4. Upon appeal from a judgment entered in equity, and like them most conte'

upon the report of a referee, the court such averments as will, on being eithir
will not disturb the finding of fact by conceded or established, entitle the
the referee where there is sufficient evi- petitioner to the relief asked for.
dence to sustain such finding. Thomas
v. Payne.

605 5. If the application for a removal is made

on notice, those averments which are not
5. A referce is required to make such find- denied by the opposing party will be

ing; of fact as are necessary to sustain taken by the court as true, and as to those
bis conclusions of law. He is not re- which are denied the petitioners will be
quired to find other facts which are at liberty to produce proof.
merely of a negative character. 1-
Andicw v. Whilock.

re-

RENT.
REFERENCE.
1. Where the complaint states a cause of 1. It is no defense to an action to recover
action which, if true, would entitle the

rent, either that the premises were anfit

for occupancy or became out of repair
plaintiff to recover back moneys paid by after the comm
him to the defendants (upon their re-

ncement of the terri
Davis v. Banks.

181
presentations that certain steps had been
taken by them toward the conpletion of 2. A tenant may recoup damages for a
a contract), upon the ground that the

breach of the landlord's covchan to re-
defendants never entered upon a per-
formance of the contract, and the de-

pair.
fendants, by answer, interpose a counter- 3. There being no covenant by the land-
claim, the trial of which requires the ex-

lord to repair, a parol promise to repa I,
amination of a long account, the action being without consideration, is soid. io.
is rejorable, notwithstanding the com-
plaint, by further averments, charges 4. Where a tenant, to secure the payment
that said representations were false and of the rent, gave a chattel mortgage upon
fraudulent, and such reference is not in furniture-heid, no ground for an in-
violation of the provisions of the consti- junction to restrain a foreclosure of the
tution guaranteeing trial by jury. mortgage, that the premises were out of
Townsend v, Ilendricks.

503 repair, and therefore no rent due.

5. The old principle or rule," that the ce-
REMOVAL OF CAUSES.

crptance of rent under a lease, after
fórfeiture, is a waiver of the forfeiture,"

reasserted, and the leading cases
1. An appeal lies to the General Term

8. In an action for rent due upon a written | 3. But even if such security was void, the

lease executed by two of four defendants plaintiff' would not thereby acquire any
named in the complaint, parol proof right to it (per MONELL, J.).

ib.
offered by plaintiff of the existence of an
understanding between him and all the

SPECIAL TERM.
defendants, to the effect that the lease
should be executed by the first-named 1. Contested motions will be entertained
two defendants for the benefit of a co-
partnership to be formed between all the

and heard only at the regular Special
defendants, which partnership was sub-

Term of this court, unless differently
sequently formed, is not admissible for

ordered by the judge holding such term.
the purpose of fastening an original lia-

Mayor v. Apfel.
bility under the lease upon all the de- 2. The practice of one judge vacating the
fendants. Mason v. Breslin. 386

order made by another, and hearing and
9. A defendant will not be held liable for

deciding the subject-matter heard and
rent as equitable assignee of a lease,

considered by another judge, deprecated.

ib.
upon the ground of the privity of estate
existing between him and the lessor, 3. The power or authority for such a pro-
unless charged as such in the action. ib. ceeding is bad in practice, and the cases

where the power is exercised should be

very extreme and exceptional, and has
S

never been tolerated in this court. ib.

929

SALE.

SPECIFIC PERFORMANCE.

1. An instrument, although purporting to 1. In an action to compel the specific per-

be an absolute sale, may be shown by formance of a written contract to trans-
parol to have been intended as a security fer shares of stock of a corporation, it is
only. Van Pelt v. Otter.

competent to show by parol that the
2. That part of a lot of goods sold by

contract, although purporting on its face

to be a sale, was, nevertheless, intended
sample were not of the kind and quality
agreed to be sold, and did not correspond

as a mere security for the payment of a
in kind and quality with the sample (the

sum of money. Anthony v. Atkinson.

228
whole lot having been delivered, and the
defective portion not having been re- 2. Such at least is the rule in equity. The
turned or offered to be returned to the rule at law is otherwise, and parol evi-
vendor), cannot be plealed in bar to an dence is inadmissible to vary a written
action for goods sold and delivered, instrument, or explain its meaning, if it
brought to recover the agreed price of is free from ambigaity.

ib.
the lot. Youngs v. Kent.

219

it.

given, a failure of the court or referee 3. In a case where the liability is hy stat.
to take evidence relating to the compen- ! ute solely, or where a particular remedy
sation, and the amount thereof, and to for the enforcement of the liability is
consider or provide for the same in the provided by the act, differing from the
decree or report, is error.

ib. ordinary common-law remedies, and ex-

clusive in its nature, the liability can be
6. There are certain conditions or circum-

enforced only in the courts of the State
stances attendant upon every case of where the corporation exists, and in the
compensation - First, the deficiency, de-

manner provided by the act.
fect, or whatever is complained of, must
be one of that character that can be 4. In cases where the act of incorporation
made the subject of compensation or of can be construed as merely atrmative
consideration as damages; and second,

of the common law, leaving each stol-
in such a case compensation can be and holder liable for the debts of the C3-
should be decreed by the court, provided

pany in the same manner as if not incor-
that it is also a case where he concludes

porated, and no particular or exclusive
that the purchaser would not have de- remedy is prescribed, then the ler fori
clined the contract had he known of the prevails, and the liability may be en-
defect at time of purchase.

ib.

forced in the courts of any State or ter-
ritory where the person of the stock-

holder may be found.
STATUTE OF LIMITATION.

5. So when an act of incorporation charges
1. In an action against a railroad corpora- the “property," but not the person of
tion for an assault and battery commit-

the stockholder with the payment of
ted by its servant upon the plaintiff, debts of the corporation, and provides 3
while in discharge of his duties as such remedy in the nature of a proceeding in
servant held, that the action having rem for the enforcement of sach charge,
been brought more than two years after no personal liability exists against the
the cause of action arose, was barred stockholder, nor can any personal action
by the statute limiting such actions to be maintained against him for any debts
two years. Priest v. The Iludson River of the corporation.

ib.
R. R. Co.

595

6. The stockholders of the “North-west-
2. Hold, further, that it did not become a ern Bank of Georgia" are not personally

different action by being against the liable for the debts of that bank; noz
master.

ib. can a personal action be maintained in

the courts of this State against either of
STAY.

them for any such indebtedness,

1. Upon proof that the plaintiff fraudu-

lently made away with the specifications
of a building contract, defining the

SURROGATE COURTS.
rights of the parties to the action, and
material to the determination of such
rights, the court has power to stay plain- 1. The mere recital of jurisdictional farts
tiff's proceedings and extend defendant's

in an order made by a surrogate rerok-
time to answer until after service by

ing letters testamentary, is not sufficient
plaintiff of one of said specifications

to show such jurisdiction. The People
upon defendant or his attorney. Primo

ex rel. Heyer v. Hartman.

516
v. Smith.

467

2. Surrogate courts are courts of limited

jurisdiction, and jurisdiction must in all
STOCKHOLDERS.

cases be shown, and cannot be intended.

1. The nature and character of the liability

incurred by stockholders, in a joint- 3. If a proceeding before a surrogate is
stock corporation, organized under a not an original proceeding, but of a
statute declaring stockholders individu- matter over which he had already ac-
ally liable for the debts of the company,

quired jurisdiction, then such jurisdic-
examined and considered. The decisions tion will continue. But if the proceed-
of the courts of this State on the subject ing is original, then everything required
reviewed. Lowry v. Inman.

117

by the statute to confer jurisdiction

must appear.
2. Such liability may be solely a creature

T

matter of law upon this evidence, and to

charge the jury in effect, that Any accept-
TRESPASS.

ance or approval of the work done under

the sub-contract by plaintiffs' engi-
1. Where a tenant is rightfully in pos-

neer, no matter in what capacity or in

what manner or for what purpose, re-
session, it is a trespass to remove him
therefrom otherwise than by process of

lieved the sureties, although it did not
law. Nowlan v. Trevor,

67

relieve the principal contractors from
their obligation that, when completed,

1

a party will not be allowed to represent is no bar to an action against one of snek
in a question the supposed contents of a trustees, to enforce its individaal li
written deposition, or examination, and bility, for a default of the company to
then ask the witness if he had testified file its annual report. Vimmous v. Top
thus. Speyer v. Stern.

516

рап. .
9. A party may exhibit the writing to the 4. The recovery of judgment against

witness, and by pertinent questions call ench company is conclusive evidedea of
his attention specifically to the same or a debt against the company, and is open
any part thereof, and inquire as to his to attack by others only for fraad or
signature or the execution of the same collusion.
by him, etc.

ib.

5. When it is shown that a person had
10. If the execution is admitted, the party been elected a trustee of a corporation,

may at a proper time read the same in his acceptance will be presumed
evidence, or if its execution is denied, it
may be proved and read in evidence at 6. Corporations are not dissolved bş insa!.
the proper time for the purpose of con-

vency or non-user. Those are grosses
tradicting the testimony of the witness

for judicially declaring them disso red
given at the trial. The proper time, as

Dissolutions can be eliected only in toe
a general rule, is when the party offering

manner prescribed by statute.
the same in evidence is conducting the 7. The liability of a trustee for the omis.
case, and not upon the cross-examina-

sion of a corporation to make an annual
tion.

ib.

report, is in the nature of a peralty, and
11. At no time, however, can a party com-

within the three years' limitation of
pel a witness to answer a question, nor

action for penalties or forfeitures.
upon ohjection be permitted to have one 8. A trustee in office at the time a cozpors-
a!1swered, which contains or sets forth tion fails to make its annual report, is
substantially any portion of the subject- liable for all the existing debts of the
matter of the writing. The writing company, and such as may thereafter be
itseif is higher evidence of its contents contracted, until the report is filed
than the statements of the witness in
relation thereto.

ib. 9. And such liability attaches upon each

defauit of the company, so long as the
12. After a party has rested his case, trustee remains in office. So that al-

whether for the prosecution or the de- though there have been several sucressire
fense, he carinot "de jure" introduce defaults of the company, and the frst
any testimony afterwards except what is of which was more than three years 32-
clearly in answer or rebuttal of evidence

fore suit brought, but the last was sitting
introduced by the opposite party, before three years, the action is maintainable
the party offering the testimony had re- upon the last default, and the statute of
sumed the case.

ib. limitations is not a bar.
13. A defendant, to avail himself of an 10. A new and original liability is created

exception to the refusal of the court to on each default, and if any of the de-
allow him to introduce certain testimony faults is within three years, it may be
offered, must have offered the sarne bc- made the foundation of the action; and
fore he rested the defense, or it must the creditor is not bound to contine him-
clearly appear that the testimony offered self to the first default.
was in answer or rebuttal to the evidence
of the plaintiff introduced after he 11. A trustee of a corporation, created
(plaintiff) had resumed the case. ib.

under the general act for the incorpcrà-
tion of manufacturing and mining com-

panies, being made liable, upon the
TRUSTEES.

default of the company to file an annual

report, for the existing debts of the
1. The liability imposed by statute upon company, is liable for such debts, al-

trustees of manufacturing companies for though they were contracted before he
neglecting to make and file an annual became a trustee. Vimmons v. Lannion,
report, is in the nature of a penalty for

003
misconduct in office. The penalty im-
posed is the debt of the corporation. 12. The meaning of existing debts," in
Dabney v. Stevens.

415

the statute, is such debts as were due at