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In an action to recover a claim or demand which E. Z. had against defendants, and! which had been sold and assigned to the plaintiff, the complaint stated that the de- ! fendants, on the 28th February, 1852, were justly indebted to Z. in the sum of $7,964.36 with interest thereon, for moneys, notes and effects before that time had and received to and for the use of Z, the particulars of which will appear on reference to the annexed account, which is true, and forms part of the complaint. That being indebted he became liable to pay it to Z, or his assigns, when thereunto requested, and being so liable, they, as plaintiff is informed and believes, promised to pay it to
him. The complaint also avers assignment of the debt to plaintiff in trust, and that he has a right as owner to the debt or demand, and prays judgment for the amount of it. The following is one of the items referred to in the account:
"1851. Sept. 11.-The notes received from Mercantile Ins. Co. for loss of steamer Union, $10,164 24."
Held, on demurrer, that the complaint did not contain a plain and concise statement of the facts constituting the cause of action and judgment on demurrer with liberty to amend on payment of costs Lienan agt. Lincoln and an'r.
It is not a necessary averment in the com-
is a general rule that evidence should consist of facts and not opinions.
There are two distinct classes of cases in which the opinions of witnesses may be received, viz.:
Cases involving questions of science or skill, or relating to some art or trade, in which experts or persons instructed in the particular science or art, and they alone, are permitted to give opinions.
Cases in which it is impossible in language adequately to describe some object or scene material to the issue which has previously been presented to the personal observation of the witness.
In cases where opinions are proper, all means of enlightening the jury by facts should be exhausted before resorting to opinions; and where the testimony must necesarily consist of mingled fact and opinion, the facts should, as far practicable, be separately given, so as to reduce the matter of opinion which the testimony may contain, to the least possible quantity.
The opinions of witnesses may be received upon questions of damages, as well as upon questions of value, when from the former all idea of the legal rule or measure of damages is excluded.
Where, therefore, upon the appraisal of lands by commissioners under the General Railroad Act a witness was asked:
Widow's dower-election-parties to suit
What in his opinion would be the injury to a portion of the appellant's farm occasioned by the construction of the proposed road?
A Sheriff holding several executions against the same debtor, received at different times, cannot be required to treat those first received as dormant, merely because the plaintiffs therein gave to the sheriff a written consent that he might adjourn a sale under them, for forty-seven days after their return day, there being no agreement giving to the debtor a delay, or the use or benefit of the property in the meantime. A plaintiff, in a junior execution, cannot sustain an action for falsely returning it, nulla bona, by merely proving that a judgment on which an older execution issued was confessed with intent to defraud creditors, that the sheriff was so notified, and was also notified that the proceeds of the property would be claimed on the junior execution
The sheriff is not bound to try the question of fraud, nor to decide at his peril which of the two creditors should have the preference, so long as he acts indifferently between the parties, and does not lend himself to either. If a sheriff has notice of incontrovertible facts, which would render it fraudulent, he is bound to treat it as fraudulent. The sheriff cannot defend an action for falsely returning nulla bona, by proof of a prior execution falsely 1eturned, nulla bona. He can justify, under a prior execution, only by showing it executed, and the proceeds applied upon it, or by showing it unreturned, and the existing power as well as a subsisting duty to apply the proceeds upon it. Paton and o'rs, appell's, agt. Westervelt, resp.
SEE VENDOR AND PURCHASER.
A general creditor cannot maintain an action to set aside an assignment as fraudulent and void as against creditors. The rule that such an action can only be brought by a judgment creditor, has not been altered by the Code.-Neustadt and an'r agt. Joel, impleaded, &c.
148 An assignment for the benefit of creditors gave an authority to the assignee to sell the property assigned "upon such terms and conditions as in his judgment" may appear "best, and most for the interest of the parties concerned."
plication, gave a discretionary power to the assignee to sell upon credit, and therefore, according to the judgment of the Court of Appeals in Nicholson v. Leavitt, rendered the assignment, upon its face, frauduleut and void.-Schufeldt, rec'r, agt. Abernethy.
173 When in an assignment for the benefit of creditors the trust was, among other things,
as soon as reasonably practicable, with due regard to the rightful interest of all parties concerned, to convert into money by sales, either public or private, or by collection, as the case may require, or as may, in the judgment of the assignee, his successors and representatives, be for the best advantage, all the real and personal property," &c., and to apply the proceeds, &c., as directed in the assignment. Held, that such assignment was valid and not made with the intent either to delay or to defraud the creditors of the assignor, or to secure a benefit to himself at their expense.-Bellows agt. Partridge and an'r.
FREE BANKING LAW.
The Free Banks have authority to discount or to buy at a discount the bonds, notes, or other evidences of the public debt of a State, as well as of the private debt of individuals or corporations.
They are not forbidden from giving their engagements on time, provided such engagements are not adapted, nor intended, to circulate as money.
They are not bodies corporate within the meaning of the Constitution or the General Banking Law.
Nor are they subject to penal regulations involving forfeiture or imprisonment, enacted in reference to corporations proper.-Tracy v. Talmage, President of the North American Trust and Banking Co.
FUGITIVE SLAVE LAW.
Held, that a commissioner acting under the act of Sept. 18, 1850, 9 of Stat. at large, 462, (known as the Fugitive Slave Law,) is in no legal sense a magistrate inferior to the Circuit Court.
That the Court in appointing the Commissioners under the act acquires no supervisory authority over his or their proceedings.
That the Commissioner is not even an officer of the Court.
That no express authority is given to the
United States to issue a writ of certiorari -that it is implied under the power to issue other writs necessary for the exercise of the jurisdiction.
Held, that these words, by a necessary im- That the writ can only be awarded as aux
given case, and render valid what, under the ordinances, is invalid. Their supervisory power can only be exercised by discontinuing the work altogether, and by refusing an appropriation.
iliary to the exercise of a judicial authori- The Corporation cannot interfere in any ty over the case to which it is applied. That no act of Congress has delegated to the Circuit Courts power to issue the writ in the present case, and the Court could not grant the same if the case would have authorized it at common law.-In the matter of John Van Orden, a Fugitive Slave.
Under the treaty between Great Britain and the United States, of 1842, for the reciprocal rendition of fugitive criminals, the Act of Congress, passed August 12th, 1845, and the opinion in the case of Kane, 14 Howard, 145.
Held, that the requisition had been properly made through the executive of the United States.
That the documentary evidence, before the United States Commissioner, of the prisoner having committed the offence charged was sufficient, both in form and substance, to warrant the Commissioner's commitment of the fugitive for extradition.-In the matter of Alexander Heilbronn.
HUSBAND AND WIFE.
Under the Statute of July 18th, 1853, relating to suits against husband and wife for the debts of the wife before marriage, the judgment should be special, pursuing the language of the Statute.
Where a marriage took place after the Statute of 1848, depriving the husband of the right of acquiring the property of the wife, and the suit was brought after the Statute of 1853, upon a debt contracted in 1852, the husband was held exempted from liability for such debts contracted by the wife before marriage, and before the Statute of 1853.
Held, that the creditor acquired no such vested right in a contingent liability of a future husband, when the debt was contracted so as to render the Statute of 1853 inoperative. Foote agst. Morris and wife. 61
Under the ordinances of 1849, proposals defective in substance ought to be rejected; and the award of the contract made to the next lowest bidder whose proposal is perfect. The amendment permitted should be strictly of matters of form.
A proposal signed by C. & Co., is a defect in substance. And particularly a proposal accompanied with the consent of a single surety is substantially defective, and incapable of amendment.
The remedy of a party to whom a contract should have been awarded is by an action for damages, not by an injunction against performance of the work by another. Russ and others, against The Mayor, Aldermen, &c., of New York City, and others. 38 A Court of Equity has no power to restrain by injunction the publication of the proceedings or evidence in another action, whether pending in the same or any other court. Wood against Marvine. 276
Where the insurance is upon articles included within the usual memorandum in the policy, an actual destruction in specie of all the articles so insured must take place in order to entitle the insured to recover for a total loss.
Held, that the now prevailing rule in England, as settled in the case of Roux vs. Salvador, is inconsistent with the rule of law recognized in this State; and the early decisions of the courts of this State re-affirmed.
Where the insurance was upon hides, and a large majority of them were destroyed by putrefaction consequent upon their being damaged by sea water, but a portion of them remained in specie and were sold in a port of necessity as damaged hides, held that the insured could not recover for a total loss. Depeyster and an'r, against The Sun Mutual Ins. Co.
A clause in the terms of insurance annexed to a policy against fire, declared that "camphene, &c., when used in stores or warehouses as a light, subjects the goods therein to an additional charge of 10c. per $100, and premium for such use must be endorsed in writing upon the policy." Held, That these words were not a conditional prohibition of the use of camphene, but merely exempted the insurers from any liability for a loss resulting from such use, unless the additional charge had been paid, they created an exception, not a warranty. Held, Therefore, that as there was no evidence that the loss resulted from the use of camphene, and there being no other defence than a fraud of the supposed war
ranty, the plaintiff was entitled to judg ment. Westfall against The Hudson River Fire Insurance Co. 210, A sole cestui que trust, who, as such, will be entitled to the whole or a definite portion of the amount, for the recovery of which the action is brought, is not a competent witness for the plaintiff.
The construction and effect of a policy insu rance made by a company incorporated in Connecticut, are governed by the law of
A wager policy is a valid contract at common law, and it must be presumed, until the the contrary is shown, that it is so by the law of Connecticut. An assignment or other instrument in writing to which there is no subscribing witness when it comes from the possession of the person entitled to its custody, may be read in evidence, upon proof of its being genuine, without proof of its actual execution at the time of its date; this, when no circumstances of suspicion are shown, will be presumed.
The assignee of a policy of insurance upon life, in trust for the wife of the assured, upon his death, may maintain an action for the recovery of the sum insured in his own name as trustee of an express trust. Neither the wife nor the personal representatives of the deceased are necessary parties.
The assignee for value of a policy of insurance effected by the assignor, upon his own life, is entitled, upon the death of the assignor, to recover the whole sum insured, without reference to the consideration paid by him for the assignment.
Every policy of insurance upon life is valued, that is, the interest meant to be covered is valued at the sum insured. Judgment for plaintiff. St. John against The Mutual Ins. Co.
A mutual Insurance Company, incorporated under the Act of the 10th of April, 1849, is taxable upon the amount of premium notes taken on advance, as being part of its capital. The New York City Insurance Co. against The Mayor, Aldermen, &c., of New York. 280
warrant, is irregular and void where the warrant contains no authority to enter it in the name of the assignee.
Where such bond and warrant is assigned, section 382, 383, 384, and 424 of the Code has no relation to the matter, and the assignee's remedy is on the bond.
To authorize the entry of judgment on a bond and warrant of attorney, under the old system, or under section 424 of the Code, the authority must be found in the warrant to enter it in the form in which it is proposed to enter it.
Semble, Such authority to enter it must clearly appear in the warrant. Oakley agt. McCotter.
The relators made a contract with the corporation of the city of New York, to do and perform certain matters and things mentioned in the contract. The contract, in accordance with the resolutions of the Common Council, was executed by or on behalf of the corporation by the City Inspector; and the corporation, by a resolution legally adopted, directed the Comptroller to draw his warrants in favor of the relators for the amount of the work done under their several contracts. The Comptroller refused to draw the warOn motion for a mandamus, in each case, rants, assigning various reasons. commanding the Comptroller to draw his warrant upon the Chamberlain of the corporation for the amounts claimed by the relators. Held, that the Comptroller of the city of New York was a subordinate administrative officer, and, as such, had no right to question the expediency, policy, judiciousness or discretion of the legal acts of the city government, and judgment accordingly awarded for the relators, and peremptory mandamus ordered to issue. The People, ex. relat. Reynolds agt. Flagg, Comptroller, &c
The Marine Court has no jurisdiction to issue execution against the person, The People, ex. relat, Corlis agt. Smith. The Marine Court in the city of New York has jurisdiction of the actions named in § 1, chap. 617, of the laws of 1853, only where the damages claimed do not exceed $500.
Where such an action, in which the damages claimed do not exceed $500 is brought in a Court of Record, the plaintiff can recover no more costs than he would have been entitled to had he brought the action in the Marine Court.
But where, in such an action brought in a
Court of Record, the damages claimed exceed $500, if the plaintiff recover, his right to costs will be regulated by the Code. Murray agt. Degross.
311 A justice cannot be compelled to make a return on an appeal unless the taxed costs and the return fee be first paid. Where a party has in good faith taken an appeal and omitted to perfect the same, the court can relieve the party on motion by permitting him to effect the same. The $12 allowance in the Marine Court forms part of the costs to be paid on appeal. Aldrich agt. Ketchum & Owens.
MECHANICS' LIEN LAW.
The "Act for the better Security of Mechanics, &c," in the city of New York, passed July 11th, 1851, is applicable to work done after the act took effect, although the contract was made before the act was passed, and does not in this respect so alter or impair the owner's contract as to be upon that ground unconstitutional. Il seems that a payment made before the act took effect, though made before it became due--and a set-off then existing--and damages for the default of the contractor claimed by way of recoupment, are available to the owner as a defence. Taking the note of the contractor for the amount of the work or materials does not deprive the claimant of his right to acquire a lien under this statute, and such lien may be acquired by filing a notice with the county clerk before the note is due, although the lien cannot be enforced until the money is payable.
Where a defendant makes an admission in his sworn answer, that admission may be taken most strongly against him on the trial. And a defendant will not be permitted to amend his answer on the trial by retracting such admission, unless it be upon very clear proof that he has been misled or deceived, or acted under clear mistake.--Miller et al. agt. Moore. In proceedings to foreclose a lien under the "Act for the better Security of Mechanics, &c.," passed July 11th, 1851, the court has power to add parties, if their presence is necessary, to enable the court to do complete justice.
A prior lien-holder is not a necessary party, unless the plaintiff seeks to impeach or set aside his lien, or claims a higher equity.
in, on the defendant's application, upon proper notice.
The application may be made on the appearance of the parties in court, pursuant to the notice to appear, and on due notice of an intention to apply for the order, without waiting until the issue is joined between the owner and the claimant. The contractors may be made parties by an order of the court, and the service thereof with a summons to answer simul cum, &c., and a copy of the complaint. Querc.-Whether the law would not be unconstitutional and void, if its administration had not been committed to the court, with power to call in the contractors as parties, as a law by which the contractors' property is taken from them, without notice and without "due process of law," -Sullivan, resp., agt. Decker and Brown, app's.
The claimant under the lien law, before he can maintain an action against the owner, must show, that payment was due under the contract with the owner. Where the defendants offered to show, that they paid $350 on the contract before the lien was put on, and that after such payment, which was more than was due by the terms of the contract, the contractor abandoned the contract; held that it was a complete defence, and that the Justice improperly excluded it.
WOODRUFF, J.-Quere.-How far the mere fact that the money earned by the contractor has not become payable, will operate to defeat the proceedings, where the owner himself commences the proceedings by requiring the claimant to foreclose.-Spauld ing and o'rs agt. King.
Under an agreement, by the terms of which F. & W. were to erect upon a lot of ground then owned by H. a building of a certain kind and description, H. agreeing to advance to F. & W. the sum of $1,300 towards the erection of the building, upon tho enclosure of which H. was to convey the lot to F. & W. for the sum of $1,700, and take from them simultaneously with the delivery of the deed a bond and mortgage to secure the said $1,700. Held, that H. was not the owner of the building within the meaning of the "Act for the better Security of Mechanics erecting buildings in the city of New York." Laws of 1830, p. 412.
The case of McDermot v. Palmer, 11 Barb., S. C. R., holding the contrary doctrine, overruled.-Loonie and o'rs, appel's, agt. Hogan, resp.
Where the plaintiff is a sub-contractor, or laborer, or vendor of the contractors, and claims for money which he alleges to be due to him from the contractors, the latter are proper parties to the foreclosure, and It is no ground for asking a new trial that ir
will be ordered by the court to be brought
relevant or incompetent evidence was giv