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Whether or not there was a delivery to he was familiar with the transaction with S. was also left to the jury.

ref.rence to the giving of the note. The Verdict for plaintift.

Judge, in his charge to the jury, said :

“ That is a circunstance for you to conHeld, Case was properly submitted and

sider, whether Brooks' absence is a susthe charge aorrect.

picious circumstance. If you find it is, Opinion by Handley, J.

and that it was his duty to have testified and given you all he might know in regard to the transaction, then you must assume that the reason he has not done

so is that he was afraid to do so, and it SUSPICIOUS CIRCUMSTANCES.

must be taken as a suspicious circumJURY.

stance, certainly throwing suspicion upon N. Y. SUPREME COURT, GENERAL TERM his case.” This portion of the charge was -FIRST DEPARTMENT.

excepted to. The jury rendered a verdict

for the defendant. Franklin W. Brooks, applt. v. Chr. A.

Held, That the Judge's charge, with Steen, impleaded, &c., respt.

reference to the absence of the plaintiff as Decided January 28, 1876.

a witness was not erroneous. That the When the plaintiff has knowledge of the Judge was quite right, under all the cir

transaction in controversy, which is the cumstances of the case, in submitting to subject of the action, and is not called the jury the plaintiff's absence as a cir. as a witness, it is not error in the cumstance for them to consider, and in Judge to submit to the jury the plaint- instructing them that if they found such iff's absence for them to consider, and absence to be of a suspicious character, it it is not error for the Judge to instruct would certainly throw suspicion npon them that is they find such absence to be his case. The plaintiff must be presumed of a suspicious character, that it would to have known that his case was on trial,

and in the absence of evidence tending to throw xusprcion upon plaintiff's case.

explain his non-attendance by reason of Appeal from judgment entered on ver- inability from any cause, there is no readict.

son for finding fault with the presump-
The plaintiff brought this action upon tions which the court allowed the jury to
a note given to himself, made by the de- indulge. The case is within the principle
fendant, Steen, and sigr.ed with his name. laid down by the court in Gordon v. The
Ile alleged that the note was in fact made People, 33 N. Y., 501; and the People v.
by all the defendants as copartners, and Dyer, 21 N. Y, 578.
in substance that the name, Christian A.

The judgment must be affirmed.
Steen, was their firm name.

Opinion by Davis, P. J.; Brady and
The answer was a general denial, and a Daniels, J. J., concurring.
further allegation that the services for
which the note was given had been fully
paid. The evidence with reference to the

ERRATA. name of the copartnership, and with ref

On page 48, vol. 2, line 19, for “sold" erence to the transaction for which the

read “sued.”
note was given, to wit: the obtaining the
discharge of a distillery from seizure, was
very conflicting. The plaintiff was not
called as a witness, although it appeared

MONDAY MARCH 13, 1876.

(No. 5.


to ascertain who will be proper parties to

that action. 1 Bro. Ch. 469; 2 Dick, VOL 2.)

652. The bill may be filed when the PRACTICE. EXAMINATION OF plaintiff has become actually involved in

the litigation, or when he is only liable to PARTY.

be so, and whether he has or has not yet N. Y. COURT OF APPEALS.

commenced his action. Adams Eq. 86, Glenney, respt., v. Stedwell, et al., applts. 87; 2 Story's Eq. Jur., Secs. 1433, 1495 ; Decided February 1, 1876.

8 ves. Jr., 404. This jurisdiction was conUnder Sec. 391 of the Code, the plain- ferred upon the Supreme Court by the

tif may examine the defendant be. Constitution of 1846, Art. vi., Sec. 3, and fore issue joined, and before the ser- it is not to be supposed, unless the terms vice of the complaint.

of the enactment are clear, that it was Supreme Court rule 21, if intended to the intention of the legislature to abolish

affect this right, is inoperative. it. If the affidavit upon which the appli

Also Held, That the change in the cation is based gives the Judge power phraseology of Supreme Court rule 21, as to act, his action is discretionary, adopted by the Convention of Judges in and cannot be reviewed by this Court.

1874, if intended to affect this right, was This action was commenced by the ser. inoperative, as the rule cannot alter the vice of a summons for relief, no complaint statute, and the latter must be interprebeing served. Immediately after its com- ted and followed. 54 N. Y., 518. mencement an order was obtained under

Also Held, That if the affidavit upon Sec. 391 of the Code, upon plaintiff's affi- which the order was based disclosed such davit, directing the defendants to appear a case as gave the judge power to act, bis and be examined as witnesses in the ac- action was discretionary with him, and tion, and a summons was issued to each cannot be reviewed here; that the fact of them, requiring them to appear and that said affidavits disclosing that plaingive testimony. On the return day de- tiff was so far conversant with the facts fendants appeared and moved to vacate

as to be able to state a good cause of acthe proceedings on the ground that the tion, did not deprive him of his rights to examination could not be had under the

such examination. Code until after issue joined, which mo

Order of General Term affirming order tion was denied, and the examination or of Special Term, directing an examination dered to proceed.

under section 391 of the Code, affirmed. F. V. Bangs for applts.

Opinion by Folger, J. Robert Sewell for respt.

Held, No error; that a plaintiff, under NATIONAL BANKS. POWER TO the provisions of Sec. 391 of the Code of

SUE. Procedure, in an action pending, may ex- U.S. CIRCUIT COURT--NORTHERN DIsamine the adverse party on oath, before

TRICT OF Ohio. the service of a complaint on him, and for The Commercial National Bank of the purpose of obtaining the facts on Cleveland, Ohio, v. Simmons, et al. which to frame a complaint.

Decided January, 1876. A court of equity has, as a general rule, a National Bank may sue a citizen op jurisdiction to entertain a bill for the dis

the district in which it is located, covery of facts which may aid in the pros

upon a promissory note endorsed by ecution or defence of an action in another such citizen, in the United States court, and which may enable the plaintiff Courts for that district.

This suit is brought on two promie TRUST DEED. SALE UNDER. sory notes payable to the order of J. G.

SUPREME COURT OF ILLINOIS. Simmons & Co., and endorsed to the plain

Solt et al. v. Wingart. tiff.

Decided February 4th, 1876. The petition states that the plaintiff is a corporation existing under the laws of The holder of a sheriff's certificate of

sale under judgment, which had run the United States, and does not state that

only fourteen months, is not entitled the payee of the notes 18 not a citizen of

to the surplus moneys arising on (; Ohio.

sale under a trust deed, which had The defendants, Thompson and Mills, been recorded prior to the judgment. demur to the petition, and assign three

Appeal from Stephenson County. grounds of demurrer.

On the 10th day of January, 1871. Solt 1st, That it appears on the face of the

executed a deed of trust to John Hart, on petition in each of said causes of action, that the court has no jurisdiction of the seventy acres of land, to secure the payment defendants, or either of them, or of the of a note of $350 he owed to one Cyrus A.

Shutz, due in two years from that date. subject of the action.

About two months thereafter, Wingart re. 23. That the plaintiff and its assignor covered a judgment against Solt for about are both residents of the State of Ohio, $207 17, including costs. In October of and of said district, and have no legal that year, he caused an execution to be right to bring suit against the defendants issued on the judgment, and had the in this court. 3d. For other good and sufficient rea- it for sale, and Wingart became the pur

sheriff to levy it on the land, and offered sons appearing on the face of the petition. Chaser at $234 12, the amount of his judgThis demurrer raises two questions:

ment and costs, and received a certificate 1st. Whether the plaintiff can sue in this court, being located in the State of fell due on the 10th of January, 1873,

of purchase therefor. The note to Shutz Ohio, and in this district. 2d. Whether, under the Judiciary Act sale, Hait, the trustee, offered it on the

and after advertising the time and place of of 1789, and the limitation of the 11th 9th of April, 1873, and one Thomas K. section thereof, the plaintiff can sue in Best became the purchaser at $1,000; and this court upon the promissory notes in petition described, the assignor thereof to having paid the money, received a deed

from the trustee. As soon as the land The plaintiff, being a citizen of the State was struck off at the sale, and before the of Ohio, and of this district.

Held, That a National Bank does not money was paid to the trustee, Wingart's sue in virtue of any right conferred by cate of purchase, and demanded for Win

attorney showed to the trustee the certifithe Judiciary Act. but in virtue of the

gart the surplus over and above the right conferred upon it by the act of 1864, amount necessary to pay the debt the authorizing and creating it, and which trust deed was given to secure, and the constitutes its charter. The charter of

costs and expenses of the sale. the old United States. bank was but a

This the trustee declined to do, but law, as this general act is a law, of the

paid the debt to Shutz, and the expenses United States.

of the sale. The surplus amounted to That the Judiciary Act does not con- $543 60, a part of which the trustee paid, trol the right and power of these banks to under directions of Solt, to one of his sue in the federal courts.

creditors, and the remainder to him. Demurrer overruled.

Wingart thereupon filed a bill against Opinion by Welker, J.

Hart, the trustee, and Solt, to compel the

payment of the entire surplus to him. from refused the attachment, for the reaOn a hearing in the court below, the re- son that the amount defendant was dilief was granted, and Hart was decreed rected to pay was not specified or definite, to pay it to Wingart, and that Solt pay and for the purpose of ascertaining the the costs; and from that decree they ap- amount defendant should pay, directed peal to this court.

that it should be referred to a referee to By the statute, the purchaser under exe- take an account. cution was not entitled to a sheriff's deed A. J. Reginer, for applt. until the expiration of fifteen months. Moses Ely, for respt.

Held, All the appellee acquired by his Held, That the part of the order repurchase was a lien; that it had never fusing an attachment was not appealable ripened into a title, and that it was cut off to this court; that there was no right in and wiped out by the sale under the trust the moving party to have his opponent deed, and was not transferred to the sur- punished; that it was a matter of discreplus; that equity will not intervene, as the tion with the court below; that the order appellee stands in no better position than of the Special Term did not infringe every other honest creditor. The mere fact upon the provisions of the decree and that he had a judgment places him in no previous order; that it was within the better position that a contract creditor. power and discretion of the Special Term, Decree reversed.

and is not appealable. Opinion by Walker, J.; Sheldon, Craig Appeal dismissed. and Dickey, J. J., dissenting.

Per curiam opinion.





The Fireman's Fund Ins. Co. v. The
Sutton, applt. v. Davis, exr., &c., respt. Congregation of Rodeph Sholem.
Decided February 8, 1876.

Decided January 21st, 1876. An order granting or refusing an at- An insurance policy containing a protachment for contempt is not appeal- fall, except as thé result of fire, all

vision that "if the building shall able to this court,

insurance by this company shall imThis was an appeal from an order of

mediately cease and determine,conGeneral Term, affirming an order of tinues in full force where the buildSpecial Term, denying a motion for an ing, although removed from its founattachment against defendant as executor dation by the violence of a tempest, of the last will and testament of , for and greatly damaged, is still intact refusing to obey a former decree and sup

as a building. plemental order of said court, which de Appeal from Cook county. cree directed that defendant should pay The building was a church edifice, and over to plaintiff certain of the estate, and stood upon blocks or posts. By the vioa certain sum for the funeral expenses lence of a tempest, which occurred shortly paid, the order directed that the decree prior to the fire, the building was blown should remain unchanged, save that the partly off the posts upon which it rested, sale therein directed should be public was greatly damaged, and considerably instead of private, and refused to modify out of plumb. So much was it injured it so that defendant should account in that it could not be used, and part of the Surrogate's Court. The order appealed furniture was removed.

The company

claimed, under a clause in the policy, “if claimants interplead and determine their the building shall fall, &c., that it was respective rights, and an order was made not liable.

granting the leave asked. Verdict for plaintiff.

Chas. S. Gage for Weld. Held, That the edifice as a building re Barrett, Redfield & Hill, for First Namained intact; that the policy was not tional Bank of Tarrytown. avoided by the fact that the building was Vanderpool, Green & Cumming, for removed from its posts, and that to bring Conner. a case within the terms of the policy Nash & Holt, for Bowen. the building must be reduced to a mass of

Weeks & Forster, for Leaman. rubbish, to such a condition as to lose its identity as a building.

Stanley, Brown & Clarke, for 1st Na.

tional Bank of Commerce of New BedJudgment affirmed.

ford. Opinion by Scott, C. J.

J. V. French, for Poor and in his own

behalf. SHERIFF.

On appeal. Held, That it seems appaN. Y. SUPREME COURT, GENERAL TERM, rent by precedent and by the long estabFIRST DEPARTMENT.

lished practice of this Court, that the

Sheriff has a right to pay the money into Weld applt. v. Conner, Sheriff, &c., 1st Court where there are contesting claimNational Bank of Tarrytown, 1st Na-ants to it, (59 N. Y., 224, 229), but tional Bank of New Bedford, Poor, whether this right rests in him or not, the Bowen, French, and Leaman.

power of the Court to direct that he do Decided January 25, 1876.

80, cannot be questioned, nor can the proSheriff has a right to pay money into priety and justice of making such an or

Court where there are contesting der be well doubted. claimants to it.

Order affirmed. Court may direct him so to do.

Opinion by Braily, J.; Davis, P. J., Appeal from an order directing the and Daniels, J., concurring. Sheriff to pay money into Court.

Several judgments were obtained against defendant. Poor, in actions in EXECUTION AGAINST THE BODY. which attachments were issued. He held N. Y. SUPREME Court, ONEIDA SPECIAL judgments against Bowen, on which exe

TERM. cutions had been issued.

Bowen paid

Joseph Bieler, et al., v. John Reh. into the Sheriffs hands the amounts of

Decided Feb 26, 1876. these executions (and moved the Court

In an action to set aside a mortgage that the same be satisfied and discharged, which was ordered).

as void for usury, if the plaintiff

succeeds in obtaining judgment for The fund created by this payment is

relief and costs, an execution against claimed in whole or in part by the several the body of the defendant is justifiajudgment creditors; also, by French as ble ; the action sounding in tort, being Poor's attorney, for his costs and fees in based on the fraud of the defendthe action against Bowen, and by Weld,

ant. the appellant, as assignee of Poor's judg On the 11th day of May, 1875, the ments against Bowen.

plaintiffs entered and docketed their The Sheriff applied for leave to pay the judgment setting aside and cancelling a money into Court, and that the various ' mortgage, given to the defendant Reh,

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