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plaintiff or by his assignor of the play in

MARRIED WOMAN.
question, as to deprive the plaintiff of
his common law right of property in it. 1. There is no power in the courts to re-

ib. .

strain or prevent the exercise of a mar-

ried woman's right under the statute of
10. That public representations of the play holding or parting with her property at

were not a publication of it, so as to her will and pleasure. Southwick v.
take away such common law right. ib. Southwick,

231
11. That there is no presumption in favor 2. No iritten order, request, or direction

of the lawfulness of the manner in from the wife to the husband is necessary
which the defendant obtained the play. to authorize the husband to pay bills or

ib, disburse money for her benefit. A ver-

bal order or request is sufficient. ib.
12. That the burden is upon him to show

that it came into his possession in a
lawful manner, and that, having failed

MORTGAGE.
to show the lawfulness of his possession, 1. It is not usury for a lender of money on
he should be deprived of it.

ib.

bond and mortgage in good faith, and not
as a cover, to take from the borrower the

necessary disbursements for searching
M

the title to the premises mortgaged.
Reed made a mortgage to Wolcott,

to be used by the latter to borrow money
MARRIAGE.

for the former. Wolcott transfered the

mortgage to Eldridge, and received the
1. At the common law no particular cere-

full price thereof as a loan upon the
mony is necessary to the valid celebra-

security of the same, which money he
tion of a marriage. Durand v. Du-

delivered to Reed, less a certain sum re-
rand.

315

tained by him for his services. Ileld,
2. If the parties are able and willing to and the mortgage had no inception in the

do contract, no form of solemnization is hands of Wolcott, and that a retention
required. The statutes of some of the by him of such sum for services did not
States on this subject alluded to. ib. make the loan or mortgage usurious in

the hands of Eldridge. Eldridge v.
3. By the statutes of this State, marriage Reed.

153
is declared to be a "civil contract," to
which the consent of parties capable in 2. An instrument, although purporting to

be an absolute sale, may be shown by
law of contracting shall be essential.
The question of unsolemnized marriages

parol to have been intended as a security
only. Van Pelt v. Oller.

202
ib.
in England reviewed.

3. In an action to compel the specific per-
4 In this country, a declaration of con- formance of a written contract to trans-

sent in presence of witnesses is sufficient fer shares of stock of a corporation, it
to constitute marriage.

is competent to show by parol that the
contract, although purporting on

its
5. Where there is no direct proof of mar-

face to be a sale, was, nevertheless, in-
riage it may be proved by circum-

tended as a mere security for the pay-
stances; such circumstances, however, ment of a sum of money. Anthony v.
are not actual proof of marriage, but

Atkinson.

228
mere presumptions, and are prima facie
evidence only, and may be rebutted by 4. Such at least is the rule in equity. The
proof that a marriage never took place rule at law is otherwise, and parol eri-
or was intended or consummated. ib. dence is inadmissible to vary a written

instrument or explain its meaning, if it
6. Illicit cohabitation and intercourse is is free from ambiguity.

ib.
not of itself sufficient to raise a pre- 5. Where a conveyance, absoluto on its
sumption of marriage. There must be a
matrimonial cohabitation.

ib.

face, was intended as a mortgage, the

court, upon payment of the mortgage
7. Where the plaintiff, in an action for a

debt, will require a reconveyance of the
breach of a promise to marry, stated in her

property to the original owner. Sher-
affidavit to obtain an order of arrest that

wood v. Wilson,

651
for sixteen years the parties had coha-
bited as husband and wife, representing

MOTIONS.
themselves as married to each other, and
had had born to them five chadren-held, 1. Where a complaint, in the narration of
that the plaintiff had raised a presump- the facts constituting the cause of action,
tion of marriage, which, unless repelled stated several causes of action, one for
by proof, would defeat the action, and false imprisonment and another for ma-
she was therefore not entitled to an order licious prosecution, but they were so
of arrest.

ib. blended and run into each other as to

leave it uncertain which was the real call for a new trial, unless the court tar
cause of action-held, that the remedy founded either wholly or in part on it
was by motion to have the causes of ac- some proposition of law adversely to the
tion separated and numbered, and that a unsuccessful party. Ahern v. The Star
demurrer for misjoindler of causes of dard Life Insurance Co.
action was not the proper remedy. Hen-

derson v. Jackson.
2. A motion cannot be renewed upon the

O
same or substantially the same facts
without leave of the court for that pur-

ORDER
pose obtained. The practice upon this

point stated. Hull v. Emmons. 396 1. Under the operation of the special rules
3. Contested motions will be entertained

of this court, an order made by the jauge

who tried the cause, directing the case or
and heard only at the regular Special
Term of this court, unless differently

exceptions to be filed, amoants in effect

to a special order of the court directing
ordered by the judge holding such term.

the annexation of the same to the juda-
Juyer v. Apfel.

729

ment-roll. It may be made after as id
as before entry of judgment Ward v.

The Central Park, N. & E. R. R. R. l'a,
N

2. Upon an appeal from the judgment after

trial by jury, the appellant is entitiei to
NEGLIGENCE.

be heard upon the questions of lar aris

ing upon the judgment-roll, including
1. The rule that an injury, which a plain- the case containing bis exceptions. Jo
tiff has sustained through the negligence

previous motion for a new trial at Spe-
of the defendant, was not contributed cial Term is necessary.
to by any act on his part, is applicable
to vessels engaged in inland navigation.
It is immaterial whether the negligence
is slight or gross. Parrott v. The Knick-

P
erbocker Ice Co.

93

PARTIES.
2. And he must establish that there was

due care on his part at the time of the 1. Since the law authorizing the examina-
accident.

ib.

tion of parties as witnesses, there is no
3. A sailing vessel has no right to neglect

difference between such witnesses aud
all proper precaution, and cannot throw any other witness in respect to the
the entire responsibility of accidents

manner of bringing them into court, or
upon a steamer with which it has col-

of their examination. The Central ya.
lided.

ib
tional Bank v. Arthur,

1:4
4. If the injury conld have been avoided 2. To bring a party into court to testify,
by the exercise of ordinary care on the

merely, a subpæna ad testifiraidha 15
part of the sailing vessel, the plaintiff

necessary. To compel him to prodeer
cannot recover.

ib. books or papers, a subpæna duces tecum
is proper.

ib.
5. It is negligence to allow a sailing vessel

to drift down a river in the dead hour of 3. The process is the same upon the exami.
night, without the slightest power to

nation of a party before trial, as at the
control or manage her.

ib.

trial, except that a summons is substi.

tuted for a subpæna where the partr is
6. It is the duty of the captain, in such a merely to be examined as a witness be-

case, to anchor his vessel; his failure to fore trial. If his books, etc., are re-
do so is gross negligence.

quired, a subpæna duces lecun must be
7. Where the evidence of the defendant's

served.
negligence is conflicting, it is error to 4. The change in the law, which allows
take the case from the jury, and to dc- parties to be witnesses, has not changed
termine as a matter of law that there is the rule that the execution of an instru-
negligence. Bolton v. Baxter. 330

ment under seal must be proven by the

subscribing witness. Lvdneti v. Sistith.
NEW TRIAL.

5. The examination of a party as a witness
1. If evidence which has po hearing on the is subject to all the rules applicable to

issue left to the jury, and is not of a the examination of any other witaess,
nature to affect their minds to the preju- and the testimony of a party can be im-
dice of the unsuccessful party, has been peached only in the several modes in
improperly admitted in evidence, such which ordinary witnesses can be im.
improper admission is not sufficient to peached. Berner v. Vittnochi.

ib.

PARTNERSHIP.

which D.'s interest in the patent should

be incorporated as a part of the capital
1. In an action against copartners to recover stock, and that whatever stock in sa: 1

a debt fraudulently contracted by one company, when formed, should be repre-
of the partners, all the partners are not sented by the quarter of the patent still
liable to arrest. Only the partner who reinaining the property of the inventor,
made the fraudulent representation can should be transferred to said inventor
be arrested. The National Bank of the free of all assessment, charge or expense,
Commonwealth v. Temple.

34 etc.-held, that D. was bound to put
2. Whether if the action is to recover

his interest in the patent into the com-
damages for the fraud, all the partners

pany under all circumstances, but the
can be arrested (quere, per MONELL J.).

inventor might clect whether he would
ib.

do so or not; that the construction and
3. An instrument given by one partner to

completion of the machine was a condi-
his copartners, certifying that he had

tion precedent to the formation of the
purchased their interest in the firm, and

company: that the inventor had a right

to refuse his assent to the formation of
agreeing to assume all liabilities of the
firm and hold them harmless, is some

a company, as long as this condition re-
evidence that the partnership was dis-

mained unperformed; that after the or-
solved on the day of its date. Emerson

ganization of a company without such
v. Parsons.

447

previous performance and the refusal of
an action for goods sold and delivered, mand made, a check for the amount
brought to recover the agreed price of drawn to plaintiffs' order, the money for
the lot. Youngs v. Kent.

the inventor to join, which refusal re-
4. A naked transfer from one partner to

sulted in the formation of the company
another of his interest in the partnership upon D.'s three-quarters interest in the
property vests the title absolutely in the patent, the inventor could not, after ail
latter, discharged of all lien or equity of

the stock had been issued and disposeł
the former. Cory v. Long.

491 of, change his mind and insist to come
5. It is only where the outgoing partner

in, but that he might maintain an action
has reserved to himself the right to have

for the recovery of the damages sustained
the partnership property applied to the

by him generally in consequence of D.'s

breach of the contract. Klart v. Fitch. 9
payment of the partnership debts that a
court of equity will compel such appli-
cation.

ib.

PENDENCY OF ACTION.
6. An outgoing partner may secure such 1. The pendency of an action against all

equity by sufficient covenants on the the trustees of a mining company, to en-
part of the remaining partner. Such force their liability for falsely certifying
covenants must require the remaining that all the capital had been paid in, is
partner to apply the partnership prop- no bar to an action against one of such
erty to the payment of the debts. Upon

trustees to enforce his individual liabil-
such a covenant, a lien arises in favor of

ity, for a default of the company to filo
the ontgoing partner, which a court of its annual report. Vonumos v. Tuppai.
equity will enforce.
il.

652
7. Bat a mere covenant by the remaining :2. The recovery of a judgment against such
partner to pay the partnership debts,

comppany is conclusive evidence of a devt
and to indemnify the outgoing partner against the company, and is open to at-
againsi them, raises no equity in his

tack by others only for fraud or collu-
favor. Upon such a covenant the out-

sion,

ib.
going partner can look only to the per-
sonal indemnity, and cannot require the
application of the partnership property

PLEDGE.
to the payment of the debts.

i).

1. If to a demand for the return of loaned

property the loance answers that he has
PATENT

used the property, and has obtained a

loan thereon (the property not having
1. Under a contract whereby D., as the

boen lent for that purpose), this is sufii-

cient evidence of a conversion. Vart-
owner of one half of a patent, in consid-

man v. Caldwell.

212
eration of the assignment to him of
another quarter by the inventor, agreed
with said inventor that he would pro-

PLEADING.
ceed, with funds to be furnished by him,
with the construction and completion of 1. That part of a lot of goods sold by sam-
a machine according to the pan of said ple were not of the kind and quality
patent, and put the same into operation; agreed to be sold, and did not correspond
and that after such machine had been in kind and quality with the sample (the
made and completed, the same should be whole lot having been delivered, and the
used and applied to the promotion of the defective portion not having been re-
formation of a stock company, the turned or offered to be returned to the
capital of which was not specified, in vendor), cannot be pleaded in bar to
agent, could not compel him to make s
3. Therefore, until a pleading is made to

218 which he obtained from the bank by

means of an indorsement purporting to
2. The rule which requires causes of action

have been made by plaintifis, but in
to be separated and numbered is not

fact made by himself-heid, that tbe
exclusively for the convenience of par-

purchaser was justified in considering
ties, or merely to furnish them with

the broker as plaintiff's' general agents,
information concerning the action or de-

having authority to collect as weli as to
fense, but also for the convenience of the

sell, and that the plaintitis, having by
court, to assist it in the examination of

their own acts and conduct misled the
the questions to be decided. Henderson

purchaser into making payment to such
V. Jackson,

324

second payment.

ib.
conform to the requirements of the Code
and rules, the court will not take upon

3. An agency may be terminated as to a
itself the labor of ascertaining whether

third person by the existence of circun-
two causes of action are or are not stated

stances inconsistent with its contine-
in the complaint.

ib.

ance which have come to the knowledge
of such third person and the prineipal

Kip v. Howes.
PRACTICE.

4. The third person, however, although
1. The failure of the plaintiff, for more

aware of the existence of such circun-
than four years, to put his cause upon

stances, may presume that the agency
the calendar, so that it could be brought

continues until after the lapse of a 15-
to a trial when reached in its order, ac-

sonable time for the communication
cording to the course and practice of the

thereof to the principal.
court, entitles the defendant to a dismis-
sal of the complaint, under the twenty-

5. The authority will, notwithstanding
seventh rule of this court. Carter v.

such circumstances, continue in fact
Carl.

until notice thereof to the principel;
189

but if the third party, after the lapse of
2. Upon proof that the plaintiff frandu- a reasonable time for the communication

lently made away with the specifications to the principal, acts on the assumption
of a building contract, detining the rights that the authority still exists, he does so
of the parties to the action, and material at the peril of its being shown that toe
to the determination of such rights, the principal had notice before he actel
court has power to stay plaintiff's pro-

What is such reasonable time will de-
ceedings and extend defendant's time to pend upon the circumstances of each
answer until after service by plaintiff of

છે.
one of said specifications upon defendant
or his attorney. Premo v. Smith. 467

6. An agency terminated by the happen-

ing of circumstances inconsistent with

its continuance, may be revived by sub-
PRINCIPAL AND AGENT.

sequent acts of the principal, but an un-

truthful statement by an agent as to his
1. A principal will be held liable for acts having authority, the principal having
of his agent done in excess of the actual

done no act to induce a belief in the
authority conferred upon the agent, pro-

truth of the statement, will not rerire
vided such acts be within the scope of an agency thus terminated.
the apparent authority, and be such as
an innocent third party, from the recog- 7. Where the defendant mixed the money
nized acts of such agent, had a right to

and funds of the plaintiffs with moneys
infer such agent was authorized to do.

and funds of his own and of third parties,
Tulmage v. Nevius.

33 and a portion of the moneys so mixed

was subsequently stolen, but it was im-
2. Where a broker had the apparent gen- possible to determine to whom the

eral charge of plaintiff's' office, and ef- money stolen actually belonged-heid
fected ? sale therein in the usual course that this action of the defendant made
of the business in the plaintiff's' name, him liable to account to the plaintiffs
without disclosing that he acted as a bro- for the money received from them, even
ker, and subsequently del vered to the though a loss had occurred. The las
purchaser, who was a stranger to plain- Life Ins. Co. v. Carpenter.

784
tiffs, the evidence of the title to the
property sold, upon which a delivery 8. By this act of the defendant the identity
took place, and he thereupon presented of plaintiffs' money was lost, and the
to the purchaser the vill for the price loss should fall on the defendant as a
made out on a printed form generally “penalty” for not keeping plaintiffs'
used by plaintiffs for such purpose, and money separate from his own and that
received fro:n the purchaser, upon a de- of others.

case.

ib.

ib.

R

4. There are certain conditions or circum-

stances attendant upon every case of
RAILROADS.

compensation-First, the deficiency, de-
fect, or what is complained of, must be

one of that character that can be made
1. Corporations possess and can exercise
such powers only as are expressly con-

the subject of compensation or of consid-
ferred upon them by law. Johnson v.

eration as damages; and second, in such
The Hudson River R.R. Co.

298

a case compensation can be and should be

decreed by the court, provided that it is
2. The power of a railroad corporation to also a case where he concludes that the

demand fare of a passenger, is not an purchaser would not have declined the
implied or incidental power, but is de- contract had he known of the defect at
rived solely from the statute.

ib. time of purchase.
3. Where such a corporation (create:1 be-
fore the passage of the general incorpor-

RECOUPMENT.
ating act of 1850) was limited as to fare
by its charter, such limitation is not by 1. In an action ex delicto brought by a
any fair construction of the forty-ninth guest against an innkeeper to recover
section of such general act removed. ib.

damages for the loss of his goods while

such guest, the innkeeper cannot set off
4. Therefore, held, that the defendants, a claim for board due him by the guest;

having demanded and received an amount he may, however, recoup such claim
of fare in excess of the amount limited

against any damages the guest may re-
by their charter, although not in excess cover against him, but he cannot have a
of the amount authorized by the general balance certified in his favor. Classen
act, had incurred the penalty provided v. Leopold.

705
in the act of 1857 for the prevention of

extortion by railroad companies. ib. 2. If the guest recovers no damages the
5. Held further, that as many penalties as

innkeeper can have judgment for the
costs of the action only.

ib.
had been incurred previous to the com-
mencement of the suit might be recov-
ered in one action.

ib.

REFEREE.

1. Where a question of fact is presented
REAL PROPERTY.

which is essential to warrant a referee's

conclusion of law, and there is a conflict
1. The following general rules are well es- of evidence on that question, the report

tablished in this State as relating to con- must contain a finding thereon, either ex-
tracts for land, and actions for specific pressly or by necessary implication,
performance of the same : First, a pur- otherwise a judgment entered on the re-
chaser may insist upon a good, valid, port will be reversed on appeal. Thus,
and unincumbered title. Second, he is if in an action against the acceptor of
entitled to receive substantially from his such an instrument he by his answer
vendor all the property for which he raises an issue of fact as to whether.
contracted. Third, if he obtains such a there was any consideration for the ac-
title, and obtains substantially the prop- ceptance or not, and there is a conflict
erty for which he contracted, by the of evidence on that issue, a report of a
conveyance offered, a court of equity referee in favor of the plaintiff which
will enforce performance on his part; does not contain a finding of fact find-
otherwise not. Beyer v. Marks. 715 ing that issue in plaintiff's favor cannot

he sustained ; and a judgment entered
2. A court of equity, in the enforcement

in plaintiff's favor on such a report will
of a specific performance of a contract,

be reversed on appeal. Richardson v.
where it appears there was a slight deti-

Carpenter.

360
ciency in the estate, or a variance in
the description, or an incumbrance that 2. A general exception to the correctness
can and should be the subject of com- of an average adjustment and apportion-
pensation, must consider and provide ment passed upon by a referee does not
for the same in the decree. Compen- entitle the appellant to argue, on appeal,
sation follows as a matter of right, and that the referee erred in regard to
must be provided for in the decree in all some of the items. Jones v. Bridge, 431
proper cases.

ib.

3. The finding of a referee, upon conflict-
3. When specific performance of a contract ing testimony, that purchases and sales

is decrcel, and it appears from the evi- of stocks were made by defendants by
dence that compensation should have the direction and authority, or the sub-
been given, a failure of the court or sequent approval of the plaintiff, will
referee to take evidence relating to the not be disturbed on appeal. In matters
compensation, and the amount thereof, of fact the finding of a referee upon
and to consider or provide for the same conflicting evidence is conclusive.
in the decree or report, is error. ib. Baker v. Cutting.

435

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