from said cause all that the court has power to do is to fine the debtor by way of punishment in a sum not exceeding $250 in addition to costs and expenses, and direct his imprisonment until he shall appear and submit to an examination concerning his property and pay the fine and costs.

When, under such circumstances, the court

has erroneously fined the judgment debtor the full amount of the judgment as indemnity to the creditor, such fine cannot be reduced upon appeal to the proper fine for punishment, but the order imposing it must be wholly reversed and the matter remitted to the court below for proper action.

Appeal from order adjudging defendant in contempt for failing to obey an order made in supplementary proceedings requiring him to appear and submit to an examination concerning his property, and fining him, by way of indemnity to plaintiff, the sum of $834.63, the full amount of the judgment which had been recovered against him. The order recited that defendant's misconduct did actually defeat, impair, impede, or prejudice the rights of plaintiff, but no proof was given upon the motion that plaintiff had sustained actual loss or injury or been deprived of the amount of his judgment by said misconduct.

Jas. L. Bishop, for applt. Crane & Lockwood, for respt. Held, That it did not follow from the circumstance alone that the rights of plaintiff had been impaired, impeded or prejudiced by the misconduct of defendant that he was liable to be fined the full amount of the judgment which had been recovered against him; for the degree of punishment to be inflicted has been limited by § 2284,

Code Civ. Pro., to a fine sufficient to indemnify the aggrieved party for any actual loss or injury produced by the misconduct; and, in the absence of proof of such loss to the amount of the judgment, there was no foundation for imposing this large fine upon defendant by way of indemnity to plaintiff. 23 Hun, 332.

That the court had the further power, under the section of the Code, supra, in addition to that authorizing a fine for indemnity, to impose a fine upon defendant by way of punishment not exceeding the sum of $250 in addition to plaintiff's costs and expenses, but that that power was not exercised in this case, for the fine imposed was entirely devoted to the object of indemnifying plaintiff against loss or injury when no loss or injury whatever was made to appear; and that, consequently, the amount of said fine could not be reduced upon this appeal to the amount, or any portion of the amount, which might have been imposed by way of punishment for defendant's misconduct, and the case was, therefore, one wholly for reversal.

Erie Railway Co. v. Ramsey, 45 N. Y., 637, 655, and De Jonge v. Brenneman, 23 Hun, 332, distinguished.

That what the court should have done in the condition of the evidence was to have fined defendant by way of punishment in a sum not exceeding the amount of $250 in addition to plaintiff's costs and expenses, and then direct his imprisonment, as that has been pre

423, 351; 99 id., 261; 4 N. Y., 71; 52 id., 399. We do not think that a street existed before the tramway was erected. Even if persons did, by a revocable license from the State, pass over the canal bank, still there are no acts upon which can be based an acceptance by the city. An acceptance must be of the dedication as made. The acceptance does not enlarge the dedication. When accepted the tramway was over the street. It was accepted subject to this burden. 110 Eng. Com. Law, 770; 15 Vroom, 502; 6 N. Y., 257.

Judgment affirmed.

Opinion by Landon, J.; Learned, P.J., and Bockes, J., concur.

N. Y. SUPREME COURT. GENERAL TERM. FIFTH DEPT.

Ann Manktelow, applt., v. Hannah Lilly et al., respts.

Decided Oct., 1886.

On the assessment of damages by a writ of inquiry, plaintiff, without proof, is entitled to nominal damages, and limitation to that may not necessarily be applicable

to an action of slander. Defendant has the right to meet so far as he can the evidence on the part of plaintiff by calling witnesses and giving such evidence as may be proper in mitigation of damages.

An inquisition will not ordinarily be set aside on the ground that the damages are large or small, nor for error in the admission of evidence, unless it can be seen that the party against whom it was received may have been prejudiced, or that injustice may have been occasioned by it.

But in an action for slander where improper evidence is admitted before the jury having no legitimate bearing in mitigation of damages, and which may have materially affected the result to the prejudice of plaintiff, the inquisition should be set aside.

Appeal by plaintiff from an order of Monroe Special Term, denying motion to set aside an inquisition made in execution of a writ of inquiry to assess damages in an action for slander. The writ of inquisition was issued to the sheriff of Cayuga County. The jury made an inquisition by which plaintiff was awarded fifty dollars damages. Plaintiff moved to set aside the inquisition upon the ground that incompetent evidence was received on the part of defendants, and that plaintiff was prejudiced thereby.

F. D. Wright, for applt.

S. E. Payne, for respts.

Held, That on the execution of a writ of inquiry plaintiff is, without proof, entitled to nominal damages, 5 Wend., 134, and in an action for slander that limitation may not necessarily be applicable. 3 B. & C., 427.

That defendants had the right to meet, so far as they could, the evidence of plaintiff, by calling witnesses and giving such evidence as was proper in mitigation of damages. 1 Bos. & P., 368; 14 How., 47.

That an inquisition will not ordinarily be set aside on the ground that the damages assessed are large or small, nor will it be set aside for error in the admission of evidence unless it can be seen that the party against whom it is re

ceived may have been prejudiced or that injustice may have been occasioned by it. 3 Johns. Cases,

80.

That in this case evidence was introduced by defendants against the objection and exception of plaintiff, having no legitimate bearing in mitigation of damages, and which in no degree tended to furnish reasonable ground for belief in the truth of the charges made by defendants by the alleged words spoken concerning her, and which could not properly be used in evidence, and while it cannot be seen that such evidence did or did not materially affect the result to the prejudice of plaintiff it may have done so, and whatever was the effect of the admission of the incompetent evidence it was such as fairly requires that a rehearing

be had. 10 Wend., 377.

Order reversed, motion to set aside inquisition granted, ten dollars costs and disbursements of this appeal to abide the event.

Opinion by Bradley, J.; Smith, P.J., Barker and Haight, JJ., con

cur.

JURISDICTION. DIVORCE.

N. Y. SUPREME COURT. GENERAL TERM. SECOND DEPT.

appearance made by the husband in order to evade our law and to annul a New York marriage for reasons not good in this State no jurisdiction of either was acquired by the Utah Court.

Action for a limited divorce upon the ground that defendant has abandoned plaintiff and refuses to provide for her support. The defense consists of a denial that plaintiff is the lawful wife of plaintiff had a prior living husdefendant upon the ground that band, one Caverly. Plaintiff introduces upon the trial a decree of divorce obtained in the probate court of Utah upon a petition filed by her while a resident of New York, an appearance having been made by her husband, Caverly.

The trial court dismissed the

1

complaint in this action, from which this appeal is taken.

Thomas Darlington, for applt.
John J. Beattie, for respt.

Held, No error. That the jurisdiction of the probate court of Utah is local. Utah is local. Plaintiff in a divorce suit must reside in the county of the probate judge in such action. The proof is undisputed that plaintiff in this action was plaintiff in the action against Caverly, and she never ceased to reside in this State. The Caverly

Decided Dec., 1886.

The jurisdiction of the probate court of Utah is local, and a plaintiff in a divorce suit must reside in the county of the probate judge in such action. Where a petition was filed in the probate court of Utah by a resident of New York and an

State. There is no proof that her husband Caverly ever lived in Utah. It plainly appears that the petition was filed by a resident of New York and that an appearance was made by the husband in order to evade our law and to annul a New York marriage for reasons

not good in this State. Such a consent did not give the Utah court jurisdiction of either. 90 N. Y., 526. The case of Ruger v. Heckel, 85 N. Y., 483, only decides that defendant could not file a bill to annul the Caverly divorce and pronounce his marriage with plaintiff void. That when a court had jurisdiction of the parties and the subject matter and pronounced a decree of divorce upon false proof, a future husband of the divorced wife had no legal right to say he was aggrieved.

Judgment affirmed.

Opinion by Barnard, P.J.; Dykman, J., concurs; Pratt, J., not sitting.

WARRANTY.

N. Y. SUPREME COURT. GENERAL TERM. SECOND DEPT.

Adolph Gubner, admr., respt., v. James Vick et al., exrs., applts.

Decided Dec., 1886.

Where a particular kind and quality of seed is ordered, the law assumes that the seed furnished is to be such as ordered, and that it will produce the vegetable named; and no express warranty is needed; there being an implied warranty that the seeds furnished are of the kind and quality ordered.

This is an appeal from a judgment entered upon the report of a referee for $950 in favor of respondents.

The catalogue of defendant's testator described particularly the kind of cabbage called "Excelsior Large Flat Dutch," the seed of which was ordered. The catalogue also assures purchasers that they will get good seed. Plaintiff's intestate was a farmer in Kings County, N. Y., and used the seed with proper care and cultivation so as to produce this crop of cabbage. The crop failed. The seed turned out to be mixed. A large proportion of it failed to head and a large proportion failed to head properly. The quality ordered always heads with good cultivation. There was very little of the cabbage ordered in the yield. The loss was almost a loss of the entire crop.

E. Morris, for applts.

Held, That under the case of White v. Miller, 71 N. Y., 118, the sale of the seed was with warranty.

It is true that in the case of Passenger v. Thorburn, 34 N. Y., 634, there was an express warranty that the seed would produce "Bristol Cabbages," but there is no difference between a case of an express warranty and an implied one. The law merely assumes a contract from the orders for a particular kind and quality of seed that it is such as ordered, and that

The seed was ordered by Seiger, who did not disclose his agency, but who was in fact the agent of plaintiff's deceased.

named.

Under these cases the measure of damages is the difference in value between the crop raised from the defective seed and a crop