and she was also to take care of the mo- means of a conveyance from the plaintiff ther of said Samuel. Defendant paid Le- after a performance or offer of performvi the $300, took care of the mother dur- ance of what remained to be done by her. ing her life, and Samuel never called on Judgment for defendant on the verdict. her for the instalments of $50, and she is Opinion by Gilbert, J. and was ready to pay the same.

Samuel never gave Samantha a deed, but she has been in possession ever since PRACTICE. APPEALS. under the agreement.

N. Y. COURT OF APPEALS. Samantha in her answer asks affirma

Lyon, respt, v. Wilcox et al., applts. tive relief that plaintiff convey said prem

Decided January 25, 1876. ises to her. There was judgment for defendant.

Under Chap. 322 of Laws, 1874, limiting

appeals, whether or not the subject matOn the trial the Court allowed the hus

ter in controversy exceeds $500, must be band of Samantha to testify as to the

determined by the complaint and testideclarations of Samuel and Levi Benedict mony, and not by the judgment alone. in reference to the title of and agreement This action was brought to recover with Samantha made in his presence. $1,000 for work, labor and services per

The Court ordered the case and excep- formed for the defendants. The referee tions to be heard in the first instance at dismissed the complaint, and directed the General Term.

judgment for the defendants for costs. H. C. Miner, for respt.

On appeal to the General Term the judgL. 0. Aikin, for applt.

ment was reversed and a new trial orderHeld, That a Judge at Circuit has no Plaintiff moved to dismiss the appeal on

ed. Defendants appealed to this Court. power to order a whole case to be heard in

the ground that the judgment was under the first instance at General Term; only

$500. the exceptions could be ordered so heard,

Held, That the subject matter in conand the verdict of the jury must be held

troversy, as it appeared from the comconclusire as to facts.

That the evidence of the husband of plaint, testimony and findings, was over Samantha and a co defendant as to decla- $500, and that this was the test applied rations of Samuel and Levi Benedict made by the amendment to the code limiting in his presence, in which he took no part

appeals. (Chap. 322 Laws of 1874.

Motion denied. as to the agreement between his wife and

Mem. by Folger, J. Samuel, &c., was competent. Such a transaction is not a personal one between the witness and deceased. That the parol promise of Samuel was

PARTNERSHIP. PROMISSORY supported by a sufficient consideration.

NOTE. The defendant actually took possession

N. Y. COURT OF APPEALS. under it and has occupied ever since, and paid taxes and made valuable improve Moess, applt. v. Gleason et al., respts. ments, &c., &c. They also paid the $300

Decided February 15, 1875. to Levi and supported the mother, and where one of several partners withSamuel never called on defendants for the

draws from the firm, under an agree$50 payments. There was, in any event, ment that the remaining partners a part performance, and that entitled de and another shall pay all the debts, fenuant to a specific performance of it, by the retiring partner becomes, as be

tween himself and former partners, between the parties, and did not acquire a a surety.

right of action against G. thereon. And where he procures a past due

Judgment of General Term, affirming outstanding note of the old firm, to be transferred to one ofhis former part judgment for defendants, affirmed. ners, who transfers it to a third par.

Opinion by Allen, J. ty, he is not liable thereon until the holder exhausts all his remedies against the partnership assets.


N. Y. SUPREME COURT, GENERAL TERU. This action was brought upon a prom

FOURTH DEPARTMENT. issory note given by the firm of M. R. &

Hawkins, applt. v. Mosher, et al, respts. Co. against the persons who were members of that firm when the note was

Decided January, 1876. given. Subsequently defendant G. (who There need not be a total failure of alone defended), with the consent and ap

consideration in order to entitle a proval of his co-partners, sold out his in party to recover for money had and terest in the concern to one B., who

received on breach of a contract.

A referee under the provisions of the assumed his liabilities. At that time the

2 R. S., 39, $36–7, cannot award personal effects of the firm were more

costs against an unsuccessful claimthan sufficient to pay its debts. The note

ant. in suit, which was past due, was then out

This is a reference under the statute to standing and in the hands of a third

party. G. procured a transfer thereof to de determine a claim against the estate of fendant M. in payment of an individual one H., deceased. debt from G. to M., and M. transferred

In 1870, plaintiff held a lease of hotel it to plaintiff.

property in Newtown, Herkimer county,

which expired April 19, 1873, on which Amasa J Parker, for applt.

the rent for the whole term, except the J.I. Werner, for respt.

last year, had been paid in advance. There Held, That by the transfer to B. the old were four prior mortgages on the fee of firm was dissolved and a new partnership the property amounting to about $4,000, created, which held the firm property

two of which were being foreclosed, and charged with a trust for the payment of under one of which the property was beits debts, including the note in suit; and ing advertised for sale. G. thereafter, as between himself and his

On the day before the sale, plaintiff made former partners, occupied the position of an agreement with H. that if plaintiff

should H. $800 he, H., would cause

pay surety. 52 N. Y , 146; 32 id., 501 ; Sto ry on Part., secs. 97 360; 3 Kent’s Com, would purchase all of the said mortgages

the foreclosures to be discontinued, and 65; 17 J. R. 525.

and hold them until the expiration of the When, therefore, G. procured the trans- said lease. Plaintiff, on the same day, fer of the note to M., the latter eo instanti paid H. the money as above. H. stopped acquired a right to a credit as between the foreclosures and purchased the morthim and his partners for the amount o

gages under which the property had been the note; that he was not entitled to any advertised for sale, but did no other act relief as against G., at least until after ex

pursuant to his agreement. hausting all the partnership assets, he

In the fall of 1870, actions were comcould have shown a deficiency, and that menced to foreclose two of the mortgages plaintiff having acquired the note after atoresaid. The property was advertised maturity, took it subject to all equities to be sold December, 1870; was adjourned

to February 6, 1871 and then sold. Plain- bound by the authority of Vaughan v. tiff, on the 24th of January, 1871, sola Haldeman, 9 Casey, 522, and decided acand assigned her interest in said lease to cordingly; but his report contains a laothers for $625, and gave possession. The bored argument against the judgment in referee gave judgment against plaintiff, that case, and we are now urged by the and awarded costs against her.

plaintiffs in error to reconsider and overJA. & A. B. Steele for applt.

rule it. Upon the fullest consideration, Earl, Smith & Brown for respt.

however, we have determined to adhere to

it. It is frankly conceded that the Act Held, That the consideration of the of April 14, 1855, Pamphlet L, 238, did not agreement on plaintiff's part having failed operate to extend the lien of mechanics in part at least, she was entitled to recover to gas fixtures as distinguished from gas back a portion of the money paid by her. fittings, if a lien for the former did not The rule that an action for money had exist by virtue of the Act of 1836. The and received can only be maintained when distinction between the two is well stated there is a total failure of consideration, and explained in Vaughan v. Haldeman. does not apply to this case. H., in this We are not satisfied that there is any case, agreed to purchase and hold four usage or general understanding contrary mortgages; he in fact only purchased one. to that opinion. Houses are considered The case shows a valid contract and a as finished by the builders when the gas breach by H. It was the duty of the ref- fittings are completed. The fixtures are eree to award plaintiff nominal damages put up in more or less expensive style, at least.

according to the taste and means of those The referee had no power to award who mean to occupy them, whether as costs against plaintiff. That it was not owners or tenants. If the tenant puts necessary that there should be an eviction them in, it is not denied that as between in order to entitle plaintiff to recover. him and the landlord they are his, and That if plaintiff could not disaffirm the ho may remove them, or they may be sold contract and recover back the money paid as his personal property on an execution she was clearly entitled to recover for any by the sheriff. No doubt the owner, if loss occasioned by defendant's breach of they belong to him, often sells them with the contract.

the house. They add more to the value Judgment reversed.

of the house than they would be worth if Opinion by Gilbert, J.

removed. But if there is no agreement to sell the house as it is-fixtures and all

the purchaser is not entitled to them. We FIXTURES.

see then no reason for departing from the SUPREME COURT OF PENNSYLVANIA.

judgment in Vaughan v. Haldeman, and

the opinion therein expressed upon the H. Jarechi, Hays & Co. v. The Philhar- construction of the Act of 1855. monic Society.

Judgment affirmed.

Opinion by Shensword, J. Decided January 6, 1876. Gas fixtures, chandeliers and brackets, FOREIGN JUDGMENT. JURISDICdo not pass with the sale of a house

TION. to the purchaser.

SUPREME COURT OF PENNSYLVANIA. Error to the Court of Common Pleas of Erie County.

Lowry v. Guthrie et al. Held, The learned legal arbitrator

Decided November 1st, 1875. below very properly considered himself | Prima facie a Superior Court of another

State has jurisdiction over the subject had indorsed them to the defendants. matter of a judgment pronounced by it. Lowry filed a bill in equity in the ChanWhen the record of such a Court shows jurisdiction, e. g., that the party against cery Court of Louisville to restrain the de. whom judgment was finally pronounced fendants from using the notes as a set-off. had himself previously instituted pro- and for general relief. The Chancellor by ceedings by filing a bill against other a preliminary decree enjoined the parties parties, and that all parties appeared from proceeding at law until the hearing before the Court by counsel, it is in the of the bill. From this time (1850) absence of any allegation of fraud) con clusive, and cannot be contradicted by nothing was done until 1857, when the parol evidence in a collateral proceeding defendants filed an answer in the nature in this State.

of a cross-bill, denying all knowledge of Error to the Common Pleas of Clarion the consideration of the notes and mak. County.

ing an additional claim for $335 due them

by Lowry on a certain bond. Process to This was a scire facias sur recognizance bring in Lowry on this cross-bill was twice of bail in error, brought by Lowry against returned “not found.” Guthrie, Stroup, MeLaughlin and Fisher.

The record of the Chancery Court conPleas, payment with leave, etc., and also tained an entry as follows: “At a court adjudication and recovery of the subject held March 26, 1858, came the parties by matter and cause of action in the Louis- counsel, and Hon. C. W. Logan declining ville, Ky., Chancery Court.

to sit as Chancellor herein, Hon. W. S. In 1844 Wilson, Turner and Dull, trad- Bodly was elected special Chancellor.” In ing as Dull & Co, brought an action May, 1858. the cause was heard, the deagainst Lowry, who pleaded set off, and fendant's counsel only being present, and obtained judgment in his own favor for was held under advisement. In July, $750. Dull & Co. took a writ of error, 1858, Bullit, Lowry's attorney, filed an giving a recognizance with Guthrie and affidavit that he had previously had no Stroup as sureties. The writ was non- krowledge of the cross-bill, nor had Lowprossed, and the recognizance forfeited. ry, who was not a resident of the State, In 1855 Lowry brought a scire facias on and moved for a rehearing. This motion this recognizance against Guthrie and the court overruled, and made a decree in Stroup, and obtained judgment. The de- favor of the plaintiffs in the cross-bill for fendants took a writ of error, Fisher and the amount of the notes and bond, with McLaughlin being the sureties on their interest, being a larger sum than the recognizance, which writ was likewise non- amount of Lowry’s judgment. which prossed. In 1858 Lowry brought the pre- amount the decree ordered to be deducted. sent suit upon this latter recognizance. From this decree Lowry appealed, and the

In 1849 Lowry had brought suit on the decree was affirmed. original judgment, in the Circuit Court of Upon the trial of the present cause, beJefferson county, Ky., against Dull & fore Jenks, P. J., the plaintiff put in eviCo., who pleaded set-off, and were about to dence the recognizance, and rested. support that plea with a claim against The defendants offered in evidence the Lowry for the amount of three promissory record of the equity suit in Kentucky. notes for $1075 with interest, drawn by Objected to by the plaintiff because it him to the order of one Fulton. Lowry did not show that Lowry was within the had given these notes as part consideration jurisdiction of the Kentucky court, or for some land he had purchased, but, dis- was served with process. covering the title to be defective, he had In support of the objection plaintiff ofrefused to pay: After maturity, Fulton | fered to prove by his own testimony that

he was not served with process; that he Error to the District Court for the City had no notice of the cross-bill; that he and County of Philadelphia. did not appear until the decree was made, Action to recover damages for malicious or authorize any one to appear for him ; prosecution. Plea, the general issue. and that he was not at the time an inhab The plaintiff had been arrested, at the itant of Kentucky.

instance of defendant, on a charge of Objected to as parol testimony offered theft, and committed in default of bail. to contradict a record ; objection sustain- He was asked: “What had you to sleep tained ; exception.

on in the Station House?” Objected to The plaintiff also offered in evidence the on the ground that if he had suffered, the deposition of Bullit, that he was sole City of Philadelphia, and not defendant, counsel for Lowry in Kentucky; that his was responsible for the injury. Question first notice of the cross-bill was in 1858; allowed and exception. that he was not personally present at the Plaintiff testified as follows: “I had election of a special Chancellor, but was no bed-nothing but a board-no coverconstructively present, as attorney for ing but my coat. It was very cold. The Lowry; that the proceedings did not de- wind was blowing in through the grates. pend upon any local or statutory rules, but I was taken from there to Moyamensing. upon the general Chancery practice; I had nothing to eat from the time I left objected to; objection sustained ; excep- home till I got to the prison, about 11 tion.

o'clock the next day. The objection to the admission of the

The Court charged the jury that they Kentucky record was overruled, and it might take these circumstances into conwas admitted.

sideration in assessing the damages. Verdict for plaintiff for $68 (the amount Verdict for $1,000 and judgment thereof the costs), and judgment thereon.

Held, It is clear that Lowry was in court Held, Malice was the gist of this acby his own act and that the defendants then tion, and the natural and probable conwent on under the practice in Kentucky to sequence of the arrest was the imprisoncharge him in their answer in the nature ment of the plaintiff. The suffering of of a cross-bill. Even if we might sup- the plaintiff from cold, the want of a bed pose the proceeding out of the usual mode to lie upon, and privation of food for many of filing and prosecuting cross-bills, it was hours, sprang directly from the imprisonevidently recognized as the mode of pro- ment to which the malice of the defendceeding in that court.

ant exposed the plaintiff. Because others Judgment affirmed.

may have also been in fault, it does not Per Curiam opinion.

take away the participation of the defendant in the wrong done to the plaintiff.

Judgment affirmed. MALICIOUS PROSECUTION. ELE Per curiam opinion.


CONTRIBUTORY NEGLIGENCE. Abrahams v. Cooper. Decided February 7, 1876.

N. Y. COURT OF APPEALS. In an action for malicious prosecution evidence of plaintiff's sufferings from

Haycroft, respt., v. L. S. & M. S. R. Co., cold, hunger, &c., in the prison is applt

. admissible, and the jury should con

Decided January 15, 1870. sider them in assessing damages. Whether or not an accident by which


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