if he begins suit in a justice court or municipal court, although such security could he compelled if suit was commenced in courts of record, hut not when an appeal is taken to the county court.</p>

The facts appear in the following affidavit used before the justice: STATE OF NEW YORK, j Out and County of New York, j ss‘ ‘ Mary Begen, being duly sworn, says that she is informed and verily believes, that William J. Davis, at the time of the letting hereinafter named, was the owner and landlord of the premises hereinafter described. That said premises are situated within the seventh judicial district of the city of New York.

justice Osboen, allowing exceptions to report of J. Rider Cady, Esq., referee in surplus-money proceedings. The claimant and appellant, Ebenezer Adams, had a mortgage upon the premises upon the sale of which, under a prior mortgage, the surplus moneys arose.

<p>Afew York (city of) — Removal of police commissioner—Mayor’s power judicial — Ms judgment upon question of removing police commissioner subject to review by supreme court on certiorari —Accused officer's right to know what the specific charges against him are — Oharges if not admitted must be proved—Right to cross-examine witnesses — Right to be represented by counsel.</p> <p>The mayor’s power as to removal of a police commissioner is judicial and his judgment upon the question of removal is subject to review by this court on a certiorari; the accused official has a right to know what the specific charges against him are ; such charges if not admitted must be proven, and the defendant should be permitted to cross-examine witnesses and to call witnesses in his own behalf, and in these and other respects to be represented by counsel</p> <p>If the return of the mayor to a writ of certiorari issued out of this court, to review his proceedings in making such removal, shows that in all or any of these particulars the relator in such proceeding was denied his rights, the mayor’s proceedings must be reversed, and his decision declared to be null and void.</p> <p>The return of the mayor to the writ of certiorari, in which is given all the proceedings had before him, on which a certificate of commissioner Nichols’ removal from office was transmitted to the governor, is given in full in the opinion, and it is held:</p> <p>That the relator did not have such a hearing before the mayor, as the twenty-fifth section of the charter entitled him to and, therefore, judgment should be rendered that the proceedings for the removal of the relator he in all respects reversed and set aside, and that the relator he reinstated in the office of police commissioner. (See, also, the Matter of Sidney P. Nichols, 57 How., 395 ; The People ex rel. Nichols agt. Cooper, id., 463 ; The People ex rel. Cooper, agt. Special Termal Chambers, id., 647 ; and The People ex rel. The Mayor agt. Nichols, ante. 200.)</p>

<p> Referees—thw'fees in pa/rtition. </p> <p>Referees making sales in partition are to he allowed the same commissions prescribed bylaw for executors and administrators {Laws of 1869, vol. 2, p. 1378, see. 4), viz.: For receiving and paying out all sums of money not exceeding $1,000, at the rate of five dollars per cent; for receiving and paying out any sums' exceeding $1,000, and not amounting to $10,000 at the rate of two dollars and flfty-eents per cent; for all sums above $10,000' at the rate of one dollar per cent (3 R, B. [6th ed.], 101, sec. 71).</p> <p>The commission is provided as a compensation for both receiving and paying out the money, and for that alone.</p> <p>Where a referee, who was appointed to make a sale in partition, sold the property subject to certain mortgages, the purchase-money actually paid being $7,650, while, the mortgages, subject to which the property was sold, appear in the aggregate to have been $16,500 :</p> <p>Held, that he could only charge commissions on the amount actually paid ; he could not charge commissions for the amount of the mortgages subject to which the property was sold.</p>

This was an action by the plaintiff to set aside the sale of three canal boats made by defendant Robinson, to defendant Roof. Plaintiff’s intestate and defendant Robinson were the owners of the boats, and it was alleged that defendant Robinson sold to defendant for an inadequate consideration, and that there was fraud in the sale.

Motion to give the defendant the liberties of the jail, where he is confined for non-payment of alimony and counsel fee.

<p>Win—construction of—bequests to unincorporated societies — misnomer or misdescription of a legatee or demsee—parol evidence allowable to identify — Costs.</p> <p>Where a clause in the testator’s will read as follows : “ Ninth, I give and bequeath to the American Bible Society, the American Board of Commissions of Foreign Missions and the Home Missionary Society, the sum of $1,000 each:”</p> <p>Held, 1st, that the Home Missionary Society, being an unincorporated society at the time of the making of the will and at the death of the testator, was not capable of taking the bequest in question :</p> <p>Held, 2d, that the statutes of 1849, and any amendments thereof, relating to joint-stock associations and suits against them, does not aid the defendant {Following McKeon agt. -Kearney, 57 How., 850).</p> <p>A misnomer or misdescription of a legatee or devisee, whether a natural person or a corporation, will not invalidate the provision if, either from the will itself or evidence aliunde, the object of the testator’s bounty can be ascertained.</p> <p>To identify a particular corporation as the one intended, where a name other than the corporate name is used, parol evidence is allowable to aid in determining the intention of the testator in the use of the words in the bequest.</p> <p>In an action for the construction of a will the costs are in the discretion of the court.</p>

<p>Habeas corpus —power of cowrt to grant stay of proceedings and admit prisoner to bail — under what circumstances application to admit to bail should be entertained.</p> <p>The provision of the habeas corpus act (2 R. 8., p. 584, see. 22 [Hdmond's ed.Jj, excluding from its benefits persons committed or detained by virtue of the judgment or decree of a "competent tribunal,” only applies where the tribunal had jurisdiction under some circumstances.</p> <p>The prohibition contained in said act (2 R. 8., 568, sec. 42), forbidding an inquiry upon return to the writ into "the legality and justice of any process, judgment, decree or execution,” specified in the provision above referred to, does not take from the court or officer having jurisdiction of the writ the power, or relieve from the duty of determining whether the judgment or process emanated from a court of competent jurisdiction, and whether the court had the power to give the judgment or issue the process.</p> <p>Where a writ of habeas corpus has been issued, under the provision of the nineteenth section of a/rticle 2 of title 6 of chapter 2 of part 4 of the Revised Statutes, there can be no doubt of the power of the court or officer after issuing such writ in a proper cas^ to grant a stay of proceedings, and, also, admit a prisoner to bail.</p> <p>The application is addressed, however, to the sound discretion of the court. It is not the right of the prisoner, after conviction, “to be let to bail, nor does the bare possibility that an error may have been committed entitle a prisoner to be bailed..</p> <p>After indictment, trial and conviction, an application should be entertained to admit to bail only in cases of great question and difficulty.</p>

Plaintiff sued, in the seventh district court, to recover $185 on a quantum meruit for goods sold and delivered to defendant Defendant claimed that the goods delivered were not what he contracted for. A trial was had before court and jury and a verdict rendered in favor of plaintiff for the amount claimed.

<p>Appeal from judgment recovered on the report of a referee.</p>

<p>Appeal — Form of judgment from which appeal is taken — Report of referee and, entry of judgment thefreon — A simple confirmation of a referee’s report not a final judgment.</p> <p>In an action brought by The People on relation of B. and by said B., who unites therein against the defendant K,. to determine the right of said K. to the office of inspector of weights and measures in the city of New York, the referee to whom the issues were referred found, among other conclusions, that neither B., the relator, nor K., the defendant, was lawfully entitled to said office; that the plaintiff, The People, were entitled to judgment against the right of the relator B. to hold said office and that he be ousted and removed therefrom, and he directed judgment to be entered accordingly; that the plaintiff, The People, were also entitled to judgment against the defendant K.; that he be ousted and removed from the office and for costs in this action, and he directed judgment to be entered accordingly. The relator excepted to the conclusions of law that neither he nor K. was lawfully entitled to the office, and to the conclusion that The People were entitled to judgment against him.</p> <p>The only judgment shown by the papers to have been entered is briefly as follows: That said K. was not duly and legally appointed to the office, and that he has intruded himself into said office and is exercising the duties thereof without lawful authority, and it is ordered and decreed that the report of said referee be, in all things, confirmed, and that the said K. he ousted and excluded from said office and that the plaintiffs recover of said defendant their costs. From this judgment B. appealed:</p> <p>Held, that there is nothing in the judgment as it appears in the papers upon which B. can sustain his appeal. The judgment, as entered, instead of being one against him is in his favor, so far at least as a recovery of costs is concerned.</p>

Demurrer. The plaintiff complains and for a first cause of action alleges: I. That at the city of Blew York, between the 15th day of March, 1879, and the seventh day of April following, the plaintiff, at the request and for the benefit of the defendant, performed work, labor and services reasonably worth the sum of $100. II. That defendant has neglected and refused and still neglects and refuses to pay the same or any part thereof though frequently requested so to do.

<p>Defense—Allegation of want of mffieient and adequate consideration — Averment that contract is inoperative and void for want of— legal conclusion— Bach of several separate answers must be regarded as if it stood alone — The rule of pleading recognized in such cases — Defense that plaintiff is not real party in interest is not a/vailable unless supported by facts pleaded like any other defense — Defense of recoupment available, if facts support it, whether pleaded f07' that purpose or otherwise.</p> <p>An allegation in an answer “that the contract set forth in said complaint is inoperative and void for want of a sufficient and adequate consideration therefor,” is an allegation of a conclusion of law. It is necessary to aver the facts which would show that there was no sufficient and adequate consideration.</p> <p>Each answer must, of itself, be a complete answer to the whole complaint, as perfectly so as if it stood alone. Unless, in terms, it adopts or refers to the matter contained in some other answer, it must be tested as a pleading alone hy the matter itself contains. If it is not complete, in and of itself, it is insufficient in law and cannot be sustained by reference to the other defenses contained in the answer.</p> <p>A defense that the plaintiff, is not the real party in interest, is not available unless supported by facts pleaded like any other defense.</p> <p>The defense of recoupment is available, if facts support it, whether pleaded for that purpose or otherwise. If the allegations in respect to that defense are not sufficiently definite and certain to enable the plaintiff to understand them, or to raise a clear and precise issue, the remedy by the plaintiff is by motion to make more definite and certain.</p> <p>Where the facts alleged in the answer are sufficient to entitle the defendant to a recoupment of his damages, even if they are obscurely or vaguely set forth, the answer is not, for that reason, demurrable.</p>

<p>Attachment — Gode of Oml Procedure, section 682 — mere levy not an actual application of attached, property under this section — Vacation of, by subsequent attaching creditor.</p> <p>A mere levy is not an actual application of the attached property under section 682 of the Code of Civil Procedure, so as to prevent a subsequent attaching creditor from applying to vacate the same as provided in this section (affirming 8. 0., ante 98).</p> <p>Where the levy is of goods, wares and merchandise, the actual application must he of the proceeds thereof after sale, to prevent the motion to vacate the attachment.</p>

Oh the 29th of January, 1880, James A. Flack commenced summary proceedings, under the statute, to dispossess Virginia Herring from the premises Ho. 305 West Twenty-second street, in the city of Hew York. The applicant, Hr. Flack, claimed title to the premises under an execution sale upon a judgment against the owner of the tenement and of the ground lease.

Prior to the commencement of the action the plaintiff filed her petition for leave to prosecute in forma pomperis and permission was given so to do. After issue the defendant, upon an affidavit stating that the plaintiff was a non-resident, made a motion to set aside the order permitting the plaintiff to prosecute m forma pauperis, and to compel her to file security for costs.

Mr. Holdridgb’s wife owned a house which was insured and was occupied by Lansing Northrup as a tenant. She set fire to it in the night and it burned down and the tenant’s furniture was destroyed, his family barely escaping injury. Mr. Holdridge was temporarily absent from home in a neighboring state and was in no manner connected with her act.

This was a motion to vacate an attachment granted against the defendants in a suit brought, against them as receivers appointed by the court of chancery of New Jersey, for the recovery of excessive freight alleged to have been charged by them as such receivers, for the transportation of milk to the city of New York.

Oisrthe28th day of November, 1878,Ward B. YanHousen, who was a merchant doing business at Howard, Steuben county, New York, made a general assignment of his property to Aaron McConnell, the plaintiff in this action. The assignment, after providing for payment of expenses of the trust and a pro rata distribution of the property to the creditors, has this provision: “ Third.

<p>Appeal from judgment and order overruling demurrer to complaint.</p>

<p> Application for a writ of errot' and a stay—If eweepiion presents plmsible ground of errror stay should be granted—When it is the legal duly of a jury to reject the whole evidence of a witness. </p> <p>If a jury are convinced of the intentional falsity of evidence and such willful perjury, committed for the purpose of deceiving and misleading them, has destroyed their confidence in the truthfulness of the man and of his whole story, it is their legal duty then to reject his entire testimony as proving nothing.</p> <p>Where, on a trial for murder, the prisoner had been a witness in his owh behalf and was the only person who gave direct evidence of the incidents of the transaction from having witnessed them, and the judge in charging the jury in regard to the evidence of the prisoner, among other things said: “And there is another thing in law which is just as clear and that is, when a party in a civil action deliberately swears false to one material part of his testimony, and the jury are satisfied that he has so sworn falsely, intentionally false, they are not only at liberty to reject it, but it sometimes is the duty of the jury to reject the whole. The maxim is falsus in uno, falsus in omnibus.” To this portion of the charge there was an exception:</p> <p>Held, that this exception did not present a plausible ground of error. Where a witness commits perjury in a part of his evidence the whole should be rejected, because the corrupt motive and purpose then manifested must destroy all faith in the man.</p> <p>■When any doubt exists as to- whether the witness has committed perjury in giving the evidence which is to be considered, it must be for the jury to decide whether, in the testimony to be weighed, perjury has been committed. But if that point, the actual commission of perjury in the cause on trial, is passed by an affirmative answer, it seems there could be no error in instructing the jury that a witness who has been confessedly corrupt and perjured, not upon some previous trial but during the progress of the one in which his evidence has been given to them, is entitled to no credit whatever.</p> <p>When an exception is taken to the enunciation of a legal proposition by the court, such exception only presents the legal soundness or unsoundness of the utterance. If the charge, as made, is legally correct and counsel suppose that it requires some explanation to prevent the jury from being mislead a specific request for that purpose should be made.</p>

<p>Jjihel—Complaint—Demurrer—Language which is not defamatory on its face — Actionable quality of words may be tested by demurrer.</p> <p>As applied to one in a professional character, the language that is claimed to he actionable, per sc, must “ touch him ” in that profession.</p> <p>Where the complaint alleged that plaintiff, for nearly forty years past, has been, and still is, a practicing dental surgeon, and was of good name, fame and credit in such profession; that the defendants maliciously published, concerning plaintiff, in their said journal, a certain article, containing many detractive mistatements, and especially the false and defamatory matter following, to wit: “ The late William H. Seward, when traveling around the world, and when at Tokohama, Japan, required the services of a dentist. Upon examination, it was found that the inferior maxilla was comparatively useless for masticating purposes, there being a false joint at the seat of the original fracture, no union having taken place. This case will be remembered, from the world-wide notoriety of the circumstances attending the injury, as well as the reports, which have been universally believed, that the patient was benefited by the treatment he received for the cure of his fracture-”</p> <p>Held, That the language is not defamatory on its face. It assumes to give an account of a circumstance in which many others besides plaintiff may be presumed to have had an interest. He is not therein referred to personally, or as one of a class. It is not alleged that no subsequent cure was effected, or that he was under treatment prior to the examination mentioned.</p> <p>-Held, also, that the allegations in the complaint, following the statement of the publication claimed to be libelous, can only be regarded as innuendoes to explain, not to extend the meaning of such publication.</p> <p>Held, .further, that no malice is presumable from the publication in question, and no right of action has accrued to plaintiff therefrom.</p> <p>To impute to a professional man ignorance, or want of skill, in a particular transaction, is not actionable. To be actionable, words of that character must be spoken or written of him generally.</p> <p>In an action for libel, the defendants have a right to test the actionable quality of the words by demurrer, and to that extent only is their pleading to be construed as an admission of the allegations of the complaint.</p>

■ On the 13th of June, 1877, Charles Pardee recovered a judgment in this court against the defendant for $1,184.44, which judgment was on that date docketed and filed in the office of the clerk of the county of Onondaga. On the fifteenth of June, a transcript was duly docketed in Mew York county, and an execution there issued was returned unsatisfied.

<p> Removal of cause—When may he removed. </p> <p>A suit by a corporation created by the United States, is a suit arising under the laws of the United States and may be removed under section 2 of the act of Ma/rch 3,1875 (18 II. S. Stat. at La/rge, 570).</p> <p>The mere allegation in the complaint that the plaintiff is a corporation created by act of congress, shows that the suit is one arising under the laws of the United States.</p>

The action is in equity and complains that on the 10th day of April, 1877, and prior thereto, the plaintiff and Charles P. Devlin were partners in business, doing work for the city of Hew York and for private parties, and continued as such to the time of the death of the latter.

<p>Surrogate of New York — His jurisdiction to vacate, modify and rescind orders obtained by fraud.</p> <p>The jurisdiction to vacate, modify and rescind orders in cases where the court has heen imposed upon, is exercised by the supreme court without question as to its right and authority so to do.</p> <p>The same power is conferred upon the surrogate of the city of New York by section 1 of chapter 359, Law of 1870, which provides that “the surrogate of this county has jurisdiction to set aside, open, vacate or modify the orders and decrees of this court with the same power as is exercised by courts of record of general jurisdiction.”</p> <p>Accordingly, where, on application to the surrogate for an order vacating and setting aside two orders, one of which accepts the resignation of D. B. as general guardian of minors and discharging him from his trust as such guardian, and the other of said orders releasing said guardian and his sureties from all future liability upon his official bond and for other and future relief: •</p> <p>Held, that it appearing to the satisfaction of the surrogate that the orders were procured from his predecessor by false statements made under oath, by a false receipt, by the suppression of facts and by deception practiced upon the court that they should be revoked because of the fraud.</p> <p>Held, further, that the accounting of the general guardian and the orders made thereon present no bar to a proceeding to vacate them for fraud under the act of 1870.</p>

<p>Surplus moneys—application for distribution of— Costs.</p> <p>Proceedings under chapter 804, Laws 1868, for the recovery of surplus moneys arising upon mortgage foreclosures by advertisement are special statutory proceedings.</p> <p>Successful claimants may, in the discretion of the court, be allowed costs under chapter 270, Laws 1854, at the rate allowed for similar services in civil actions.</p> <p>Proceedings for the recovery of surplus moneys arising upon foreclosures ' by action are proceedings in the action, and are similar to proceedings under chapter 804, Laws 1868. When costs are allowed, they must be at the rate allowed in proceedings for the recovery of surplus moneys arising upon forelosures by action, i. e., necessary disbursements and motion costs.</p>

Motion by defendant to vacate order of arrest on the grounds: (1.) Insufficiency of the' undertaking, it being under Code of Procedure as to form and not as required by Code Civil Procedure. (2.) Insufficiency of complaint and affidavit, because verified on information and belief only. The action was for deceit, in obtaining goods on credit, defendant falsely representing, as alleged, that he was solvent when he was insolvent.

<p>Assignment— what may be assigned— Covenant against incumbrances which is broken when deed is delivered is assignable — Parties—Complaint— Demurrer.</p> <p>The rule that a covenant in a deed against incumbrances which is broken when the deed is delivered, does not pass like covenants that run with the land to a subsequent purchaser, as it is a chose in action which is not assignable, is no longer the law in this state.</p> <p>Under the Code all choses in action are assignable, except those that, from their nature or because they are forbidden by law, cannot be assigned, such as the right to a revolutionary pension, the unearned salary of a public officer, the beneficial interest of a cestui que trust in certain cases, &c., and the action must be brought in the name of the assignee, he being the real party in interest.</p> <p>The distinction between a covenant and a covenant broken is, therefore, no longer material in this state, the covenant, though broken, being assignable and suable in the name of the assignee.</p> <p>The covenant against incumbrances (now that the objection that choses in action are not assignable no longer exists) necessarily passes to the person to whom the land is conveyed, together with the land, because, if there be an incumbrance, it affects the value of the land, and, to the extent of the incumbrance, impairs the title.</p> <p>Accordingly, where the plaintiff, by the sheriff’s deed, acquired all the rights in the property which the defendant had conveyed to B., and when the plaintiff, to save her estate from the effect of the incumbrance, was compelled to pay it off, the defendant having refused so tc do, Md, that she could maintain an action upon the covenant which had passed to her with the land by assignment, to recover the damages she had sustained hy the breach of it.</p>