Volume 9 — Howard's Practice Reports

Motion to set aside report of referee and subsequent proceedings for irregularity. The action was brought to recover certain bills of costs, alleged to have been due from the defendant to the plaintiff, as the assignee thereof.

Application to set aside the verdict obtained against the defendants in this action for misconduct of plaintiff with the jury, during the trial. The action was for damages for not carrying the plaintiff’s fruit on defendant’s boats, by reason of which it was spoiled and lost. The trial was had at the October circuit, in Washington County, in 1852.

Motion on behalf of the defendants for a new trial, on bill of exceptions. The action was tried on the 14th November, 1851, at the Monroe Circuit,- before Welles, J. On the trial it became necessary for the plaintiff to prove its corporate existence, under a statute of the state of Connecticut.

A motion is made in this case for an injunction, under an order to show cause, made by Justice Clerke. The complaint alleges that the plaintiff is a holder of real estate in the town of Pelham, and a resident and tax-payer of that town. That the defendants are commissioners of highways of that town, and, as such commissioners, have undertaken to open two several roads therein.

Motion to set aside complaint on the ground that there is no county named in the said complaint in which the plaintiff desires the trial to be had.

<p>The notice of a motion to set aside a judgment for irregularity, should contain the grounds of the irregularity complained of. (See Rules Sup. Court, 25.)'</p> <p>A motion to set aside a judgment for irregularity should be made within one year from the entry of judgment, where a knowledge of the judgment exists. (2 R. S: 359.)</p> <p>The omission to enter a rule, on the decision of the court in ordering judgment,' is a defect that may be cured after judgment by amendment nunc pro tunc.</p> <p>It is not necessary that the copy of the rule for judgment to be annexed to the, roll should be signed by the judge</p> <p>Under § 176 of the Code, the court is bound to disregard, or to order amended, any defect in the entry of judgment which does not affect the substantial rights of the party.</p>

<p>In an action of assault and battery, the statements, in the complaint, of the business and employment of the parties, and the object and intent of the assault, together with the statement that it caused the plaintiff to be ridiculed, &c., held, not to be immaterial or irrelevant. Although not essential to entitle the plaintiff to sustain his action, are material on the question of damages, and may be proved.</p> <p>Whether they can be proved without alleging them in the. complaint, Quere?</p>

<p>On the 17th October last, the counsel for the plaintiffs presented an affidavit setting forth the recovery of two judgments in the supreme court against the defendant; the issuing of executions thereon against the property of the defendant to the sheriff of Essex county, being the county where the debtor resides, and where said judgments were docketed, and the return of the same by said sheriff wholly unsatisfied, and alleging that the defendant had property which he unjustly refused to apply on said judgments, and that there was danger that the debtor would leave the state, setting out the reasons, &c.; and setting forth also, that there was danger, if an order should be served on the defendant, requiring him to appear and answer, instead of a warrant, he would disregard the same and avoid the service of process upon him thereafter, and alleging that said judgments were still due, &'c.; and the counsel thereupon applied-for an order for the examination of said defendant, under § 292 of the Code, an order forbidding a transfer or other disposition of his property, not exempt from execution under § 298, and, a warrant under the 3d subdivision of ^ 292. The judge made the order for the defendant’s examination, and the order forbidding a disposition of his property, and also issued his warrant under the 3d subdivision of § 292, to the sheriff of Essex county, requiring him to arrest the said defendant and bring him before the said judge to be dealt with according to law. This order was issued at Saratoga Springs, in Saratoga county, the residence of the judge.</p> <p>The defendant was arrested by the sheriff of Essex county, and brought before the said judge, at his office in Saratoga Springs, at which place it was returnable, and the plantiff’s counsel thereupon moved that a referee be appoiu. J to report the examination and evidence to the judge.</p> <p>It appeared that the order for examining the defendant, and the order forbidding a transfer of property, were both served on the defendant.</p> <p>The defendant’s counsel moved to set aside the warrant, and for the discharge of the defendant, on the following grounds</p> <p>1st. That the procuring and serving an order for the examining the defendant was a waver of the warrant, and that no warrant could be issued while said order was in force.</p> <p>2d. That the defendant cannot be taken under these proceed- * / ings out of the county of Essex, to the sheriff of which the-execution was issued, and where the defendant resided, and that the warrant is therefore void, so far as it requires the defendant to be taken out of the county of Essex.</p> <p>3d. That the judge, though a justice of the supreme court, had no jurisdiction over the person of the defendant out of Essex county.</p> <p>4th. That the judge has no authority to appoint a referee at all, and especially not to appoint one residing out of Essex county.</p> <p>The judge decided that there was no occasion to examine the defendant under the order, if he was examined under the warrant. He appointed a referee to take the examination of the defendant, and observed, that on the coming in of his report, he would hear the foregoing questions more fully argued, and any others that might be raised, and decide the whole case together.</p> <p>On the 26th October, the report of the referee was brought in, and the whole case was argued, both on the objections above stated and on the facts appearing on the examination.</p> <p>The counsel for the plaintiffs moved for the appointment of a receiver. The judge, on motion of the defendant’s counsel, upon the facts appearing in the examination, discharged the defendant out of custody, and held the residue of the case under advisement until this day.</p>

The defendants were sued on a policy of insurance issued by them to one John IL Ellis, of whom the plaintiff is the assignee.

This is a motion by the plaintiff to strike out the defendant’s answer of justification, in an action of slander, and also the answer, that the defendant will give in evidence the general bad moral character of the plaintiff in mitigation of damages. The complaint is for charging the plaintiff with forging a note of $160, and also a like charge of forging á note for $250.

Motion to strike out irrelevant or redundant matter. The action was brought to obtain a judicial construction of the will of William Gould, deceased. The plaintiffs are executors of the will. The complaint states the making of the will—the death of the testator—the proof of ■ the will, and granting letters testamentary to the plaintiffs— the death of the widow of the testator, and the provisions of her will, so far as they relate to the estate of her husband.

<p>Motion to vacate rule for judgment, or for other relief. Upon the trial of this action, at the Greene Circuit, in December, 1848, the court directed a verdict for the plaintiff for $5,000, subject to the opinion of the supreme court, on a case to be made by the plaintiff’s attorneys, and court to allow such interest, if my, as they deem, the plaintiff entitled to, with liberty to either party to turn the case to be made into a bill of exceptions. A case was made, and the cause argued before the general term in May, 1850. In the list of decisions filed with the clerk at the general term held at Albany, in May, 1851, the following entry was made : “ Erastus Corning agt. S. Sherwood Day. Judgment for plff. for $5,000, and interest from demand.” This entry was transcribed by the clerk into the judgment-book kept.by him. No other decision or order for judgment has been entered, and no proceedings, on the part of the plaintiff, for the purpose of perfecting judgment, have been taken.</p> <p>In June, 1851, the defendants’ attorneys served a bill of exceptions, as proposed by them, which was settled by the lapse of time, and finally signed by the judge who tried the cause in August, 1851. Believing, as they state, that a final decision in the action had been made, and that an appeal could not be brought until judgment should be perfected, the defendants’ attorneys frequently applied to the plaintiff’s attorney to enter and perfect his judgment. The defendants in this action are James Powers, Edgar B. Day, and S. Sherwood Day, executors, &c., of Orrin Day, deceased.</p> <p>The defendants moved that the decision or judgment of the court on the case be made and entered in this cause, and against all the defendants, as executors of Orrin Day, as of the term when the motion should be made ; that the court direct, order, and determine, in and by its decision and judgment, the amount to be recovered; that the court ascertain, direct, and order the amount of interest to be recovered, or determine from what time interest shall be computed, and that the plaintiff be required to perfect his judgment, and file a judgment roll. The action was brought in May, 1848, and it appeared upon the trial that the money, for the recovery of which the action was brought, had been demanded of the executors within a year before the suit was brought.</p>

TMs is a motion to strike out that part of the answer which sets up the statute of limitations as a sham defence, and inconsistent with the further defence set up in the answer. The complaint alleges that Jones, the assignor of plaintiff, signed with defendant a note made for defendant’s accommodation; that Jones subsequently paid the note, and thereby defendant became liable to pay the plaintiff as assignee and receiver of Jones.

Present, Welles, Strong, and Johnson, Justices. Appeal from order at special term setting aside the judgment in the first entitled cause as against the junior judgment creditors. (See case reported Y How. Pr. R. 446.)

<p>A statement made on confession of judgment, (Code, § 383,) “ that on the 3d day of November instant, the defendant gave the plaintiffs a promissory note for the sum of $143,39, payable one day after date; that said note was given for a quantity of coal purchased of the plaintiffs for the use of the ‘ Brainard House,’ that the defendant had been, and then was keeping.’’ Held, thal this was a sufficient statement of the facts out of which the indebtedness arose, to satisfy the requirements of the statute.</p> <p>Where the confession declared the debt to be justly due to the plaintiffs, and although.by the terms of the note it was not then legally due, yet the defendant made it so by the express terms of the confession of the judgment. The debt became merged in the judgment.</p> <p>Where the defendant signed his name at the close or bottom of the verification which immediately followed the statement and confession of judgment instead of signing the statement, held, that it was a substantial compliance with the statute.</p> <p>It is no valid objection to the regularity of such a judgment that the statement was verified before one of the plaintiffs’ attorneys. This rule does not apply to affidavits preparatory to the commencement of a suit. There is no suit pending at the time of taking such an affidavit.</p>

<p>Watson, Wright, and Harris, Justices.</p> <p>Appeal from order of reference made at special term. The action was brought upon two policies of insurance executed by the defendants to Mrs. Dean. The property insured consisted of houses and personal property. The premises having been destroyed by fire, the plaintiffs claimed to recover $2300 for the loss. The defendants denied that the property was of the value alleged. They also denied that Mrs. Dean was the owner. They alleged that the personal property belonged to the plaintiff, Noah S. Dean, and that he had made, in the application for insurance, false and fraudulent statements, which rendered the policies void.</p> <p>The action being at issue, the plaintiffs, upon an affidavit .of one of their attorneys, stating that the trial of the action would involve the examination of a long account, moved that the same be referred. • The motion was granted. From this order of reference the defendants appealed.</p>

<p>The report of commissioners in partition will not be set aside only upon grounds similar to those upon which a verdict would be set aside, and a new trial granted. (4 Edw. Ch. JR. 896.)</p> <p>The affidavits of four credible and disinterested persons for, to three against setting aside such report, does not carry such a weight of evidence as to authorize the court' to interfere to disturb the report.</p> <p>Although the statute does not, in terms, require notice of the proceedings to be given to the parties in partition, (4 How. JPr. JR. 133,) yet the necessity of such notice must be implied. For it is one of those adjudications of a judicial nature affecting the rights and interests of the parties, in which they have a right to substantial and beneficial notice, and without it the report of the commissioners will be set aside.</p>

Motion on the part of defendants to dismiss complaint, and for judgment as in case of non-suit, for not proceeding to trial at the Allegany circuit in April last.

Motion to amend complaint after judgment. The suit was brought to foreclose certain mortgages executed by the defendants Hawxhurst and Paulding.

<p>Motion by defendant to set aside complaint. The facts sufficiently appear in the opinion of the court.</p>

Motion on the part of appellant for an order directing the clerk of Livingston County to adjust, and insert in the judgment, treble costs before the justice, in the county court, and in this court. Estus sued Baldwin before a justice for taking personal property, and recovered judgment, which was affirmed on-appeal to the county court of Livingston County: on appeal to this court, the judgment of the county court and that of the justice were reversed.

Motion to set aside complaint for irregularity, or to strike out a part of the counts. The action was brought by the plaintiffs, as commissioners of highways.

<p>Application for order directing the trustee of Ann Fero to invest of the trust fund in his hands, for her use, the sum of $200 for furniture, and $100 for clothing and bedding.</p>

Demurrer' to' answer submitted by stipulation of counsel. The action is brought against the defendant as sheriff of Seneca county for the escape of one George Gilbert, who was charged in execution upon final process. The answer demurred to is sufficiently stated in the opinion which follows.

<p>This was a motion on the part of the appellants, to set aside an order of the respondent dismissing the appeal under rule 2, and for leave to file the clerk’s return.</p> <p>It appeared that the defendants answered originally, by denying each and every allegation of the complaint. That subsequently the defendants served amended answers, alleging new matter by "way of defence, which the plaintiff’s attorney refused to receive, on the ground that the defendants could not amend an answer which did not admit of being replied to according to section 112 of the Code.</p> <p>The defendants then moved at circuit special term for an order that the amended answers be received by the plaintiff’s attorney and treated as a part of the pleadings in the action, or that the cause be stricken from the calendar. Mr. Justice Harris, holding the circuit, denied this motion. An appeal was taken to the Erie general term, where the order at special term was affirmed. The defendants then appealed to this court. The return of the clerk below not having been filed in season, an order was entered by the respondent dismissing the appeal under rule 2. The defendants then made this motion, vhen the merits of the appeal in its present shape were discussed.</p> <p>N. Hill, jr., for the appellants.—Insisted that the right to amend the answer within twenty days, under § 172 of the Code, was an absolute right, whether the answer sought to be amended set up new matter, or counter claim, or not; and that the decision of the court below was erroneous in this respect: that it was a right given by statute, which the supreme court had no control over, and was not, therefore, a matter of discretion, like an ordinary matter of practice. ■</p> <p>That if this court could not hear it on this appeal, they could not on any appeal, as the papers on which the motion was made and denied would not go into the record, and would not, therefore be brought by appeal from the final judgment.</p>

Appeals from three orders made hy the county judge of Monroe county in proceedings supplementary to execution. The judgment upon which the execution issued was in the supreme court, and in favor of the relator against the defendant.

On the 29th of December, 1852, the Board of Aldermen of the city of New-York adopted a resolution, whereby it was declared that the defendants, and those who might, for the time being, be associated with them, designated as the associates of the Broadway Railway, should, upon certain conditions and stipulations therein specified, have the authority and consent of the Common Council to lay a double track for a railway in Broadway, &c. The resolution was adopted by the Board…

<p>Demurrer to complaint for a misjoinder of actions.</p>

Bur-dick sued McAmbly and complained for a fraud in the sale of a horse, and also for a breach of the contract of purchase. McAmbly for answer denied the several allegations of the complaint. Before proceeding to trial, the defendant called upon the justice to require the plaintiff to elect upon which count in his complaint he sought to recover. The justice refused the defendant’s request.

Demurrer to first count or statement of cause of action of complaint.

Motion to set aside judgment, &c. The defendants, prior to December 10, 1853, had been copartners in business, under the firm of Emery & Co. On the day last mentioned the copartnership was dissolved, and it was agreed between the parties that the business should be settled by Henry D. Emery, one of the defendants, and Stephen Van Rensselaer, to whom, at the same time, the defendant Redfield assigned his interest in the property of the firm.

Motion to dissolve injunction. The complaint states that the defendants, Henry D. Emery and James Redfield, for several years had been copartners in business, in the city of Albany, under the firm of Emery and Co., that the copartnership was dissolved on the 10th oi December, 1853, at which time the plaintiff was liable for the copartnership as surety or endorser to an amount exceeding thirty thousand dollars, and for the defendant, James Redfield, to the further amount of…

The complaint in this action was upon a note under seal, and was served the 5th of January, 1854. The answer of the defendant setting up the defence of usury only, was served the 18th of February.

Demurrer to answer. The action is brought to obtain partition of certain lands in the town of Leicester, in the county of Livingston. The complaint states, that Pell Teed, late of the town of Leicester, in the county of Livingston, deceased, was in his lifetime seized in fee simple of certain real estate, situated in the town and county aforesaid, describing the same particularly.

Van Evra to cancel or satisfy a mortgage, An action was commenced requiring such satisfaction, and defended; and after answers defendant withdrew his answer ¡and served a notice that plaintiff' might take a judgment as prayed for in the complaint. Judgment was entered and roll filed, and notice of the entry and filing of the judgment served on defendant’s attorney two or three days afterward.

Motion to strike out matter as redundant or irrelevant. The- action is for an assault and battery.

Motion by the respondent to dismiss the appeal. The action was brought before a justice of the peace for a tort against both defendants. On the trial the plaintiff withdrew the action as to Box, but the justice, through mistake, rendered judgment in form against both defendants. The defendant, Jones, has undertaken to appeal without joining Box in his notice. The respondent now moves to dismiss the appeal for the non-joinder of Box.

<p>The testimony of a person examined as a witness before a coroner’s jury, such person not being at the time under arrest or charged with crime, maybe given in evidence against him on his subsequent trial for the alleged murder of the deceased.</p> <p>The witness in such case stands on the same footing as witnesses on the trial of issues. He is not bound to criminate himself, and may decline to answer as to whatever tends to do so; and if he fail to avail himself of his privilege, his answer will be deemed voluntary, and may be given.in evidence against him. It is only when he is compelled to answer after having declined to do so, that the answer will be deemed compulsory, and will be excluded.</p> <p>On the trial of a prisoner for the murder of his wife, the prosecution was permitted to introduce in evidence the will of the father of the deceased, by which it appeared that the testator devised all his property to his wife for life, and after her death to his three children in unequal proportions, the one to take one-half, and the deceased one-fourth, and her sister one-fourth—held, that such evidence was properly admitted as bearing upon the question of motive.</p>

This is an action brought against the sheriff of the city and county of New-York to recover from him the amount of a judgment recovered by the plaintiff against -one John L. Haines; and the present motion is made for a perpetual stay of the plaintiff’s proceedings, upon the ground that the liability of the sheriff has been discharged by an ex-•oneretur obtained since this suit was commenced. The following facts appeared by the affidavits read on the motion.

<p>On appeal from an order made at Special term.</p>

This action was to recover the possession of personal property;. The defendant was arrested by the sheriff, andón giving the usual bail was discharged from arrest. The hail afterward failed to justify, and-the sheriff rearrested the defendant. He now moved to be discharged from arrest, and if not, that the sheriff be directed to admit him to the liberties of the jail, on.giving proper security.

The plaintiffs, composing a firm at the West, brought an action against the defendant for a libel upon the firm. The cause was tried, and judgment rendered for the plaintiffs. On appeal to the court of appeals, a new trial was ordered. Pending the appeal, Taylor, one of the plaintiffs, died; a suggestion of such death was entered óp the record, and after the decision of the court of appeals, the -plaintiffs noticed the cause for trial at the April term of this court.

P. A. Milberg, of Hamburgh, Germany, consigned to the plaintiffs four different shipments of merchandize, with instructions to deliver the same to Jacob Ryback, one of the defendants, upon payment of the freight and expenses. Upon the arrival, in December last, of two of the consignments, by the ships Rastede and Donan, they delivered to Ryback the bills of lading for them, on receiving from him the amount which they demanded for those charges.

Motion to set aside complaint for irregularity. The action was commenced by the service of a summons and complaint. The summons was entitled in the supreme court, but in the complaint the name of the court was omitted. The complaint sets forth three promissory notes, of different dates and amounts, made by the defendant, and payable to the order of the plaintiff.

<p>Motion that plaintiff recover costs and have leave to insert them in the judgment roll, and for an extra allowance, &c.</p>

<p>Where defendant’s attorney served notice of retainer and demand of copy complaint at two several times, (for several defendants,) upon plaintiff’s attorney; and after twenty days had elapsed from the first service, but not twenty days from the last, he moved to dismiss the complaint for want of service—held, that on proof of service of the first notice and demand, the defendant was entitled to move, without waiting for the expiration of twenty days from the last service.</p> <p>In ordinary cases, the practice, as settled, allows twenty days for service of copy complaint, after demand.</p>

<p>Where the testator, in the first provision in his will, directed his executors to pay his debts and funeral expenses, but made no mention of-legacies, and then gave to his wife a specific legacy of $450, together with the unexpired lease of the premises which he then occupied, and all the household furniture and personal property within the dwelling house situated on the premises, excepting money and choses in action, and declared that such bequest should be in lieu of dower; after this, devised and bequeathed all the rest and residue of his estate, both real and personal, of which he might die seized or possessed, to his mother— held, that the legacy of $450 to his wife was a charge on the real estate, there not being sufficient personal property.</p>

Motion to strike out the defendant’s answer, as false. The complaint alleges that in May, 1850, at the request and for the accommodation of the defendant, the plaintiff became a joint maker with him of a promissory note for $500, a part of which was subsequently paid by the defendant; that on the 11th of February, 1852, a judgment was recovered against the plaintiff and the defendant for the balance of the note, and that the plaintiff had paid such judgment, amounting to…

Motion by plaintiff for writ of assistance against defendant, Charles Daniels. The plaintiff filed his bill in 1845, to foreclose a mortgage executed to him by the German Reformed Church, and made Daniels and others parties. In 1849 there was the ordinary decree of sale and foreclosure in the old chancery form.

Parker, Wright, and Harris, Justices. This case was submitted to the court without action, pursuant to chap 1, title 12, part 2 of the Code, passed April 12, 1848, and the several acts amendatory thereof. The following are, substantially, the facts agreed upon between the parties.

The plaintiff, one of the exhibitors at the Crystal Palace, sues the association for the consequences of alleged imperfection in the construction of the building, the same “ not having,” he says, “ been built watertight.” His “ Hebrew work of art ”—that is the name by which the article exhibited was known, being one of three ec pictures in penmanship ”—of the value of five hundred dollars, “ by reason of rain beating in and through said building and upon the same, became so…

Demurrer to answer.—The complaint contains two counts or statements of causes of action: one upon a note and the other upon an account for goods sold, See. The answer demurred to states that on the first day of June, 1851, and from that time to the commencement of this action, the defendants were copartners in the business of blacksmith-mg.

—Two defendants were sued, the one the plaintiff in an execution, and the other the constable who held the execution, for taking property of the plaintiff by virtue of the execution against another person. The defendants appeared by different attorneys, and, having succeeded in their defence, each moved for an extra allowance of costs.

Complaint states that the plaintiff is owner in fee of a slip or seat known as No. 82, in the Presbyterian meeting-house in the village of Prattsburgh. That defendant is in possession of said slip, and unlawfully withholds possession thereof from plaintiff, and plaintiff prays judgment that defendant surrender the same to the plaintiff. The answer First. Denies that the plaintiff is the owner of the slip or seat, or that defendant wrongfully withholds it, &c. Second.

Before Selden, Johnson, and Welles, Justices. Appeal from the Cayuga County Court. The defendants were a corporation organized under the general Railroad Act of 1850. {Laws of 1850, chap. 140.) In May, 1853, Hackley & Hungerford, contractors with the defendants for the construction of their railroad, were engaged in constructing the road, and entered into a sub-contract with one Deland to construct a portion of it. Deland hired the plaintiff as a foreman.

Hand, P. J. Cady, Allen, and James, Justices. There were two motions in this case, one by each party, to strike the cause from the calendar. The plaintiff moved on the ground that the suit had abated by the death of defendant, and also that there was no good service of notice of argument; the defendant, on- the ground that the plaintiff had not served a copy of the case, See., and he asked for judgment upon the verdict.

<p>This was a motion to set aside an execution against property, on the ground that it had been issued more than five years after the entering of judgment. It appeared that an execution against property had been issued and returned unsatisfied, soon after the recovery of the judgment, and less than five years before the issuing of the execution claimed to be irregular.</p>

This is an appeal from an order made at special term held by Justice Crifpen, at Cortland, in July, 1858. The plaintiff made a motion to strike out certain portions of the amended answer to the complaint, on the ground of redundancy, &c., which motion was granted, with $10 costs. Defendant appeals.

It appears from the complaint that in March, 1849, an application was made to the commissioners of highways in the town of Plainfield to lay out a certain road in that town.

Demurrer to complaint. The complaint alleges that the plaintiff is the executor of the last will and testament of Isaac Webster, deceased, and that he has been duly and legally authorized to act as such executor.

Warrants of attachments, in each of these causes, and eight others, were issued to the sheriff of Saratoga, by virtue of which the property of the defendant was seized. A few days after, the defendant served upon the plaintiffs’ attorneys, in each of the above actions, an offer to allow judgment to be taken against him, pursuant to the 385th section of the Code. The offers having been accepted,'the plaintiffs moved for an extra allowance of costs.

Motion to set aside order of arrest. The affidavit upon which the order was granted, states that the action was brought to recover the amount due upon an account for advances made, and supplies furnished to the defendant, and his laborers, while engaged as a contractor upon the Albany and Susquehanna Railroad; that on the first of February, when the summons in this action was served upon the defendant, he stated that he had $1050 in his house, but that the plaintiffs, should…

This is an application for leave to discontinue on payment of the costs of the last suit. Henry Fisher filed the original bill, claiming certain relief in relation to lot 42 in the iron ore tract in Moriah, and the possession thereof. The defendants answered, and the cause was put at issue by replications.

Motion to set aside judgment. The action was brought to recover a balance alleged to be due upon the settlement of accounts between the parties. The plaintiff demanded judgment for $114,10, with interest. The defendant, in his answer, among other defences, claimed a set off of $40, which he alleged the plaintiff had agreed to allow. The plaintiff did not reply to the answer. The cause was noticed for trial at the Schoharie Circuit, in November, 1853.

Married woman’s rights, &c. This was an action brought by the plaintiffs on the 23d day of January, 1854, to foreclose a mortgage made the 29th day of June, 1853, for the sum of three thousand one hundred dollars, executed to Mary Ann C. Rusher, wife of John B. Rusher, one of the plaintiffs.

This was an application for an order that Marcus Ball, Esq., the attorney for the plaintiffs in each of the above actions, pay to the attorney for the defendant, the sum of $18.72, in each action, costs of the last Warren circuit, ordered to be paid on putting off the trial, on motion of the plaintiffs’ attorney.

Motion to set aside attachment. The attachment was issued against the defendant upon an allegation that he was a non-resident. The defendant showed by his ¡own affidavit that he formerly resided and did business in Lynn, Massachusetts; that in the winter of 1846-7, he broke up keeping house, and his wife went to live with her mother in Bradford, New-Hampshire; he remained in Lynn until February, 1849, when he went to California, leaving no property or business in Lynn.

Rights of married women. Catharine Bishop, one of the defendants, claimed to be paid to her out of the surplus moneys in this action, one equal third part of the whole amount, subject only to the dower of Eunice Read, the widow of Cornelius Read, the mortgagor. That such claim was made as one of the three children and only heirs-at-law of the said Cornelius Read. Mary Elizabeth Alexander, also one of the children and heirs-at-law of said Cornelius Read, made a like claim.

Motion to strike out answers as being inconsistent with each other, or .that defendants elect which they will retain. The complaint was for an assault and battery. The answers were, 1st. A general denial. 2d. That plaintiff committed the first assault, &c. 3d. That he was in defendants’ inn, making a great noise, &c., and defendants requested him to leave and he refusing, they gently laid their hands on him to remove him, &c.

Motion to strike out, &c. The action is for slander. The charge, as stated in the complaint, was that the plaintiff had stolen the defendant’s hay.

Hand, Cady, and Allen, Justices. This is an application for an order that Mansfield T. Walworth, as receiver of the effects of Royal C. Wheedon, may, by an amendment, be brought in as a party in the above actions, and may defend the same- and claim and interpose his priority to the money and effects in the hands of A. Bockes, Esq., the receiver appointed therein.

The question raised in this much litigated case is, whether the costs upon the appeal taken by Mr. Sturtevant and his associates, defendants in contempt, arising out of the Broadway railroad case, ought to be taxed under and according to the provisions of the Code, or the Revised Statutes.

Demurrer to complaint for misjoinder of actions. The plaintiff claimed damages for killing cattle in going through his farm, the fences not being kept up by the company as was their duty, and for the wrongful killing, carrying away, and converting said cattle, (the conversion consisted in taking the carcass up the track a short distance, and burying it.) Cause of action, No. 2, was the same in regard to swine.

<p>Motion to set aside summons and complaint.</p> <p>The grounds of the motion, as stated in the notice, were, that no person or persons are named in the proceedings as defendants, and that the persons constituting the board of supervisors of the county of Columbia are not named individually, nor designated by their name of office. .</p>

The complaint in this action alleged that the plaintiff was the widow of Samuel Whittemore, late of the city of New-York, deceased; that said Samuel died on the 22d June, 1835, seized and possessed of a large real and personal estate leaving said plaintiff, his widow, and ten children, (naming them,) that subsequently to his death a suit in partition in the court of chancery was commenced by Wm.

The original bill was filed by Joseph Spier and John Kinnicutt against Issachar Robinson afid Richard Greenfield, in order to compel Issachar Robinson to convey to the said Joseph Spier and John Kinnicutt a certain piece of land situate in the town of Edinburgh in the county .of Saratoga.' To show that the complainants in the original bill were entitled to the relief demanded, they alleged among other facts, that in May, 1824, the said Robinson by contract in writing agreed…

The action being at issue was noticed for trial at the circuit held in Albany, in June, 1853. After the commencement of the circuit and before the cause was reached upon the calendar it was referred by consent of the attorneys for the parties. The plaintiff having obtained a report in his favor, claimed, upon the taxation of his costs, to be allowed a fee of $10 for the June circuit. This item was objected to, and disallowed by the clerk. The plaintiff moved for a retaxation.

This was a motion to open a default taken at the last March term. The appellant, who appeared in person, showed by affidavit that, in consequence of illness in his family requiring his attendance at home, he had been unable to attend the March Term. The delay, however, was not very satisfactorily accounted for, and it appeared that the taxation of costs had been adjourned in the court below from the 5th till the 12th of May.

The complaint avers, in substance, that in November, 1850, the plaintiff purchased of defendant, who was and had been for a number of years a practicing physician in Fulton, Oswego county, and its vicinity, a house and lot owned by defendant in that village, some office furniture, and his ride and good will; he agreeing to pay for the house and lot the sum of $1,000, and for the furniture and good will the sum of $500; in consideration whereof the defendant agreed not to…

The cause was tried at the Washington circuit in .February, 1853, before C. L. Allen, Justice. It was an action for the recovery of damages for levying upon and seizing personal property for a school tax in the district of which defendants were trustees. It appeared on the trial, that the tax collected and paid by plaintiffs amounted to $203.25; but the plaintiffs ■claimed in their complaint $1,000 damages.

Motion to set aside complaint. The complaint states that the defendant is indebted to the plaintiff in the sum of $25.50, “ for goods, wares, and merchandise sold and delivered, and bargained and sold, and also for a balance due on settlement of accounts for said goods sold as aforesaid.” After stating this cause of action, the complaint proceeds to set forth separately eight other causes of action assigned to the plaintiff by eight different creditors of the defendant.

<p>This is an application by defendant for costs against the plaintiff for not proceeding to trial pursuant to a notice to that effect.</p> <p>The plaintiff was appointed a receiver of the property and effects of Robert Gifford, a judgment debtor, by an order of the county judge of Oswego county. By a further order of the judge'he was authorized and directed, as such receiver, to prosecute this suit. He commenced it accordingly, and, as appears by the affidavits in opposition to the motion now made for costs against him, noticed it in good faith for trial, but was prevented from proceeding to trial by the absence of a material and necessary witness.</p>

This is a motion made by the plaintiff to dismiss the defendant’s appeal from a judgment entered for the plaintiff on the 17th day of June, 1853, on the report of a referee. Notice of the judgment was served by the plaintiff’s attorneys by depositing the letter in the post-office at Elmira on the 17th day of June, 1853, directed to the defendant’s attorney at Buffalo, and paying the postage thereon.

Order to show cause why an injunction should not be granted restraining the defendant from transferring a certain promissory note.

Motion to confirm report and for costs. The plaintiffs, as assignees, &c., presented a claim to the defendants against their intestate.

<p>A claim against an estate of $1,000 is not unreasonably resisted by the administrator where, on the trial, it has been reduced to $350.</p> <p>To entitle a party to costs of a trial against an estatu, or an executor or administrator, on the ground that they refused to refer, it must appear that an account or some claim against the estate, which could be supported by vouchers and affidavits, was presented to the executor or administrator before refusal to refer. A general vague demand of a gross sum is not sufficient.</p>

<p>The plaintiff brought his action upon a contract made with defendants, and among other things, being the principal controversy, alleged that it was for the sale and delivery to the defendants of a large quantity of residuary coal, at cost, to be paid for by defendants and retained by plaintiff out of the first earnings of the ships sold by plaintiff to defendants; that the coal, coal hulks, and fixtures, were transferred and delivered to the company, and that their value amounted at cost to, and had been liquidated between the parties at $180,706.58, and that $70,040.59 still remains due and unpaid.</p> <p>The answer averred that the entire allegation in the complaint “ as to the contract between them and the plaintiff, excepting so far as the same relates to the purchase and sale of the vessels and the purchase and sale of the coal, coal hulks, and fixtures, is totally and without qualification untrue. It is true that defendants were to pay for the coal, hulks, &c., out of the first earnings of the ships, but plaintiff was not to retain that amount; and defendants have paid the same and more than the same to said plaintiff. For the coal, hulksj fixtures, &c., the defendants owe nothing.”</p> <p>It being claimed by plaintiff, under § 168 of the Code, that by the answer of defendants they had admitted the allegation in complaint, that $70,040.59 was due—Held, that under § 160 the defendants might amend, upon terms, by making their answer more definite and certain.</p>

<p>Action upon a note of $80. The defendant denied all the allegations in the complaint, and then “for a further defence and counter claim,” stated in his answer several set-offs; and also statements of facts constituting causes of action against the plaintiff, which would not be permitted as set-offs merely. These statements of facts constituting set-offs, and causes of action, were separately stated.</p> <p>The plaintiff replied, denying all the allegations in the answer, and then “ for, a further reply and defence to the new matter contained in the defendant’s answer,” made statements of demands for, 1. Work and labor; 2. For goods, wares, and merchandize, sold and delivered; 3. For money lent and advanced, &c.; 4. For carrying and conveying divers goods, wares and merchandize for the defendant, and for the use of boats and vessels, &c.; and he alleged that there was due to him the sum of one thousand dollars for and on account of the claims and demands of the plaintiff against the defendant as therein stated, over and above all defence and counter claims which the defendant has against the plaintiff, and the note upon which the action is brought.</p> <p>The defendant moved to strike out all the new matter in the reply,- or to set that part of it aside.</p>

<p>- Marvin, Bowen, and Green, Justices. This action was brought by the plaintiffs against the defendant, in March, 1852,- in the late recorder’s court of the City of Buffalo, -upon a promissory note, bearing date October 11, 1850, payable to the plaintiffs on demand. The defendant answered that,-soon after the date of the note, and before the first day of August, in the year 1851, the note became the sole- property of the said Curtis, and then alleged a set-off against Curtis, accruing to the defendant, after Curtis became the owner of the note, and'prior to the commencement of the action, of an amount larger than the sum owing on the note, and claimed judgment against Curtis for the balance. This allegation of set-off was, on motion of the plaintiffs, stricken out from the answer by an order of the recorder’s court, with costs of the motion. The action was afterward brought to trial, and the defendant offered to prove the set-off, as the same was alleged in that part of his answer which had been so stricken out by the court. To this the-plaintiffs objected, on the ground that it was inadmissible under the pleadings as they then stood. The court sustained the objection, and the defendant excepted. - The -plaintiffs had judgment for the amount of the note. The defendant appealed to this court.</p>

<p>— Demurrer to complaint;</p>

Marvin, Bowen, and Green, J. J. Appeal from Order of Special Term, affirming the adjustment of costs by the clerk. The defendant is an Indian, and claimed treble costs, which the clerk allowed.

<p>Demurrer to complaint, on the ground that “ several causes of action have been improperly united.”</p>

<p>In an action for a tort against two or more defendants, each defendant, under the amendment made to the Code in 1851, is a competent witness for his co-defendant.</p> <p>In all actions a defendant is a competent witness for his co-defendant. His admissibility as a witness can not be questioned—but he is restricted as to the subject matter of his examination, which is, to questions tending to establish a defence of which his co-defendant can separately avail himself, and in which the witness is not jointly interested</p> <p>Where a witness is called to the stand who is competent to be sworn and testify to some matters, but who may not speak of other matters, it is not proper to object to his competency generally and exclude him.</p> <p>Upon the question of mitigation of damages, where the cause of action is clearly made out against all the defendants, one defendant can not be a competent witness for his co-defendants; for damages are indivisible, and the witness is therefore jointly interested with his co-defendants. If, however, in an action of tort, the case made out against the defendant who is called as a witness is a doubtful one, there is no objection to receive his testimony to mitigate damages for his co-defendants, under proper instructions to the jury, to consider it if they acquit the witness, and to reject it if they find him guilty.</p>

<p>Where interrogatories in a commission from another state, addressed to two witnesses residing in the city of New-York, for the purpose of proving that the defendant in the action, as a member of the Mercantile agency, of which the witnesses were also members, had, in 1847 or 1848, made a certain communication to the agency, which they had exhibited, respecting the character and standing of the plaintiffs, for which they had brought their action for libel,—held, that the witnesses were not bound to answer, they having declined, on the ground that their answer might form a link in the chain of evidence which might tend to convict them of libel.</p> <p>They were not bound to answer upon any supposed protection from the statute of limitations, as it did not appear but that the exhibition of the paper might have been within one year.</p>

Demurrer to answer.—This is an action against Florence as surety of Boudinot on an administration bond. Boudinot was ordered by the surrogate to pay over certain moneys, and failing to do So, the bond was directed to be assigned to the plaintiff to be put in suit. In his answer, Florence seeks to call in question the orders of the surrogate—and to this part of the defence the plaintiff demurs.

<p>Motion for additional allowance.</p>

—The plaintiffs recovered a verdict of $50 at the last April circuit in Yates county, and perfected judgment thereon. The action was noticed for trial at the last October circuit in the same county, and was put over on application of the defendants upon payment of ten dollars and disbursements, as a condition of the postponement, which were then paid by them.

On the 30th of April, 1836, the plaintiff, Samuel Harris, purchased of Thomas McKie, executor of Daniel Clark, the house and lot No. 400 Hudson-street, in the city of New-York, for $6,300 : he paid $3,300 in cash, and gave his bond, secured by his and his wife’s mortgage upon the premises for $6,000 penalty, conditioned to pay $3,000 on the 1st of May, 1841, with 6 per cent, interest, payable half-yearly on the 1st of May and November in each year. - The deed and mortgage…

<p>A writ of assistance may be issued ex parte without service of notice for the order. (So held in 8 Sow. Pr. if. 35.)</p> <p>A decree of foreclosure which directs that the purchaser or purchasers at the sale be let into the possession of the mortgaged premises sold, and that any of the parties in the cause who may be in possession of said premises, and any person who, since the commencement of the suit, has come in possession under them, or either of them, deliver possession, Ac., does not authorize the removal of a tenant in possession, who became such after the commencement of the suit, where such tenant holds under a person not a party to the suit who was lawfully in possession under a claim hostile to that derived from the mortgage; although the tenant was made a party to the suit for the purpose of reaching an interest, in right of his wife, in other premises in the mortgage of which he was in possession, and which possession he had delivered up in pursuance of the decree.</p> <p>That is, the tenant having obeyed and satisfied the requirements of the decree, quoad its effect upon him, was afterward at liberty to go into possession of the other mortgaged premises under a person who was not a party to the foreclosure suit, in the actual possession, as owner, claiming title in hostility to that derived through the mortgage foreclosure, without being liable to be turned out by virtue of the decree which had expended its force with regard to him.</p> <p>A landlord, not a party to a foreclosure suit, and claiming title in hostility to that derived through the foreclosure, is not bound by the decree, although his tenant, who is made a party, surrenders possession of the premises to him after the decree.</p>

This is an application to compel Richard L. Morris to deliver over to Henry E. Bartlett all the books and papers in his custody, as health-officer of the city of New-York, or in any way appertaining to the office.

Common law certiorari to the defendant, upon a conviction by him as a justice of the peace of the relator for an alleged contempt.

<p>It seems, that in an action against a receiver, application to the court should first be made for leave to prosecute. {The views expressed in relation to restraining receivers in the case of Van Rensselaer agt. Emery, ante, p. 135, concurred in.)</p> <p>But where a general notice of appearance has been served by defendant’s attorney, it is a waiver of the irregularity in commencing the suit without leave of the court.</p>

<p>An injunction order can only go against a party to the action, (See Code, §§ 218, 219.)</p> <p>The original injunction order must he shown to the party—service of a copy only, with a notice that it is a copy of the original, is not sufficient.</p>

<p>Where the plaintiff lavishly charged the defendant with depredation, embezzlement, and fraudulent misapplication of trust funds, and claimed $60,000 due the estate; and on the reference for accounting, it appeared that there was but about $17,000 balance due from the defendant, which had been probably secured by a mortgage given by him, before the reference—held, that although it appeared that the defendant had at one time borrowed of the estate for his own benefit, with the consent of a co-trustee, the sum of $12,000 in stocks, (which was included in the mortgage,) he was not liable for all the costs of the reference; and would not have been chargeable with any costs but for the breach of trust in taking the stocks.</p> <p>The general principle in such cases is, that executors are entitled to their costs in settling their accounts so far as they are not in fault; and bound to pay costs as to such inquiries in the action as are caused by their breach of trust.</p>

Motion by the defendant to set aside the judgment and subsequent proceedings in the action for irregularity, &c.—The facts are stated in the opinion of the court.

This action was brought to recover the balance of an account claimed by the plaintiff to be due to him from the defendants’ intestate in his lifetime, amounting to $20.75. The account consisted of over twenty items bearing dates ranging from June 27, 1831, to November 21,1845, inclusive.

<p>Where the charter of an incorporated company by its provisions makes a stockholder,under certain circumstances, personally liable for its debts, a judgment previously recovered against the corporation is prima facie evidence of a debt against the stockholder individually. ( The doctrine contained in Slee agt. Bloom, 20 John. 669, and Moss agt. McCullough, 7 Barb. 279, concurred in.)</p> <p>It is therefore sufficient to aver in a complaint in an action against the stockholder personally, the recovery of a judgment against the corporation, and the other facts on which the liability of the defendant under the statute attached, without alleging the consideration and circumstances of the original indebtedness.</p> <p>Where several stockholders in an incorporated company in good faith subscribe and pay over in money their subscriptions for the purpose of increasing the stock of the company, and the company fail in carrying out that purpose; an obligation on the part of the company implied by law to refund such subscriptions is thus created; and is a claim by such stockholders, arising c$ contractu, and therefore assignable and capable of enforcement by the assignee in his own name.</p> <p>Where several causes of action of the same nature are properly united m the same complaint, but are not separately stated, the defect can not be reached by demurrer. (The cases holding the contrary view, not concurred in.)</p>

<p>Motion to set aside judgment, &c.</p> <p>The action was commenced by summons, which was personally served on both defendants. The service was made upon the defendant Conklin on the 25th of January, 1854. On the next day after the service of the summons on Conklin, he employed H. 0. Chesebro, Esq., an attorney of this court, to defend the action.</p> <p>On .the first day of February following, Mr. Chesebro caused a notice of appearance for the defendant Conklin, with a demand of a copy of the complaint to be served upon the plaintiff’s attorney, who, on the same day, returned the notice and demand to Mr. Chesebro, with a message that it would not be received, and that an attorney had already appeared in the action for the defendants, and that judgment .had been entered therein in favor of the plaintiff. Upon examination of the clerk’s office of Ontario county, it was found that judgment had been entered in said action in favor of the plaintiff against both defendants for $824.29, on the 30th day of January aforesaid.</p> <p>The defendant Conklin swears that he never employed or authorized the employment of any attorney to appear for him, or for the defendants in said action, or to defend the same, except the said Chesebro, or to do any other act or thing for him or the said defendants as their attorney in said action.</p> <p>On the part of the plaintiff it appears, that soon after the action was commenced, and after the service of the summons, the defendant Arnold employed D. A. Robinson, Esq., an attorney of this court, to appear in said action for both defendants, and to demand a copy of the complaint, which was done by said Robinson on the 28th of January aforesaid, three days after the commencement of the action. That on the 30th of the same month a copy of the complaint was served on Mr. Robinson in pursuance of such demand. That afterward, and on the same day, and after consultation between Arnold and Robinson, the former directed the latter to serve upon the plaintiff’s attorney an offer m writing to allow judgment to be taken against the defendants in said action for the amount for which the same was afterward entered, less the amount of the plaintiff’s costs as adjusted, which offer was accordingly made and accepted, and judgment perfected thereon, in pursuance of § 385 of the Code. It also appeared that the defendants were, during all the times above mentioned, and for some time previously, partners in the mercantile business, and that the action was brought against them for a demand owing by them as such partners. Other matters are stated in the affidavits, which, as far as regarded material, will be adverted to in the opinion.</p>

Separate motions by defendants Arnold and Bailey, (who appear by different attorneys,) to set aside the summons and the service thereof, and all other papers served in the action, for irregularity. The complaint was served with the summons, together with a copy of an injunction and affidavits, upon which the injunction was granted.

Motion by defendants to set aside judgment and execution, on the ground that neither the summons nor complaint had been served upon them.

<p>Motion on the part of the defendant to dissolve a temporary injunction.</p> <p>The plaintiff obtained a temporary injunction to prevent the defendant from selling certain stock, on the ground that it was given to the defendant as part of an usurious transaction. The plaintiff swears that he borrowed of the defendant $5,000 in December, 1853, for four months, at seven per cent, interest, and that it was agreed at the time that he should also give to the defendant one hundred shares of stock of the par value of $100, but then selling in New-York at $5 per share.</p> <p>The plaintiff further shows, by the clerk of. the company, that one hundred shares of the stock were transferred to the name of the. defendant on the day of the loan; and furnishes an affidavit of a gentleman of Boston, who" was present at a conversation in February, 1854, between these parties and a Mr. Martin; and he says, that at that conversation it was explicitly stated that Davis had given Illius and Martin each a bonus of one hundred shares for a loan of $5,000.</p> <p>Martin swears that the plaintiff applied to him, not to lend him money, but to procure for him $5,000 cash, and an extension on a note of $5,000 then held by a company in which Martin was an officer; and offered him two hundred shares of the stock in question for his services; that he procured the extension of the note, and obtained the $5,000 from the defendant for the plaintiff; and that the defendant was to have only seven per cent.; that these were the only terms of the agreement. But afterward he urged the defendant to take half of the two hundred shares of stock from him, because they were both so much interested in the stock that he was unwilling to have an advantage in it over the defendant; that the defendant at first refused to take it, but finally consented.</p> <p>The defendant makes the same statement of the transaction.</p>

Demurrer to complaint. The complaint contained two counts, or statements of causes of action.

From the affidavits and papers which have been presented and referred to on this motion, it appears that in September, 1852, an appraisal was made of the land of John D. Crowner, over which the Watertown and Rome Railroad Company had located a portion of their route, awarding him the sum of $340 as damages: that said report was in November, 1852, on the application of the railroad company, confirmed, and the sum awarded deposited in the Jefferson County Bank to the credit of…

This is an application for an attachment against the sheriff of Dutchess county, to compel him to return an execution in the above entitled cause. The execution was delivered to the sheriff by the plaintiffs’ attorneys ■ on the 13th of January last. An execution on a prior judgment had been delivered to the sheriff four days before. The defendant had in November preceding executed a general- assignment to one Heath, who had sold the goods assigned to Price & Southwick.

<p>Before Brown, Rockwell and Dean, Justices.—This was an appeal from an order of Justice Barculo, refusing to set aside a judgment docketed after the parties had settled.</p> <p>Marquat, in 1851, sued Mulvy in justices’ court and obtained judgment for $48.05 : Mulvy appealed to the county court. Prior to the decision in that court, Marquat, on proceedings supplemental to execution, collected of Mulvy the above judgment with costs, amounting to $74.94. The county court reversed the justices’ judgment with costs, and ordered restitution. On this reversal a judgment was entered in that court for $99.56. The plaintiff appealed to the supreme court. At the January term, 1853, the judgment of the county court was affirmed with costs. The plaintiff and attorneys for both parties resided in Rhinebeck, Dutchess county. At the time of the affirmance of the judgment by the supreme court, and up to the settlement, Mulvy resided in New-York city, and had no knowledge of the result of the suit. His attorney, Mr. Wager, was in Europe. The plaintiff, with a full knowledge of the facts, on the 5th February, 1853, went to New-York and endeavored to settle the whole case for $10, but failed. On the 8th February the plaintiff again went to see the defendant, and took with him a constable with a warrant against the defendant for perjury, and the justice of the peace before whom the original suit had been tried. They then obtained from the defendant a receipt for $10 in full of all demands, claims, &c. They, however, paid 'him $12. The defendant’s attorney had no knowledge of this arrangement between.the parties, and on the 10th February gave notice that on the 14th he would apply to the clerk for the entry of judgment, See. The plaintiff’s attorney then gave notice of the arrangement between the parties. The defendant’s attorney disregarded this, and proceeded with the entry of judgment, and had the same docketed for $169.72. The plaintiff on affidavit moved at the March special term to set aside the judgment for irregularity, Sec. The defendant and his attorney on affidavits opposed the motion. Judge Barculo referred it to a referee to take proofs, &c., as to the fairness of the settlement. The referee reported that as to .Mulvy he thought the' settlement could not be impeached; but. as to his attorney, Wager, or his costs, included in the judgment, that it was not fair. Judge Barculo, on the coming in of this report, denied the motion to set aside the judgment, and from that order the plaintiff has appealed.</p>

<p>Where a defendant sued as a public officer obtains judgment upon a report of referees, he is entitled under the statute (2 if. S. 617, § 24) to double costs, the same as if judgment had been rendered upon a verdict.</p> <p>Held, that the above mentioned statute, giving double costs to public officers, sued as such, was not intended to be and is not repealed by the Code, (it would seem that the many decisions upon this subject reported in this work are about equally divided upon the question, whether this statute is repealed or not.)</p>

This was a motion on the part of the defendants to set aside the appointment of Edward Smith, as next friend of the plaintiff, on the grounds that he was her husband, and that no order had- been made for his appointment.

This is an application made on behalf of Sidney H. Stuart, one of the police justices of the city of New-York, for a peremptory mandamus, commanding the chamberlain, in his capacity of treasurer of the county, ex officio, to pay him the sum of six hundred and sixty-six dollars and sixty-six cents, for a compensation directed to be paid to him by the resolution of the board of supervisors of the 27th December, 1853, for extra services.

A motion is made to discharge the defendant from custody under an execution. When the action was commenced an order of arrest was made, and the defendant gave bail, and the bail being excepted to, justified. The complaint at first alleged the purchase of goods by the defendant, and that the purchase was made on fraudulent representations.

<p>This is an application for an injunction to stay the collection of a tax of $311.25 on the personal property of the plaintiff, assessed to him as a resident of the town of Newburgh, in the county of Orange, whereas his true residence and place of business, he alleges, is in the city of New-York.</p>

Brown, Rockwell and Dean, Justices. Costs.—This was an appeal from an order on a motion to strike out certain items of costs inserted in the judgment.

Present Wright, Harris, and Watson—Justices. Demurrer to answer.—The action was for slander. The defendant interposed several defences, and, among others, alleged that the slanderous words were spoken under circumstances which rendered them privileged. To the latter defence the plaintiff demurred.

This is an action on a policy against loss by fire; -The defendant put in eight answers, and the plaintiff has demurred to the 1st, 2nd, 7th and 8th. And one answer given to the demurrers is, that the answers demurred to-do not contain any hew matter constituting a counter-claim; and that, therefore, the plaintiff’s demurrers must be regarded as nullities.

The action is upon a promissory note, made by the defendants in favor of the plaintiff and dated the 23d of September, 1853. The defendant, Joseph W. Ward, demurred. A motion was noticed for this day to strike it out as frivolous, and for judgment. On the 5th the defendant obtained an order to show cause on this day why an .answer annexed to the order should he allowed to be served.

Present, Wright, Harris, and Watson, Justices. Appeal from judgment on report of referee. The defendants, by a policy of insurance, bearing date the 21st of April, 1851, agreed to insure Fellows, Corps & Co. against loss or damage by fire, to the amount of $1,000, on certain machinery and fixtures in the city of Troy. On the 5th of July, the property insured was destroyed. Notice and proof of the loss were duly given.

Petition of William K Mead and others to be made parties defendants. The petitioners, in December, 1853, commenced an action against the defendant, Abner W. Hollister, in which an attachment was issued, under which attachment the share of that defendant in certain real estate, which had descended to him and others, was seized, on or before the 4th of January, 1854.

Motion on part of the defendant to dissolve injunction. The motion is made upon the complaint, and answer and affidavits. On the 30th May, 1854, the county judge of Ulster granted an order restraining the defendant, his agents and servants, from using, selling, encumbering, or otherwise disposing of the canal-boat called the T. F, Barry, or any of its appendages, until the further order of this court.

<p>Motion to amend complaint, and an application for an order of publication.</p>

Motion to set aside service of summons and complaint. On the 21st of April, 1854, the plaintiffs presented to the county judge of Schenectady an affidavit of a deputy sheriff, stating that the residence of .the defendant, George Campfield, was in the village of Scptia, in the; county of Schenectady, and that he had made diligent efforts to serve the summons and complaint in this action up.on him, and that he could .not be found so that such service could be .made personally;…

<p>An admission in one defence in an answer to a complaint on a promissory note that the defendant endorsed a note similar in amount and desciption to that mentioned in the complaint, accompanied with a denial of all knowledge or information sufficient to form a belief that he endorsed the same to the plaintiffs, or that the plaintiffs are the owners or holders thereof, “ as stated in the complaint in this action,” will, upon a motion for judgment on the ground that the answer is frivolous, be construed to relate to the note described in the complaint.</p> <p>References in a subsequent defence in the same answer to the “said” note - sufficiently point to the note in suit. z '.¡/ J</p>

The action was brought to recover money alleged to have been received by the defendant as the guardian of one Hiram Davis. Davis had assigned the demand to the plaintiff. When the assignment was executed, the. plaintiff made and delivered to Davis his note as the consideration of the. assignment, which note is as follows: “ I hereby agree and promise to pay Hiram Davis fifty dollars for. a claim against Edwin Miner I- have this day bought of him when I collect the same.

Motion on the part of the plaintiffs in the case first entitled, to set aside the judgment and execution in the case last entitled, as against the plaintiffs in the first case.

The complaint alleged that the defendant had become possessed of, and wrongfully detained from the plaintiff twelve tons of hay, the property of the plaintiff, and demanded that the defendant might be adjudged to deliver it up to the plaintiff. The defendant denied the allegations in the complaint. Upon the trial the plaintiff gave .in evidence a chattel mortgage executed by one Hawk, bearing date the 31st of May, 1853.

Motion to set' aside order of arrest. The action was for assault and battery. It was tried at the March circuit in Albany, and the plaintiff recovered a verdict for $500. When the verdict was rendered, the defendant obtained an order allowing him thirty days tó make a case, &c., and directing that all the proceedings on the part of the plaintiff be stayed in the mean time. • This order was made on the 24th of March.

In this case the plaintiff both replied and demurred to the defendant’s answei, and the defendant moved that the plaintiff elect whether he would abide by his reply or demurrer.

Motion to strike out, &c. The complaint states that the defendant, being the owner of certain premises in Albany, through his agents or servants, dug a ditch or trench, near said premises, extending across the sidewalk into the highway, and carelessly permitted the ditch or trench to remain open and uncovered, without fixing or placing any light near the same; and that, in consequence of such negligence and carelessness, the plaintiff’s wife, in passing along the street,…

Johnson, T. R. Strong, and Selden, Justices. This action was originally brought in a justice’s court to recover the value of certain personal property, levied upon and sold by the defendant, who was a constable, by virtue of an execution against the plaintiff. The defence was that the execution was issued upon a judgment in favor of W. W. Bramhall against the plaintiff upon a note, of which the following is a copy: cc $33.67.

Motion to set aside complaint. The plaintiffs claimed to recover four sums of money, as follows : $1,500, with interest from January 12,1853; $100, with interest from January 28,1853; $100, with interest from July 16, 1853; and $43.25, with interest from August 12, 1853. Sixteen causes of action are stated in the complaint.

Johnson, T. R. Strong, and Selden, Justices. This is an appeal from an order made by one of the justices of this court, at chambers, restraining the defendants from constructing the track of their railway across an open space in the city of Rochester, called Brown’s square. .

<p>Motion for judgment on account of the frivolousness of the defendant’s answer.' The complaint was for an assault and battery, alleged to have been committed by the defendant. The defendant, in his answer, states that the assaulting, &e., “has been fully settled and arranged between the plaintiff and defendant, and full satisfaction acknowledged by the plaintiff to the defendant.”</p>

<p>The interest of a bailee or pledgee for security in goods in their possession may be taken and sold on execution against them. The purchaser obtains their right and interest in the goods pledged. Therefore, an action to recover possession of such property from the officer can not be maintained by an individual in possession, and having an interest therein as bailee or pledgee.</p>

This was a motion on the part of the plaintiff to set aside an order granted by defaun at the last special term at Ballstonj held by Mr. Justice Cady. The ground of the application, as stated in the notice, was, that the special term had no power or jurisdiction, and it was against good practice, and irregular, and void. Judgment had been given at special term for plaintiff on a demurrer to the answer, from which the defendant appealed.