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and she was also to take care of the mother of said Samuel. Defendant paid Le

means of a conveyance from the plaintiff after a performance or offer of perform

ing her life, and Samuel never called on her for the instalments of $50, and she is and was ready to pay the same.

vi the $300, took care of the mother dur-ance of what remained to be done by her. Judgment for defendant on the verdict. Opinion by Gilbert, J.

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

Samantha in her answer asks affirmative relief that plaintiff convey said premises to her

There was judgment for defendant.

On the trial the Court allowed the husband of Samantha to testify as to the declarations of Samuel and Levi Benedict in reference to the title of and agreement with Samantha made in his presence.

The Court ordered the case and exceptions to be heard in the first instance at the General Term.

H. C. Miner, for respt.
L. O. Aikin, for applt.

Held, That a Judge at Circuit has no power to order a whole case to be heard in

the first instance at General Term; only the exceptions could be ordered so heard, and the verdict of the jury must be held conclusive as to facts.

That the evidence of the husband of

Samantha and a co defendant as to decla

rations of Samuel and Levi Benedict made in his presence, in which he took no part as to the agreement between his wife and Samuel, &c., was competent. Such a transaction is not a personal one between the witness and deceased.

That the parol promise of Samuel was supported by a sufficient consideration.

The defendant actually took possession under it and has occupied ever since, and paid taxes and made valuable improvements, &c., &c. They also paid the $300 to Levi and supported the mother, and

Samuel never called on defendants for the $50 payments. There was, in any event, a part performance, and that entitled defenuant to a specific performance of it, by

PRACTICE.

APPEALS.

N. Y. COURT OF APPEALS.

Lyon, respt, v. Wilcox et al., applts.
Decided January 25, 1876.

Under Chap. 322 of Laws, 1874, limiting appeals, whether or not the subject matter in controversy exceeds $500, must be determined by the complaint and testimony, and not by the judgment alone. This action was brought to recover $1,000 for work, labor and services performed for the defendants. The referee dismissed the complaint, and directed judgment for the defendants for costs. On appeal to the General Term the judgment was reversed and a new trial orderPlaintiff moved to dismiss the appeal on ed. Defendants appealed to this Court. the ground that the judgment was under

$500.

Held, That the subject matter in controversy, as it appeared from the complaint, testimony and findings, was over $500, and that this was the test applied by the amendment to the code limiting appeals. (Chap. 322 Laws of 1874.

Motion denied.
Mem. by Folger, J.

PARTNERSHIP. PROMISSORY

NOTE.

N. Y. COURT OF APPEALS. Moess, applt. v. Gleason et al., respts. Decided February 15, 1875.

Where one of several partners withdraws from the firm, under an agreement that the remaining partners and another shall pay all the debts, the retiring partner becomes, as be

tween himself and former partners, a surety.

And where he procures a past due outstanding note of the old firm, to be transferred to one ofhis former partners, who transfers it to a third party, he is not liable thereon until the holder exhausts all his remedies against the partnership assets.

Amasa J Parker, for applt.
J. I. Werner, for respt.

Held, That by the transfer to B. the old firm was dissolved and a new partnership created, which held the firm property charged with a trust for the payment of its debts, including the note in suit; and G. thereafter, as between himself and his former partners, occupied the position of surety. 52 N. Y, 146; 32 id., 501; Story on Part., secs. 97 360; 3 Kent's Com.,

65; 17 J. R. 525.

between the parties, and did not acquire a right of action against G. thereon.

This action was brought upon a promissory note given by the firm of M. R. & Co. against the persons who were members of that firm when the note was given. Subsequently defendant G. (who alone defended), with the consent and approval of his co-partners, sold out his interest in the concern to one B., who assumed his liabilities. At that time the personal effects of the firm were more than sufficient to pay its debts. The note in suit, which was past due, was then outstanding and in the hands of a third par-determine a claim against the estate of ty. G. procured a transfer thereof to defendant M. in payment of an individual debt from G. to M., and M. transferred it to plaintiff.

This is a reference under the statute to

one H., deceased.

When, therefore, G. procured the transfer of the note to M., the latter eo instanti acquired a right to a credit as between him and his partners for the amount o the note; that he was not entitled to any relief as against G., at least until after exhausting all the partnership assets, he could have shown a deficiency, and that plaintiff having acquired the note after maturity, took it subject to all equities

Judgment of General Term, affirming judgment for defendants, affirmed. Opinion by Allen, J.

LEASE. MEASURE OF DAMAGES.
N. Y. SUPREME COURT, GENERAL TERM.
FOURTH DEPARTMENT.

Hawkins, applt. v. Mosher, et al, respts.
Decided January, 1876.

There need not be a total failure of
consideration in order to entitle a
party to recover for money had and
received on breach of a contract.
A referee under the provisions of the

2 R. S., 39, $36-7, cannot award
costs against an unsuccessful claim-

ant.

In 1870, plaintiff held a lease of hotel property in Newtown, Herkimer county, which expired April 19, 1873, on which the rent for the whole term, except the last year, had been paid in advance. There were four prior mortgages on the fee of the property amounting to about $4,000, two of which were being foreclosed, and under one of which the property was being advertised for sale.

On the day before the sale, plaintiff made an agreement with H. that if plaintiff should pay H. $800 he, H., would cause the foreclosures to be discontinued, and

would purchase all of the said mortgages and hold them until the expiration of the said lease. Plaintiff, on the same day, paid H. the money as above. H. stopped the foreclosures and purchased the mortgages under which the property had been advertised for sale, but did no other act pursuant to his agreement.

In the fall of 1870, actions were commenced to foreclose two of the mortgages atoresaid. The property was advertised 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, sold 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 overrule it. Upon the fullest consideration, however, we have determined to adhere to it. It is frankly conceded that the Act of April 14, 1855, Pamphlet L, 238, did not operate to extend the lien of mechanics. to gas fixtures as distinguished from gas fittings, if a lien for the former did not exist by virtue of the Act of 1836. The distinction between the two is well stated and explained in Vaughan v. Haldeman. We are not satisfied that there is any usage or general understanding contrary to that opinion. Houses are considered as finished by the builders when the gas fittings are completed. The fixtures are put up in more or less expensive style, according to the taste and means of those who mean to occupy them, whether as owners or tenants. If the tenant puts them in, it is not denied that as between him and the landlord they are his, and h may remove them, or they may be sold as his personal property on an execution by the sheriff. No doubt the owner, if they belong to him, often sells them with the house. They add more to the value of the house than they would be worth if 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 see then no reason for departing from the judgment in Vaughan v. Haldeman, and the opinion therein expressed upon the construction of the Act of 1855. Judgment affirmed.

J

Opinion by Shensword, J.

JA. & A. B. Steele for applt.
Earl, Smith & Brown for respt.

Held, That the consideration of the agreement on plaintiff's part having failed in part at least, she was entitled to recover back a portion of the money paid by her. The rule that an action for money had and received can only be maintained when there is a total failure of consideration, does not apply to this case. H., in this case, agreed to purchase and hold four mortgages; he in fact only purchased one. The case shows a valid contract and a breach by H. It was the duty of the referee to award plaintiff nominal damages at least.

The referee had no power to award costs against plaintiff. That it was not necessary that there should be an eviction in order to entitle plaintiff to recover. That if plaintiff could not disaffirm the contract and recover back the money paid she was clearly entitled to recover for any loss occasioned by defendant's breach of

the contract.
Judgment reversed.
Opinion by Gilbert, J.

FIXTURES.

SUPREME COURT OF PENNSYLVANIA. H. Jarechi, Hays & Co. v. The Philharmonic Society.

Decided January 6, 1876.

Gas fixtures, chandeliers and brackets, do not pass with the sale of a house to the purchaser.

Error to the Court of Common Pleas of Erie County.

Held, The learned legal arbitrator below very properly considered himself

FOREIGN JUDGMENT. JURISDIC

TION.

SUPREME COURT OF PENNSYLVANIA.
Lowry. Guthrie et al.

Decided November 1st, 1875.
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 dewhom 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 parol evidence in a collateral proceeding in this State.

nothing was done until 1857, when the defendants filed an answer in the nature of a cross-bill, denying all knowledge of the consideration of the notes and making an additional claim for $835 due them by Lowry on a certain bond. Process to bring in Lowry on this cross-bill was twice returned "not found."

Error to the Common Pleas of Clarion County.

This was a scire facias sur recognizance of bail in error, brought by Lowry against Guthrie, Stroup, MeLaughlin and Fisher. Pleas, payment with leave, etc., and also adjudication and recovery of the subject matter and cause of action in the Louisville, Ky., Chancery Court.

In 1844 Wilson, Turner and Dull, trading as Dull & Co, brought an action against Lowry, who pleaded set off, and obtained judgment in his own favor for $750. Dull & Co. took a writ of error, giving a recognizance with Guthrie and Stroup as sureties. The writ was nonprossed, and the recognizance forfeited. In 1855 Lowry brought a scire facias on this recognizance against Guthrie and Stroup, and obtained judgment. The defendants took a writ of error, Fisher and McLaughlin being the sureties on their recognizance, which writ was likewise nonprossed. In 1858 Lowry brought the pre-amount the decree ordered to be deducted. sent suit upon this latter recognizance.

The record of the Chancery Court contained an entry as follows: "At a court held March 26, 1858, came the parties by counsel, and Hon. C. W. Logan declining to sit as Chancellor herein, Hon. W. S. Bodly was elected special Chancellor." In May, 1858. the cause was heard, the defendant's counsel only being present, and was held under advisement. In July, 1858, Bullit, Lowry's attorney, filed an affidavit that he had previously had no knowledge of the cross-bill, nor had Lowry, who was not a resident of the State, and moved for a rehearing. This motion the court overruled, and made a decree in favor of the plaintiffs in the cross-bill for the amount of the notes and bond, with interest, being a larger sum than the amount of Lowry's judgment. which

From this decree Lowry appealed, and the decree was affirmed.

Upon the trial of the present cause, before Jenks, P. J., the plaintiff put in evidence the recognizance, and rested.

The defendants offered in evidence the record of the equity suit in Kentucky.

Objected to by the plaintiff because it did not show that Lowry was within the jurisdiction of the Kentucky court, or was served with process.

In 1849 Lowry had brought suit on the original judgment, in the Circuit Court of Jefferson county, Ky., against Dull & Co., who pleaded set-off, and were about to support that plea with a claim against Lowry for the amount of three promissory notes for $1075 with interest, drawn by him to the order of one Fulton. Lowry had given these notes as part consideration for some land he had purchased, but, discovering the title to be defective, he had refused to pay: After maturity, Fulton

In support of the objection plaintiff offered to prove by his own testimony that

he was not served with process; that he had no notice of the cross-bill; that he did not appear until the decree was made, or authorize any one to appear for him; and that he was not at the time an inhabitant of Kentucky.

Objected to as parol testimony offered to contradict a record; objection sustaintained; exception.

The plaintiff also offered in evidence the deposition of Bullit, that he was sole counsel for Lowry in Kentucky; that his first notice of the cross-bill was in 1858; 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 Kentucky record was overruled, and it was admitted.

Error to the District Court for the City and County of Philadelphia.

Verdict for plaintiff for $68 (the amount of the costs), and judgment thereon.

Held, It is clear that Lowry was in court by his own act and that the defendants then went on under the practice in Kentucky to charge him in their answer in the nature of a cross-bill. Even if we might suppose the proceeding out of the usual mode of filing and prosecuting cross-bills, it was evidently recognized as the mode of proceeding in that court. Judgment affirmed.

Per Curiam opinion.

MALICIOUS PROSECUTION. ELE-
MENTS OF DAMAGE.

SUPREME COURT OF PENNSYLVANIA.
Abrahams v. Cooper.

Decided February 7, 1876.

In an action for malicious prosecution evidence of plaintiff's sufferings from cold, hunger, &c., in the prison is admissible, and the jury should consider them in assessing damages.

Action to recover damages for malicious prosecution. Plea, the general issue.

The plaintiff had been arrested, at the instance of defendant, on a charge of theft, and committed in default of bail. He was asked: "What had you to sleep on in the Station House?" Objected to on the ground that if he had suffered, the City of Philadelphia, and not defendant, was responsible for the injury. Question allowed and exception.

The Court charged the jury that they might take these circumstances into consideration in assessing the damages.

Verdict for $1,000 and judgment there

on.

Held, Malice was the gist of this action, and the natural and probable consequence of the arrest was the imprisonment of the plaintiff. The suffering of the plaintiff from cold, the want of a bed to lie upon, and privation of food for many hours, sprang directly from the imprisonment to which the malice of the defendant exposed the plaintiff. Because others may have also been in fault, it does not take away the participation of the defendant in the wrong done to the plaintiff. Judgment affirmed. Per curiam opinion.

CONTRIBUTORY

NEGLIGENCE.

N. Y. COURT OF APPEALS. Haycroft, respt., v. L. S. & M. S. R. Co., applt.

Decided January 15, 1870.
Whether or not an accident by which

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