Volume 7 — Abbott's New Cases

Trial by the court. The action was brought by Alfred M. Collins, Henry H. Collins and Edward Cope, to restrain defendant from using the number “ 35 ” and an imitation of the plaintiffs’ label. Plaintiffs manufacture most of the cards used for photographic mounts in this country. Their cards of various sizes and kinds are boxed each kind by itself, in a paper box, with a label on one end of the box.

Motion by plaintiff to continue an injunction. The defendants were proceeding to take up the pavements of the streets in the city of Brooklyn, and to lay pipes for conducting gas, and the' suit was brought by the city ; and the affidavit of the mayor, on the application for the injunction, stated that the defendants had never obtained the consent or permission of the municipal authorities, required by statute, or given the bond, &c. The affidavits of the defendants were to…

Motion by plaintiff to continue an injunction. This action was brought by the City of Brooklyn to enjoin the defendant, James Jourdan, - as receiver of the Mutual Gras Light Company, from opening streets, laying pipes, &c., in the said city.

Appeal by plaintiff from a judgment entered on a verdict, and from an order denying a new trial. The action was brought by Mrs. David, against the Williamsburgh City Fire Insurance Company, for $2,066.67, on a policy. Plaintiff insured in the defendant on June 5, 1877, for one year, as follows: $1,000 on furniture, wearing apparel, &c.; $2,000 on homestead, Pompton, Passaic county, N. J.; $500 on carriages and sleigh ; and $1,500 on three horses.

Trial by the court. This action was brought by William S. Livingston, Jr., and another, as executors, &c., against William Gordon, Frances Livingston, The St. Joseph’s Home, and The Society for the Belief of Destitute Blind, to construe a provision of the will of Ernest L. McCrackan. This will was dated October 11, 1875, and Mr. McCrackan died in February, 1878.

Motion by defendants to set aside a demand for a bill of particulars, and also by plaintiff to make answer more definite and certain. Two actions were brought by Charles A. Clegg against the American Newspaper Union, Andrew J. Aikens, William E. Cramer, John F. Cramer, and others ; both actions being, for the most part, against the same defendants.

The action was by Samuel' J. Hunt and others against Peter Lawless, to set aside a contract alleged to have been signed by the plaintiff, Hunt. The, evidence material to the question appears in the opinion.

Denis Coppers died on August 14, 1879, and his will directed the interment of his body in his burial lot in Calvary cemetery, which belongs to the trustees of St. Patrick’s cathedral; and expressed a wish that his ■funeral services be in some Protestant Episcopal church, and under the direction of the order of Eree Masons. Some years before, he had paid to the superintendent of the cemetery the purchase-money of a plot, taking a receipt therefor.

<p>Deed.—Cemeteries.—Incumbe atíce.—Vendor and Purchaser.— Covenant against Nuisances.</p> <p>A covenant against use as a cemetery is not an incumbrance on the title of a city lot, as between vendor and purchaser.</p> <p>Nor is a general covenant against nuisances, even though so vague as perhaps to invite unfounded litigation.*</p>

The action was brought by Samuel Hathaway against Henry Russell and William Watson. Held: that the rules and practice of the courts on the subject of accounting, existing at the time of the adoption of the code, are still in force.

<p>Accounting.—Specifications.—Examination on Pasty.</p> <p>On an accounting, the objections or exceptions of a contestant of the account may be in the most general form, unless it is apparent that the items are in the knowledge of the contestant.</p> <p>Objections which assume the objector’s knowledge of the inaccuracy of the items, may be required to be made more specific.</p> <p>Wherever a party, proposing to contest an account, desires to examine the accounting party in order to enable him to frame his objections to the account, it is his right to do so.*</p> <p>The surrogate, or in the county of New York, a referee appointed by him, under the act of 1870, will take the examination of an accounting guardian for this purpose.</p>

Appeal by defendant from a verdict directed by the court, subject to the opinion of the court at general term. The action was brought by Duncan McColl against the Western Union Telegraph Company, to recover certain commissions, which the plaintiff claimed he would have earned had the charters of vessels been concluded, which were lost from the defendant’s failure in due time to deliver a telegraphic message.

Appeal by plaintiff from an order of the general term of the second department of the supreme court affirming an order of special term, giving defendant leave to amend answer, and from a judgment; and also by defendants from a judgment granting a new trial. This was an action of foreclosure by the Knickerbocker Life Insurance Company against George W. Nelson, Ruea Nelson, Charles M. Watkins, and Philip Levy.

Trial by the court. This was an action by William B. Brown against Harrison Johnston and William M. Gawtry, to have an assignment of a bond and mortgage declared void, and for an injunction against the defendant, Johnston, and that the plaintiff be adjudged and declared to be the true owner of the mortgage.

Motion by defendant to open a judgment taken by default. This action was brought by Patrick Cuff against Jane A. Dorland, to compel specific performance of a contract for the sale of a parcel of land in New York city. At a second trial, granted by the court of appeals (57 N. Y. 560), defendant’s default was taken.

<p>Reference.—Executors and Administrators.—Parties.</p> <p>Pending a reference to determine a disputed claim against executors , ' or administrators under the statute—3 S. 8. 89, § 36 (3 Id. 6 ed. 96, § 47)—the court may, on motion, order that other persons, whose presence is necessary to a. complete determination of the controversy, be brought in.</p>

<p>Life Insurance.—Dissolution of Company.—Notice to Present Claims.—Policy-holders Creditors, not Partners.—Off-setting Premium Notes.—Reserve.—Rights of Annuitants. —Endowment Policies.—Mode of Ascertaining Present Value of Different Kinds of Policies.</p> <p>Where a policy-holder died subsequent to the appointment of a receiver to close up the affairs of a life insurance company, and after the time when a renewal premium became due, which remained unpaid, but the policy was in full force at the .date of the receiver’s appointment,—Held, that it was a valid claim to the amount due upon it as an unmatured policy.</p> <p>(Tnmatured endowment policies have no advantage or priority over ordinary unmatured policy claims, in the distribution of the assets of a dissolved life insurance company.</p> <p>Policies in such a company, which were, by their terms, made upon a gold basis, both as to payments of premiums and amount assured, should have the dividends due thereon paid in gold.</p> <p>Where, upon the application of a receiver, appointed upon the dissolution of a life insurance company, an order is made for the publication of notice to creditors to exhibit their claims, as required by 2 if. 8. 467, § 56, and the notice is duly published, claims against the company, not exhibited within the time mentioned in the notice, are precluded from sharing in the assets.</p> <p>Holders of unmatured policies in dissolved life insurance companies are not entitled to have a pro rata portion of the premiums paid by them refunded to them before the payment, out of the assets, of other creditors.</p> <p>The provisions of 2 li. 8. 470, §§ 75, 77, relating to refunding a portion of premiums, and canceling policies of insurance, are not applicable to life insurance companies, but apply only to fire and marine or other insurances, having a definite term to run.</p> <p>The holders of unmatured policies in a dissolved life insurance company are not partners in the company, but are creditors for the present value of their policies at the date of the dissolution of the company, as estimated from tables showing the expectancy of life.</p> <p>Where policy-holders have given notes in part payment of premiums, the amounts due upon such notes should be off-set against the value of the policies, and the dividend should be declared and paid upon the balance.</p> <p>The value of an unmatured paid-up policy is to be computed in the same way as that of unmatured policies upon which annual premiums are payable.</p> <p>The reserve is the balance of the premiums, ascertained by certain rules, necessary to carry the policy to maturity.</p> <p>Annuitants of a life insurance company, upon its dissolution, are entitled to receive the present value of their annuities, computed upon the basis of the Northampton Tables, with interest at six per cent.</p> <p>Annuities are not cases of insurance, and are not to be governed by the rules applicable to life insurance.</p> <p>Upon the dissolution of a life insurance company, death claims which matured before the dissolution have no lien, legal or equitable, upon the funds of the company, and are not to be preferred to claims of holders of unmatured policies.</p> <p>The general rules for estimating the values of running policies should not be used where, upon facts existing, the precise value of a policy may be easily ascertained.</p> <p>Hence, where a life insurance company was dissolved and a receiver appointed December 14, 1876, and a holder of a policy upon which the premiums had been paid to March 27, 1877, died March 15, and his administrator served upon the receiver proof of his death, May 23, 1877, long before the expiration of the time under the published notice for the presentation of claims, and by the terms of the policy' the amount insured was payable ninety days after proofs of death,— Meld, that the present value of the amount insured at the time of the dissolution of the company was to be ascertained in the same manner as the present value of any certain sum of money payable at a definite future day.</p>

<p>False Representation by Mortgagor.—Equity of Wife.—Subrogation.</p> <p>PlaintiSs, deceived by a mortgagor’s false representation that he was unmarried, lent him money on mortgage, and with it paid off and satisfied a prior mortgage, and taxes, &c. Held, that the wife being innocent, her inchoate right of dower was superior to the equity of the plaintiff.*</p>

<p>Fraudulent Conveyance.—Consideration.—Husband and Wife. —Marriage.</p> <p>The conveyance, by a man to a woman, of Ms property, in consideration of her marrying him, with her knowledge that the property remaining in his hands is not sufficient to satisfy the claims of his creditors, is void as against them.*</p> <p>It is not a sufficient consideration to sustain such a conveyance against creditors, that she gave up a profitable business to marry the grantor.</p> <p>Such a conveyance, made before marriage, upon a mere oral promise to marry, is void under the statute.</p> <p>If made for the taking care of the grantor by the grantee, it is void against creditors, as creating a trust for his own benefit.*</p> <p>* See In re Cornwall, 9 Blatchf. 114; and Livingston v. Gordon, p. 53 of this volume, and cases in note at p. 58.</p>

<p>Husband and Wife.—Abbest.—Damages to Wife fob Enticing away Husband.</p> <p>A married woman can sue and be sued without the consent of her husband, and without his being a party to the record.</p> <p>An action is maintainable by her for damages against any one for enticing her husband from her.</p> <p>In such an action the defendant may be arrested, under the provisions of the Code.</p>

Demurrer by defendant, to complaint. This action was brought by Ovide Dupre, as trustee for Clara Rein, against Philip Rein, to compel the payment of the amount agreed by defendant, in articles of separation between himself and wife, through the intervention of the plaintiff, to be paid for her support.

Application by the commissioners of public charities and corrections for confirmation of warrant of seizure of personal property of an absconding husband. This proceeding was instituted under 1 It.

<p>Sequestration.—Fraudulent Conveyances to Defeat Alimony. —Remedy.</p> <p>A sequestrator of the personal estate and. rents and profits of real estate of a defendant, appointed in an action for a limited divorce, upon the defendant’s default to provide an allowance of alimony made by the court, has no right, by virtue of his appointment, to maintain an action in Ms own name, to set aside conveyances of real estate, fraudulently made by the defendant, before sequestration was ordered.</p> <p>Any proceeding, to call in question the validity of the conveyance, must be in the original action, or in a new action, in the name of the party in whose interest the sequestration was ordered.*</p>

<p>Receiver. —Sheriff.</p> <p>Where the sheriff claimed property under an attachment and execution levied against G., and the receiver of the estate of the former partner of G. demanded it as part of the estate which had been used by the surviving partner in the firm business, it was stipulated, by the parties, that the goods should be sold by the receiver, and sufficient of the proceeds to satisfy the -execution and sheriff’s fees should be held by the receiver subject to the lien of the levy, if such were shown to exist.</p> <p>Held, 1. That, under the circumstances, the levy of the execution gave the sheriff a valid lien, which he could have enforced by sale.</p> <p>3. That the proceeds in the receiver’s hands represented the goods so levied on.</p> <p>3. That the court might, on motion, order the receiver to pay the judgment.</p>

<p>Trial by the court.</p> <p>This was an action by George G. Tarbel against Joseph W. Bradley and others, upon a mortgage made by a partner, upon his interest in a firm.</p> <p>The firm of Wests, Bradley & Carey was a limited partnership, consisting of Joseph I. West, James D. West, Joseph W. Bradley, and Alansen Carey, as general partners, and John C. Henderson as special partner. The partnership began January 3, 1865, and was to terminate December, 1867. The business was manufacturing and selling hoop-skirts, wire, &c., &c.</p> <p>By the articles of copartnership, Bradley agreed that he would not, during the continuance of the copartnership, without the written consent of all the other partners, engage in any business, speculation or adventure of any description, on private account, either individually or jointly with any other person or persons, or transact any business other than the regular and legitimate business of the copartnership, and would not contract any business debt, or engagement, on private, account, without such written consent. By the articles it was also agreed that neither of the general partners should use any of the funds or property of the firm except in and about the regular business of the firm, and for its benefit; and that they would not, during the continuance of the partnership, either in the name or on behalf of said firm, or individually or jointly with others, become indorser or surety in any manner or form, for any other person or persons, without the written consent of all the partners, general and special. Bradley’s duty in the copartnership was salesman. He had nothing to do with the financial affairs.</p> <p>The legal title to the real estate, in the possession and occupation of the copartnership, stood in the name of Joseph I. West, one of the general partners, individually. All the moneys paid upon the purchase of this property were copartnership funds. Insurance, repairs and all current charges were paid by the firm, and all income from rents was received by it.</p> <p>There was an account on the books of the firm entitled “ Beal estate account,” and all payments made by the firm on account of the real estate were carried into that account.'</p> <p>Brddley, by a mortgage which bears no date, but the execution of which is acknowledged on October 11, 1867, mortgaged to the plaintiff, for the expressed consideration of one dollar, all his right, title and interest individually, and as a member of the firm of Wests, Bradley & Carey, in and to the real estate of the firm, and all other property of the firm in and to which he had any interest, claim or demand, to secure the payment, by the East Tennessee Zinc Company, of one hundred bonds, for $1,000 each, as also the interest thereon. In case of default in the payment by the Zinc Company, of the principal or interest of the bonds, as they shall become due, the mortgagee was authorized to proceed according to law, to sell the whole or any part of the property, real and personal, and after payment of the bonds, principal and interest, the surplus was to be paid to Bradley.</p> <p>The instrument was recorded as a mortgage, on October 15, 1867, in the register’s office in the city of New York, in the Boole of Mortgages, and was on the same day filed in the same office.</p> <p>Bradley was at the time of the execution of the mortgage the president and a trustee of the East. Tennessee Zinc Company, which was organized in 1866 to work zinc mines in the State of Tennessee. The plaintiff took fifty bonds of the company of $1,000 each. He received a trust deed, executed by the Zinc Company upon its mines, to secure payment of the entire issue of bonds, $150,000, together with the mortgage of Bradley on his interest in the copartnership. The plaintiff was paid the interest due on his bonds in January, 1868, but since that time has received nothing for principal or interest. The principal of the bonds became due January 1, 1869. The plaintiff could, by the terms of his mortgage, have taken proceedings to enforce the same in July, 1868, when the default occurred in the payment of interest. But no proceedings of any nature had been taken by him, until this suit was commenced, in January, 1877. Neither of the other members of the firm of Wests, Bradley & Carey knew of the execution of the mortgage by Bradley to the plaintiff, until this action was commenced, ten years after the mortgage was given.</p> <p>Soon after the execution of the mortgage, the plaintiff called at the manufactory of West, Bradley & Carey, and saw Mr. Carey, one of the partners, to whom he was introduced, and then first saw the property of the copartnership, but he did not disclose to Mr. Carey,that Bradley had mortgaged his interest to Mm.</p> <p>By the terms of the copartnership articles, the same expired October 1, 1867.</p> <p>In fact, however, the business was continued until February Í, 1868.</p> <p>At that time a corporation was organized under the general manufacturing law of 1848, called the West, Bradley and Carey Manufacturing Company, which corporation purchased from the partners the entire firm assets. Each of the partners, except Henderson, the special partner, was paid for his interest in the firm of West, Bradley & Carey, with stock in the corporation, issued in amounts proportioned to his interest in the firm, upon a final account and adjustment of its affairs, as stated between the copartners at the time.</p> <p>The special partner, Henderson, was paid his share, $250,000 in cash, by the corporation.</p> <p>The amount of Bradley’s interest upon the books of the firm, upon the final liquidation, was $97,497.79, for which he was paid in full, with full paid-up stock of the company. Bradley had at no time informed his copartners of the existence of the mortgage. He has hypothecated most of his stock as security for moneys borrowed by him, and is now insolvent.</p> <p>The plaintiff by his complaint claims that his mortgage is a subsisting lien upon six thirty-seconds of the real estate and personal property in the possession of the West, Bradley & Carey Manufacturing Company, and seeks to have the same sold in this action, and his mortgage debt paid thereout, and that the defendants, including all the partners and the manufacturing corporation, be adjudged to pay any deficiency which may remain after applying the proceeds of the sale to the payment of the mortgage debt, to the value of the share of Bradley, being six thirty-seconds, in the property, disposed of by them, other than in the liquidation of the copartnership affairs.</p>

<p>Trial by the court.</p> <p>This action was brought by Robert Adams against Henry Adams, for an injunction restraining the defendant from using the firm name.</p> <p>For more than five years prior to March 4, 1879, the plaintiff and defendant were partners in business in New York city and elsewhere, under the firm name of R. & H. Adams.</p> <p>On that date the partnership was dissolved by an agreement in writing, duly executed by plaintiff and defendant, which agreement, among other things, provided that Henry Adams should have the right to continue the business for his own advantage solely, and that the plaintiff should transfer and convey to the defendant all the property of the firm, both real, personal and mixed, in the States of New Jersey and elsewhere, together with all choses in action and rights of every kind, and also all book accounts, profits and bills receivable, and assets of every kind, except a certain patent therein excepted ; and also the good-will and business of the firm, so that it should belong to the defendant exclusively. After the dissolution of the partnership the defendant continued the business under the firm name, pursuant to 2 R. S. 6 ed. p. 1158, allowing the continued use of copartnership names.</p> <p>The good-will of a firm is a part of the assets, and to be considered on a sale of the partnership business, and passes by such sale (Story on Part. §§ 99, 100, 211 and 212 ; Parsons on Part. 262, 444; Glen & Hall Manuf. Co. v. Hall, 61 N. Y. 226; Churton v. Douglass, 1 H. R. & Johns. Ch. 174 ; Banks v. Gibson, 34 Beav. 566 ; Bininger v. Clark, 10 Abb. Pr. N. S. 264; S. C., 60 Barb. 113). For the purpose of maintaining the business and carrying it on successfully, it is necessary for the defendant to have all the labels, trademarks, and other property incident to the business of the firm as it had been established, and as it existed at the time of the sale. They are a valuable part of the business assets, and pass by a sale thereof (Hall v. Barrows, 4 De Gex, J. & S. 150; Carmichel v. Latimer, 11 R. I. 395; 2 Pars. on Contr. 257; Witthaus v. Mattfeldt, 44 Md. 303). Defendant has a right to use the firm name under the statute (L. 1854, p. 1084, c. 400 ; L. 1863, p. 227, c. 144). Where there is a dissolution and no agreement as to the good-will, an injunction cannot be maintained by either partner against the other, for using the partnership name, where the name of the partner so using it forms a part of the name used (Lathrop v. Lathrop, 47 How. Pr. 532).</p>

<p>Replevin.—Claim and Delivery.—Pleading.—Warehouse-keeper. —Indemnity. —Interpleader. —Trespass. — Conversion. —Trover.</p> <p>The objection, that a complaint in an action to recover specific personal property alleges a trespass and a conversion, should be taken before trial; and if not so taken, and plaintiff shows a right to possession, the allegations of trespass and conversion may be disregarded as surplusage.</p> <p>A warehouse-keeper is not entitled to require a bond of indemnity from the true owner, as a condition of delivering' the property, on the ground that adverse claims to it are made. The remedy is an interpleader.*</p>

<p>Replevin.—Claim and Delivery.—Lien.—Joint Owners.—Possession.—Pleading.—Amendment.—Trial.'—Appeal.</p> <p>Where one made an agreement with the two joint owners of a trotting horse, to take, train and drive it for one-third its earnings, and that the expenses of keeping, &c., should be paid by the joint owners equally, and that he should have a lien on the horse for the expenses, and retain possession of it until they were paid, and he afterwards purchased the interest of one of the joint owners,—</p> <p>Held, 1. That the agreement was equitable, and that he had a right to continue to act under it after he became part owner of the property.</p> <p>' 2. That such an agreement was valid if" made between the joint owners.</p> <p>In the absence of such an agreement, one joint owner cannot, by an action of replevin, or proceedings of claim and delivery, take from the other the property owned in common, or set up and enforce an implied lien.</p> <p>Parties to an action may elect, on the trial, to take the words of the pleadings in a more liberal sense than the court would have given them, if the question had been raised, but they will be bound by their election.*</p> <p>Where an amendment to a pleading might have been ordered by the court on the trial, it may be amended on appeal, so as to conform, to the proofs.†</p>

<p>Jurors.—Verdict.—Personating a Juror.— Impeachment oe Verdict.</p> <p>The sworn statements of jurymen as to the extent and character of their private deliberations cannot be received to impeach or qualify their verdict.</p> <p>But where the verdict has been erroneously stated to the court or entered by its clerk, affidavits may be received to correct the error.</p> <p>Where the juror summoned did not attend, and some person, whose name was not on the panel, answered to his name and served, all parties being ignorant of the substitution,—Reid, that the verdict was that of eleven men only, and should therefore be set aside.</p>

<p>Trial by Jury.—Statutes.—New York District Courts.—Assert.</p> <p>Under 1 L. 1869, p. 932, c. 410,—which provides that in district court cases, if any party shall claim and the other assent, a jury of twelve shall be ordered, —the claim may be made at any time before trial.*</p> <p>The assent is sufficiently manifested by any conduct which satisfies the justice, and justifies him in putting the machinery of the court in motion to secure a jury.</p> <p>Statutes giving a right of trial by jury are to be liberally construed in favor of that mode of trial.</p>

<p>Contempt of Court.—Statutes not Retrospective.—Surrogate’s Power to Imprison Executor or Administrator for Contempt.—-Surrogate’s Court.—Courts of Chancery.—Code Civ. Pro. § 2.</p> <p>A new statute making a court a court of record, which formerly was not a court of record {Code Civ. Pro. § 2), is not retrospective in such sense as to prevent further steps in proceedings for contempt, &c., pending under the statute applicable solely to courts of record.</p> <p>Hence, a surrogate has power, in a proceeding commenced before the Code of Civil Procedure took efEect, to issue an attachment to imprison an executor or administrator for disobedience to a decree requiring him to pay over a fund shown to be in his possession.*</p> <p>Watson v. Nelson, 69 N. 7. 636, explained as only holding that the surrogate has not power to imprison on attachment for a fine imposed by himself.</p> <p>History of the power of courts of probate and of chancery, to imprison for contempt in non-payment of decrees.</p>

<p>Executors and Administrators.—Surrogate’s Decree for Payment of Money.—Contempt.</p> <p>An attachment against an executor or administrator for non-payment of money as required by a surrogate’s decree, cannot be issued, unless it be shown that he had the fund in hand at the time of decree.*</p>

<p>Application for naturalization.</p>

<p>Municipal Coepobations.—Intebpeetation op Statutes.—Sewerage.—Action.</p> <p>The act of the legislature (L. 1857, p. 100, c. 521), in relation to the sewerage and drainage in the city of Brooklyn, cannot be considered a part of the consolidation act (L. 1854, p. 829, c. 384) of that city, but was an independent act.</p> <p>The exemption of a city from liability for wrongful acts of its servants is in derogation of the common law, and should not be extended beyond the natural interpretation of the language of the statute freeing it from such responsibility.</p> <p>Although one may suffer, in common with others, from the wrongful acts of municipal officers, yet if he sustains damages peculiar to himself, he may maintain a private action therefor.</p> <p>The action of the water board of a city in planning a sewer in pursuance of an act of the legislature is a judicial act, for any error of ‘ judgment wherein the city will not be responsible; but if there is, a departure from such plan, and damages result, it will be liable therefor.</p>

<p>County Treasurer.—Commissions.</p> <p>County treasurers, since they have become salaried officers, are not entitled to exact, for their own use, fees or commissions for receiving and paying out moneys passing through their hands in the course of legal proceedings.</p> <p>But they must demand and receive the commissions provided by law, ■ and apply them to the use of the county.</p>

<p>Inquisition of Lunacy.</p> <p>The recommendation of a jury in its verdict of sanity, on an inquisition of lunacy, that the alleged lunatic, from long confinement and its consequences, may require some temporary guardianship, is proper; and does not impair the legal effect of the verdict.</p> <p>In such a proceeding the supposed lunatic may appear and testify before the jury.</p> <p>Counsel may also sum up his case before the jury.</p>

<p>Insane Persons.—State Commissioner in Lunacy.—County Commissioners of Charities.—Insane Asylums.</p> <p>The commissioners of charities of a county, in the exercise of their powers, are subject to the supervision and control of the State com- ■ missioner in lunacy, who may require them to conform, in their management of the county insane asylum, to his directions.</p> <p>Where, from evidence laid before the State commissioner, he believes that any person is wrongfully deprived' of his liberty, or is maltreated in any institution for the insane, or there is inadequate provision made for the skillful medical care, proper supervision and safe keeping of the insane, he may institute a formal inquiry, of a judicial nature, into the matter, and may issue process to compel the attendance of witnesses, and production of papers, &c.; and while conducting such inquest, he is invested with the same powers as belong to referees.</p> <p>His function's, in respect to such an inquest, are analogous to those of a grand jury; and he need not resort to compulsory process, but may take and act on evidence voluntarily laid before him by affidavit.</p> <p>The powers conferred upon him by the legislature should be liberally interpreted.</p> <p>Where, in a verified petition to the State commissioner in lunacy, facts were stated which tended to show that county commissioners of charities had made inadequate provision for the skillful medical care of the insane under their charge^—Reid, that the evidence was competent, and, if satisfactory to the State commissioner, sufficient to give him jurisdiction to make an order requiring the county commissioners to retain the medical superintendent of their asylum until good and sufficient cause for his removal had been shown them.</p>

<p>Abatement.—Former Recovery.—Res Adjudicata.—Master and Servant.</p> <p>To sustain an answer of a former recovery, it should appear that the demand for which the second suit is brought, was, or under the pleadings might have been, litigated and determined in the first action.</p> <p>The rule of practice requiring that all demands that are due, and which have some relation to the same contract, should be combined in an action brought in respect to such claims, is largely one of mere convenience.</p> <p>An artisan employed at weekly wages, and a commission on the product of"his labor to be computed and paid at periods of not more than six months, who is wrongfully discharged, is not barred by his own recovery in an action for his weekly wages, from maintaining a separate action for commissions on a period subsequently expiring.*</p>