present suit was for rent subse- from an order denying a motion for quently accruing under the same a new trial upon the minutes. lease. The issues are the same, and Action upon a promissory note. the judgment in the former action For some time prior to the transis conclusive between the parties. action in litigation, the plaintiff 38 N. Y., 83; 3 N. Y., 511; 1 Denio, bank and one Cheyney had had 519; 4 N. Y., 71.

dealings together, which finally reHeld further, As against a lessee sulted in an indebtedness to the it is not necessary to prove a de- former of some $5,000. For this the mand where neither a forfeiture nor bank held Cheyney's protested re-entry is claimed or sought. Here check, endorsed by oue Vail. The the surety's agreement was absolute latter was an accommodation ento pay upon the lessee s default; that dorser, of which the bank was aware. is, upon the lessee's non-payment, After holding the protested check without requiring notice of any such for some time, the bank began default. Under such circumstances, pressing Cheyney and Vail for a the lessor is not bound to make any settlement. Thereupon Vail went demand upon the lessee before to Cheyney and induced him to give claiming payment from the surety. his firm notes to take up the check. 4 Bosw., 192; 2 Hall, 197.

This firm was composed of Cheyney Judgment in plaintiff's favor af- and the defendant Underhill. Unfirmed, with costs.

derhill knew nothing of Cheyney's Opinion by Barrett, J.; Davis, action in the matter, and never P. J., and Brady, J., concurring. assented thereto. Vail took the

firm notes, which were payable to his COPARTNERSHIP, order and endorsed by him to the N. Y. SUPREME COURT. GENERAL

bank, and tủereupon settled the proTERM. FIRST DEPT.

tested check, he paying a small

difference in cash. The court, at The Union National Bank of Rahway, New Jersey, respt., v. How- circuit, directed a verdict for the ard L. Underhill, impld., &c., applt.

plaintiff against Underhill.

Hamilton Odell, for applt. Decided May 14, 1880.

Robt. S. Green, for respt. Where a note is given in the firm name by one Held, We think the court erred in

partner for his private debt, or in a trans- directing a verdict against Underaction unconnected with the partnership bill. The verdict should have been business, which is the same thing, and known to be so by the person taking, the other part.

the other way. The bank may have ners are not bound unless they have as- been a holder for value, having sented.

taken the notes in payment and The person so taking the note is not a bona fide satisfaction of the checks, but it was holder thereof.

not a bona fide holder, This results Appeal by the defendant Under- from the fact that the precedent hill from a judgment entered against debt was Cheyney's individual oblihim upon a verdict directed by the gation. It is well settled that where court in favor of the plaintiff, and a note is given in the firm name by one partner for his private debt, or In the case of mutual and concurrent promises in a transaction unconnected with

there must be reciprocity of obligation. the partnership business, and An accord executory, with tender of perform

ance, is no bar to an action. known to be so by the person taking, the other partners are not Appeal from a judgment entered bound unless they have assented. upon the verdict of a jury, and 14 Wend., 138; Id., 145; Id., from an order denying a motion for 157 ; 18 Wend., 477 ; 6 Abb., N. S., a new trial upon the judge's min341.

utes. Upon the face of the transaction,

Plaintiff had a doubtful claim the bank was chargeable with notice. against defendants in suit. It was The truth was plainly before the mutually and verbally agreed that bank that Vail had procured these defendants should pay plaintiff $150 notes to take up the check (upon for a consent of discontinuance and which Cheyney was the principal full settlement. Plaintiff tendered debtor and Vail only a surety), and the consent of discontinuance, toit was clearly put upon inquiry as gether with the release, but defendto Underhill's consent.

ants failed to pay the agreed The fact that some of the money amount.

Plaintiff brought action procured on Cheyney's individual for the $150, and had a verdict at checks was used in the firm's busi- circuit. ness was not shown. But even if a Wm. A. Boyd, for applts. small firm indebtedness had been Charles Hagadorn and R. M. included, that would not render Bruno, for respt. Underhill liable for Cheyney's Held, It is clear that this verdict large individual debt. 22 Pa., 21. cannot be sustained. There was no

Judgment and order denying mo- acceptance of the discontinuance tion for new trial reversed, and new and release, nor were they even left trial ordered, with costs to abide with the defendants or their attorthe event.

neys. There was, in fact, no intenOpinion by Barrett, J.; Davis, P. tion to surrender these documents J., and Brady, J., concurring.

without concurrent payment.

This is a plain case of an accord

executory. Such an agreement ACCORD EXECUTORY.

would have been no bar to the origN. Y. SUPREME COURT. GENERAL inal suit unless executed by the acTERM. FIRST DEPT.

ceptance of the $150. 4 Denio, Charles A. Penzerbeiter, respt., v. 414; 6 Wend., 391 ; 19 Wend., 408; John H. Waydell et al., applts.

16 Barb., 598; 18 N. Y., 448.

The promise to discontinue and Decided May 14, 1980.

release was not binding upon the A mutual agreement to settle a pending suit, plaintiff. Consequently the defendwhere neither party fulfills or performs either

ants were without a consideration of the mutual promises, is no bar to the

for their promise. suit, and cannot constitute the basis of an action. An accord executory is no bar.

In the case of mutual and con

ed as

current promises there must be promise had been made. The evireciprocity of obligation. The dence in respect to the new promise cases cited by the respondent are is as follows, the plaintiff being the based upon executed accords, and witness : are not in point. If in the case at "Q. What did Mr. Abrahams say bar the release had been accepted, in regard to the note subsequently and in exchange the plaintiff had at your house? received the defendants' note for “ A. He promised to pay me. the $150, there would have been no “ Q. What did he say? doubt under the authorities of the “ A. He said that he would pay me, plaintiff's right to recover upon the and that there would not be two note. This case cannot be regard- cents paid less than the note called

a substituted agreement. for. There the mutual stipulations must "Q. How long since the converbe in the nature of a new consider- sation took place of which you have ation, as in 23 Barb., 546. Here spoken? there was nothing but an entirely A. Last January. unexecuted agreement to settle a “Q. State it? pending suit which, under all the “ A. He said he would pay me cases, was no bar.

that as quickly as he could.” Judgment reversed, and a new The witness again testified that trial ordered, with costs to abide the defendant said the same thing the event.

in February. Upon plaintiff restOpinion by Barrett, J.; Davis, ing his case, the defendant moved P. J., and Brady, J., concurring. to dismiss the complaint, upon the

ground that the promise proved was

conditional, and that the plaintiff DISCHARGE IN BANKRUPTCY.

was bound to prove that the condiNEW PROMISE. EXCEPTIONS.

tion had been fulfilled, and that N. Y. COMMON PLEAS. GENERAL motion being denied, the defendant TERM

being put upon the stand denied Rebecca Goldman Isidore having made a promise of any Abrahams.

kind to pay the note. The court

charged the jury that if they conDecided April 5, 1880.

cluded that there had been a Where after a discharge in bankruptcy, a new promise made by the defendant to

promise is relied upon to sustain the action, if it appears to have been a conditional pay this note since the discharge in promise it must appear that the condition bankruptcy, the defendant would be has been fulfilled.

liable. The defendant excepted. A An exception in general terms to a judge's verdict was rendered for the plain

charge is good without specifying any tiff in the Marine Court, and the grounds of exception.

General Term of that court affirmed Action upon a promissory note. the judgment entered thereon. The The defense was à discharge in defendant appealed to this court. bankruptcy. Reply was that a new Mr. Goodhart, for plff.



Mr. Crooks, for deft.

The restraint to authorize a resort to Held, That it is apparent that the

the writ must be real and substantial, not a

mere moral restraint. language used by the judge in his charge is, that the jury were sub- It is not the function of a writ of habeas corpus

to determine such a collateral question as stantially instructed that if they

whether the prisoner was privileged from found, from the evidence, that the arrest, when arrested, and as to whether or defendant had made any kind of a not such privilege, if existing, was waived. promise, conditional or otherwise,

The proper manner to raise such questions is

by motion, the plaintiff was entitled to recover. Such a charge was erroneous. If Appeal from an order discharging the promise was conditional, proof the relator, John Lampert, on habeas of the fulfillment of the condi- corpus, and also appeal from order tion must be given before a re- charging the attorney for one Faendcovery can be had. Hill and ler, at whose instance the relator Denio's Supplt., 371. The only was arrested personally, with the question to be considered is whether costs of the application for the relathe exception taken is sufficient to tor's discharge. raise the question. In an exception The relator, while returning from to a charge, counsel are not bound the Marine Court, from attendance to state the grounds of their excep- upon an action to which he was a tion. They are simply called upon to party, was arrested upon a body exexcept to such propositions as they ecution, issued against his person, deem erroneous, and this raises the in an action wherein one Faendler question of law in a proper form. was plaintiff. Thereupon, the rela

Judgment reversed, new trial or- tor, after having claimed privilege dered.

from arrest, gave bail to the sheriff Opinion by Van Brunt, J.; Van for the limits of the jail. SubseHoesen and J. F. Daly, JI., con- quently, at his own instance, a writ curred.

of habeas corpus, directed to the sheriff of New York County, was

procured, and the sheriff made a reHABEAS CORPUS.

turn that Lampert, the relator, N. Y. SUPREME COURT. GENERAL was not in his custody, having given TERM. FIRST DEPT. bail for the jail limits, after being

arrested upon the body execution In re John Lampert.

above referred to. The relator Decided May 14, 1880.

Lampert, however, produced himself A person who has given bail to the sheriff for upon the return of the writ of habeas

the jail limits upon a body execution is not corpus, and insisted that his arrest under such restraint by the sheriff as author- was illegal, inasmuch as he was privi.

izes a resort to the writ of habeas corpus. leged from arrest by reason of his While the office of the writ of habeas corpus is returning from court where he hal

to remove all unlawful restraints upon per: been attending as a party to the sonal freedom, yet this removal is procured by the production of the body. Without the action. Upon the facts appearing, production of the body the case has no stat- the court below held the relator was

for respt.

privileged from arrest at the time tion of the court, or the validity of he was arrested upon the body exe- the process, but not into a mere cution, and directed his discharge. matter of temporary privilege. The and also directed that the attorney question of privilege is one that for Faendler, at whose instance the should be raised by motion or by relator was arrested, should pay the summary application to the court costs of the proceedings for the re- under whose protection the relator lator's discharge.

was at the time of the arrest. 5 Chas. Welle, for applt.

Wend., 90; 18 Johns., 52. G. W. Wilson and Geo. Behrens, There was nothing to warrant the

imposition of costs against the atHeld, The order discharging the torney personally. relator was erroneous. The relator

Both upon the law and the facts has mistaken his remedy and the we think the orders appealed from office of a writ of habeas corpus. He should be reversed with costs, and was not imprisoned by the sheriff, the habeas corpus proceedings disnor was his bond for the limits such missed with costs. a restraint by that officer as author- Opinion by Barrett, J.; Davis, ized a resort to the writ.

P.J., and Brady, J., concurring. Whatever may be the special characteristic of the restrairt, however effected or imposed, it must at NAME. SIGNATURE. LEASE. least be substantial and real to N. Y. SUPREME COURT. GENERAL authorize a resort to the writ. Mere

TERM. FIRST DEPT. moral restraint will not do. It should

William H, Jackson, respt., V. be of such a taugible nature that

Isaac Binns, applt. the court may properly say to the respondent, except in cases of sick

Decided May 14, 1880. ness or infirmity, "you can bring A person may become bound by any mark or the body here if you choose." In

designation he thinks proper to adopt, pro

vided it be used as a substitute for his name, this case, Lampert, as we have seen,

and he intends to bind himself. The middle was not in the actual custody of the initial forms no part of a person's name, and sheriff. In contemplation of law, may be disregarded as surplusage, he had been delivered into the cus

A clause in a lease providing "that upon de

fault in the payment of the rent, or any part tody of his bail. 31 N. Y., 257.

thereof, the said hiring and the relation of The sheriff could not have com

landlord and tenant shall wholly cease and pelled the relator to accompany him determine," does not render the lease absobefore the court. Under these cir- lutely void upon such default, but voidable cumstances, the court should have

only at the election of the lessor. dismissed the writ. 6 Mart., La., Appeal from a judgment entered 569; 3 Yeates', 263; 1 Serg. & upon a report of a referee. R., 356, Hurd Hab. Corp., 244; 11 This action was against the deMass., 83.

fendant as surety upon a lease enFurthermore, the office of the tered into between his son, Nathawrit is to inquire into the jurisdic- niel, and the plaintiff. In executing

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