power conferred, without their assent, or debtor's estate may impeach the judg the sanction of some tribunal possessing ment, either by showing it to be frauduthe power to allow such diversion or lent upon its face, or by evidence aliunde. transfer. Small v. Ludlow, 189 Only the parties to a judgment are concluded by it. Neusbaum v. Keim,
2. The acceptance by a creditor, from, his debtor, of a sum less than the entire debt in full payment and discharge, and the giving of a receipt therefor, expressed to be in full, does not operate to discharge the debtor. He can be discharged only by a release under seal. Williams v. Carrington, 515
3. But a mutual agreement by various ereditors with each other to receive from a debtor a sum less than their respective claims, or such an agreement by a single creditor with his debtor, upon the faith of which other creditors are induced to make a similar compromise, is binding. The benefit which each creditor gains by the engagement of the others to forbear, and consequent securing of a fund for the ntual benefit of all, is a sufficient consideration to sustain such an agree
ASSIGNMENT, 1, 2, 4, 6, 7, 9, 10.
HUSBAND AND WIFE, 1, 2, 3.
LEASE, 6.
MARRIED WOMAN, 1, 2.
SUPPLEMENTARY PROCEEDINGS,
1. For a trespass committed under an honest mistake, without intent to injure, 4. It seems that where the debts lie in the amount of damages recoverable should simple contract the composition agree- be confined strictly to the injuries susment may be by parol. Ibid. tained. Shannon v. Burr,
5. C., having made an agreement with 2. When property, unlawfully taken, a number of his creditors to compromise is afterwards returned to the owner, beat the rate of forty cents on the dollar, fore suit brought, and is accepted by him, made a similar agreement with one W., the return and acceptance should be conto whom he paid forty per cent. of his in-sidered in mitigation of damages. In such debtedness to him, receiving from him a a case, judgment for the whole value of receipt in full. He also gave him a sealed the property taken is erroneous. Hibbard agreement to give his note for forty per v. Stewart, cent. additional as soon as his compromise should be completed with all his creditors, 3. In an action by lessee against lessor, on condition that W. would sign a paper to recover damages for failure to give purporting to compromise his claims for possession, the rule of damages is the dif forty per cent. The latter engagement ference between the yearly value of the was never performed. premises and the rent reserved.
Held, there being no evidence that the It is erroneous, in such action, to reother creditors of C. were induced to com-ceive evidence of the amount plaintiff has promise by the action of W., that W. was been compelled to pay to obtain premises, entitled to recover the balance of his debt instead of those leased him by defendant. from C. Ibid. Dean v. Roesler, 420
6. In order to sustain an action, brought 4. In an action tried before a referee, by a creditor to set aside, as fraudulent evidence on the question of damages, and void, a conveyance of real estate which, under the proper rule, was incommade by his debtor, the plaintiff must petent, was offered and objected to, but show a judgment recovered in his favor was taken down by the referer, subject against the debtor. Unless he stands in to the objection; and he afterwards conthe relation of judgment-creditor he cannot attack such conveyance.
In such an action the grantees of the
sidered it in awarding damages. Exceptions were filed to his decision, one of which was, that the decision was con
trary to the law and the evidence;" but|
no exception was taken specifically to
the rule of damages adopted. Held, on
appeal, that the court would review the
decision of the referee in respect to the
measure of damages adopted by him.
Ibid.
See APPEAL, 1, 2, 29 to 33, 42.
MARINE COURT, 1.
1. A party who contracts to convey
land is required to deliver a deed of con-
5. In an action against a constable for veyance of the property in such a condi-
a neglect to return an execution, the tion as to make it at once operative to the
plaintiff's damages are prima facie the purchaser against all persons. Smith v.
amount of the execution; but the con- Smeltzer,
stable may show that the plaintiff has sus-
tained no damage, or less than the full
amount of the execution, and limit the
recovery against himself accordingly.
Carpenter v. Doody,
See PRACTICE, 7.
APPEAL, 35.
JUSTICES' COURT PRAC
MARINE COURT.
1. Where a person stands by, and
knowingly suffers another to claim to be
1. This court cannot relieve a defend- the owner of personal property, and to
ant, under 366 of the Code, from a make an agreement concerning it with a
judgment taken by default in a district third person, he cannot afterwards assert
court, if he has once appeared in the ac- his own title to such property, to the
tion. Wilde v. N. Y. & Harlem R. R. Co., damage of the party deceived. Hibbard
207
302 v. Stewart,
See MARRIED WOMAN, 1, 2.
USE AND OCCUPATION, 3.
1. An interference by the landlord with
the person of the tenant, although on the
demised premises, does not constitute an
eviction. It is a trespass only, and the
remedy of the tenant is by action for the
assault. Vatel v. Herner,
beneficial enjoyment of the demised pren
ises, does not constitute the basis of a
counter-claim or recoupment in an action
for rent, but only such acts as amount to
an eviction, total or partial, or an unlaw-
ful injury to the premises in violation of
the contract of letting.
III. They show merely a disturbance
of the beneficial enjoyment of the tenant,
but no interference with his possession.
Edgerton v. Page,
320
5. Per BRADY, J., dissenting:-A ten-
2. The use of a privy by a landlord injant has a right to abandon the demised
a passage way leading to the demised promises at any time during the land-
premises, and which was there at the lord's continuance of the disturbance of
time of the hiring, although so used as to his beneficial enjoyment of the premises.
be offensive to the tenant, does not of If the disturbance cease before the rent
itself constitute an eviction, the tenant becomes due, and while the tenant is still
not being actually deprived of any part of in occupation, the rent may be recovered.
his premises.
Ibid. If the disturbance continue during the
whole period of that part of a term during
which rent accrues, and down to the time
when the rent becomes due by the agree-
ment, and the tenant then abandons the
premises in consequence of such disturb-
ance, the reut cannot be recovered. Ibid.
3. A refusal, by a landlord occupying
premise in conjunction with his tenant,
to perm an under-tenant of the tenant
to occupy the premises demised, is an
eviction by the landlord, and will prevent
his recovery in an action against the ten-
ant for the rent.
But the mere entry by the landlord
upon his tenant's premises, unaccompa
nied by any attempt to exclude the ten-
1. The delivery and acceptance of the
ant therefrom, does not constitute an evic-key of leased premises is sufficient to es-
tion. Randall v. Alburtis,
285 tablish the fact of occupation, which will
be presumed to continue until an inter-
ruption thereof is shown.
Ward,
4. E. leased certain premises to P. for
one year, with the privilege of a year's
renewal at the same rent. In an action
for the last quarter's rent of the first year, 2. The defendant's admission, that he
P. alleged, as a defence, that the plaintiff had had certain goods, is sufficient evi-
had maliciously and wantonly allowed dence of delivery to maintain an action
large quantities of waste water to come for the sale and delivery of the goods, al-
down into the demised premises, greatly though it appears that they were in fact
injuring his goods, and compelling him to delivered to some other person. Griffin
leave the premises at the end of the first v. Keith,
year, thereby losing the privilege of re-
newal. The defendant having remained 3. In an action for goods sold and de-
in possession of the premises during the livered, the evidence showed that the de-
entire year-held, on demurrer to answer, fendant admitted the correctness of the
that these facts constituted no defence. bill and promised to pay it, but objected
I. They did not amount to an eviction. to the interest, and said he bought the
Every obstruction by the landlord to the goods on credit, without specifying the
beneficial enjoyment of the premises de- length of credit-held, there being evi-
mised does not constitute an eviction. dence that he had made payments on ac-
To constitute an eviction, the lessee must count before suit brought, that the judg
have been compelled to abandon the ment, in favor of the plaintiff for the
whole or some part of the premises by amount and interest, was correct.
the wrongful act of the lessor.
lock v. Bueno,
II. Nor did they constitute a ground
for a counter-claim or recoupment. Every]
4. Parol proof of the commencement
act of the landlord, disturbing the tenant's and trial of a former suit is admissible;
but it seems not evidence of matters that the presumption arising from the proof of
would appear in the pleadings. Choffee such arrest of D. at the instigation of the
V. Cox,
78 plaintiff. Brennan v. Haff,
5. A witness, in testifying to a conver- 12. In an action to recover for money
sation, will not be required to give the lent to the defendant while an infant, his
precise words used. He may be allowed admissions of the amount received by him,
to state the substance merely. Ibid. though made during his infancy, are ad-
missible as evidence of the sum loaned.
Ackerman v. Runyon,
6. A notice to the plaintiff, to produce
a letter written by the defendant to the
plaintiff's assignor, does not entitle the
13. The promise of the defendant, after
defendant to offer secondary evidence of attaining his majority, to pay the plaintiff
its contents, upon the plaintiff's failure to what he owed him, is a sufficient promise
comply with the requisition in the notice. to charge him with the indebtedness, al-
He should subpoena the assignor to pro- though nothing was said at the time about
duce it. If it has been lost or destroyed, the amount due.
parol evidence of its contents may be
given.
14. What promise, made after majority,
to pay a debt previously contracted, is
7. Whether the written rules of a com-sufficient to charge a defendant-con-
pany may be proved by parol? Quare sidered.
Ibid.
15. The execution of an instrument,
not under seal, may be proved by the ad-
mission of the party, although the instru
ment is attested by a subscribing witness
who is not called, or his absence excused.
Giberton v. Ginochio,
218
16. Mere impressions of a witness, un-
9. It seems, that a certified copy of a accompanied by any circumstanco, are of
chattel mortgage is admissible in evi- no avail in opposition to positive testi-
dence with like effect as the original, mony. Dresser v. Vanpelt,
where the original is upon file. Van Has-
sell v. Borden,
17. Under a plea of the statute of limit-
ations, the assignor of plaintiff swore posi
10. It is erroneous to permit a witness tively that a part payment had been made,
to testify to an account from a transcript but stated that he could not say positively
of the party's books, without their pro- it was made within six years, although
duction, and especially so when his ad- he believed it was. The defendant swore
versary has given him notice to produce positively that he had made no payment
the books on the trial. McCormick v. within six years. Held, that a finding
Mulvihill,
of the justice in favor of the plaintiff
was clearly against evidence; that this
11. The defendant's horse having been was not a case of conflict of testimony,
stolen, he offered a reward of fifty dollars but of imperfect recollection on one side,
for the detection of the thief. The plain- and positive recollection on the other.
tiff informed him that D. was the thief,
Ibid.
and gave him some information tending
to sustain this charge, and the defendant | 18. The production of a check, drawn
nad D. arrested therefor. Held, sufficient payable to "bearer," upon the trial, is
prima facie evidence to sustain a re-sufficient prima facie evidence of title to
covery for the amount of the reward, enable the plaintiff to recover upon it.
without showing D.'s conviction on the Townsend v. Billinge,
353
charge. If D. had been acquitted, or
released, or if the charge made against! 19. The recollection of a fact by a wit-
him was unfounded, it was incumbent on ness is one thing, and his being convinced
the defendant to show the fact, to rebut of a fact of which he has no recollection,
another; and the former is the only testi- 25. What is a sufficient length of time
mony which it is competent for a witness to create such a presumption considered,
to give the other is not testimony. Tay- and the cases upon the question collated
lor v. Stringer,
377 and examined.
20. Under a written contract of sale, 26. T. having departed upon a voyage,
which is silent as to time of delivery, it is the ordinary limit of which was four
compet nt to prove a snbsequent oral months, and seventeen months having ex-
agreement, distinct from the original con-pired, and nothing having been heard of
tract, fixing the time of delivery. Such the vessel in which he sailed, or of those
proof does not conflict with the rule who were in her, and the period of time
which excludes parol evidence, enlarg-being much more than sufficient to have
ing or varying a written contract. Or heard from all the commercial ports of
guerre v. Luling,
383 the world-held, that it must be presumed
that the vessel was lost, and that those
ished; and therefore his bail were en
on board of her, including T., had per-
titled to be discharged.
21. The books of a corporation may be
proved by any person who was present
when they were made, and who knows
of his own knowledge that they are cor-
rect records of the transactions which 27. The presumption of death in such
they profess to record. The secretary the party has been absent and unheard
a case does not rest upon the fact that
need not be called to verify them himself. of for such length of time alone, but upon
St. Lawrence M. Ins. Co. v. Paige, 430
the weightier circumstance that the ves-
sel has not been heard from.
22. In an action for rent upon a writ- The question is not, whether it is not
ten contract to hire, signed by the tenant possible that the party may be alive, but
only, it is to be presumed, in the absence whether these circumstances do not pre-
of evidence to the contrary, that the land-sent so strong a probability of his death
lord's agreement to let was also in writ- that a court of justice should act thereon.
ing.
In such an action, evidence of a parol
agreement, on the part of the landlord, to
repair, is inadmissible, except it is pre-
ceded by proof that the landlord's agree-
ment to let rested in parol. Mayer v.
Maller,
Presumptions founded in a reasonable
probability must prevail against mere pos-
sibilities. Otherwise the conclusion could
never be arrived at, that a man was dead
until the natural limit of human life had
been reached.
Ibid.
28. Courts are bound to assume, where
a discretion is vested in a municipal body,
exercising functions of a legislative char-
acter, that good reasons existed for doing
an act which was the result of such a dis-
cretion. N. Y. & Harlem R. R. Co. v.
The Mayor, &c., of N. Y.,
562
24. There is no arbitrary or positive
rule in respect to the time when the pre-
sumption of death may be drawn from
29. No acknowledgment or promise is
the continued absence of a person. It is sufficient evidence of a new or continuing
not necessary that seven years, or any contract, to take a case out of the opera-
specific period, should elapse, to lay the tion of the statute of limitations, unless
foundation for such presumption, but it contained in some writing signed by the
may be drawn whenever the facts of the party to be charged thereby. The effect
case will warrant it.
of the enactment of the provision in the
If the party, whose death is in question, Code of 1849, requiring such promise to
went to sea, and nothing has been heard be in writing, is to establish a new rule
of the vessel in which he left, or of those of evidence for all cases, where the action
who went in her, the presumption, after is brought after the period limited by
a sufficient length of time has expired, statute. Hope v. Bogert,
will be that the vessel was lost, and that
all on board of her perished. Merritt v.
Thompson,
See ACTION, 3.
ADMISSIONS, 1, 3, 4.
|