resent it in Court; it cannot be presumed Watson to defraud the County by proto have been done; it must be made to curing false and pretended claims to be appear by an order of the County Court, audited, and did cause a large number of duly authenticated under its seal, and fraudulent and fictitious claims, set forth filed with the appearance of the attorney. in a schedule annexed, to be audited and The presumption in this case is, that paid, amounting to $6,198,957,85, which the defendant has an official representa- sum they converted to their own usc. tive in the district attorney for the third judicial district upon which the duty of defending this action in cast by the laws. The Court is, therefore, not at liberty to presume that the attorneys signing the answer of the defendant were authorized to do so. The authority to employ other attorney to assist in defence, is not doubted, but even then the district attorney must control the proceedings, and authenticate the pleadings. The city of New York in its corporate name was made a party defendant, the complaint alleging that it set up some right or interest in the premises. The complaint contained allegations of neglect of duty upon the part of the auditors, of whom Tweed was one. Tweed moved that the comnts be set aside. because the causes of action are not separately stated or numbered; to strike out so much of the complaint and schedule as does not relate to the first cause of action (i. e. the first account stated in schedule as audited and paid) as irrevelant and redundant; to strike out certain allegations in the complaint of neglect on the part of the auditing officers as ir It is true this action is not prosecuted revelant and redundant, and to strike ouț in the county of Marion, because this the allegations of fraud and conspiracy; Court does not happen to set there, but that plaintiff should elect upon which the cause of the action arose in that" of the 151 causes of action" (i. e. the County, and that County is a party to it, different accounts stated in the schedule) which brought it without the statute, and they intended to rely, and should be rerequires it to be defended by the district quired to serve an amended complaint attorney of the third district. excluding those not elected; that they The suggestion that the action does not come under the provision of the 945 Section, because it is not prosecuted or defended in any county" in the third district, will not avail. The motion to strike out is all used should elect whether they would proceed on bill ground. PRACTICE-PLEADING. N. Y. COURT OF APPEALS. The People etc., v. Tweed, et al. Decided Nov. 16, 1875. Bill of Particulars. Election of cause of action, Extension of time to plead. Discretionary orders. This action was brought under the provision of Chap. 49, Laws of 1875, vesting a right of action in the People of the State. The complaint alleged in substance that defendant Tweed, as President of the Board of Supervisors of the County of New York conspired with one for fraud or neglect to audit; also that plaintiff serve a bill of particulars, and that defendant have until twenty. days after service to answer or demur, and to make the complaint more definite and certain. The Special Term ordered that plaintiffs serve an amended complaint specifying the rights or interests. of the city, and should either strike out the allegations of neglect to audit, or state that they do not rely on them as a cause of action, or if they elect to sue. for the neglect; to strike out the allega tions of fraud and conspiracy, and also that plaintiffs serve a bill of particulars, and that defendant Tweed have until twenty days after service of amended complaint and bill of particulars to de- the answer. And defendant requested mur or answer. The residue of the mo- the Court to charge :- "that intoxication tion was denied. Both parties appealed. of the deceased, if he was intoxicated, if The General Term reversed so much it tended to obscure his faculties, was, of the order as granted any portion of under the circumstances, of itself neglithe motion and affirmed the residue, gence." This was refused and an exgiving to Tweed seven days to answer. ception taken. Tweed appealed at this Court. Held that the complaint stated but one cause of action and sufficiently set forth the interests of the City, and that all the questions presented were within the discretion of the General Term, and cannot be reviewed here. Appeal dismissed with costs. RAILROADS N. Y. SUPREME COURT-GENL TERM, SECOND DEPT. On the appeal it was argued by the defendant that it was not liable by reason of the lease. The defendant was organized under the railroad law. Held, 1. That the railroad act provides that every corporation formed under it shall erect and maintain fences on the sides of its road, etc. 2. "Though the statute makes the lessees of a road also liable to erect and maintain such fences, there is no provision by which the constructors of the road are absolved from the obligation positively Ditchett, admtrx, Respt, v. The Spuy-imposed by the statute upon any corporten Duyvil and Port Morris R. R. ation formed under the act." Co., Applt. Decided at July Term, 1875. ness. 3. The excavation across the highway was in the nature of a nuisance, and was strictly such, unless the highway was Fences to be erected and maintained by restored, so that its usefulness was not Railroad Company. Leasing road, effect of, on this duty. Nuisance. impaired. One who erects a nuisance, is Contributory negligence. Drunken- liable for the continuance of it, though he has demised the premises, or even if Appeal from a judgment in favor of he has erected it on the lands of another, plaintiff, entered upon the verdict of a and has no right to enter and abate it.". jury. 4. The mere fact.of intoxication will Complaint for negligence. Answer. not establish want of ordinary care. The General denial and contributory negli-jury must determine whether the intoxgence. ication contributed to the injury, and if it did not it is of no importance." Judgment affirmed. Opinion by Talcot, J. The plaintiff's intestate, in an intoxicated state, walked down a declivity of a deep cut across a public road, made by the defendant in constructing its road, went through ar. opening in a fence and 66 RECEIVER. fell off the perpendicular bank at the end N. Y. SUPREME COURT-GENL TERM, of the declivity, and was killed. The whole case of negligence was sub FIRST DEPT. mitted to the jury, who found for the Heatherton, Respt. v. Hastings, Applt. plaintiff. Decided Oct. 29, 1875. On the trial, it was shown that the de- Partnership. Irreconcilable differen Appeal from an order continuing in Opinion by Daniels, J.; Davis, P. J.; and Brady, J. concurring. REMOVAL OF CAUSE. U. S. CIRCUIT COURT N. D. OF ILLINOIS. In Sept. 1873, the parties herein formed as well as requires the exercise of an aua copartnership in the plumbing and gas thority which would, under other circumfitting business, in which plaintiff fur- stances, be plainly improper. nished capital and experience; defendant Order affirmed. contributing the influence of himself and friends, in securing business for the firm. In May 1874, they secured the contract with the Government for the plumbing work in the new Post Office and U. S. Court House in New York City. By the terms of this contract, if the work was not prosecuted with the required promptitude, the superintendent of the building Main controversy. Partial interests might carry it on at their expense, or The City of Chicago filed a bill in the charge them a certain sum as a penalty Superior Court of the City of Chicago, to for the delay. The contract was forfeit- compel one Taylor, to whom Gage and ed if assigned without permission from his wife had conveyed, in trust, certain the Sec'y of the Treasury. In Dec. 1874 property for the purpose of the securing difficulties having arisen between the the city against loss from the indebtedness partners, of such a nature as to prevent of Gage, who had been treasurer thereof, their working in harmony, the Superin- to sell the same. tendent stopped the work. Plaintiff thereupon brought this suit to dissolve the copartnership, and by an order of this Court had a receiver appointed with authority to carry on the contract, with which the defendant was enjoined from interfering. From which order defendant appealed. On appeal. Held. That the course pursued seems, under the circumstances, unobjectionable. The contract was peculiar, in that it was forfeited if assigned without permission, and was liable to be terminated by the suspension of the work. There was some dispute between the City and Gage and his trustees, as to the amount due the City, and the determination of the amount of that indebtedness was the question in this case. Pending the case, one Ayres recovered a judgment against Gage, and, on motion, was made a party defendant. He, therefore, alleging that he was a citizen of Alabama, moved in the Superior Court for the removal of the case into the United States Court. This motion was granted. And then the City moved to have the case sent back. Held, Blodgett, J.: That the main controversy in the suit was the indebtedness of Gage, and that the parties to 2. That Ayres, who voluntarily made himself a party to the suit, submits himself to the State tribunal. The disagreement between the parties was of so serious a nature, that they were in danger of losing all the benefit gained by their past labors. This was sufficient that controversy could not remove the to justify the intervention of the Court suit. for the protection of their interests, and rendered a dissolution necessary for the purpose of settling their affairs. To accomplish this, the Receiver was necessary, and the injunction entirely proper. An omission to provide for the continuance of this particular work by the Receiver, would have caused great injury. 4. There is no allegation that there is The case is exceptionable, and justifies any collusion between Gage and the City, He cannot control the suit because of his interest. That is but partial, and a suit cannot be removed unless the whole suit is removed. to defeat Ayres's judgment, or he might absent from his usual place of residence, have the removal maintained here. The at the same time showing the original, cause is remanded to the Supreme Court. and that section number three of chapter 828, Laws of 1848 was indorsed on the copy summons, so served. SUMMARY PROCEEDINGS. The People ex rel. Frost, v. The Marvin Safe Company and Fowler, Justice. Decided Aug. 24, 1875. Summons. Service. "Two days." landlord and tenant act. } SS. The affidavits of service werc:STATE of NEw York, City and County of New York. C. H. Munsell, of said city, being duly sworn, says, that he did, on the 23d day of November, 1874, serve the within summons on H. A, Frost, the tenant therein named, by affixing the same on a conspicuous part of the premises within described, to wit, on the door thereof, and that the said tenant was absent from said premises at the time of said service, and that said premises are his last or usual place of residence, and that there was no person on said premises at the time of said service, and that section no three of chapter 28, Laws of 1868, was indorsed on the copy of summons so served. C. H. MUNSELL. Sworn before me this 24th } day of November. 1874. A. J. De Lacy, Notary Public, N. Y. County. City of New York, ss. C. H. MUNSELL. 4th } Sworn before me this 24th Notary Public, N. Y. County. The relator rested his appeal on the irregularity of the service. The Laws of 1868 refered to provide that, if the summons ce returnable on the day on which it is issued, it shall be served at least two hours before the hour at which it is returnable, and if not returnable on the same day, it shall be served at least two days before the day on which it is returnable," and the summons must be made returnable in not less than three nor more than five days. 2. The service was sufficient. Opinion by Davis, P. J.,; Daniels, J. concurring. TITLE. U. S. CIRCUIT COURT.-D. of Iowa. Personal property. Conditional sale. Lien. Notice. National Bank lending on personal security; validity of loan. Lex fori. Replevin for a locomotive engine. C. H. Munsell, of said city, being duly sworn, says, that h did on the 23d day of November, 1874, serve the within The Plaintiffs, in July 1873, entered insummons in the city of New York on H. to a written contract with the Mississippi A. Frost, the tenant therein served, by Valley & West Railroad Co. (an Iowa leaving a true copy of same at his usual corporation), by the terms of which it place of residence with John Lobz, a per- "let" or leased to the Rail Road Co. a son of mature age, who, at the time of locomotive for nine months, for a sum the said service, was on said premises, and equal to the value of the locomotive, one resided thereon; said tenant being then fourth of which was paid at or near the pany. date of the instrument, and the balance to take a pledge of the locomotive, as was to have been paid within the nine security for the loan to the railroad commonths. If paid the plaintiffs were to execute a bill of sale to the Company; "if not paid the plaintiffs were to repossess and enjoy the engine as though the instrument had never been made." The instrument contained a stipulation on the part of the Railroad Company, that the engine should be taken to Keokuk, and there kept and used and not removed from the control of the Rail Road Company without the consent of the plaintiffs. The engine was sent to the railroad company and received by it at a town on its line in Missouri. While there, to wit, in September, 1873, the Rail Road Company borrowed of the State National Bank of Keokuk $1,250, and pledged the engine to the bank as security, placing the engine in the actual custody of a third person for the security of the bank. The bank had no notice of the plaintiffs' lease or claim on the locomotive; and the plaintiffs' lease was never recorded. At the date of these transactions, there was in force in the state of Iowa, the following Statute. "No sale or contract or lease, wherein the transfer of title or ownership of personal property is made to depend upon any condition, shall be valid against any creditor or purchaser of the vendee or or lessee in actual possession, obtained in pursuance thereof without notice; unless the same be in writing, executed by the vendor or lessor, and acknowledged and recorded, the same as chattel mortgage." Held, Dillon, Cir., J. In view of the express stipulation of the contract, that the locomotive was to be taken to Iowa and used there by the railroad company, that the Iowa Statute controls the case and has the effect to subordinate the rights of the plaintiffs to the lien of the bank. Held further, that under the National Banking Act, the bank had the right The words "loan on personal security" in the banking act, are words in contradistinction to real estate security. Any other construction would throw a bombshell into the community, and injure both the banks and their customers. Judgment for Defendant. TRADE MARK. CIRCUIT COURT OF COOK COUNTY, II LINOIS. Woods v. Sands. Decided Nov. 10, 1875. Woods, the plaintiff, had established a hotel in Chicago, under the name of Wood's Hotel, and it had acquired a valuable reputation. After conducting it for some years, he sold out his interest and assigned the use of his name, to ono Cummings, agreeing not to keep a hotel during the remainder of the lease. During Cummings' management, in July, 1874, the hotel was burned. Shortly after the fire, the defendant, opened a hotel, which he called "Wood's Hotel," and announced that it was the re-opening of "Wood's Hotel;" whereupon Wood, who had bought out Cummings' interest in the name of "Wood's Hotel," and had opened another hotel in another place under the same name, sought to enjoin Sands from the use of the name. The defence was that the trade mark of the name was not assignable, and therefore that plaintiff took no title to it from Cummings. a Held, 1. That the trade mark of a name is assignable. 2. At least, it is assignable to be used on the same premises where it had been used. 3. But whatever value there is in the name, it is the property of the plaintiff. Decree for the injunction prayed for. Opinion by Farwell, J. 1 |