DISORDERLY PERSONS. N. Y. SUPREME COURT. GENERAL TERM SECOND DEPT. William Kehlbeck, plff. in error, v. The People, defts. in error. Decided July, 1877. Under Chap. 395, Laws of 1871, an act in relation to persons who abandon or threaten to abandon their families in the County of Kings, no conviction can be had unless the family, by reason of such abandonment, has become a charge upon the public. In a proceeding under the statute of 1871, the justice is only authorized to make up a record of conviction where the accused has made default after notice, to find sureties to join in his recognizance. Certiorari to review, a judgment of the Police Justice of Brooklyn, directing plaintiff in error to pay $2 weekly for the support of his wife. Plaintiff in error was convicted under the "Act in relation to persons who abandon or threaten to abandon their families in the County of Kings," passed April 11, 1871 (Chap. 395), of having abandoned his wife and left her without adequate support a burden on the public and of having negLected to support her. He thereupon gave a bond in the sum of $100, with sureties. Under the Statute of 1871 it is the default after notice to find sureties who will join in his recognizance only which authorizes the justice to make up a record of conviction of the accused as a disorderly person. In this case sureties were found. Consequently no such record of conviction was, or could have been, made up. It is apparent, also, from the language of the Statute that a mere neglect to support a wife, does not authorize the proceeding under the Act of 1871. Neglect to support was an ingredient of the offense specified in the section of the Revised Statutes and of the act of 1844, above cited. But the words, "neglect to support" were omitted in the Act of 1871, and we think this omission was purposely made. The common law affords no means of compelling a husband to support his wife, otherwise than by making him liable to third person who have supplied her with necessaries after he had improperly refused to do so, and the statute which provides for the compulsory support of indigent relatives (1 R. S., 614, § 1) does not extend to husband and wife. Nor has a wife who has eloped from her husband, authority to bind him for necessaries. Pomeroy v. Wells, 8 Pai., 410; Cromwell v. Benjamin, 41 Barb., 558. See, also, Certwell v. S. D. Lewis, for plff. in error. W. Sullivan, for deft. in error. Held, That this Statute must be deemed to have superseded the previous provisions of law on this subject | Hoyt, 6 Hun, 579. so far as the latter applied to the County of Kings (Ross v. City of Brooklyn, 4 Weig., 267), and the legal effect of that is to remove the defendant from the category of disorderly persons, as defined by the Revised Statutes (1 R. S., 638, § 1) and subsequent statutes (Laws of 1874, Chap. 174, § 6). We have found no evidence warranting the conclusion that plaintiff in error abandoned his wife. On the contary it satisfactorily appears that after shamefully assaulting and maltreating the husband's person, she left him, and went to live with her son, and that she has sued him for a divorce. The only evidence of aban ceiver and appointing another in his place. Upon an order in supplementary proceedings in an action brought, in the New York Court of Common Pleas, by one Burns against the above defendant Spratt, the defendant Spratt was examined. Upon the proceedings had and at the conclusion of such examination, an application was creditor, for the appointment of a receiver of the property of Spratt. One H. H. Waters was thereupon appoint donment by plaintiff in error is, that the wife went to the store where he was employed, and asked for support, and he ordered her out of his store and said he did not know her. That does not prove an abandonment on his part but merely a refusal to support her away from his home and a desire that her abandonment of him should continue. It was her duty to offer to return and live with him un-made by said Burns, the judgment der circumstances showing her willingness to discharge her duties as a wife, and then rejection of such offer by him might be deemed an abandon-ed receiver, and by the order appointment. But even if the husband's ing him receiver he was required to conduct on the occasion last mention- give security, and complied with the ed, amounted to an abandonment, order in that regard. that alone is not sufficient to confer upon the magistrate jurisdiction un-judgment creditors instituted suppleder the act of 1871. It must be an mentary proceedings, among whom abandonment which leaves the wife this plaintiff and appellant is one, and without adequate support, and a bur- upon the applications of such judg den on the public. The Statute of ment creditors respectively, II. II. 1871 was not intended to furnish a Waters was reappointed receiver in civil remedy to deserted wives, but to each of such actions. protect the public against the expense of supporting paupers. The case is not within the Statute of 1871, and the magistrate has no jurisdiction to act. Conviction quashed. REMOVAL OF RECEIVER. Decided July 6, 1877. Shortly thereafter several other Certain of such judgment creditors, a considerable period having elapsed after the appointment of the receiver Waters, procured orders in supplementary proceedings for the examination of Waters as a third party having property of defendants in his hands, An examination of Waters was had, which disclosed that he had grossly neglected his duties, that he was a brother-in-law of the defendant Spratt, and had omitted to act for the cred itors as required by the order. Upon the examination of Waters, and affidavits disclosing other delinquencies of the receiver, and without notice to the receiver, an order was made removing Waters as receiver and apAppeal from order removing a re- pointing one Elliot in his place. Such. A receiver cannot be removed without notice of the application for such removal, and opportunity to be heard. Vol. 5-No. 2. order was made in the face of opposi- II. Brewster, for applt. The father made return to the writ, and the return was traversed, and the various charges and countercharges contained in the return and traverse were referred to a referee, who took testimony and reported in favor of the petitioner, awarding to the mother the custody of the child. Held, That although upon a proper application the defendant Waters would be removed, sufficient grounds for a removal appearing. Still the removal of Waters by the order appealed from was not attained by the due and orderly method provided for that purpose. He could not properly be removed and another substituted in his place without proper notice of the application for removal and opportunity to be heard in opposition. A removal without such notice is un-modification, confirmed by order. precedented. F. J. Fithian, for applt. out costs. The report of the referee was confirmed upon application to the court, and the costs and disbursements awarded to the petitioner. Subsequently the costs and disbursements were taxed by the clerk, and an appeal taken from the taxation by the clerk to the judge at special term, and the taxation by the clerk, with a slight Charles Blandy, for petitioner. Held, That the chief question presented on this appeal is whether costs are properly allowed in the case of a Order appealed from reversed withMotion to dismiss denied, but without costs. Motion to dismiss the appeal also denied. Opinion by Brady, J., Davis, P. writ of habeas corpus, as a special J., and Daniels, J., concurring. HABEAS CORPUS, COSTS. In case of the writ of habeas corpus which is a the discretion of the court, but embrace only the items for proceedings after petition and before trial, and for trial and disburse proceeding within the provisions of the act of the Legislature passed in 1854 (Laws, 1854, p. 593, § 3), which declared that costs may be allowed in the discretion of the court in special proceedings, and when so allowed shall be at the rate allowed for similar proceedings in civil actions. That where the writ is returnable. in court, and especially as in this case where the machinery of the court is called into requisition and evidence taken, there can be little question but that the proceeding is a special Appeal from an order allowing proceeding in court and within the costs to the relator. provisions of the Act (supra). ments. On the application of the petitioner, a writ of habeas corpus was allowed directed to the putative father for the recovery of the child by the petitioner, who was its mother. The fact that there is no adjudicated case where costs have been allowed in the case of a writ of habeas corpus undoubtedly arises from the fact that litigants have been accustomed to confine themselves simply to the object sought by the writ. Costs are allowable in such cases in the discretion of the court, but embrace, however, only the items for proceedings after petition and before trial, and for trial and disbursements. 55 N. Y. Rep., 147. The order appealed from must be modified in this respect therefore, and as modified, affirmed without costs. Opinion by Brady, J.; Davis, P. J., and Daniels, J., concurring. STATUTE OF LIMITATIONS. PHILADELPHIA COMMON PLEAS. Miller v. Baschore. Decided January 26, 1877. In order to revive a debt barred by the Statute of Limitations, there must be a clear and definite acknowledgement of the debt, a speciñcation of the amount due, or a reference to something by which such amount what I intended doing with balance of a note I owe you. It is hardly necessary to tell you that I had a you know that I have paid off many great deal to pay when I failed, for of my old debts, and calculate to pay all I owe. Just now I cannot pay you anything, for one reason, I compromised with John G. Seltzer to pay him in instalments, of which I have paid one, and another is coming due on the 1st of April, which T inust somehow arrange, and then I have to pay him one more note which comes due April 1, 1870, and after he is paid I will pay you all I owe you, and if I can do anything for you before that time I will do so; you need not trouble yourself about me that I will not pay you, for I expect pay all I owe. If you think I am not telling you the truth, you can ask J. G. Seltzer himself. to I remain your friend, It was in evidence that the John can be definitely and certainly ascertained, G. Seltzer, referred to in the forego and an unequivocal promise to pay. ing letter, had been paid by the defendant. It was claimed by Miller that, at the time the above letter was On the 28th day of December, 1859, the defendant, Miller, gave his promissory note for $100, payable one day after date, to the plaintiff, Catha-written, the plaintiff was indebted to him on a book account, which had never been settled. . rine Baschore. Several payments were made on account of interest on said note on and previous to the 11th day of October, A.D. 1864; all of which payments were endorsed thereon. The said note was barred by the Statute of Limitations at the time suit was brought thereon. In order to take the case out of the statute, the plaintiff put in evidence, under objection, the following letter: Philadelphia, March 23, 1869. Mrs. Catharine Baschore:-I have received a letter from you some time ago, asking of me to let you know Under the charge of the Court, the verdict was for plaintiff for the full amount of the claim. William D. Wetherill, for plff. in and an unequivocal promise to pay. In the case under consideration, the acknowledgement and undertaking of the defendant lack these essential characteristics. He writes: "I have received a letter from you some time ago, asking of me what I intend doing with balance of a note I owe you." In this there is nothing specific or definite, for it is not stated what note is referred to, neither is the amount of the balance indicated. The latter part of this letter is not less indefinite, for, after speaking of an agreement to pay another creditor with whom he had compromised, he says: "and after he is paid, I will pay you all I owe you, and if I can do anything for you before that time I will do so; you need not trouble yourself about me that I will not pay you, for I expect to pay all I owe." If, in Weaver v. Weaver, 4 Sm., 152, the writing by the debtor under an account stated, "I agree to settle with you for the above balance and any other just claim between us," was not sufficient to take the claim out of the operation of the statute, much less the promise above stated. In the case cited, the claim and the amount were fixed beyond a doubt or cavil, the fault occurred in the want of a promise to pay the sum thus fixed; for the undertaking was not to liquidate the account stated, but only to settle that and any other just claim his creditor might have against him; it was, therefore, at best, but a promise to pay what might appear to be due upon an adjustment of their several accounts. Applying the above stated doctrine to the case in hand, and it is found to be utterly wanting in every element necessary to rescue it from the grasp of the statute; the defendant promises to pay the balance of a note, but neither note nor balance is stated; he promises to pay what he owes, but whether that is much or little we are not informed; there is, in fact, neither the required certainty nor perspicuity in the evidence produced to break down the defence, hence the attempt has resulted in failure. Judgment is reversed, and a new venire awarded. Opinion by Gordon, J. OPENING DEFAULT. N. Y. SUPREME COURT. GENERAL TERM. FIRST DEPT. The Mechanics' Savings Bank of Chicago, respt., v. Jane Carman, applt. Decided July 6, 1877. When a motion to open a default has been de nied by a single justice, although no error is committed, an Appellate Court may upon a more extended view of the facts open the default on terms. Appeal from an order denying the defendant's application for leave to appear and answer after a default taken. The action was upon a promissory note which at the time of the commencement of the action was outlawed. Prior to the commencment of this suit, one Kane was sued as guarantor upon the same note and retained counsel to defend him upon the note and asked his counsel to defend Mrs. Carman. She was afterward sued and Kane told her that he had arranged for her defence. She did not send her papers to the attorneys and they remained ignorant of the fact that she had been served until judgment had been entered. After that there was some delay and execu |