the sum of $1,350 by said Board of Education to said plaintiffs, from the next payment which should become due under his contract.

The United States have a cause of action against the Pacific Railroad to recover five per cent. of its net earnings after the completion of the road, to be applied on its indebtedness to the United States. Demurrer to Petition.

Bonds

Immediately after the draft was drawn it was left with the Board of Education. The defendant, formerly the LeavenOn the 24th day of June, 1873, the next payment under said contract, being the worth, Pawnee and Western Railroad sum of $4,000, became due to said Dutch. Company, was one of the roads aided by Held, That the Board of Education the act of Congress of July 1, 1862, and has never been other than a distinctive the amendatory act of July 2, 1864, relating to the Union Pacific Rallroad, and educational branch of government, or separate organization-having by the other companies therein named. Statute, (1851,) its own separate funds, of the government were delivered to the deand empowered to draw money in accord- fendant as provided in said act, amountance with the provisions of special sta-ing in all, as alleged, to $6,303,000, paytutes. What is now known as the Board able in thirty years, with interest at six of Education, was styled the Department per cent., payable semi-annually. The of Public Instruction. It was originally defendants road is averred to have been known as the Board of Education, Laws completed November 2, 1869, and that 1851, p. 735. In 1871 (Laws, p. 1,244), it since then to the 31st day of October, became a Department of Public Instruc- 1874, the net earnings of the road have tion under the general City Government, amounted to $6,176,602.60, and that five per cent. of said net earnings during and in 1873, was again reconstructed, and its original designation restored said period amount to $308,830.13. The (Laws, 1873, p. 196). Notwithstanding act of Congress of July 1, 1862, provides these changes, all the powers originally conferred were preserved.

It is of itself a corporation capable of suing and being sued. It is not in any sense the agent of the city.

The result is that the defendants can

as follows:

Sec. 6. "The grants aforesaid are made upon the condition that said company shall pay said bonds at maturity and all compensation for services rendered for the government shall be apnot be called upon by action against plied to the payment of said bonds and them, originally to respond for the omis-interest until the whole amount is fully sions of the Board of Education, or for the violation of the contracts pertaining to their department, or to pay debts justly due upon contracts made by them. Judgments affirmed with costs. Opinion by Brady, J.; Davis, P. J. and Daniels J., concurring.

PACIFIC RAILROADS.
UNITED STATES CIRCUIT COURT OF
KANSAS.

The United States v. Kansas Pacific
Railway Company.

Decided at November Term, 1875.

paid. Said company may also pay the United States, wholly or in part, in the same or other bonds, treasury notes or other evidences of debt against the United States to be allowed at par; and after said road is completed, until said bonds and interest are paid, at least five per cent. of the net earnings of said road shall also be annually applied to the payment thereof."

This is a suit at law to recover the said five per cent. of the net earnings. The petition alleges the foregoing facts, and A demurdemand and refusal to pay. rer to the petition was filed under which the following points were made by the

a

defendant, and argued, and submitted

PARTNERSHIP.

to the court at the May Term, 1875, be- N. Y. SUPREME COURT-SPECIAL TERM.

fore Miller, Circuit Justice, viz :—

1. That the provision of the act of 1862, set forth in the petition, does not impose any obligation on the company to pay money to the government, but is merely a directory provision, regulating the management of the internal affairs of the company.

2. That if the provision in question does create an obligation binding the company to pay a proportion of its net earnings to the government, such right is of an equitable nature, enforceable only by proceedings for account, and can not be made the foundation of an action at common law.

The cause was taken under advisement, and at the November term, 1875, an order was directed to be entered overruling the demurrer.

Callahan v. Brewer et al.

Decided at November Term, 1875. Owners of a boat, though tenants in common as to their property in the boat It is inequitable to allow a partner who itself, are partners as to its earnings. has an interest in the earnings of the partnership property, adverse to that of his partners, to increase that adverse interest to the dimunition of the partnership profits.

Demurrer to complaint.

Opinion by Lawrence, J.

The complaint alleges that the "William H. Aspinwall" was built, and has always been employed as a pilot boat, and has been used in the business of piloting vessels in and about the port of New York by way of Sandy Hook. That by the custom and actual experience in the port of New York, each pilot boat, including the Aspinwall, carries pilots, who are not owners, and who receive a share of the boat's earnings in lieu of other pay, as compensation, and whose term of service is governed entirely by the will of the owners, and that all the persons who serve in such boats, whether owners in the boat or not, are termed

Opinion. MILLER, Cir. J., in directing the entry of an order overruling the demurrer, in substance observed that he had never had any doubt that the demurrer must be overruled, but he had held it up on suggestion of counsel that the argument of the case of the Union Pacific Railroad Company v. The United States, on appeal from the court of claims might involve propositions affecting this journeymen. That the custom of the this case. That was a suit brought by port of New York is, and for many years the company against the United States, has been, for the owners of the boat to to recover the one-half of the freight draw twenty-five per cent. of the gross earned by the company for carrying earnings, the only variations being that mails, etc., for the United States-the government claiming, that all such earnings should go to pay the interest on the government bonds. That case was recently argued in the Supreme Court of the United States, and nothing was developed touching the right of the government to recover the five per cent. of the net income, after the completion of the road, a right given in the original charter of July 1, 1862, and which in this respect has never been repealed or modified. Let the demurrer be overruled. Entered accordingly.

in some special cases certain expenses, to wit, the usual running expenses, are deducted, and the twenty-five per cent. is drawn from the balance and paid over to the several and respective owners. The plaintiff further alleges in his complaint, that on the 15th of August, 1873, he purchased from Isaac Gainor, the then owner of one-fifth of the said pilot boat, his said one fifth part thereof, and has ever since been the owner thereof.

That at the time of such purchase, the boat was owned as follows: the defendant Brewer owned one fifth, the defendant

Shooks one fifth, the defendant Balfe is a co-partner in the earnings of the one fifth, and one John M. Dale one boat, and in substance that the effect of fifth. It is alleged that Dale has since the action on the part of Brewer, Shooks deceased, and that his share is now owned and Balfe, has been to increase their own or possessed by his executors, the defend- compensation in the capacity of jourants Dale and Bennett. It is further neymen, while decreasing the profits or averred that the defendants Brewer, compensation of themselves and the Shooks and Balfe, at the time the plain-plaintiff as owners.

which the parties are respectively entitled under the arrangement which prevailed when the plaintiff purchased his share, the complaint prays that a receiver may

After examining the cases which have been cited by the counsel for the defendants I am of the opinion that, under the circumstances set forth and described in the complaint, the action is well brought, and that the demurrer must be overruled.

tiff purchased his share were, and ever After stating the amount which the since have been, and now are, a part of boat earns monthly, and the share to the Aspinwall's crew of pilots, and that the boat continues to carry three additional pilots, who are not interested as owners, and who are technically called journeymen, and among whom the net be appointed, and that there may be an earnings of the boat are divided, after de- accounting. The demurrer is interposed ducting the running expenses, and the on the ground that the complaint does sum of twenty-five per cent. to the not state facts sufficient to constitute a owners. It is further averred that for cause of action. some time after the plaintiff became such owner, he received his share as owner at the rate of twenty-five per cent., the earnings being accounted for and adjusted at the end of each month, no part of the earnings being collected by the plaintiff. That repairs having become necessary to the boat some six or seven While it cannot be denied that the mathousand dollars were expended in mak- jority in interest of the owners of a vesing such repairs, and that the share or sel, have the right to control her moveportion of the owners at twenty-five per ments, to determine upon the ports to cent. of the net earnings were devoted to and from which she shall sail, to employ the payment of the bills for such repairs. and remove such officers as they see fit to That such bills were paid in or about the command and navigate her and generally month of September or October, 1874; to act in such respects as if the entire that thereafter plaintiff became entitled ownership was vested in such majority, to receive twenty-five per cent. of the net and while it cannot be denied that the earnings, but that the defendants Brewer, owners of a vessel owned in shares, are Shooks and Balfe, have arbitrarily re-tenants in common of the vessel itself, fused to pay, or to allow to be paid to the neither of these well established principlaintiff, or to the defendants representing ples seem to me to lead to the result that Dale's share, any greater sum than fifteen this action cannot be maintained. Ward per cent. of the net earnings of the boat, v. Ruckman, 36 N. Y., 26, 36; Card v. and have divided the difference or balance Hope, 2 Barb., 661; Storey on Partnerbetween themselves and refused to allow ship, Sections 432, 445; Parsons on Marithe plaintiff to participate therein. That time Law, P. 82, and numerous cascз this alteration in the percentage was cited under Note 1; McCready v. Woodmade without consultation with, and hull, 34 Barb., 80. without the assent of the plaintiff, and the representatives of Dale.

It has been frequently held that although the several owners of a vessel are

The complaint avers that the plaintiff tenants in common of the vessel itself,

In this case it appears by the complaint that the Aspinwall was originally built for the purpose of being used as a pilot To countenance the defendants Brewer, boat in the port of New York, and that Shooks and Balfe, in accomplishing such she has always been used for such pur- a result, would be to aid them in taking pose. I think that under such circum-advantage of their own wrong.

moment's reflection. The three defend- PERPETUATION OF TESTIMONY. ants, who, as the complaint states, have assumed to reduce the profits or compensation of the plaintiff, are engaged in running the Aspinwall, both as owners and journeymen. As the case is presented on the complaint, all sums earned by the boat after paying the running expenses, and after paying the percentage which goes to the owners, are divided among

the facts required by the statute are shown to the proper court or officer, and the application appears to be made in good faith.

This is an appeal taken by the plaintiff in the first, and defendant in the second above entitled actions, from an order made on March 15, 1875, by Mr Justice Lawrence, overruling objections taken by the appellant to the swearing of a witness, one Keefe, under a certain order made by Mr. Justice Donohue, on the 25th of January, 1875, directing the witness to appear before him on the 16th of February, then to be examined under the statute.

its execution. No bad faith is shown on the part of the applicant, and therefore nothing upon which a denial of the order would have been proper. The respondent had the right to guard herself against the contingency of the death or other disability named in the statute, of that witness.

It is asserted that the instrument sought to be proved by the witness is a forgery, but this court cannot try that question in advance.

It is claimed that the purpose of this examination is to avoid the personal attendance of the witness in court, but we must assume that that object will be easily defeated by compelling a prompt and speedy trial of the issues.

Order affirmed, with $10 costs besides disbursements.

The motion to vacate the order was not made upon any alleged irregularity in granting it, but on the ground that it was improvidently granted. It is asserted by the counsel for the appellants, and Opinion by Davis P. J.; Brady and substantially so stated by the managing Daniels, J. J., concurring. clerk in the office of the appellant's attorneys, that the appellant's motion was denied at Special Term on the ground that the court had no power to vacate an order made by another judge, the making of which rested in the discretion of such judge. Such fact however, does not appear in the order itself.

Held, That if the court below had denied the motion on the ground above stated, that this court would be at liberty to look into the merits of the motion on this appeal without sending it back for consideration on its merits by the court below.

Held further, That the perpetuation of the testimony of any witness within this state, by any party to a suit, is a matter of right in cases where the facts required by the statute are shown to the proper court or officer, and the application appears to be made in good faith.

It appears in this case, that the person whose testimony is sought to be perpetuated, is the only living witness who can be called as such, of the execution of an instrument which, if genuine, is of the gravest importance to the party averring

PRACTICE.

N. Y. SUPREME COURT-GENL. TERM,
FIRST DEPT.

Martin, extr., respt. v. Hicks, applt.
Decided Dec. 6, 1875.
Correct practice when at the trial term
the Justice refuses to postpone the trial.

The present appeal is taken from the refusal of Mr. Justice Van Brunt, presiding at circuit on the 23d February last, to permit the cause to go over the term on defendants motion, which decision was put in the form of an order of that date.

Held, That no appeal lies directly to the General Term from an order made at circuit refusing to postpone the trial of a cause. The correct practice in such cases is as follows: When a party defendant feels himself aggrieved by a refusal to postpone a trial, whether such refusal be made on the trial by jury, or the trial. by the court, he may withdraw from the trial, and if the trial proceeds and the cause is decided against him, he may,