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be shown that he was connected with when that took place, as it cannot apthe inception of the note. 4 Seld., pear in the ternis of the note. 2 211; 8 Johns., 28; 5 Denio, 484. Taylor's Ev. [6th ed.], 1001; 4 East.,

3. But if the note was intended for 477; 10 Mees. & Wels., 694. discount, and he put his name on the Opposed to that, the suggestion is back of the note with the understand that if a holder produces a note having of all the parties that his indorse. ing a blank indorsement of one not ment would be inoperative until the the payee, the presumption is that it instrument indorsed by the was made at the inception of the inpayee, he would then be liable only strument. 44 Me., 441. Grant as a second indorser in the commer- that, and still it is a mere presumpcial sense, and as such would clearly tion of fact which may be rebutted be entitled to the privileges which and controlled by parol proof that it belong to such an indorser.

was not there when the note was deFacts and circumstances attendant livered, or that it was made at a subat the time the contract was made are sequent date. 12 Gray, 278. competent evidence for the purpose Whether the party be regarded as a of placing the Court in the same situ- second indorser or an original pro ation and giving the Court the same misor, it is not necessary to allege or advantages for construing the contract prove any other than the original conwhich were possessed by the actors. sideration; but if it be attempted to 6. Wall., 784.

charge him as a guarantor, a distinct Courts of justice may acquaint consideration must appear. 12 Gray, themselves with the facts and circum- 277; 4 Seld., 207. stances that are the subjects of the Judgment affirmed. statements in the written agreement, Opinion by Clifford, J. and are entitled to place themselves in the same situation as the parties

CONTRACT. DAMAGES. who made the contract, so as to view

GENERAL the circumstances as they viewed N. Y. Supreme Court.

TERM. FOURTH DEPT. them, and so to judge of the meaning of the words and of the correct appli

William II. Parsons, respt., v. Solon cation of the language to the things | Taylor, applt. described. 9 Cl. & Fin., 569; 4

Decided October, 1877. Nev. & Man., 606; Addison on Cont. An agreement between two parties to refer to [6th ed.], 918; 2 Taylor's Ev. [6th

other persons a question as to the terms of

a trade, which provides that if either refuses ed.], 1035.

to abide by the decision, he shall forfeit a Like a deed or other written con- specified sum to the other, is valid ; the tract, a promissory note takes effect promise of each is a valid consideration for from delivery, and as the delivery is

the promise of the other; so also is the de

livery by each of his property to the umpires something that occurs subsequent to

to be valued. the execution of the instrument, it In such case the sum fixed is not a penalty, must necessarily be a question of fact but liquidated damages. when the delivery was made. Parol Appeal from a judgment of the proof is, therefore, admissible to show | Chautauqna County Court affirming

ment.

a judgment rendered in a Justice's Talmage, 5 Seld., 551; Clement v. Court in favor of the plaintiff. Cash, 21 N. Y., 253.

No testimony was introduced by Held also, That the arrangement the defendant on the trial, and the was not a wager contract. case made by plaintiff showed that The judgment of the County Court the parties, having been in negotiation should be affirmed. for an exchange of property without Opinion by Smith, J. coming to terms, agreed to leave it to two other men, one to be chosen by each of the parties, to decide how they

ABATEMENT. should trade, and if either party re- N. Y. SUPREME Court. GENERAL fused to abide by their decision he

TERM. Fourru DEPT. should forfeit to the other the sum of David Bonnell, respt., v. The R. ten dollars. In pursuance of the W. & O. R. R. Co., applt. agreement, each party chose a man, Decided October, 1877. and put into his hands the property Imprisonment in the State prison of a plaintiff which he proposed to trade. The

does not abate the action. The plaintiff's men thus selected examined and ap- rights are alone suspended by such imprisonpraised the property, valuing that of the plaintiff at 230 dollars, and the Appeal from order setting aside a defendant's at 115 dollars, and they judgment in favor of appellants. decided that the defendant should Action brought to recover a penalty pay the plaintiff 115 dollars on an ex- under the act of March 27, 1837. change of the property. The defen- Issue was joined in August, 1874. dant refused, and neglected to pay the After that date the respondent was ten dollars forfeit money, for which indicted, convicted and sentenced to sum this suit was brought, and the State prison for two years. Afterplaintiff recovered.

wards the appellant noticed said cause J. G. Record, for applt.

for the Circuit, and when it was reachJ. A. Parsons, for respt.

ed took a judgment of dismissal and Held, The judgment was clearly for costs by default, the plaintiff beright. The promise of each party ing in State prison.

a good consideration for the Edmund B. Wynn, for applt. promise of the other. So also was Andrew McCarty, Jr., for respt. the delivery of each of his property Ileld, That

the imprisonment, to the umpires, to be examined and under the statute, suspended the valued in pursuance of the contract. plaintiff's rights alone, and not the

The sum fixed was intended not as rights of others against him. Davis a mere penalty, but as liquidated v. Duffie, 8 Bosw, 619; S. C. affd., 3 damages, there being but a single act Keyes, 606; Morris v. Walsh, 14 Abb., to be performed by either party, and 387. the damages being uncertain. Astley Held also, That imprisonment in v. Weldon, 2 B. & P., 346; Dakin the State prison of a plaintiff in a civil v. Williams, 17 Wend., 447; Williams suit pending at the time, does not v. Dakin, 22 Id., 201; Cothead v. I have the effect of abating the suit.

was

O'Brien v. Llogan, 1 Duer, 664, ners. 3 Hill, 188; 43 Barb., 162, criticised and dissented from.

and see 64 N. Y., 173. The right of Order appealed from reversed with suing a co-surety for a proportionate costs.

part of money paidwill be found to Opinion by Smith, J. All concur. have been applied to cases of liability

growing out of one single transaction

of mere suretyship. 2 B. & Pull., CORPORATIONS. CONTRIBU- 268; 4 Wend., 432; 2 Sand., Supr. TION AMONG STOCK- Ct., 223. In the case at bar the HOLDERS.

stockholders are liable not for a single N. Y. SUPREME COURT. GENERAL transaction, but for a class of debts TERM. THIRD DEPT.

which may be large, some of which Clark, app!t., v. Myers, respt. may have been paid by one person, Decided September, 1877.

and some by another, and all these An equitable action for contribution by a stock debts have been paid towards the

holder of a corporation organized under the common benefit. All are engaged in General Act of 1848, must be brought against

a common enterprise. And it is a all the stockholders.

familiar doctrine that a partner canThe relation of such stockholders in regard to

debts owing laborers is substantially that of not sue his co-partner for their respectpartners.

ive shares of money paid by him to a This is an appeal from a judgment creditor. There must be an account nonsuiting the plaintiff, after his of all the partnership affairs in order opening, on the complaint.

to bring into the inquiry what each has The plaintiff, defendant, and other paid. Story Part., $ 221. persons were stockholders in a corpo- Judgment affirned with costs. ration organized under the General Opinion by Learned, P.J.; Bockcs Act of 1848, with regard to mining and Boardman, JJ., concur. and manufacturing companies. Certain laborers recovered judgment against the plaintiff under § 18 of MUNICIPAL CORPORATIONS. that Act, and he brings this action LIMITATION OF ACTIONS against the defendant to recover of

AGAINST. him his proportionate share of the N. Y. SUPREME Court. GENERAL judgment. The Court below held

TERM. THIRD DEPT. . that the stockholders held the relation McGuftin, respt., v. The City of of partners, and that all should be cohoes, applt. parties to the action, and that an ac- Decided September, 1877. tion does not lie against an individual The provision in the charter of the City of stockholder for contribution.

Cohoes (Laws of 1869, ch. 912, title 13),

that an action against the city on a contract, L. Hasbrouck, Jr., for applt.

obligation or liability, express or implied, C. G. & C. McC. Myers, for respt.

must be brought within a year, held not to Held, That the relation of stock

apply to an action brought against the city holders under the Act of 1848, at

for a tort. least to the extent of debts owing to The question in this case was laborers, is substantially that of part-1 whether a short statute of limitations

in the defendant's charter availed as the streets at will for twenty-four hours :

Helå, error. a defense to it in an action against it

He also, from hearing them described, was alfor negligence. The words of the

lowed to testify to their loss in weight, and charter were “and no action against difference in value per head : Held, error. the city on a contract, obligation, or The action was brought to recover liability, express or implied, shall be damages alleged to have been occacommenced except within one year sioned to cattle by their escape from after the cause of such action shall defendant's lot, in whose care they have accrued.” This clause occurs in were claimed to have been placed. A

a title relating to “City Expendi- witness, who had been in the business I ”

tures.” Laws of 1869, ch. 912, title of buying fat cattle, testified as to the 13.

effect upon fat cattle of getting out The defense of the statute of limi- and wandering about, also how much tations was overruled.

fat cattle, weighing 1,500, would P. D. Niver and Matthew Ilale, shrink if they were to get out of confor applt.

trol, in the streets, for twenty-four C. F. Doyle and N. P. Hinman, hours. He testified he had heard the for respt.

evidence as to the cattle in suit, and Teld, That the defense was prop- what the shrinkage in their case erly overruled. On a fair construc- would be. Ile also testified, aside tion of the whole title the statute does from the shrinkage, what the damage not apply to torts. The title seems to to them was, how much less they were refer to the ordinary and proper busi- worth per hundred weight. The deness of the city, to its “expenditures,” fendant objected to this class of testiits necessary contracts, express or im- mony. The plaintiff had a verdict.

. plied, its liabilities incurred in the Richards & Sessions, for plff. due discharge of municipal business. Giles W. Hotchkiss, for deft. It does not seem to refer to its mal

Held, That the testimony was infeasance, its neglect of duties, its admissible. If the witness had seen torts. This construction is supported the cattle he might have testified to by IIowell v. Buffalo, 15 N. Y., 512, their value. The witness was not a case somewhat analogous.

asked the actual injury, but as to the Judgment affirmed with costs.

injury which would ordinarily be ocOpinion by Learned, P.J.; Bockes casioned to such cattle by a similar and Boardman, JJ., concur.

exposure.

To admit this was to extend the evidence of experts too far.

The facts could have been proved. EVIDENCE.

To prove what is the ordinary effect N. Y. SUPREME COURT. GENERAL of such an escape is to substitute conTERM. THIRD DEPT.

jecture for certainty. Again, the witSchermerhorn v. Tyler.

ness having heard the owner of the Decided September, 1877.

cattle describe their appearance, was

asked to estimate the loss on such catA witness who had not seen, but had heard

certain cattle described, was allowed to tes- tle as he described. This is the duty tify to the effect upon them of wandering in / of the jury. The case of McColluin v. Seward, 62 N. Y., 316, is distin- GUARDIAN AND WARD. guishable. There the plaintiff, having N. Y. SUPREME Court. GENERAL described the services which he had

TERM. THIRD DEPT. performed, was permitted to ask a

Hill, applt., v. Hanford, respt. witness what such services as he de

Decided September, 1877. . scribed were worth. This was only inquiring as to their marketable value. The mother, who was also general guardian of

a minor, paid over to her husband, his stepIn the case at bar the witness was

father, a pension, to which the minor was asked to estimate the damage.

entitled, for his support : Held, That such New trial granted, costs to abide

payment was valid under the circumstances. the event.

The appellant is the wife of one Opinion by Learned, P.J.; Bockes, Hill. By her former husband she J., concurs.

had a son, Charles. By the death of

her husband in the service of the FELONIOUS ASSAULT.

United States she became entitled to N. Y. SUPREME COURT GENERAL a pension until marriage; upon which TERM. THIRD DEPT.

event it went to Charles until he arThe People v. Hickey et al. rived at the age of 16. After her Decided September, 1877.

marriage to Hill, which took place

when Charles was 7 years old, the apTo sustain a conviction for an assault under

chap. 74, Laws of 1854, the jury must find pellant, as general guardian of Charles, that the assault was committed with a sharp collected this pension from time to as well as with a dangerous weapon.

time, and paid it over to Ilill for the The defendant was indicted under board, clothing, &c., of Charles. chap. 74, Laws of 1854, for an assault When the latter became 16 years old, “ with a sharp, dangerous weapon, the respondent was appointed his with intent to do bodily harm.” The guardian, and the appellant being orassault was committed with a blunt dered to account, her account showed weapon.

the payment of the pension to her Held, That to sustain a conviction husband. Hill knew of the pension the assault must be committed with a before he married, but testified that sharp as well as with a dangerous there was no arrangement that it was weapon. This is the construction paid for the support of the child. implied by the language of the Court Mrs. IIill testified that it was so paid, of Appeals, in the case of Filkins v. and that before her marriage she had The People, 4 W. Dig., 380. The said to Hill that the pension would jury in this case did not find that the support the boy. The surrogate disassault was with a sharp weapon. allowed the claim for the child's The verdict therefore is in effect for board. an assault and battery.

Jerome Rowe, for applt. Judgment reversed, and case re- King & Montgomery, for respt. mitted to sessions for sentence, as on a

a Helă, Reversing the decision of conviction for assault and battery. the surrogate, that the guardian was

Opinion by Learned, P.J.; Bockes justified in applying the income of and Boardman, JJ., concur.

the ward to the compensation of the Vol. 5-No. 12. *

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