1 Held, Case was properly submitted and the charge aorrect. Opinion by Handley, J. Whether or not there was a delivery to he was familiar with the transaction with The S. was also left to the jury. reference to the giving of the note. Judge, in his charge to the jury, said: Verdict for plaintiff. "That is a circunstance for you to consider, whether Brooks' absence is a suspicious circumstance. If you find it is, 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 must be taken as a suspicious circumstance, certainly throwing suspicion upon SUSPICIOUS CIRCUMSTANCES. JURY. N. Y. SUPREME COURT, GENERAL TERM his case." This portion of the charge was excepted to. The jury rendered a verdict for the defendant. -FIRST DEPARTMENT. Franklin W. Brooks, applt. v. Chr. A. Held, That the Judge's charge, with reference to the absence of the plaintiff as a witness was not erroneous. That the Decided January 28, 1876. When the plaintiff has knowledge of the Judge was quite right, under all the cirtransaction 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 ciras 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 upon The plaintiff must be presumed them that if they find such absence to be his case. 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 suspicion upon plaintiff's case. explain his non-attendance by reason of Appeal from judgment entered on ver- inability from any cause, there is no reason for finding fault with the presumptions which the court allowed the jury to indulge. The case is within the principle laid down by the court in Gordon v. The People, 33 N. Y., 501; and the People v. Dyer, 21 N. Y, 578. dict. The plaintiff brought this action upon a note given to himself, made by the defendant, Steen, and signed with his name. IIe alleged that the note was in fact made by all the defendants as copartners, and in substance that the name, Christian A. Steen, was their firm name. The answer was a general denial, and a further allegation that the services for which the note was given had been fully paid. The evidence with reference to the name of the copartnership, and with ref erence to the transaction for which the 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 The judgment must be affirmed. Opinion by Davis, P. J.; Brady and Daniels, J. J., concurring. ERRATA. On page 48, vol. 2, line 19, for "sold" read "sued." NEW YORK WEEKLY DIGEST. [No. 5. VOL. 2.] MONDAY MARCH 13, 1876. PARTY. N. Y. COURT OF APPEALS. to ascertain who will be proper parties to that action. 1 Bro. Ch. 469; 2 Dick, 652. The bill may be filed when the plaintiff has become actually involved in the litigation, or when he is only liable to be so, and whether he has or has not yet commenced his action. Adams Eq. 86, Glenney, respt., v. Stedwell, et al., applts. 87; 2 Story's Eq. Jur., Secs. 1483, 1495; 8 ves. Jr., 404. This jurisdiction was conferred upon the Supreme Court by the Constitution of 1846, Art. vi., Sec. 3, and it is not to be supposed, unless the terms of the enactment are clear, that it was the intention of the legislature to abolish it. Also Held, That the change in the phraseology of Supreme Court rule 21, as adopted by the Convention of Judges in 1874, if intended to affect this right, was inoperative, as the rule cannot alter the statute, and the latter must be interpreted and followed. 54 N. Y., 518. Decided February 1, 1876. Under Sec. 391 of the Code, the plaintiff may examine the defendant be. fore issue joined, and before the service of the complaint. Supreme Court rule 21, if intended to affect this right, is inoperative. If the affidavit upon which the application is based gives the Judge power to act, his action is discretionary, and cannot be reviewed by this Court. This action was commenced by the service of a summons for relief, no complaint being served. Immediately after its commencement 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, his 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 F. N. Bangs for applts. such examination. Order of General Term affirming order of Special Term, directing an examination under section 391 of the Code, affirmed. Opinion by Folger, J. Held, No error; that a plaintiff, under NATIONAL BANKS. the provisions of Sec. 391 of the Code of SUE. POWER TO Procedure, in an action pending, may ex- U. S. CIRCUIT COURT--NORTHERN DIS amine the adverse party on oath, before the service of a complaint on him, and for the purpose of obtaining the facts on which to frame a complaint. A court of equity has, as a general rule, jurisdiction to entertain a bill for the discovery of facts which may aid in the prosecution or defence of an action in another court, and which may enable the plaintiff TRICT OF OHIO. The Commercial National Bank of Cleveland, Ohio, v. Simmons, et al. Decided January, 1876. A National Bank may sue a citizen of the district in which it is located, upon a promissory note endorsed by such citizen, in the United States Courts for that district. This suit is brought on two promiɛsory notes payable to the order of J. G. Simmons & Co., and endorsed to the plaintiff. The petition states that the plaintiff is a corporation existing under the laws of the United States, and does not state that the payee of the notes is not a citizen of Ohio. The defendants, Thompson and Mills, demur to the petition, and assign three grounds of demurrer. 1st, That it appears on the face of the petition in each of said causes of action, that the court has no jurisdiction of the defendants, or either of them, or of the subject of the action. 2d. That the plaintiff and its assignor are both residents of the State of Ohio, and of said district, and have no legal right to bring suit against the defendants in this court. 3d. For other good and sufficient reasons appearing on the face of the petition. This demurrer raises two questions: 1st. Whether the plaintiff can sue in this court, being located in the State of Ohio, and in this district. 2d. Whether, under the Judiciary Act of 1789, and the limitation of the 11th section thereof, the plaintiff can sue in this court upon the promissory notes in petition described, the assignor thereof to the plaintiff, being a citizen of the State of Ohio, and of this district. Held, That a National Bank does not sue in virtue of any right conferred by the Judiciary Act. but in virtue of the right conferred upon it by the act of 1864, authorizing and creating it, and which constitutes its charter. The charter of the old United States bank was but a law, as this general act is a law, of the United States. That the Judiciary Act does not control the right and power of these banks to sue in the federal courts. Demurrer overruled. SUPREME COURT OF ILLINOIS. Decided February 4th, 1876. The holder of a sheriff's certificate of sale under judgment, which had run only fourteen months, is not entitled to the surplus moneys arising on a sale under a trust deed, which had been recorded prior to the judgment. Appeal from Stephenson County. On the 10th day of January, 1871. Solt executed a deed of trust to John Hart, on seventy acres of land, to secure the payment of a note of $350 he owed to one Cyrus A. Shutz, due in two years from that date. About two months thereafter, Wingart recovered a judgment against Solt for about $207 17, including costs. In October of that year, he caused an execution to be issued on the judgment, and had the it for sale, and Wingart became the pursheriff to levy it on the land, and offered chaser at $234 12, the amount of his judg ment and costs, and received a certificate fell due on the 10th of January, 1873, of purchase therefor. The note to Shutz and after advertising the time and place of sale, Hait, the trustee, offered it on the Best became the purchaser at $1,000; and 9th of April, 1873, and one Thomas K. from the trustee. As soon as the land having paid the money, received a deed was struck off at the sale, and before the money was paid to the trustee, Wingart's attorney showed to the trustee the certificate of purchase, and demanded for Wingart the surplus over and above the amount necessary to pay the debt the trust deed was given to secure, and the costs and expenses of the sale. This the trustee declined to do, but paid the debt to Shutz, and the expenses of the sale. The surplus amounted to $543 60, a part of which the trustee paid, under directions of Solt, to one of his creditors, and the remainder to him. Wingart thereupon filed a bill against Hart, the trustee, and Solt, to compel the payment of the entire surplus to him. On a hearing in the court below, the relief was granted, and Hart was decreed to pay it to Wingart, and that Solt pay the costs; and from that decree they appeal to this court. By the statute, the purchaser under execution was not entitled to a sheriff's deed until the expiration of fifteen months. Held, All the appellee acquired by his purchase was a lien; that it had never ripened into a title, and that it was cut off and wiped out by the sale under the trust deed, and was not transferred to the surplus; that equity will not intervene, as the appellee stands in no better position than every other honest creditor. The mere fact that he had a judgment places him in no better position that a contract creditor. Decree reversed. Opinion by Walker, J.; Sheldon, Craig and Dickey, J. J., dissenting. from refused the attachment, for the rea- A. J. Reginer, for applt. Held, That the part of the order refusing an attachment was not appealable to this court; that there was no right in the moving party to have his opponent punished; that it was a matter of discretion with the court below; that the order of the Special Term did not infringe upon the provisions of the decree and previous order; that it was within the power and discretion of the Special Term, and is not appealable. Appeal dismissed. PRACTICE. ATTACHMENT. AP- N. Y. COURT OF APPEALS. Sutton, applt. v. Davis, exr., &c., respt. An order granting or refusing an at- FIRE INSURANCE. Congregation of Rodeph Sholem. Decided January 21st, 1876. An insurance policy containing a provision that "if the building shall fall, except as the result of fire, all insurance by this company shall immediately cease and determine," continues in full force where the building, although removed from its foundation by the violence of a tempest, and greatly damaged, is still intact as a building. Appeal from Cook county. This was an appeal from an order of General Term, affirming an order of Special Term, denying a motion for an attachment against defendant as executor of the last will and testament of M, for refusing to obey a former decree and supplemental order of said court, which decree 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 not liable. Verdict for plaintiff. Held, That the edifice as a building remained intact; that the policy was not avoided by the fact that the building was removed from its posts, and that to bring a case within the terms of the policy the building must be reduced to a mass of rubbish, to such a condition as to lose its identity as a building. Judgment affirmed. Opinion by Scott, C. J. SHERIFF. respective rights, and an order was made granting the leave asked. Chas S. Gage for Weld. Barrett, Redfield & Hill, for First National Bank of Tarrytown. Vanderpool, Green & Cumming, for Nash & Holt, for Bowen. Stanley, Brown & Clarke, for 1st National Bank of Commerce of New Bedford. J. V. French, for Poor and in his own behalf. On appeal. Held, That it seems appa N. Y. SUPREME COURT, GENERAL TERM, rent by precedent and by the long estab FIRST DEPARTMENT. lished practice of this Court, that the Sheriff has a right to pay the money into Court where there are contesting claim Weld applt. v. Conner, Sheriff, &c., 1st National Bank of Tarrytown, 1st Na-ants to it, (59 N. Y., 224, 229), but tional Bank of New Bedford, Poor, Bowen, French, and Leaman. Decided January 25, 1876. Sheriff has a right to pay money into Court where there are contesting claimants to it. Court may direct him so to do. whether this right rests in him or not, the power of the Court to direct that he do so, cannot be questioned, nor can the propriety and justice of making such an order be well doubted. Order affirmed. Opinion by Brady, J.; Davis, P. J., Appeal from an order directing the and Daniels, J., concurring. Sheriff to pay money into Court. Several judgments were obtained TERM. 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 executions had been issued. Bowen paid into the Sheriffs hands the amounts of these executions (and moved the Court that the same be satisfied and discharged, which was ordered). The fund created by this payment is claimed in whole or in part by the several judgment creditors; also, by French as Poor's attorney, for his costs and fees in the action against Bowen, and by Weld, the appellant, as assignee of Poor's judgments against Bowen. The Sheriff applied for leave to pay the money into Court, and that the various Joseph Bieler, et al., v. John Reh. In an action to set aside a mortgage ant. On the 11th day of May, 1875, the plaintiffs entered and docketed their judgment setting aside and cancelling a mortgage, given to the defendant Reh, |