annum. the receiver told him that he should of $13, and not of § 8. It should pay him thereafter but $2,000 per have had the approval of the superMr. Keyes claimed that intendent of the insurance departthe receiver had no right to reduce ment. Perhaps the original aphis salary, but nevertheless remained proval of his salary at $5,000 would in his employ until May 1, 1878, suffice for Mr. Keyes as long as his when he was discharged. Upon a employment was not modified by petition made to the court by Mr. the receiver. The approval of the Keyes to be allowed at the full rate superintendent is as a protection of $5,000 for the entire time he had against extravagance or unconscionserved, and to be allowed for certain able salaries, etc. His approval of expenses incurred by him, the a reduction may be assumed. receiver was ordered to pay the difference, and the sum demanded as expenses. From this order the receiver appeals. Emerson W. Keyes, respt in person. Rufus W. Peckham, for the receiver, applt. After the period of the actuary's necessary employment under § 8, the receiver, by § 13, had the power to fix the salary, but subject to the approval of the superintendent. This was done in February, 1878, from which time Mr. Keyes was emHeld, That the actuary provided ployed as any other clerk in the for by sec. 8 of chap. 902, Laws receiver's office. The power to of 1869, was appointed to report appoint or employ seems to involve the condition of the company, from the power to discharge, at least after which its solvency and capacity to the work to be performed under continue its business was to be de- such appointment has been distermined. That was the whole duty charged. of the actuary so far as is provided by that section. When that duty was performed as thereby contemplated, his relation to the receiver and the company under § 8 was terminated. Such duties could only be revived or renewed by some action of the court by which a new or modified or supplementary report might be required as a basis of its action. No such requirement was made in this instance, so that, therefore, Mr. Keyes' duties as actuary under §8 terminated when his report was made. He was, however, continued by the Receiver in his employ at: the same rate until February. Held, That such continued employment was under and by virtue Also held, That the court is not a proper tribunal to fix salaries of clerks and employees of a receiver. The court has no power to modify the contract or to increase the salary promised. Order of Special Term reversed, without costs to either party. Opinion by Boardman, J.; Learned, P. J., and Bockes, J., concurring. EVIDENCE. N. Y. SUPREME COURT. GENERAL Decided April 8, 1880. Where an offer was made to prove, by one witness, on papers not in evidence or issue, fendant had signed some other note that certain other witnesses were mistaken or paper. Proof of handwriting by as to their evidence touching defendant's handwriting on a note, Held, That the offer comparison is not tolerated in this state. The defendant tendered by was properly overruled. Where plaintiff asserted that he was a pur- this evidence a false issue. chaser for value of the note in suit, and without notice of an alleged defense, and defendant denied such assertions, and offered to show a warranty of the machine for which the note was given, a breach of the warranty and damages, and also that those facts were communicated to plaintiff before he became Also held, That witnesses who had seen defendant write but once were competent to prove her handwriting. Upon the issue as to whether plaintiff was a purchaser for value the owner of the notes, Held, That the court of this note before maturity, and erred in rejecting the evidence. without notice of the alleged deWitnesses who have seen a person write once are competent to prove his handwriting. fense of a breach of warranty, deAppeal from a judgment entered fendant offered to show a warranty upon the verdict of a jury at Cir- of the machine for which the note cuit. Case tried in April, 1879. By was given, a breach of the warranty the verdict of the jury it is settled and damages, and also that these that defendant gave a fifty dollar facts were communicated to plainpromissory note in renewal of a tiff before he became the owner of hundred dollar note previously given the note. by her for a mowing machine; that defendant is a married woman, having a separate estate; that the note, by its terms, charged her separate estate; that plaintiff purchased said note before maturity, without notice of any defense. But, upon the trial, defendant offered to show a warranty of the machine for which the note was given, a breach of the warranty and damages; also, that these Held, That such evidence was erroneously rejected. If plaintiff had notice of such facts when he took the note, the defense could be made. Whether he had notice could only be determined from the evidence when admitted. Judgment reversed and new trial granted, with costs to abide the event. ORDER OF ARREST. BAIL. Opinion by Boardman, J.; Learned, facts were communicated to plain- P. J., and Bockes, J., concurring. tiff before he became the owner of the note. This evidence was rejected, and defendant excepted. Baker Bros., for applt. D. M. Chadsey, for respt. Held, That the offer to prove, by John Zea, that Sprang and plaintiff were mistaken as to their evidence touching defendant's handwriting on other papers, not in evidence or issue, was properly overruled. It was wholly immaterial whether de N. Y. SUPREME COURT. GENERAL An order of arrest under subdivision 4, of sec. terms directs the sheriff to hold the defendant through it; and that in a short to bail by requiring a bond to the effect that period defendant is to sail for Eudefendant will obey the direction of the court, &c., following the requirements pre scribed by sub. 1 of sec. 575, is not on that account irregular. It is quite proper to furnish the officer with this specific guidance. The defendant's right to the jail liberties, under sec. 149, is not in the least affected by the direction aforesaid. He could give such limit bond, whether he gave the bail bond or An order of arrest, in an action for absolute divorce, is properly granted under sub. 4 of sec. 550 of the Code, where the affidavit on which same is based shows that defendant is about to depart from the state with no present intention of returning, except possibly to pass through it, and that he is to sail for Europe within a month, to be gone indefinitely. Such averments certainly make out a prima facie case of danger that by reason of such departure the judgment which may be recovered in the divorce suit which may require defendant to do acts, the omission to do which will be punishable as a contempt, will be rendered at least, in some respects, ineffectual. Such affidavit would be sufficient for a writ of ne exeat, for which an order of arrest under sub. 4 of sec. 550 is a substitute. rope, to be gone indefinitely. The order of arrest was granted by a judge out of court, as was alleged by defendant, after the adjournment of the Special Term for the day on which it was granted, but the order is a court order, entitled at Special Term. The order of arrest requires the sheriff of New York County to arrest the defendant, Dion Boucicault, and to hold him to bail in a sum specified, by a written undertaking, executed by two or more sufficient bail, stating their place of residence and occupation, to the effect that the defendant will obey the direction of the court, or of an appellate court, contained in an order or a judgment, &c., following the requirements prescribed by sub. 1 of sec. 575 of the Code. The grounds urged by the defendant upon his motion to vacate the order of arrest were: First, that the order of arrest was irregular, in that it prescribed and specified the exact form of the undertaking the sheriff was required to take on holding the Appeal from an order denying defendant to bail. Second, on the defendant's motion to vacate an order of arrest granted by the court under sub. 4 of sec. 550 of the Code of Civil Procedure. The order of arrest was granted upon an affidavit of plaintiff showing a cause of action for an absolute divorce, for which this action was brought, and further showing that the defendant is about to depart from this state, and that he has, as deponent is informed and believes, no present intention of returning to this state, except possibly to pass ground that it appears from the papers that the case is not one in which an order of arrest can lawfully issue. Third, that the order of arrest was not issued by the court, as required by section 551 of the Code, but was made by a single judge out of court without jurisdiction. Richard O'Gorman and A. J. Dittenhoefer, for applt. George Bliss, for respt. Held, That the order of arrest was not irregular in prescribing the form of undertaking. It strictly followed sub. 1 of section 575 of the Code of vacate upon an affidavit of his own, Civil Procedure. The defendant was he made no denial of these charges. not prejudiced. It was quite proper They would have been sufficient to to furnish the officer with this speci- justify a writ of ne exeat. 1 Johnfic guidance, rather than require him to gather the proper form from the papers. The defendant's right to the jail liberties under section 149 was not in the least affected by the direction in question. Nor is the point well taken that the order of arrest was granted by a judge after the adjournment (for the day) of the Special Term at Chambers. The objection is not specified in the order to show cause, nor is there any proof that the order of arrest, which purports to have been made by the court, was not in fact so made. Furthermore the present son's Chancery, 141; 10 Barb., 46; 15 Barb., 399; 18 Ves. 355. Coupled with the plaintiff's undenied averment, they certainly make out a prima facie case of danger that by reason of such departure the judgment will be rendered ineffectual. The order appealed from should therefore be affirmed, with $10 costs and disbursements. Opinion by Barrett J.; Davis, P. J., and Daniels, J., concurring. CRIMINAL PLEADING. application was lawfully made to, N. Y. SUPREME COURT. GENERAL and properly granted by, a justice out of court, in the first judicial district. See sec. 770 of the Code; 5 Abb. Pr., 53; ib., 325. TERM. FIRST DEPT. Again the judgment may require the performance of an act, the neglect or refusal to perform which It would be punishable by the court as a contempt. At all events, it cannot with certainty be asserted that the judgment will not (and that lawfully) require the performance of such an act. See 3 R. S., Banks' 6 ed., p. 159, sec. 74; Park v. Park, 9 Weekly Digest, 391. Decided June 11, 1880. is a sufficient description of the property stolen, same being sixty trade dollars, where the indictment charges the accused with stealing "sixty silver coins of the kind usually known as dollars, of the value of one dollar each." Writ of error to the Court of General Sessions of the county of New York. The prisoner was convicted of the crime of grand larceny, for stealing sixty-two silver dollars, known as trade dollars, under an indictment which among other things charged her with stealing "sixty silver coins of the kind usually known as dollars, of the value of one dollar each." In Finally the plaintiff makes out a sufficient case for the order. She shows that the defendant is about to depart from the state with no present intention of returning except possibly to pass through it, and that he is to sail for Europe within a month to be gone indefinitely. support of the writ it is objected, as Although the defendant moved to it also was at the close of the evi Vol. 10-No. 11.* dence upon the trial, that this was CRIMINAL PLEADING. an insufficient description of the N. Y. SUPREME COURT. GENERAL property stolen. Stewart & Vickery, for plff. in error. B. K. Phelps, for people. Held, The description given in the indictment, as far as it extended, was accurate in its nature, inasmuch as it is evident from the proceedings which were had in the case, and the facts as they are notoriously and generally known, that coin of the description of those taken are silver TERM. FIRST DEPT. William E. Gray, plff. in error, v. The People, defts. in error. Decided June 11, 1880. The omission to state, in an indictment, the court in which it is found, is not fatal, especially so when objection is not taken until after conviction. Such statement is usually contained in what is denominated the caption, which really constitutes no part of the indictment, and when the trial is had in the court in which the indictment is found and presented no caption is required. coin, of the kind known as dollars, The caption being no part of the indictment, and of the value of one dollar each. but a part of the record of the proceedings to be supplied by the clerk in case the indictment is sent to a superior court, any defect in such caption may be amended at any stage of the proceedings. An indictment is sufficient which charges certain instruments to have been forged, setting them forth, although no name is given to the instruments charged to have been forged. Writ of error to the Oyer and Terminer of the City and County of New York. Held further, that while it is true an indictment must contain a certain description of the crime of which the defendant is accused, and a statement of the facts by which it is constituted, so as to identify the accusation, inform the defendant of the charge which he is called upon to defend and enable him to plead the conviction or acquittal in any other prosecution for the same offense, yet if the sense be clear nice objections ought not to be regarded. 11 Ind., 195. We think that the indictment contained a sufficient the Court of General Sessions in description of the property stolen. 13, Ind., 7; 48 id., 163; 2 Cranch C. C., 364; 24 Wis., 43; 16 Gray, 240; 15 Cal., 512. The evidence given upon the trial justified the conclusion arrived at by the jury, and the case was made out with all reasonable certainty. The conviction should be affirmed. Opinion by Daniels, J.; Brady and Barrett, JJ., concurring. The plaintiff in error was tried and convicted in the Court of Oyer and Terminer for the crime of forgery. The indictment was found in and for the City and County of New York. The prisoner was arraigned in that court, and plead not guilty. The indictment was sent to the Court of Oyer and Terminer for trial, and after conviction the prisoner moved in arrest of judgment upon two grounds: First. That the indictment did not show in what court it was presented or found, or that it was presented or found in any court having criminal jurisdiction or jurisdiction of the offense sought to be charged. |