Volume 8 — Howard's Practice Reports

This action was brought - to recover land, and was tried at the Rensselaer circuit in December 1849. The verdict was for the plaintiff. The judge who held the circuit made an extra allowance of costs to the plaintiff of one hundred dollars. The defendant made a case, upon which a motion for a new trial was made at a special term. The motion was granted on the ground that the verdict was against the weight of evidence.

The defendant having demurred to the complaint, the issue of law thus made, was tried, at a special term held in Albany, in June 1852. Judgment was given for the plaintiff with liberty ■to the defendant to amend, on payment of costs. The defendant appealed to the general term, where the order was reversed, and judgment given for the defendant, upon the demurrer, with liberty to the plaintiff to amend on payment of costs.

The action is upon a promissory note made by defendant Dorshimer, payable to defendant Clifton or order. The making and endorsing of the note and its delivery to the plaintiff, are alleged in the complaint, and the proper allegations of demand of payment and notice to charge the endorser.

The action is for an assault and battery committed in August 1850.

The plaintiffs are subjects of Great Britain, and residents of Glasgow, &c., and trustees of Duar The complaint is upon information and belief, and sworn to by ' Mr. Foster, the attorney of the plaintiffs. The material charges in the complaint are, There was a deficiency to the amount of £212'13'02, in the proceeds of certain pot and pearl ashes, sold by the plaintiffs for one Thomas Rigney, which deficiency Rigney was to pay the plaintiffs.

<p>The facts of the case appear in the opinion of the court.</p>

An action was commenced by the plaintiff against the'defendants, trustees of a school district in the village of Whitestown, to recover for property taken to satisfy a district tax. A portion of the tax was levied under the Free School Law of 1849. The action was commenced in August 1850, and tried before Judge Gridley, and a verdict given for the plaintiff.

<p>An answer is insufficient, if it denies merely upon information an allegation, the truth or falsity of which is within the defendant’s own knowledge.</p> <p>It is also insufficient if it allege merely that the defendant has not sufficient knowledge on the subject to form a belief, without referring to his information.</p> <p>It is only when he has neither knowledge nor information to enable him to form a belief on the subject, that he can controvert an allegation under this provision of the Code.</p>

This cause was tried before Justice Harris, without a jur.y, in November 1852, and a decision made therein on the 13th January 1853, by which the complaint was dismissed without costs as to defendant Betts, and with costs as to the defendant Smith. The defendant Smith, now moves for an extra allowance of costs under section 308 of the Code, and excuses his delay in making the application on the ground of professional engagements.

This was a motion for readjustment of costs. The complaint was dismissed “ with costs,” as to defendant Dick, at the last December special term, for the reason that the defendant had not brought the action to trial according to the course and practice of the court.

This action was instituted in August 1849, to foreclose a mortgage executed by the defendant Legg to the plaintiffs upon a dwelling house and about six acres of land situated in the fifth ward of the city of Rochester. A judgment of foreclosure in the usual form was entered some time prior to the 13th day of May 1850. None ot the defendants appeared in the action.

<p>In reference to the confession of judgments under 5 383 of the Code.</p>

The complaint is for an assault and battery, and states that on the second day of October 1852, at Rochester in (he county of Monroe, the defendant unlawfully and with force, assaulted the plaintiff and seized hold of him and thrust him on the ground and injured the person of the plaintiff, and claims $500 damages. The complaint is verified by the plaintiff in due form, and was served October 12, 1852.

The action was brought under the lien law of 1851, by the mechanic against the owner.

The action was commenced by the service of a summons only, in November 1851. The summons contained a notice pursuant to first subdivision of § 129 of the Code; and afterwards the plaintiff filed a complaint setting forth a demand arising on contract, charging therein that the debt was fraudulently contracted, and setting out the acts constituting such fraud.

Motion to set aside an ex parte order staying proceedings; and also that the plaintiffs be required to file security for costs. The action was tried before a referee, who reported in favor of the defendants.

The complaint alleges that the plaintiffs are the owners of a promissory note of which the following is a copy, and that there is due to them thereon from the defendants the sum of $500, with interest from the 28th day of June 1852, which sum and interest, with seventy-five cents notary’s fees for protesting said note, and the costs of this action the plaintiffs’ claim to recover, of and for which they demand judgment against the defendants.

The plaintiff brought an action against the defendant for a trespass in taking personal property and recovered less than $50 damages. He moved, on the testimony and pleadings in the cause for a certificate that the trespass was willful and malicious, and for costs.

This was an action brought for the conversion of personal property by the seizure and sale of it, on an execution against one Benjamin Drought, in favor of the defendant Curtiss, and by his direction. The answer sets up that the property belonged to Benjamin Drought, and justifies under a judgment and execution against him. The issue joined in the cause was referred to E. A. Wetmore to hear and decide in October 1851.

The complaint in the first suit sets forth a conlract, whereby the defendant sold, or agreed to sell to plaintiff, one-half of a screw steam boat then building in defendant’s yard, to be complete and ready for sea, on or before the 1st January 1850. The language of the contract is, “ agrees to sell, and by these presents does sell.” The price fixed is $30,000.

The object of the action is to foreclose a mortgage executed by Richard B. Thornton and wife, to secure the payment of a joint and several promissory note, made by all the defendants except Thornton’s wife, and for a judgment against the makers of the note for any deficiency upon the sale of the mortgaged premises. Richard B. Thorntonj the mortgagor, defends. The other, defendants interpose no defence.

The action was commenced, in May 1852, by the service of a summons, without complaint. The defendant duly appeared and demanded a copy of the complaint. On the first of November a copy of the complaint, and also of an injunction, which had been granted on the same day by a justice of this court, without notice to the defendant’s attorney, were served.

The plaintiffs, commissioners of highways of the town of Waterford in the county of Saratoga, complained that the defendants are unlawfully engaged in digging a cut and excavation for their rail road through and entirely across a much traveled public highway, in the town, and within sixty rods of the village of Waterford, which cut and excavation is partially completed, and is intended to be, when completed, of the width or breadth of about 150 feet, and of the depth of…

Motion to strike out all that part of the complaint, except so much thereof as related to the claim for the recovery of the whole of the premises therein described, or that the same might be made definite and certain.

In 1845, the plaintiff, not being at that time a householder, purchased a bill. of goods of Clarke & Hobbie, merchants at Cazenovia, and on the 4th of February 1846 he gave his note for the balance due on the bill. This note was renewed by a new note dated May 10th 1851, upon which a judgment was rendered by a justice of the peace.

<p>In the first two causes attachments were issued to the sheriff of Greene, under the 231st section of the Code, on the 10th of April 1852. It appeared by the inventories returned by the sheriff, and by his returns on the attachments, which were dated October 26, 1852, that he levied on the defendant’s personal property only on the day the attachments were received by him. Judgments were recovered in these suits which were docketed on the 21st day of June 1852.</p> <p>In the third suit judgment was docketed on the 16th June 1852</p> <p>Executions on all the judgments were afterwards issued, and the sheriff of Greene sold real estate which not being sufficient to satisfy all the judgments, the plaintiffs in the first two suits moved at special term for an order, directing the sheriff first to apply the avails on their judgments. The motion was denied by Justice Harris, and from that order the plaintiffs in the first two suits appealed.</p>

This was an application on the part of Joseph Russell, to amend the certificate .of sale by the sheriff of Warren county, of certain lands of the defendant, Aaron Varnum, by virtue of executions issued upon the judgments in the above entitled causes, by expunging from said certificate the clauses containing lot number seven in AbeePs patent, particularly bounded therein, and containing about 93 acres of land.

The plaintiff had obtained a judgment upon the report of a referee and claimed, upon the adjustment of costs, before the clerk, $10 for each time that the cause had been noticed for a hearing. The clerk had refused to make the allowance, and . by the consent of the attorneys the question was referred to the decision of the judge at chambers.

This was a motion in behalf of the defendant, to set aside the plaintiff’s proceedings for irregularity; also to strike out portions of the complaint for redundancy, and also to require the plaintiff to make said complaint more definite and certain.

Motion to vacate an injunction order served on defendant March 8, 1853, on six different grounds stated in the notice of motion, or for such further or other order as the court might grant. It appeared that the only paper served on defendant with the injunction order was the summons.

The action was to recover land. The defendant sent with his answer, which was a general denial of the complaint,' an offer under § 385, allowing the plaintiff to take judgment for a certain part of the premises claimed. The offer was not accepted, and notice of trial was served within' two days thereafter. The plaintiff did not obtain a more favorable judgment than the offer. The questions were as to the costs to be allowed to each, and extra costs.

By an order at special term of the 10th January 1853, the defendants were required to give to the plaintiff, within twenty days, &c., “ sworn copies of all entries contained in any books, and of all papers and documents in their possession, or under their control, in reference to, or showing when, under what circumstances, for what purpose or consideration, and by or from what person or persons a post note and some Indiana bonds, particularly described, were transferred, or…

Motion on the part of defendant, that complaint be dismissed, in consequence of plaintiff’s neglect to proceed to trial at the Circuit Court held in the county of Ontario, on the second Monday of November last, pursuant to notice.

The complaint in this cause alleges that the plaintiff was the only child of Ransom Dutton, late of the town of Eagle in the county of Allegany (now Wyoming), and who was seized of two farms in said town of Eagle, one of them containing one hundred acres and which was worth $2500, and the other containing one hundred and fifty acres and which was worth $3000.

<p>S., being the owner of real estate, several judgments were obtained against him (with others) in L843 and 1844. W. was sheriff in 1843 And T. in 1844,' and H. was deputy under both of them. Executions were issued on the judgments, some in 1843 and some in 1844, which were all paid but two, except the sheriff’s fees thereon, some of which were not paid. There were other subsequent liens, and S. had subsequently conveyed his real estate for full value. In 1852, the deputy sold the lands of S. as deputy of the late sheriff W,, and claimed to apply the surplus, after paying the two executions, in payment of his fees on the other executions. Held, that the sheriff’s •fees on the other executions could not be retained out of t.he surplus.</p> <p>After the judgments were paid to the plaintiffs or their attorneys, the vitality of the executions ceased, and the fees of the sheriff, being a mere incident to the judgments, was not a lien upon the real estate of the judgment debtor, nor could that be sold to pay them.</p> <p>Knickerbocker vs. Shipherd (3 Cow, 3S3), so far as applicable to this case overruled.</p> <p>It seems, if he could have retained the surplus to pay the unpaid fees on executions in his hands, as deputy of W., he could not have done so as to the fees on the executions in his hands as deputy of T., unless the fees bad been a lien upon the land.</p> <p>When a former sheriff returned that he had property on hand for want of buyers, it seems it is irregular to issue a renditioni exponas, to the new sheriff. Such w'rit is but a branch of theff. fa.</p> <p>On a writ of renditioni exponas, issued on a return to a fi. fa. that he has levied upon sufficient goods to make the judgment, the sheriff is bound to make the judgment out of those goods.</p> <p>Whether in a suit against him, he may show the property was of less value than the amount of the judgment, querel</p>

Defendant moved to vacate an order of arrest. The action was brought to recover the “ possession of personal property.” The sheriff returned that he had served the papers on defendant, and demanded of him the property, which he refused to give up, and he further certified» “ that the property has been concealed or disposed of, so that he could not take the same.” On an affidavit stating the proceedings and sheriff’s return, and that the defendant wrongfully took and detained…

<p>Where a motion is made and denied without any leave given to renew it, the motion can not be again heard without first obtaining leave of the Court. And this relief can not be granted under the general prayer, as a legitimate object of the principal motion. The necessary facts must be shown, and the special relief asked for.</p> <p>Under the 36th and 37th sections of the Revised Statutes, which allows new trials in actions of ejectment, one may be granted on payment of costs, (§-c., without showing any cause whatever, and one where the court is satisfied that justice will be promoted, §-c., but no more than two new trials can be granted under this statute.</p> <p>It was not the intention of the statute that each party should have two new trials, although one party should succeed at one trial and the other at the next.</p>

The plaintiff obtained a decree of foreclosure and sale of mortgaged premises, upon a mortgage executed by the defendant Bush, upon which decree there remained unpaid about the sum of three thousand five hundred dollars. A part of the premises had been sold and the proceeds of the sales applied on the decree previous to entering into the stipulation mentioned below.

The action was brought for the recovery of money on a demand not entitled to interest. The referee to whom the cause was referred, made his report on the 1st of December 1852, but dated his report as of the time the cause was submitted to him, which was on the 7th February 1852. In entering up judgment on the 10th March 1853, the clerk computed and included in the judgment, interest from the date of the report. The defendant applies for a readjustment.

This motion was made to set aside the reply to the defendant’s answer for irregularity. The alleged irregularity consists in omitting, in the copy served, the officer’s name before whom it was verified.

The relator in this case was the collector of the district, and as such had been sued in three several actions, and incurred costs, charges and expenses, which he had paid; and in order to reimburse himself had made out an account of such charges, costs and expenses, so paid by him, with the items, and verified the same, and served a copy of such account and notice of his application to the board of supervisors of Chatauque county, for an order requiring the payment of such…

<p>“ Where the claim of title to real property arises on the pleadings,” and the plaintiff recovers a verdict, he is entitled to costs of course.</p> <p>If the defendant puts the title in issue and compels the plaintiff to prepara to prove it, he can not relieve himself from the liability, by admitting the title on the trial.</p> <p>The only evidence that can he received as to whether or not “ the title came in question at the trial,” is the certificate of the judge who tried the cause.</p>

<p>It is unsafe to admit parol agreements in relation to canceling judgments and settling suits to prevail in opposition to the oath of the adverse party, except under very special circumstances. The written evidence of what took place should be adhered to; and as a general rule required, of the settlement of a legal controversy.</p> <p>The history of this case given, as illustrative that, notwithstanding the injunction of the Code requiring all pleadings to be drawn “ in such a manner as to enable a person of common understanding to know what is intended,” in a simple action claiming the immediate delivery of personal property, after nearly a four years’ litigation, one of the parties was, on oath, compelled to admit that under the pleadings and proceedings, he was unable to understand “ his true position.”</p> <p>Whether the several “ counsel ” engaged in the case, from time to time, were able to understand it, quere.</p>

The plaintiff re covered a. judgment on demurrer against defendant at special term, and the latter appealed to the general term. under §348, without giving security, or obtaining an order to stay proceedings. After the appeal was made, the defendant removed from the state, and the plaintiff now moves for an order obliging him to file security for costs under 2 R. S. 620, §. 1 and 2.

The action was on a note alleged to have been made by the testator to the plaintiff for $2000, payable with interest. 1. The answer first denied the execution, &c., of the note. 2. Pleaded want of consideration; that the note was intended as a gratuity, or gift. 3. That the note was obtained by the covin and fraud of plaintiff. 4.

The defendant holds a mortgage upon a piece of land now owned by the plaintiff, and which he purchased subject to such mortgage. There is a bond with the mortgage; both bond and mortgage bear date the 23d day of April 1850.

This was a motion to strike out an answer as frivolous. The action was upon a promissory note by the payee against the maker; the complaint was in the usual form, but the answer merely denied upon information and belief that the plaintiff was the “ lawful bolder and owner of the note.” The plaintiff had noticed the cause for trial at two or three successive terms after the service of the answer, and upon this ground it was insisted that the motion was too late.

Marvin, Taggart and Mullett, Justices. The action is upon a joint and several bond in the penalty of $125, purporting to have been executed by the defendants to the plaintiffs, dated May 5, 1851. It was recited in the condition of the bond that Cram had applied to the commissioners of excise of the town of Lockport for a license to sell strong and spirituous liquors as a grocer. It contained the usual condition.

The action is commenced to redeem lands from a mortgage foreclosure, under the following circumstances: In 1835, John S. McKibben and Thomas Nichols, being the owners of the premises in question, mortgaged the same to the defendant, Jacob De Bevorse, for the sum of $1337. On the 19th July 1841, McKibben filed his petition under the bankrupt act, and was by decree duly declared a bankrupt on the 16th July 1842.

The plaintiffs recovered judgment in this court against the defendant for S‘78'97. Execution was duly issued and returned wholly unsatisfied. The county judge upon an affidavit made an order, July 17, 1852, requiring the defendant to appear before a referee appointed by him, to take the examination of the defendant and other witnesses, on the 22d day of July, and to make disclosures on oath concerning his property.

<p>By the true construction of the Code an injunction can not be granted to stay or suspend proceedings under the statute (SR. S. 516 ) for the recovery, by summary proceedings, of the possession of houses or lands.</p>

The action was noticed for trial and placed upon the calendar at the Circuit Court held in the county of Livingston in October 1852, when it was referred by consent to Scott Lord, county judge of that county, as sole referee, to hear and decide the action. A trial was afterwards had before the referee, who reported in favor of the plaintiffs; upon which judgment was entered for $580'14. damages and costs, and an execution issued thereon to the sheriff of Livingston county.

The respondent in this cause since the filing of the return in this court has died. His executrix now applies to be made a party to the appeal and it is objected, 1. That this application must be made in the court below, &c. 2. That it does not appear that respondent’s death has occurred within one year and so relief can be had only on supplemental complaint.

<p>The 167th section of the Code imposes upon the party who would unite several causes of action in the same complaint that they be separately stated.. Where this requirement is disregarded, the plaintiff can not defend his complaint against a demurrer founded upon the improper union of several causes of action, by showing they were such as, by the provisions of the 167th section, he was authorized to unite in the same complaint.</p> <p>Where the complaint contained allegations, mingled and connected together, constituting three distinct grounds upon which the plaintiff relied to sustain a recovery, each involving a legal question distinct from the others, held, that the defendants had a right to have these distinct and independent grounds of action separately stated, so that by answer or demurrer they could present the appropriate defence to each, they being such causes of action as might be lawfully united.</p> <p>Six grounds of demurrer are specified in the Code. It is enough to authorize a demurrer that any one of these objections appear upon the face of the complaint. The demurrer must specify distinctly upon which of the several grounds of objection which justify this pleading, the party relies.</p> <p>If the ground of objection, stated in the demurrer, is, in substance, any one of those specified in the 144th. section of the Code, it is good as a pleading.</p> <p>Except in reference to the alleged want of jurisdiction (whether of the person or the subject matter), ox a defect of parties (plaintiff, or defendant), all. grounds of demurrer may be properly stated in the very words of the statute. (This agrees with Durkee agt. the Saratoga and Wash. R. R. Co., 4 How. P. R. 171; Swift agt. DeWitt, 3 id. 280; Hyde agt. Conrad, 5 id. 361, and is adverse to Purdy agt. Carpenter, 6 id. 361.)</p> <p>A demurrer is only appropriate when the ground of objection appears on the face of the pleading.</p>

The respondent, Hees, who is also the attorney, swears that the last day fixed for the justification of the sureties, on the appeal in the above action, was on the 2d day of September 1852^ at 10 o’clock A. M-, before Judge Belting, at his office in Amsterdam, ^Montgomery county.

<p>An answer does not contain a double defence because it denies two facts, both-of which are necessary to make out a good cause of action.</p> <p>All the material facts constituting one cause of action, may be denied generally or specifically in one answer, but not in the alternative form.</p> <p>The 150th section of the Code, requiring several defences to be separately, stated, does not relate to' defences consisting of mere denials of the allegations in the complaint, but to distinct affirmative defences. It must be new matter. It seems, that the last clause of section 160, providing for an indefinite and uncertain pleading to be made definite and certain, does not apply to defences which consist in mere denials of the plaintiff’s allegations, but to new matter.</p>

On the 24th May 1839, Charles Hoyt, being indebted, entered into a written agree ment to pay the defendant $3000, with interest at six per cent on the 1st day of May 1842. On the 15th August 1840, he assigned to the defendant, as collateral security, certain things in action, among which was a mortgage executed by one Corbitt, for $4700, upon which was then due $3500, besides interest The mortgaged property consisted of thirty-six lots in Williams-burgh.

Motion to set aside complaint on the ground that the summons is not endorsed as required by statute (2 R. S. 481, §7), and that the folios are not numbered or marked, pursuant to rule 44. The action is for penalties for violations of the excise law. The summons and complaint were served together, pursuant to the Code. The motion is founded on two affidavits, either of which exceeds two folios in length, which folios are not marked or numbered.

Motion by the plaintiff to take the defendant’s answer from the files of the court, on the ground that the defendant has not appeared by her next friend or guardian, and for such other or further relief as the plaintiff is entitled to, for reasons appearing on the papers in the action. The motion is founded on the affidavit of the plaintiff’s attorney, served with the notice, and upon the complaint and answer in the action.

This was an action of trespass upon land. The defendant answered by denying the whole of the plaintiff’s complaint, and averred title to the locus in quo in himself. To which answer the plaintiff replied by denying the defendant’s averment. The defendant now moves to strike out the reply.

Notice to set aside judgment for irregularity. The complaint was upon two promissory notes alleged to have been made by the intestate. The verification to the complaint was in the following form: c A. Waggoner, the above plaintiff, being duly sworn says, the above complaint is substantially true, of his own knowledge.” The defendants put in an answer without verification, which the plaintiff’s attorney returned and entered up judgment as though no answer had been received.

The defendant Moon moved to vacate the order under which he had been arrested, upon affidavits controverting those upon which the order had been granted. The action was upon contract, and it appeared that the plaintiffs had obtained a judgment and had issued an execution against the property of the defendant, and these facts were relied on as a bar to the motion. The application was also resisted upon the merits.

<p>Where in the complaint the charge of libel set out “ This scoundrel was indicted at San Francisco, February last, for fraud; arrested by C. A. Hosmer,” with appropriate inuendos. And the answer set up a justification that, the plaintiff had been indicted and arrested for a conspiracy to cheat and defraud,.held, that such a justification did not reach the charge of being a “ scoundrel.”</p>

<p>The suit was commenced for the purpose of dissolving a copartnership and settling its affairs. Some of the defendants denied the existence of the copartnership and took issue upon certain other facts. The cause was referred to a referee to hear and decide the issues of fact and report thereon. The parties met before the referee End put in their testimony touching the existence of the partnership. The defendants’ counsel then moved for a dismissal of the complaint on the ground that no partnership was proved. This motion having been argued at length was taken into consideration and afterwards decided by the referee in favor of the plaintiff. The referee made a report upon that question and stated that the partnership was proved and an account ought to be taken.</p> <p>The plaintiff filed the report, and without notice, entered an order dissolving the copartnership and directing an account to be taken. Defendants now move to set aside the report and order as irregular.</p>

Issue was joined in this action prior to the Circuit Court, held in the County of Yates, on the third Monday of April inst. The action was noticed for trial by both parties for that circuit, and put upon the Calendar. On the first day of the circuit the cause was reached and called in its order and passed, 'neither party moviiig it.

This was an application ex parte on the part of Samuel Lewis and Martha, his wife, residents of Mechanicsville, Saratoga county, for the appointment of a guardian or special committee of Hugh Payn, on the ground that he is a person of unsound mind, and incapable of managing his affairs.

Motion to strike out complaint under § 394 of the Code. After issue joined, the action was referred to E. Griffin, sole referee, to hear and decide the same. The trial before the referee commenced on the first day of September, 1852, and after some evidence had been given on that day, it appears to have been adjourned until the 16th day of November following.

<p>The action is upon a promissory note. The answer set up new matter by way of defence—to such new matter the plaintiff replied. On the 11th of April a motion was made to strike out a part of the reply, as redundant or irrelevant. That motion was granted. The order provided that the defendant should have ten days from the 19th of April to demur to the reply.</p>

<p>A demurrer to an answer which does not contain new matter constituting a counter claim, is a nullity; and may be treated as such by the defendant. (See the next preceding case of Simpson agt. Loft.)</p> <p>A motion to strike out irrelevant or redundant matter, or to correct a pleading, must be noticed “ before demurring or answering the pleading, and within twenty days from the service thereof,” (Rule 40.)</p>

This was an action in the nature of replevin, to recover a horse. The referee before whom the cause was tried, found for the plaintiff, six cents damages, and assessed the value of the horse at twenty. five dollars. The plaintiff proceeded to have his costs adjusted at the like sum of twenty-five dollars, supposing that he was entitled to recover as much costs as the value of the property and damages. The defendant now moves to strike out all the costs except twelve cents.

Motion on the part of the plaintiffs to set aside an order obtained by the defendant at the last circuit, under the 258th section of the Code of 1851, dismissing the plaintiff’s complaint, for irregularity and on the merits. The action having been noticed for trial and put on the Calendar by both parties, and the plaintiff not appearing on its regular call, the defendant’s counsel applied for and obtained the order in question.

<p>There is but one safe rule in stating actions or defences, and that is, to indicate distinctly, by fit and appropriate words, where'the cause of action or statement of defence commences and where it concludes. (See Benedict ■agt. Seymour, 6 How. P. R. 298.)</p>

This was a modem for an order directing a decree to be entered nunc pro tunc, as of the 18th day of June, 1851, pursuant to a decision of Mr. Justice Willard. The first action was in the nature of a bill in equity for relief. The second, which was called a cross bill, was brought to trial before Judge Willard, at a circuit and special term, in Montgomery county, on the 13th day of June, 1851, without a jury.

The Court at the General Term in October, had affirmed the decision of the Judge at Special Term, overruling a demurrer to the defendant’s answer. The demurrer, however, related only to a part of the answer, and it was overruled by an order and not by a judgment. On the settlement of the order or judgment of affirmance, a question arose as to the costs to be allowed to the defendant upon the appeal.

This case was referred to a sole referee hy stipulation' between the attornies for the respective parties, and an order of the court entered thereon.

This was a motion on the part of the plaintiff, to strike out the defendant’s amended answer, on the ground that it was for the purpose of delay and to cause the plaintiff to lose the last March circuit, for which term the cause was noticed for trial, at the time the amended answer was served.

In this case, before the Justice the jury rendered a verdict in favor of the plaintiff for damages. At the time of joining issue, one of the defendants being an infant, a guardian was appointed by the justice, on the plaintiff’s motion, but it so happened that the guardian was also an infant,' that fact being unknown to the justice.

The complaint states that the defendant and Bridget Pearce were appointed by the Surrogate of Chemung, administrator and administratrix of the estate of Jonathan Pearce, and gave the proper bond with sureties.

The action was brought upon a promissory note, made by the defendant on the 4th day of May, 1843, for $200 with interest. Endorsements had been made upon the note to the amount of $68,90.

Case agreed upon and submitted. The plaintiff and defendant in this action were married on the 22d day of November, 1848. At the time of their marriage the plaintiff was possessed in her own right, of certain real and personal property.

The plaintiff had demurred to the answer of the defendant. Judgment was rendered for the plaintiff upon the demurrer, but with liberty to the defendant to amend his answer, upon payment of the costs upon the demurrer. By consent the taxation was referred to Justice Harris.

The complaint is on a promissory note made by all the defendants to the plaintiff, or order, payable at the Rochester Bank. The complaint set out the note and alleged that the plaintiff was the lawful owner and holder thereof, and that the defendants had not paid the same or any part thereof, but that they were justly indebted to the plaintiff therefor.

The defendant demurred to the complaint in this action, and the issue of law thereby joined was tried by the court, at a special term in Monroe county, in May, 1852. Subsequently the issue was decided against the plaintiff, and early in August the plaintiff’s attorney showed the defendant’s attorney a. copy of the opinion of the court, and served him with notice of an adjustment of costs by the clerk of Wayne county, for the 7th of that month.

The complaint alleges that in December, 1847, the plaintiff employed the defendant, as an attorney at law, and who was in fact such attorney, to collect a note against one Higby; that in April, 1849, the defendant received the amount of the note, but instead of paying it over to the plaintiff, after deducting his charges, the defendant had appropriated the money so collected to his own use. The plaintiff claimed judgment for the amount collected, with interest.

<p>On the 30th July, 1833, Mrs. Hull, the plaintiff, and her husband, executed a valid trust of her real estate, and the rents, issues and profits in Pennsylvania, and vested the whole in one Thomas Kelly, as thei-r trustee. Some years afterwards, or as 'the complaint states it, in the early part of the year 1840, Hull, the husband, formed a .copartnership with Abraham H. Smith, ■one of the defendants, for the transaction of the dry goods and ■commission business, in the city of New York. During the 'existence of the firm, which ultimately became insolvent, liabilities were incurred by it to that of E. H. and J. K. Bradbury, amounting in the whole, with interest, on the 10th October, 1842, when judgment was perfected in the Supreme Court for the same, to $7,111,38. Of this latter fact, however, the perfection of judgment, Mrs. Hull and her counsel appeared to have been ignorant, and consequently, when negociations were afterwards commenced by them, for the purchase of the claims in question, those negociations were conducted under the mistaken impression that such claims were still subsisting in the form of bills, notes, ífc., and it was in that form and not as in judgment, that they were subsequently treated and described in the assignment from Mr. Bradbury to Mrs. Hull. There was, in addition to this, another defect in the assignment. Instead of being made to a trustee for Mrs. Hull’s “ separate use,” it was made to a trustee “ to and for the use of the separate estate of Mrs. Hull ”—a defect to which some allusion is contained in the opinion of the court, but which from the papers in the-case, does not appear to have been rendered a point of objection by the counsel for the defence.</p> <p>Under these circumstances and after some time had elapsed from the making of the assignment, Mrs. Hull, by herself or by her attorney, (Kelly, the trustee, having died,), began to-take measures for the recovery of the claims which had been thus transferred to her, and to that end applied to the- defendant, Smith, for payment of the same. Smith, however declined payment, alleging as the reason of such declinature, substantially the foregoing facts. Application was also made to Mr. Bradbury for a more formal assignment, which was also refused,, and hence the action.</p> <p>The allegations of the complaint accord.</p> <p>The defendant Abraham H. Smith, who seems to have been the only defendant who appeared to the action, demurred on the following grounds:</p> <p>1st. That several causes of action are improperly united in the complaint.</p> <p>2d. All the several causes of action stated in the complaint do not affect all the parties to the action.</p> <p>3d. That the complaint does not state facts sufficient to constitute a cause of action belonging to the plaintiff against the defendant.</p> <p>4th. That the defendant is not a necessary party to a complete determination or settlement of the questions involved in the complaint between the plaintiff and the defendants, Edward H. Bradbury and John K. Bradbury.</p> <p>5th. That the defendant is not a necessary party to a complete determination or settlement of the questions involved in the complaint, between the plaintiff and the defendant John Fallon.</p> <p>■ 6th. That the complaint does not show or state any cause of action existing in, or belonging to the plaintiff against the defendant.</p> <p>7tli. That this court has no jurisdiction of the cause of action set forth in the complaint against the defendant John Fallon.</p> <p>For demurrer, the counsel for the plaintiff submitted the following brief;</p> <p>The act of 1848, (see laws of 1848, p. 307, ch. 200,) was designed to give married women the exclusive control of their separate property. It authorizes them to hold to their “ sole and separate use,” as if single females, “all the property which they might thereafter receive by gift, grant, devise, or bequest.”</p> <p>The second section provided, however, for property then held by “ any female now (then) married,” and provided that any such property, whether real or personal “ shall (should) not be subject to the disposal of her husband, but shall be hei sole and separate property as if she were a single female, except so far as the same may be liable for the debts of her husband heretofore contracted.” (Vide White agt. White, 4 How. 102.) This, however, did not divest curtesy or any vested right. In 1849, (see Session Laws, p. 528,) the Legislature-amended the 3d section of the act of 1848, but left the 2d section as it was. The third section relates exclusively to property to be acquired, and declares that she may “ hold to her sole and separate use, and convey and devise real and personal property,” in the same manner and with the like effect as if she were unmarried.</p> <p>The question is whether Mrs. Hull is, under either statute,, entitled to sue for this judgment as her own personal estate 1 On the 30th July, 1833, she and her husband created a valid trust of her real estate, rents, issues and profits, in Pennsylvania, and vested the whole in Thomas Kelly, as their trustee. Mr. Kelly is dead. In May, 1846, Mrs. Hull executed an appointment and letter of attorney in favor of J. K. Bradbury, to the extent of $2,500. Under this execution of the power of appointment, Mr. Bradbury petitioned the Court of Common. .Pleas of the city of Philadelphia, for the appointment of a new trustee, and Mr. Fallen was appointed in the place and stead of the deceased Mr. Kelly.</p> <p>And the ground to be suggested for the jurisdiction is, that it will prevent a multiplicity of suits. Mayor of Brooklyn &c. agt. Messerole, (26 Wen., 132.)</p> <p>A defendant in the Court of Chancery could not object that another defendant having no interest in the subject matter of the suit, is improperly made a party; Cheny agt. Monroe, (2d Barbour’s Ch. Rep., 618, 619,) and that is still the rule under the Code.</p> <p>By section 118, under the Code, all the parties who claim an interest in the matter may be made defendants. (Section 119» See also Story’s Eg. Pleadings, section 153.)</p>

The complaint in this action is for alleged violations of the provisions of title 9, chap. 20, part 1, of the Revised Statutes, entitled u of excise, and the regulation of taverns and groceries.” The answer set up six different defences, or statements of defence.

<p>The Supreme Court have the power of awarding a writ of Habeas Corpus at a, special term, (jis was formerly held under the old system, see ex parte Beatly, 12 Wend. 229.) And also at Chambers. This power is given by the common law, independent of the- statute.</p> <p>A justice of this court can, at Chambers, award a writ of Habeas Corpus that shall run into any part of the State. The justices have the same unrestricted, jurisdiction as they possessed under the previously existing statutes. (See People agt. Hanna, 3 How. Pr. R. 39.)</p> <p>It seems, that a Justice of the Superior Court in the city of New York is not clothed with the general equity powers, necessary to make a final disposition of the care and custody of children, brought before him on Habeas Corpus. And where such a case may have been brought before that court or a justice-thereof, and preliminarily passed upon, such adjudication can be no bar to final action by the Supreme Court, a competent tribunal, in settling the questions in controversy.</p> <p>A statute of Alabama forbidding slaves to marry,, does not render the marriage-of a slave void t where it is solemnized by words de presentí (by a minister,), and is followed by cohabitation of the parties. It is good as a marriage at common lav/.</p> <p>The father, (whether black or white) is by law entitled, over all others, to the-custody, care, and control of his child of tender years. If the child is illegitimate of the father, he is still entitled to its custody over every other person, except the mother</p> <p>The detention of a child of tender years amounts to legal restraint, where the-individual having it in custody, without the exercise of force or coercion, interferes by influence over the affections of the child, or studiously guards and keeps it beyond the reach of the father, or endeavors to maintain a determination in the child not to go to its father, and to repel all attempts on his part to obtain possession of the child against her will.</p> <p>Where a child nine years of age, held under improper restraint, from the custody and possession of the father, on proceedings by Habeas Corpus*held, that it was the duty of the Court, not only to remove the restraint, but to render a judgment which should dispose of the custody of the child and conclude the-controversy.</p> <p>It seems that in cases of adults held under improper restraint, it is proper for the Court merely to remove the restraint. As they are supposed to have wisdom and discretion sufficient to take care and choose for themselves.</p>

<p>tin am action for a divorce for adultery, the defendant cannot be examined as a witness for the plaintiff.</p> <p>When a reference is ordered, in such a case, under the 64th rule, proof must be made before the referee, not only of the fact of adultery, but of all the other material facts charged in the complaint.</p>

The action is brought to recover moneys alleged to have been collected by the defendant, as the agent of the plaintiff.

<p>Where one of the defendants as principal, and the others as sureties, executed a bond under the act to abolish imprisonment for debt, and to punish fraudulent debtors, passed April 26, 1831, to stay the issuing by the county judge, of a warrant of commitment against the principal, and conditioned for an application for an assignment of all his property and for a discharge, &c. And upon an action brought by the plaintiffs for a breach of the conditions of the bond, and upon the trial, a verdict was found for the plaintiffs, which was affirmed on appeal at general term, but with leave to defendants to apply at the special term, upon notice, for leave to a mend their answer.</p> <p>Held, that the motion to amend the answer came entirely too late. It seems, the court have not the power to grant such relief after argument of the appeal, and final judgment of affirmance thereon.</p> <p>The judgment should first be set aside. And it is doubtful whether a motion to set aside a regular judgment rendered at general term, can be granted by the special term, for the purpose of allowing a party to amend his pleading.</p> <p>If, however, such a motion can be entertained, it must not only appear that the party has been misled or surprised after the exercise of ordinary care and skill, but that the amendment asked for is clearly required in order to promote the ends of justice.</p> <p>The court at general term refused to hear this proposition -argued on the ground that it was not within the issue joined in the action, and it not having been at any time previously raised or presented in the progress of the action.</p> <p>The argument of the appeal then proceeded upon other points, and the court at the close of the argument affirmed the judgment rendered at the circuit; and also, at the same time, made an order staying the plaintiffs’ proceedings thirty days, and giving the defendants leave to apply at special term, within that time, upon due notice, for leave to amend their answer. The motion is to put in an amended answer, so as to raise the question embraced in the above proposition.</p>

This action was commenced and judgment rendered therein, before a justice of the peace of Niagara county, in favor of the defendant. The plaintiff appealed to the County Court of Niagara county. The county judge made a certificate in pursuance of.the 31st section of the act passed December 14,1847, entitled “ An act to amend the act in relation to the judiciary,” passed May 12,1847.

Motion on the part of the defendants, to vacate an injunction, restraining them from disposing of, or interfering with, assigned property; and a motion on the part of the plaintiff, for an order of reference to appoint a receiver, &c.

The complaint was served February 25, 1850, so that the time for answering expired on the 17th of March. On the 16th of March the plaintiff’s attorney received an answer by mail, hut the postage was not paid, and he immediately returned it. On the '21st of March plaintiff’s attorney entered up judgment for want of an answer. The defendant now moves to set aside the judgment as irregular and void.

The affidavit in- the first above entitled cause, after stating the recovery of a judgment in this court, for $12T,03,—the filing and docketing the same in this county—the issuing of an execution thereon, and the return thereof by the sheriff, wholly unsatisfied, proceeded thus: u And deponent further saith, that he suspects and believes that the defendant, Gardner Bullard, has property, or rights in action, or some interest held in trust for him, not by law exempt from,…

In the suit first above entitled, the plaintiff obtained a judgment against the ■defendant for $322,54, which was docketed on the 10th of May, 1853. In the second suit the defendant obtained a judgment against the plaintiff on a non-suit, for $220, and six cents costs, which was docketed on the 30th of May, 1853.

<p>Under what circumstances, and to what extent, and in what manner the court will require the discovery, production, and inspection, &c., of books, papers and documents.</p> <p>The principles and practice of courts of equity on the subject still prevail, except where expressly abrogated by statute.</p> <p>Costs of motion (when made to the court) may be given, if a request to inspect, &c., is unreasonably .refused. The expense of copies should be paid by the party requiring them.</p>

The bill in this cause was filed by the plaintiff, amongst other things, to procure a judgment or decree declaring invalid certain legacies to the defendants, the said Missionary Society, ifi the last will of Úaniel M. Chittenden, deceased. The executors are made defendants that they may be made to account for the property in their hands.

The action was brought to recover a balance of account claimed to be due to the plaintiff from the estate of John Paine, deceased.

This suit was for a fraud in the purchase of a vessel, charged to have been committed by misrepresentations respecting the payers of certain notes given in payment. The defendant was a non-resident, and plaintiffs had obtained an attachment and seized his property. The plaintiffs had a verdict. The other important facts noticed, are to be found in the opinion of the court.

Demurrer to answer setting up a counter claim,. The action is upon a promissory note for motiey lent.

Motion by the plaintiff to set aside the report of a referee. The facts sufficiently appear in the opinion of the court.

<p>This was an appeal from the judgment of the County Court, affirming the judgment of the justice. The demand upon which the suit was brought had been assigned to the plaintiff; who gave the following noticg of the examination of the assignor: (Title of the cause.) “ Before George Moore. To the above named defendant: Sir,—Take notice, that William Keough has assigned to me a contract or agreement made or entered into between you and said Keough, on or about the 10th day of April, 1852, whereby you agreed to pay said Keough $15 a month for six months from said date, and to furnish said Keough a house and garden, and fuel for said house for said term, and said Keough agreed to work for you for the consideration aforesaid, during said term; and further take notice that on the trial of this cause before George Moore, Justice of the peace, I shall examine the said William Keough as a witness on the part of the plaintiff.</p> <p>Yours, &c., Daniel Falon, by</p> <p>A. B., his attorney.”</p> <p>Keough was called as a witnesss for the plaintiff, and examined, although the defendant objected that the notice was insufficient, and that the witness was interested.</p> <p>The justice gave judgment for the plaintiff, which was affirmed by the County Court, and defendant appealed.</p>

<p>A bond executed by the putative father of a bastard child, under section 14, (Title 0, Chap. 20, Part 1, Pol. 1st, 1?. S., 645,) embracing conjointly, the two conditions in that section is a nullity. No action can be maintained upon such a bond, because the action upon one of the conditions (for payment under the order of filiation,) is to be brought by the overseers of the poor, and upon the other condition, (to appear at- the Court of Sessions,) by the District Attorney of the county, in the name of the people. Besides, the statute requires such bond to contain either in the alternative, that ist it says, “ with one or other of the following conditions.”</p> <p>The provisions of the Code (section 111,) requiring that actions should be prosecuted in the name of the real parties in interest, is inapplicable to suits by official persons in their name of office, under special authority conferred by statute, (section 113.)</p> <p>A demurrer which states that, “the complaint does not state facts sufficient to constitute a cause of action,” is sufficient.</p>

Motion to set aside proceedings for irregularity. The action was commenced by the service of a summons and complaint. The summons stated that if the defendants failed to answer the complaint the'plaintiff would take judgment against them for $1000, with interest and costs. The cause of action set forth in the complaint'is the loss of certain goods delivered to the defendants as common carriers. On the 4th of August, 1852, the defendants appeared by. an attorney.

The action having been tried at the circuit, and a verdict rendered for the plaintiff, a motion for a new trial was made, at the Saratoga Special Term, and on the 25th of January, the motion was denied. In the order entered upon denying the motion, a provision was inserted that the plaintiff’s proceedings should be stayed twenty days. On the 7th of February, the defendant appealed from the order to the general term. The appeal has not yet been heard.

<p>In partition cases, where two or more of the parties interested desire to have their shares set off to them to he enjoyed in common, (Laws 1847. p. 551, § 4,) an order of reference will he granted for that purpose. And this should he done before a final decree in partition is entered.</p>

This was an appeal from an order made by Mr. Justice C. L. Allen, at special term, denying a motion that an undertaking given on the arrest of the defendant, Force, be delivered up, and an exoneretur entered.

<p>An answer to a complaint for assault and battery and false imprisonment, which denies the whole complaint, and each and every allegation thereof, can not, as a further defence, set up new matter in justification of the alleged assault and false imprisonment. They are inconsistent.</p>

Motion to strike out, as irrelevant and immaterial, certain parts of the return of the defendants to an alternative mandamus issued on the relation of Atkins and Powell. On the 1st April, 1853, an alternative mandamus was issued on the relation of Atkins and Powell, directed to the defendants, two of the trustees of School District No. 16, in the town of Westerlo.

This was an indictment for perjury, tried at the October sessions in this county. The alleged perjury was charged to have been committed by the defendant in an examination taken by John Olney, Esq., a Justice of the Peace of the town of Windham, in 1852. On the trial the justice was sworn as a witness on the part of the people, and testified that he took the examination referred to, and that he was, at the time, an acting justice of the peace of the town of Windham.

The petition of William Cobee, showed on the oath of the petitioner, that on the 12th day of October, 1853, he was duly appointed by the Canal Board, collector of tolls at West Troy, in the place of James T. Davis, who was on that day removed from said office by said board, and that on the 17th day of October he took and filed the prescribed oath of office, and on the 26th day of October he filed the official bond required by law, after the same had been duly approved.

The plaintiff having a judgment against Stephen Briggs, Henry Briggs and Elias Alley, upon which an execution had been returned unsatisfied, brings this action to reach certain property assigned by Stephen, for the benefit of his creditors.

The action was to recover for the transportation o oysters and fruit from Albany to Buffalo, by “Hasson’s despatch,” delivered in Buffalo, September 14th, 16th and 17th, 1850. The defence was that the plaintiff had never been employed to transport the articles. Further facts will appear in the opinion.

Motion to set aside judgment. The action was commenced on or about 2d November, 1850, to recover $65, alleged to be due from defendant to plaintiffs. Issue was joined, and an order made changing the place of trial from Monroe to Livingston county. The plaintiff, Holmes, died on or about July 6th, 1851, and no letters, testamentary or of administration, have been issued upon his estate.

The action was brought upon a prommissory note made by the defendant, payable to the order of E. J. Sherman, and by him endorsed to the plaintiff.

The complaint'states, that, on the 14th of April, 1850, William Adams died, leaving a will whereby, after devising to three of his daughters, specific lots of land, he made the following residuary disposition of his estate: “ As to all the rest, residue and remainder of my estate, both real and personal, I give, devise- and bequeath the same to my executors, and to their heirs and assigns forever, in trust, nevertheless, for the use and benefit of my several children, to…

<p>An appeal can not be taken from an order of the special term overruling a demurrer as frivolous. Judgment must first be entered, and the appeal brought upon that. (See Code, § 247.)</p>

Motion on the part of Daniel D. Warner, as landlord, &c., to be substituted defendant in the place and stead of Larmon G. Townsend, the now defendant. The affidavit of the present defendant, Townsend, states in substance, that this is an action of ejectment to recover possession of the premises and dwelling house, with the appurtenances occupied by him, at Big Stream Point, in the county of Yates.

<p>.On a trial for murder, statements made by the defendant, upon oath, before ike jury summoned to make inquisition concerning the death, and before he had been accused of the murder, are admissible as evidence for the prosecution.</p> <p>Why ? Because he was examined before the coroner’s inquest in the capacity of a witness. He had not then been accused, or in any legal sense suspected of the crime. He had the same right as any other witness, to decline answering any question, if, in his opinion, the answer would tend to involve him in a criminal charge. Having testified, and having omitted to avail himself of his privilege .to decline answering, his statements must be deemed free and-voluntary.</p>

The defendant demurred to the plaintiff’s reply, and judgment was rendered at the special term, for the defendant, on the demurrer, with leave to plaintiff to amend on payment of costs, &c., within twenty days. No judgment has in fact been entered up. The plaintiff appeals from the decision as an order.

<p>In an action, where the claim is purely of a legal character, any defence, whether legal or equitable, may now be interposed to it.</p> <p>It is no longer necessary to bring an action in the nature of a suit in equity to restrain proceedings in an action in th'e nature of a suit at law. Or, an injunction can not issue in one action to stay proceedings in another—both being in this court. [This agrees with Roderick agt. Hoysradt, 4 How. Pr. R. 350.)</p>

Warren, the respondent, sued Helmer, the appellant, before a justice of the peace. The defendant did not appear, except by one George Steele, who was sworn as to his authority, and not proving it satisfactory to the court, was not admitted. The plaintiff then declared for an account against the defendant, originally owned by one McChesney, and sold by him to one Hathaway, and by Hathaway sold to the plaintiff.

It appeared from the defendant’s affidavit that David Spencer, the father of Mrs. Jewett, died intestate, in 184G. The defendant was appointed administrator of his estate. In 1849 Mrs. Jewett died, leaving her husband and one child, an infant, surviving her. After her. death her husband was appointed guardian of the child. Upon the settlement of the estate of Spencer, after the death of Mrs. Jewett, there was due to her estate, $900.

The action is brought against the defendant, as committee of Jesse Tolbert, an habitual drunkard. The complaint alleges that the plaintiffs, as executors, recovered a judgment in the Supreme Court against Tolbert, in October, 1837, which still remains unsatisfied and in force.

The action is brought for the recovery of numerous penalties for a violation of the excise laws. The defendant demurs to the complaint.

An appeal was taken to the Court of Appeals from a judgment rendered in the Supreme Court. An error having been' ■committed in turning the case into a bill of exceptions, and in settling the same, a motion was made in the Supreme Court,, at special term, before Justice Parker, for an order directing a re-settlement of the bill of exceptions.

The action was slander, for words imputing a want of chastity to the plaintiff. The answer contained a general denial. After the plaintiff rested her case, the defendant offered to attack her general character.

This was an action to recover damages for an alleged assault and battery committed on the plaintiff’s wife. On the trial the facts shown were substantially these : In August, 1851, the defendant proceeded to the house of the plaintiffs, with the view of making service of a subpoena on the latter, issued in a suit commenced before a justice of the peace, by the defendant against Hager.

In this case the Supreme Court, in the third district, at the last general term, held at-Albany, in December 1853, decided that section 324 of the Code applied as well to injunction orders as to other orders. That the special provision made by section 225, was in addition to the powers conferred by section 324, and not intended as a substitute for them, thus overruling Mills agt. Thursby, (1 Code Rep. 121.)

Demurrer to answer, prior to the amendments of 1852, to the Code. The action is for services rendered as attorney and counsel, and judgment for five hundred dollars is demanded. The defendants, among other defences, stated as a defence, that they, at divers times, paid to the plaintiff, for and on account of the services mentioned in the complaint, divers sums of money amounting in all to. fifty dollars. This defence was separately stated.

This was an action for assault and battery, in which the plaintiff recovered damages at the Schoharie circuit. The defendant made a case, and after the same had been settled, noticed it for argument at the Delaware circuit. The counsel for plaintiff appeared at the Delaware circuit, but with the objection that the cause ought to be argued in the district in which it was tried.

Motion to set aside an inquest taken against the defendants for irregularity. On the 20th of September, 1852, the complaint was served, the place of trial being in Onondaga county. October 11th, an answer was served by mail, by the defendants’ attorneys, residing in Oswego, upon the plaintiff’s attorneys, residing in Syracuse. The answer denied all. the allegations of the complaint, and set up new matter to some parts of the complaint.

The action was upon a joint and several promissory note, made by William Hinckle, Whitman Nash, and Lewis S. Payne. The two latter were sureties of Hinckle. The making of the note was admitted. The defence was a set off of a judgment recovered upon contract, by Hinckle, against the plaintiffs, for an amount equal or larger than the amount of the note.

Motion on the part of the plaintiff for an order striking out the answer of Gilborn and wife as sham and irrelevant, and for judgment, &c. ■

<p>Notice of appearance or retainer, may be served after default, if before judgment entered, in all cases where an assessment of damages is necessary. (See 12 Wend. 235, and 5 How. Pr. R. 358, adverse.)</p> <p>Therefore, an order that plaintiff file security for costs, and for a stay, &c., obtained by defendant after his default entered, and before judgment perfected, held good.</p>

The plaintiff moves to set aside an order taken against him at the last June circuit in Oswego county, dismissing the complaint. The action was for an alleged assault and battery, and was put at issue by the service of an answer and noticed for trial at the Oswego circuit, by the defendant.

This- action was-Brought'by the plaintiffs who were judgment creditors- of the defendant, Bell, in order to reach certain property in the hands-of the- defendants, .Gilmore and Ward, who were the assignees-■of -the defendant, Bell. The defendants, in their answer, set forth the assignment as their authority for receiving and holding .the property, and the plaintiffs demurred to the answer.

Motion to strike out part of the complaint as redundant or irrelevant. The plaintiff is the assignee of a mortgage executed by the defendant^ Harvey M. Harwood, to the firm of Clark' and Coleman. The mortgagees accepted, the draft of the mortgagor, for his accommodation, to the amount of $1700, and the mortgage was executed for their indemnity. The matters which were the subject of the motion sufficiently appear in the opinion of the court.

<p>The statute does not prevent a limited partner, if he is willing to assume the liabilities that follow, from acting as a general partner, unless, by the articles of co-partnership he is excluded from a control as a general partner. And this restriction may cease at the expiration of the partnership.</p> <p>The statute authorizes an accounting between general and special partners, the same as other partners. And this liability to account must be as necessary and proper after as before the dissolution. Therefore, a receiver may be appointed in the same manner in cases of special partnership, as in others.</p>

<p>A temporary injunction cannot be granted to restrain the doing of acts in relation to property, in respect to which acts or property, no final judgment is prayed.</p> <p>Therefore held, that where the plaintiff demanded judgment of possession of a portion of the premises, (house and door-yard,) he could not have a temporary injunction, restraining trespasses by the defendant, upon the remainder of the farm, which plaintiff claimed to be in his possession, and as to which no relief or judgment was prayed, except such temporary injunction.</p>

Francis B. Edymoin was convicted of burglary in the second degree, at Owego, in the county of Tioga, and was sentenced to confinement in the Auburn State Prison for five years. On the 9th of July, 1853, an unconditional pardon was granted to Edymoin, by His Excellency Horatio Seymour, Governor of the State. The pardon was duly recorded in the office of the Secretary of State, and Edymoin was discharged, by virtue of the pardon, September 2d, 1853.

Motion to strike out answer as sham and false. The action was brought to foreclose a mortgage.

<p>An appeal from the special to the general term does not operate per se9 as 3 stay of proceedings in the action. Special leave of the court must be obtained-</p>

The action was upon a due bill made to the plaintiff or bearer, dated June 6, 1846, payable immediately, for $67,32. The answer admitted the note, but set up as new matter in defence, that, “ the note of due bill was not made within six years next before the commencement of the action.” The ’ cause was tried by the court without the jury.' The suit was commenced in July or August, 1853.

Motion to set aside judgment for irregularity. The summons and complaint were personally served on the defendant, about the 10th of January. On, the 22d of January, the defendant’s attorneys obtained from the County Judge, an order requiring the plaintiff to file security for costs, within twenty days after service of a copy thereof, and of the affidavit upon which the order was founded.

The defendant moved for process against the plaintiff’s attorney, to compel him to pay the costs of this suit in judgment, being $81,60, and also $10 costs, adjudged against plaintiff on denial of a previous motion, and costs of this motion, on the ground that the plaintiff was a non-resident at the tnrfe of the commencement of this suit. The other facts are sufficiently stated in the opinion of the court.

<p>Where two partners failed, and an assignment was made by one of them, approved by the other, to pay certain debts of the concern, and among -other property assigned, was a balance of $5,409, due by the partner who made the assignment, to the firm :</p> <p>On a claim by the other partner to an account for his share of the $5,409, ore the ground that he had paid certain notes and judgments due by the firm. Held, it appearing that there were creditors protected by the assignment, who were not paid, that these creditors had a prior right to be paid out of that debt.</p> <p>Consequently, they should be called in and represented, by a proper amendment of the complaint, before any decree could be made for the plaintiff.</p>

The irregularity upon which the defendant relied, to sustain the motion, consisted in the omission of the plaintiffs to deliver to the sheriff, at the time of issuing the attachment, a summons against the defendant. The facts in the case appear sufficiently, in the opinion of the court.

Weber and Defor were in partnership for some years, when they agreed, in writing, to dissolve, and that Weber should leave the firm and thenceforth renounce the signature of the house, and that Defor should assume the continuance of the establishment, and the settlement of the debts due to or by the firm. Defor was also to be responsible to Weber for what should be coming to him.

The action is brought to recover $200, the liquidated damages for non-performance of a contract to convey lands. The notice in the summons states that if defendants fail to answer, the plaintiffs will apply to the court for the relief demanded in the complaint. The defendants move to- set aside the summons for not conforming to the complaint.

<p>In all cases in which a wife sues, or is sued by, a stranger, in respect to her separate property, her husband should be a party, plaintiff or defendant, unless he is civilly dead, &c.</p> <p>When the husband may, and when he must, join the wife; and when she must sue by her next friend; and her rights under the statutes of 1848 and 1849, for the effectual protection of the property of married women, considered.</p>

<p>Then argued, and decided in July, 1853. Demurrer to portions of the answer. The complaint, after alleging the corporate existence of the defendant, stated that on or ah out July 24th, 1849, the defendant, for a valuable consideration, &c., insured Ephraim S. Fletcher, by a policy of insurance dated on that day, on certain-property therein mentioned, against loss or damage by fire, in-the sum of $600,, for the term of five years. That the property insured was destroyed by fire in December, 1850 j and that the damages of said Fletcher, by reason of the loss, were after-wards, and during the same month of December, liquidated and adjusted, by and between the said Fletcher and the defendant, at $550; and that defendant acknowledged itself indebted to-said Fletcher, in that amount, and promised to pay it with interest from May 1st, 1851.</p> <p>That on the 5th day of April, 1851, said Fletcher duly sold, assigned and transferred to the plaintiff, an interest in said liquidated damages, to the .amount of $350, together with the interest on $150, from July 1st, 1851, of which said sale, assignment and transfer the defendant had notice. That since April 5th, 1851, and before the commencement of this action, the balance of said demand against the said defendant, over and above the plaintiff’s interest therein, was sold and assigned by the said Fletcher, to one Elliot P. Barton,, who,, previous t© the commencement of this action, collected the same of the said defendant. That the plaintiff is still the owner of the interest so as aforesaid assigned to him, and has requested payment, &c., of the defendant, who has refused payment, &c., and the plaintiff demands judgment, &c.</p> <p>The answer, after denying specifically various allegations of the complaint, sets up the following new matter by- way of defence to the action:</p> <p>First. That Fletcher, on the 1st of May, 1851, assigned to the said Barton the demand or claim against the said defendants, in the said policy of insurance mentioned in said complaint; and that the said Barton, on the 2d day of June, 1851, with the knowledge and consent of the plaintiff, commenced an action in the Supreme Court, for the recovery of $182,50, part and parcel of the sum due Fletcher on the policy; in which action Barton alleged ,l- his complaint, among other things, that defendant, on the 1st of May, 1851, was indebted to him, the said Barton, in the sum of $500, which said sum the defendant had allowed to said Fletcher, on said policy, and had agreed to pay, &c. That on the 1st of May, 1851, and before the commencement of said action, Fletcher assigned to Barton an interest therein of $182,50, with interest from May 1,1851. That such proceedings were thereupon had in the said action so commenced by Barton against the defendant, that on the 30th day of July, 1851, judgment was recovered in favor of Barton against the defendant, for $185,60; with $10,46 costs, which action, by Barton against the defendant, was commenced, &c., and judgment recovered therein, by the direction and consent of said Fletcher, and the plaintiff in this action.</p> <p>Second. That on the 12th day of May, 1851, Fletcher, by and with the consent and approbation of the plaintiff in this action, for and in consideration of $350, to him duly paid by Charles C. Sheppard and Milton M. Ford, sold, assigned and transferred, all his right-, title and interest, to all claims, allowances and demands he had against the defendant for losses incurred by him, &c., notice whereof was given to the defendant, by said Sheppard and Ford, on the 14th May, 1851, whereupon the defendant promised and agreed to and with said Sheppard and Ford, to pay them the' amount due to said Fletcher on said policy mentioned in the. complaint.</p> <p>That on the 16th day of July, 1851, the said Ford duly sold and assigned all his right and title in and to the said demand, to the said Charles C. Sheppard, who is now the Iona fide owner and holder of the same, and entitled to the monies due thereon, and that the' defendant has promised and agreed to pay the same to him; and the defendant insists that said Sheppard is a necessary and proper party to this action, and should he made a party defendant in the same.</p> <p>The plaintiff demurs separately to the two defences of new matter set up in the answer, assigning special causes for each demurrer.</p>

JJemurrer to complaint. The complaint alleges that the plaintiffs 11 are, and for more than three years last past, have been, the lawful owners' as tenants in common, in fee simple, and entitled to the possession, rents, issues and profits,” of the premises therein described; “ that the above named defendants, or one of them, are now in possession of the said real estate, claiming title thereto, or some interest therein, or lien thereupon, but unlawfully, as plaintiffs…

<p>The facts of the case appear in the opinion of the court.</p>

<p>Motion for double costs. The action was brought to recover certain property taken and sold by virtue of a tax warrant, issued by the defendants as trustees of School District No. 1, in the town of Fort Edward. Upon the trial of the action, at the Washington county circuit, held in February last, the plaintiffs were non suited.</p> <p>The defendants, at the last Schenectady special term, moved for double costs, and on account of the conflicting decisions, at special term, on the subject, the justice who held that term, made an order sending the motion to this term ior decision.</p>

On the 25th February, 1851, the plaintiff, being a householder, having a family which he supported in this county, and being the owner of a house and lot, called his homestead, in said county, and on which he resided with his said family, of the value not exceeding four hundred dollars, filed in the clerk’s office of this county, a notice in writing, as required by the act of April 10, 1850, {L. of 1850, p. 499,) entitled “An act to exempt from sale on execution the…