RECEIVER.

cise the office of supervisor of such town. The object of the framers of the Code, in the provisions in reference to these actions, manifestly was to provide a speedy and effective mode of determining the claims of persons to exercise the duties of any office within this State; and the determination of the claims of individuals to discharge the duties of any office, would necessarily involve the determination of the existence of the particular office. If the office, the duties of which were usurped and unlawfully exercised, had no legal existence, it would follow that no usurpation was established; and the same result would obtain, if it should be ascertained that the office legally existed, and the party claiming to exercise its duties was lawfully entitled so to do. In either aspect, the determination of the legal existence of the office is involved, and must necessarily be decided. [15 N. Y., 532.] Ct. of Appeals, 1861, People a. Carpenter, 24 N. Y., 86.

RAILROAD COMPANIES.

COMPLAINT, 19.

RECEIVER.

1. In proceedings to appoint a receiver of an insolvent bank, the fact that no officer of the bank could be found on whom service of notice of a motion for the appointment of a receiver could be served, leaves the court at liberty, in its discretion, to appoint a receiver, without notice to the bank. [1 Paige, 17.] N. Y. Superior Ct., 1860, Dayton a. Borst, 7 Bosw., 118.

2. If enough is done, in proceedings for the appointment of a receiver of an insolvent corporation, to authorize the court to act, the appointment is not to be questioned collaterally. So held of an appointment by the Court of Chancery of New Jersey, under the statutes of that State. Ib.

3. The rents which come from the under-tenants of a judgment-debtor into the hands of a receiver, are not subject to distribution among the creditors until the claim of the original landlord for rent has been extinguished. N. Y. Com. Pl., 1860, Riggs a. Whitney, Ante, 388. 4. Where property in the possession of a receiver is claimed by a third person, the proper course for the latter is, to apply to the court which appointed the receiver for an order to pay or deliver it over to the party to whom it rightfully belongs. Ib.

5. The employment of the judgment-debtor by his receiver to collect a portion of the assigned demands, is not alone sufficient to authorize

REFERENCE.

his removal from his trust. Supreme Ct., 1862, Ross a. Bridge, Ante, 150.

6. That a receiver may with propriety apply to the court for instruction. Matter of Van Allen, 37 Barb., 225.

FORMER ADJUDICATION, 3; SUPPLEMENTARY PROCEEDINGS, 14.

RECOUPMENT

ANSWER.

REFERENCE.

1. Under 2 Rev. Stat., 191, §§ 174, 175,-empowering the court to direct the disposition of an infant's real estate for his support, maintenance, and education, and in a summary manner, by reference, to inquire into the merits of the application, the court may proceed summarily without a reference, if the facts are made to appear so as to show a clear case where the disposal of the estate is necessary and proper for any of the purposes indicated by the statute. Supreme Ct., 1862, Matter of McIlvaine, Ante, 91.

2. The provision of the act entitled "An act to facilitate the closing up of insolvent and dissolved Mutual Insurance Companies," passed April 21, 1862 (Sess. Laws of 1862, 743),-by which parties controverting any demand made against them by receivers of such companies, may be compelled to a submission of such controversies to the decision of a referee, to the exclusion of a jury,-is constitutional. As the law stood when the Constitution was adopted, the persons representing insolvent debtors might, instead of bringing suits in court to settle controversies between themselves and the debtors of the insolvent, compei references of such controversies to referees; and the receivers of insolvent corporations might, in the same manner, compel references of con- · troversies between themselves and the debtors of the corporations. The powers conferred on receivers by the act in question are very similar to those conferred on trustees of insolvent debtors, and receivers of insolvent corporations, by the Revised Statutes; and it may with truth be said, that in cases like this now before the court, the trial by jury had not "been heretofore used" as the only mode of trial; but that trial by referees was also a mode of trial in use and authorized. Supreme Ct., 1863, Sands a. Tillinghast, 24 How. Pr., 435.

3. When there is a dispute as to what is the contract between attorney and client, or in regard to the amount which the attorney is entitled to demand under it, and also when the amount of compensation is by express

REFERENCE.

agreement made to depend on the value of the services, and unliquidated, the remedy of the attorney is by direct action against all the parties. There cannot be a compulsory reference on these questions. [So held, on the authority of 16 How. Pr., 173, in preference to 14 Abbotts' Pr., 229.] Supreme Ct., Sp. T., 1863, Fox a. Fox, 24 How. Pr., 409.

4. In an action by a purchaser of land, in which the only relief specifically demanded was that the vendor be compelled to perform the agreement by conveying, it appeared that the defendant had never been able to perform his agreement.

Held, that the court could not order a reference to ascertain the damages for the breach of the agreement. The defendant has a right to have such a question tried by a jury. Supreme Ct., 1861, Stevenson a. Buxton, Ante, 352.

5. The issue of damages in insurance causes, is referable where it requires the examination of a long account. Supreme Ct., 1862, Lewis a. Irving Fire Ins. Co., Ante, 303, note.

6. In an action in which the trial of an issue of fact will require the examination of a long account, a compulsory order of reference is proper, notwithstanding the complaint may contain allegations of fraud, such as constitute a ground of arrest, and the defendant has been arrested thereon. Especially is this so where the case is such that the allegations of fraud are immaterial, and unnecessary in the complaint. N. Y. Superior Ct, Sp. T., 1862, Atocha a. Garcia, Ante, 303.

.

7. The provisions of the Code ($ 273),-regulating the mode of choosing referees, and the time of reporting, amended, to read as follows: "In all cases of reference, the parties as to whom issues are formed in the action (except when the defendant is an infant or absentee) may agree in writing upon a person or persons not exceeding three, and a reference shall be ordered to him or them, and to no other persons. And if such parties do not agree, the court shall appoint one or more referees, not more than three, who shall be free from exception. And no person shall be appointed referee to whom all parties in the action shall object, except in actions for divorce; and no justice or judge of any court shall sit as referee in any action pending in the court of which he is judge and not already referred. Unless the court shall otherwise order, or the parties otherwise stipulate, the referee or referees shall make and deliver a report within sixty days from the time the action shall be finally submitted; and in default thereof, said referee or referees shall not be entitled to receive any fees, and the action shall proceed as if no reference had been ordered." Laws of 1863,

392.

8. If a party asks to have particular items considered in a court of review, and a report set aside for their allowance or disallowance, he must, 1, bring the attention cf the referee specifically to them; 2, make it manifest what disposition the referee has in fact made of them,

REPLEVIN.

by obtaining from him a specific report on that subject; and, 3, except specifically to the report in those particulars. Supreme Ct., 1858, Honlahan a. Sackett's Harbor & Saratoga R. R. Co., 24 How. Pr.,

155.

9. A referee cannot receive as proof of a fact, which the order of reference directs him to decide, an affidavit sworn before a commissioner. The witness must be sworn before the referee. Supreme Ct., Chambers, 1863, Security Fire Ins. Co. a. Martin, Ante, 479.

10. A referee's finding on questions of fact,-conclusive. Colwell a. Lawrence, 24 How. Pr., 324.

11. It is going too far, to say that a reference, on the ground of a long account, can only be ordered when the court can see that the trial must necessarily involve an account. It may be that the trial of some of the issues, which would involve the account, will be rendered unnecessary by the determination of another issue. But it must appear that some one of the issues in the action will require the examination of a long account, and that, unless that appear, the power to order & reference of the action for trial is wanting. N. Y. Superior Ct., 1861, Whitaker a. Desfosse, 7 Bosw., 678.

APPEAL; FORECLOSURE, 1.

REMOVAL OF CAUSES.

A corporation, created by the laws of another State, is to be deemed a citizen of that State for purposes of jurisdiction; but, if by comity of another State, it establishes its agents and transacts its business in another State, it in so far becomes a citizen of the latter. Especially is this so, where, according to the requirements of the laws of the latter State, it has appointed an agent upon whom process may be served. This is a surrender of any right to object, when sued in a court of such State in respect to its business there, that it is a citizen of the State in which it was created, and therefore entitled to have the cause removed to a United States court. Supreme Ct., Sp. T., 1863, Stevens a. Phoenix Ins. Co., 24 How. Pr., 517.

REPLEVIN.

Notwithstanding 2 Rev. Stat., 522, § 4,-which provides that "replevin” shall not lie for goods taken for a tax pursuant to statute,-the rightful possessor of goods, unlawfully seized under a warrant against another, for non-payment of taxes, may prosecute an action to recover the possession of such goods, and take proceedings of claim and delivery for such goods. Supreme Ct., 1863, Stockwell a. Vietch, Ante, 412.

VOL. XV.-36

SERVICE.

REPORTS.

The statute (ch. 130, of 1854) exempting from prosecution for libel the publishers of legislative and judicial debates, &c., relates only to statements made in judicial, legislative, or administrative bodies in execution of some public duty. It is prospective only, and is no defence for a publication prior to its enactment. Ct. of Appeals, 1861, Sanford a. Bennet, 24 N. Y., 20.

RESTITUTION.

APPEAL, 42; SUMMARY PROCEEDINGS, 3.

SECURITY FOR COSTS.

1. To obtain security for costs, the defendant should procure an order ex parte, directing security to be filed within twenty days, or, on failure, to show cause on the first motion-day thereafter why security should not be filed, with a stay of proceedings. In case security is not filed, and defendant's motion is granted, a peremptory order, operating as a stay of proceedings, will be allowed. Then, if security is not filed within a reasonable time, a motion to dismiss the complaint will be granted. Supreme Ct., Chambers, 1862, Cadwell a. Manning, Ante, 271.

2. After proceedings on a judgment against the plaintiff have been stayed on appeal, the defendant cannot properly prosecute the bond given by the plaintiff as security for costs on commencing the action. The defendants should not be allowed to collect, on the bond for security for costs, moneys which they are not allowed to collect directly by execution. Supreme Ct., 1862, Van Vleck a. Clark, 24 How.

3. But if, instead of moving to stay an action on such bond, the plaintiff suffers such an action to be brought in another court and a decision to be had against him, he cannot, without any excuse for his delay, bring a new suit for an injunction against the prosecution of such action. Ib.

SERVICE (OF PAPERS).

1. Section 34 of chapter 259 of Laws of 1860, which provides that no member of the Metropolitan Police force shall be liable to military or jury duty, to arrest on civil process, or to service of subpoena while actually on duty, impliedly declares persons so holding office shall