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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
605 5. If the application for a removal is made
on notice, those averments which are not
ing; of fact as are necessary to sustain taken by the court as true, and as to those
rent, either that the premises were anfit
for occupancy or became out of repair
ncement of the terri
breach of the landlord's covchan to re-
lord to repair, a parol promise to repa I,
503 repair, and therefore no rent due.
5. The old principle or rule," that the ce-
crptance of rent under a lease, after
reasserted, and the leading cases
viewed. Ireland v. Vichols.
being antagonistic to the current of an-
481 and as being in accordance with many
cases cited, that hold substantially,
“that rent may be paid and received
under circumstances that clearly show
that it was paid and received without
the knowledge or supposition of either
party that thereby the forfeiture was
waived; or that it was paid and received
as a compensation for the use and profits
of the land, and the intention of wair-
court to which the application was made
breach of a condition not to underlet the
was but one underletting-held, that the
act of forfeiture was single and indi-
visible. The continuance of the same
United States court is to set on foot the and thereby the forfeiture waived, can-
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
and heard only at the regular Special
Term of this court, unless differently
ordered by the judge holding such term.
Mayor v. Apfel.
order made by another, and hearing and
deciding the subject-matter heard and
considered by another judge, deprecated.
where the power is exercised should be
very extreme and exceptional, and has
never been tolerated in this court. ib.
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-
competent to show by parol that the
contract, although purporting on its face
to be a sale, was, nevertheless, intended
as a mere security for the payment of a
sum of money. Anthony v. Atkinson.
3. The following general rules are well
the contract price nor on a ** quantum contracts for land, and actions for specific
titled to receive substantially from his
property for which he contracted, by the
will enforce performance on his part;
otherwise not. Beyer v. Marks. 715
hands of the sheriff by a person who has of a specific performance of a contract,
638 same in the decree. Compensation fol-
lows as a matter of right, and must be
provided for in the decree in all proper
ió. dence that compensation should have been
given, a failure of the court or referee 3. In a case where the liability is hy stat.
ib. ordinary common-law remedies, and ex-
clusive in its nature, the liability can be
enforced only in the courts of the State
manner provided by the act.
of the common law, leaving each stol-
pany in the same manner as if not incor-
porated, and no particular or exclusive
forced in the courts of any State or ter-
holder may be found.
5. So when an act of incorporation charges
the stockholder with the payment of
6. The stockholders of the “North-west-
different action by being against the liable for the debts of that bank; noz
ib. can a personal action be maintained in
the courts of this State against either of
them for any such indebtedness,
1. Upon proof that the plaintiff fraudu-
lently made away with the specifications
in an order made by a surrogate rerok-
ing letters testamentary, is not sufficient
to show such jurisdiction. The People
ex rel. Heyer v. Hartman.
2. Surrogate courts are courts of limited
jurisdiction, and jurisdiction must in all
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
quired jurisdiction, then such jurisdic-
by the statute to confer jurisdiction
of the act of incorporation, or may arise 4. A power to remove an executor is wholly
matter of law upon this evidence, and to
charge the jury in effect, that Any accept-
ance or approval of the work done under
the sub-contract by plaintiffs' engi-
neer, no matter in what capacity or in
what manner or for what purpose, re-
lieved the sureties, although it did not
relieve the principal contractors from
the entire machinery should successfully
perform the stipulated service, and that
this was so, if the acceptance took place
pumps, and boilers provided that plain- authority derived solely from them, and
missioners v. Burr.
by the provisions of their bond, that the
contractors will perform and abide by
any alterations which the parties to the
contract may make therein, a direction
to the jury contained in the general charge
of the court, that if they come to the
conclusion that material alterations have
been made in the contract by the parties
thereto, without the knowledge and con-
sent of the sureties, or that there was any
interference on the part of the plaintitt's
without the consent of the sureties, to
stop there and find a verdict for the de-
fendants, without any qualification of
the language at the time, although the
court, prior to the general charge, had,
on plaintiffs' motion, laid down a propo-
sition containing the true rule of law-
held, that the general charge, if not
erroneous, was at least calculated to mis-
lead the jury, and that a new trial should
be granted upon that ground. ib.
not disturb a verdict.
sufficient, if credited, to authorize them
to find a verdict for plaintiff, it is error
to direct a verdict for defendant.
Schanck v. Morris.
a party will not be allowed to represent is no bar to an action against one of snek
witness, and by pertinent questions call ench company is conclusive evidedea of
5. When it is shown that a person had
may at a proper time read the same in his acceptance will be presumed
vency or non-user. Those are grosses
for judicially declaring them disso red
Dissolutions can be eliected only in toe
manner prescribed by statute.
sion of a corporation to make an annual
report, is in the nature of a peralty, and
within the three years' limitation of
action for penalties or forfeitures.
ib. 9. And such liability attaches upon each
defauit of the company, so long as the
whether for the prosecution or the de- though there have been several sucressire
fore suit brought, but the last was sitting
ib. limitations is not a bar.
exception to the refusal of the court to on each default, and if any of the de-
under the general act for the incorpcrà-
panies, being made liable, upon the
default of the company to file an annual
report, for the existing debts of the
trustees of manufacturing companies for though they were contracted before he
the statute, is such debts as were due at
given its promissory note, which, by its
terms, was not due or payable untileifler
the trustees of a mining company, to report--heid, not to be an existing debt