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HARDIN, J.-Prior to the Code of Civil Procedure which went into effect September 1, 1877, the defendant's remedy was by notice of trial before the referee. 14 Abbott (N. S.), 47, opinion of Brady, J., and cases cited.

Rule 36 of the Supreme Court seems to apply to the first district only.

But § 822 of the Code of Civil Procedure permits the " Court in its

The reference in the case before me, not being one contemplated by Rule 63 (because of the answer of M. J. Early putting the averments of the complaint in issue) was, if prop-discretion to dismiss the complaint." erly ordered, so ordered in pursuance of § 1015, and the referee should have taken the prescribed oath.

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The plaintiff satisfactorily excuses the delay since September 1, 1877, and says he has a good cause of action, and wishes to try it on the merits. He may have further opportunity to do so, and either side may have a trial before the referee. And the motion is denied, but without

costs.

COMPLAINT.

N. Y. SUPREME COURT.

DAGA SPECIAL TEPM.

Alvin Osborne v. John Sellick.
Decided February 5, 1878.

Under 822 of the Code of Civil Procedure, the granting or refusing of an application to dismiss the complaint, for want of prosecution, rests in the discretion of the Court. Where the plaintiff satisfactorily excused his delay since the New Code went into effect, | the Court in its discretion allowed him a further opportunity to try the case before the referee.

Motion by defendant to dismiss the complaint because the plaintiff has not prosecuted. The action is to recover money and stands referred by the consent of the parties. The order of reference was entered January 8, 1872, by consent.

The plaintiff read affidavits to excuse his delay.

PRACTICE. PRIVILEGE OF WITNESS. WAIVER.

N. Y. SUPREME COURT. ONONDAGA SPECIAL TERM.

Charles Chadwick et al. v. James M. Chase.

Decided February 5, 1878.

While a person attending Court as a witness is privileged from service, such privilege will be waived by a general appearance in the action.

Motion by defendant to set aside the service of summons.

The defendant is a resident of Massachusetts. Was attending the Onondaga Circuit in January as a witness, and was served before he left for his home. Thereafter he made a general appearance, January 10, 1878, and on the same day he gave

notice of motion, and the papers were signed by his attorneys generally. Kennedy & Tracy, for motion. Ruger, Jenny, French & Brooks, opposed.

Action of replevin.

The complaint was in the usual form to recover possession of personal property or its value. The answer admits the taking of part of the property claimed, and avers title in another person thereto, against whom the defendant, as sheriff, had an execution, by virtue of which he levied upon the property. The case was tried by a jury and the jury found

HARDIN, J.-The defendant was privileged from service when served, as he was attending the Circuit as a witness. Person v. Grier, 66 N. Y., 124. Section 424 of the Code of Civil Procedure provides that "A voluntary general appearance of the de-" for the plaintiff seven hundred and fendant is equivalent to personal service of the summons upon him." A like provision was made in § 139 of the former code. In Mahaney v. Penman, 4 Duer, 603, it was held that a general appearance confers jurisdiction over the person. See

also McCormick v. Penn. Cent. RR. Co., 49 N. Y., 303; Dole v. Manley, 11 How., Pr., 138, and cases cited.

A personal privilege may be waived by a party. In cases of this kind it may be availed of promptly, and not waived.

fifty-six dollars."
tered in favor of

Judgment was enplaintiff against defendant for the verdict and costs. The judgment did not provide for the return of the property, or for the recovery of the value, in case a delivery could not be had according to § 277, Code.

E. B. Travis, for applt.
E. P. James, for respt.

Held, That while the judgment should have been in the alternative, according to Code, § 277, Dwight v. Enos, 9 N. Y., 470; still the defect is not a vital one. The roll can be amended so as to make it in the alternative on appeal. Fitzhugh v. Winan, The motion must be denied, with 9 N. Y., 559. $10 costs.

The defendant has lost his objection. Farmer v. Robbins, 47 How. Pr., 415.

REPLEVIN. APPEAL.

N. Y. SUPREME COURT. GENERAL
TERM. SECOND DEPT.
Elias H. McLean, respt., v. James
O. Cole, applt.

Decided December, 1877.

Where a judgment in an action of replevin is
simply for the value of the property, instead
of being in the alternative, the defect is not
a vital one; the roll may be amended.
But where the question is not raised at the

Circuit or Special Term, so that the infor-
mality could be remedied, it cannot be raised
on appeal.

The question not having been raised at the Circuit or Special Term so that the informality could be remedied, it cannot be raised upon appeal.

Judgment affirmed with costs.
Opinion by Barnard, P. J.

TAXATION.

CONSTITUTIONAL LAW.

U. S. SUPREME COURT. Farrington, plff. in error, v. The State of Tennessee. (October, 1877.) Where the charter of a bank provides for the

payment of an annual tax at a specified

rate upon each of the shares of the capital

stock subscribed, the same to be "in lieu of all other taxes," such provision is a contract between the State ard the corpora

tion, and a law authorizing the imposition of another and greater taxation upon the shares of stock is unconstitutional as im

pairing the validity of the contract.

right of the State and county to impose these taxes. He claims that the 10th section of the charter was a contract between the State and the bank; that any other tax than that therein specified is expressly forbidden, and that the revenue laws imposing the

Error to the Supreme Court of the taxes in question impair the obligaState of Tennessee. tion of the contract. The Supreme Court of the State adjudged the taxes to be valid. The case was thereupon removed to this Court by the plaintiff in error for review.

The Union and Planters' Bank of Memphis was duly organized under a charter granted by the Legislature of Tennessee by two acts, bearing date respectively on the 20th of March, 1858, and the 12th of February, 1869. Since its organization it has been doing a regular banking business. Its capital stock subscribed and paid in amounts to $675,000, divided into six thousand seven hundred and fifty shares of $100 each. Farrington, the plaintiff in error, was, throughout the year 1872, the owner of one hundred and fifty shares of the value of $15,000.

Held, Error; that the provision in the charter was a contract between the State and the corporation, and that the revenue law authorizing the imposition of a larger tax was unconstitutional.

When this charter was granted the State might have been silent as to taxation. In that case the power would have been unfettered. 4 Pet., 514. It might have reserved the power as to some things and yielded it as to others. make its own terms or to refuse the charter. It chose to stipulate for a specified tax on the shares, and de

It had the power to

The 10th section of the charter of the bank declares" that the said company shall pay to the State an annual tax of one-half of one per cent. on cach share of the capital stock sub-clared and bound itself that this tax scribed, which shall be in lieu of all other taxes."

The State of Tennessee and the county of Shelby claiming the right, under the revenue laws of the State, to tax the stock of the plaintiff in error, assessed and taxed it for the year 1872. It was assessed at its par value. The tax imposed by the State was forty cents on the hundred dollars, making the State tax $60. The county tax was one dollar and twenty cents on the hundred dollars, making the county tax $180.

The plaintiff in error denies the

should be " in lieu of all other taxes."

The State has by her revenue law imposed another and an additional tax on these same shares. This is oneof those "other taxes" which it had stipulated to forego. The identity of the thing doubly taxed is not affected by the fact that in one case the tax is to be paid vicariously by the bank, and in the other by the owner of the share himself. The thing thus taxed is still the same, and the second tax is expressly forbidden by the contract of the parties.

The case turns upon the construc

tion to be given to the 10th section of the charter of the bank.

The exercise of the taxing power is vital to the functions of government. Except where specially restrained, the States possess it to the fullest extent. Prima facie it extends to all property, corporeal and incorporeal, and to every business by which livelihood or profit is sought to be made within. their jurisdiction. When exemption is claimed it must be shown indubitably to exist. At the outset every presumption is against it. A wellfounded doubt is fatal to the claim. It is only when the terms of the concession are too explicit to admit fairly of any other construction that the proposition can be supported. U. S., 598; 22 Wall., 527.

93

Upon looking into the section several things clearly appear: (1) The tax specified is upon each share of the capital stock and not upon the capital stock itself. (2) It is upon each share subscribed. Nothing is said about what is paid in upon it. That is immaterial. The fact of subscription is the test, and that alone is sufficient. (3) This tax is declared to be" in lieu of all other taxes." Such was the contract of the parties.

All

There is no reservation or discrimination as to any "other tax." are alike included. Such is the natural effect of the language used. The most subtle casuistry to the contrary is unavailing. Under such a contract between individuals a doubt could not have existed. It may as well be said the power is reserved to tax any thing else as further to tax the shares. See 3 How., 133; 16 Id., 369; 18 Id., 331; 3 Wall., 78; 13 Id., 264; 8 Id., 430; 9 Yerg., 490; 5 Ired., 516.

Decree reversed and case remanded with directions to enter decree in favor of plaintiff in error. Opinion by Swayne, J.

PRACTICE. ATTACHMENT. N. Y. SUPREME COURT. GENERAL TERM. SECOND DEPT. Cochran v. Ingersoll. Decided February, 1878.

On application for an attachment to punish an alleged contempt of an order to pay over money, the Court may inquire into all the circumstances and refuse the application where it appears that the party proceeded against was unable to comply with the order.

Application for an attachment to punish an alleged contempt in not paying a sum of money to a receiver as ordered. The record shows that the defendant has been insolvent for nine years and discharged as such. IIis inability to pay stands uncontradicted, and there is no claim that it was intentionally caused to defeat the order.

Held, There is a very solid and obvious distinction between contempts strictly such, and those offences which go by that name, but which are punished as contempts, only for the purpose of enforcing some civil remedy.

Our statute provides that the Court ordering imprisonment for contempt may, in its discretion, in cases of inability to perform the requirements imposed, relieve the person imprisoned in such manner and upon such terms as shall seem just. Ainple and undoubted authority to inquire after imprisonment into all the circumstances is thus given, and we fail to see any reason why the inquiry may not, with equal propriety, be

made before commitment. 1 Brad., 490. Suppose the attachment to issue, and that the defendant were committed under it, he would be released on application, by showing the same state of facts which appears in answer to this application. Why then should a merely formal proceeding be gone through? We think the inability of the defendant to comply with the requirements of the order, as shown by all the circumstances of the case, to be a sufficient reason why the attachment should not issue, and that the order appealed from should be affirmed with costs. Opinion by Dykman, J.

COUNTY. LIABILITY OF. N. Y. SUPREME COURT. GENERAL TERM. SECOND DEPT.

De Grau v. Supervisors of Queen's County.

Decided February, 1878.

from judgment entered at Circuit in favor of the defendant.

Held, That the County Treasurer is not the agent of his county; he is its sole financial officer with powers and duties specifically defined by statute. He is elected to assist in carrying on the local machinery of the State government, and for his conduct is amenable to the laws of the land and the judgment of his countrymen.

We have been referred to no case establishing the liability of the county for the misfeasance or malfeasance of its treasurer, and after an extended search have failed to find one. Newman v. Supervisors of Livingston, 45 N. Y., 676, was for money in the possession of the defendant belonging to the plaintiff and was supported on that ground. Chapman v. City of Brooklyn, 40 N. Y., 372, was supported substantially upon the same ground. Neither case is in point nor an authority for the plaintiff, but only

The county Treasurer is the sole financial of- show that municipal corporations are

ficer of the County but not its agent. The County is not liable in damages for the misfeasance or malfeasance of its County

Treasurer in the performance of his duties.

Chap. 135, Laws 1873, designated the County Treasurer of Queens County as the person to make a sale of certain real estate in the town of Jamaica for unpaid taxes, and required him to give a notice of the sale to owners and mortgagees and to pay the money received to the town of Jamaica. Plaintiff bought under this sale. His title fails because of the failure of the County Treasurer of Queen's to give the notice required. This action is for the resulting damages and the plaintiff now appeals

not exempt from the liability attaching to individuals and other corporations, to refund money inequitably received..

Before one person can be made liable to another for the wrongful acts of a third, the relation of master and servant, or of principal and agent must be established between him sought to be held and the tort feasor. Neither of these relations exist between a County and its County Treasurer. Lorillard v. Town of Monroe, 11 N. Y., 392, held, that the assessors and collector were in no legal sense the agents of the town in its corporate capacity, and that it was not liable for any mistake or misfea

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