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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
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.


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.

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-

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-

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

viewed. Ireland v. Vichols.
from a Special Term order denying a
defendant's application under the twelfth 6. The Christie case, and the onision of
section of the act to establish United Chief Justice Robertson (5 Robertson,
States courts, passed by Congress, to re- 100), reviewed and considered as nos
move the cause into the United States

being antagonistic to the current of an-
Circuit Court. De Camp v. The New thorities that support the above rule.
Jersey Jutuul Life Ins. Co.

481 and as being in accordance with many
2. If, where there is no contest about the

cases cited, that hold substantially,
facts, the order of removal is denied, the

“that rent may be paid and received
defendant may answer in abatement to

under circumstances that clearly show
the jurisdiction of the State court, set-

that it was paid and received without
ting out the facts which, under the

the knowledge or supposition of either
United States statutes, authorize a re-

party that thereby the forfeiture was
moval, the application for an order of

waived; or that it was paid and received
removal, and its denial.


as a compensation for the use and profits

of the land, and the intention of wair-
3. Upon such answer the decision of the ing the lease expressly negatived by both

court to which the application was made
for an order of removal, that, as mat-
ter of law, the defendant was not en-7. Where the forfeiture claimed was the
titled on the conceded facts to an order

breach of a condition not to underlet the
of removal, will be reviewed, and if premises without consent, etc., and there
found to be erroneous, the plea to the

was but one underletting-held, that the
jurisdiction will be sustained ib.

act of forfeiture was single and indi-

visible. The continuance of the same
4. The office of a petition for removal to underletting, after rent had been paid,

United States court is to set on foot the and thereby the forfeiture waived, can-
proceedings to obtain a removal, and is not be considered as the breach of a con-
like unto a declaration of law or a bill | tinuing covenant.



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.).

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

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.

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

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-
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.

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.

the lot. Youngs v. Kent.


3. The following general rules are well
3. A vendor of goods cannot recover either established in this State as relating to

the contract price nor on a ** quantum contracts for land, and actions for specific
meruitfor a part of the goods delivered performance of the same : First, a pur-
under the contract, although the same chaser may insist upon a good, valid, and
are accepted by the vendee. He must unincrimbered title. Second, he is en-
perform his contract fully before he can

titled to receive substantially from his
recover, and performance must not only vendor all the property for which he con-
be averred in the complaint but provedl. tracted. Third, if he obtains such
The leading cases in support of this rule a title, and obtains substantially the
briefly reviewed. Joscs v. Banker. 207

property for which he contracted, by the
conveyance oflered, a court of equity

will enforce performance on his part;

otherwise not. Beyer v. Marks. 715
1. Where a sum of money is put into the 4. A court of equity, in the enforcement

hands of the sheriff by a person who has of a specific performance of a contract,
become bail for a defendant on an order where it appears there was a slight defi-
of arrest, to secure the sheriff until such ciency in the estate, or a variance in the
ba:) shall justify, it is but a deposit in description, or an incumbrance that can
lien of bail. The ( winercial Wire- and should be the subject of compensa-
house Company of New York v. Gra- tion, must consider and provide for the

638 same in the decree. Compensation fol-

lows as a matter of right, and must be
2. The sheriff is himself responsible as

provided for in the decree in all proper
bail until the bail justifies, and it may be

that he can protect himself against such
contingent liability by taking security 5. When specific performance of a contract
from the bail that he will justify (per is decreed, and it appears from the evi-

. dence that compensation should have been



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.


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

holder may be found.

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.

R. R. Co.


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

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
of a building contract, defining the

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.

v. Smith.


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
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.


by the statute to confer jurisdiction

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

of the act of incorporation, or may arise 4. A power to remove an executor is wholly
out of the contract of indebtedness be- independent of any other power given to
tween the creditor and the corporation, surrogates; and to show its valid exer-
depending entirely upon the language of cise, it is necessary to show that all
the statute and the facts of each par- things required by the statute had been
ticular case.
ib. done.



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-
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,


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

the entire machinery should successfully

perform the stipulated service, and that

this was so, if the acceptance took place
1. Where a contract for certain engines, for the principal contractors only, under

pumps, and boilers provided that plain- authority derived solely from them, and
tifts' engineer should be at liberty at all not for the plaintiffs. That a contractor
times to require the rejection of any work cannot appoint an agent and by that
which he should deem inferior, and of agent do an act which would release his
any material which he might deem of im- own sureties and destroy plaintiff's right
proper or inferior qua'ity or strength, of action. The Loard of Water Com-
and to require the substitution of other

missioners v. Burr.

work and materials, and the contract 2. Where sureties have bound themselves
further provided for the payment of ad-

by the provisions of their bond, that the
vances, as the work progressed, based

contractors will perform and abide by
upon the relative amount of the work
furnished to the whole sum, and the

any alterations which the parties to the

contract may make therein, a direction
principal contractors thereupon made a
sub-contract through plaintiffs' engineer

to the jury contained in the general charge

of the court, that if they come to the
with other parties, as to part of the work,

conclusion that material alterations have
according to drawings approved by plain-

been made in the contract by the parties
t.ffs' engineer, and such work was subse-

thereto, without the knowledge and con-
quently accepted by said engineer as

sent of the sureties, or that there was any
satisfactory; but where the contract
also provided that, when completed, the

interference on the part of the plaintitt's

without the consent of the sureties, to
said engines, pumps, and boilers should

stop there and find a verdict for the de-
perform a stipulated duty; and where
upon the trial of an action brought

fendants, without any qualification of
against the sureties of the principal con-

the language at the time, although the
tractors for the general non-performance

court, prior to the general charge, had,
of the contract, a conflict of evidence

on plaintiffs' motion, laid down a propo-
arose upon the following points :--1.

sition containing the true rule of law-
Whether or not the principai contractors

held, that the general charge, if not
were improperly intiuenced by plaintiff's'

erroneous, was at least calculated to mis-
engineer in the award of the sub-contract

lead the jury, and that a new trial should

be granted upon that ground. ib.
to the sub-contractors ; 2. Whether or
not plaintiffs' engineer, in order to bring 3. Where there is a general verdict, the
about this award, agreed to be responsible court will assume that the jury has found
that the sub-contractors would perform it upon all the facts in the case. Van Pelt
their work perfectly, and in full com- v, Otter,

pliance with and satisfaction of the
original contract; 3. Whether or not 4. Upon conflicting evidence the court will

not disturb a verdict.

plaintiffs' engineer, in all which he did in
regard to the sub-contract, acted as the 5. An instrument, although purporting to
agent of the principal contractors ; 4. be an absolute sale, may be shown by
Whether or not an interference took parol to have been intended as a security
place by plaintiffs' engineer with the sub- only.

contractors without the acquiescence of
the principal contractors; and 5. Whe- 6. Where the evidence of the defendant's
ther the acceptance of the work done negligence is conflicting, it is error to
under the sub-contract by plaintiffs' en- take it from the jury, and to determine
gineer was an acceptance on behalf of as a matter of law that there is negli-
the principal contractors, or on behalf of gence. Bellon v. Baxter.

the plaintiffs, and if on behalf of the 7. Where the evidence before the jury is
latter, whether it was an absolute one or
made for the sole purpose of making it

sufficient, if credited, to authorize them
the basis for an estimate for advances to

to find a verdict for plaintiff, it is error

to direct a verdict for defendant.
be made under the original contract:

Schanck v. Morris.

Held, that by such conflict of evidence,
clear issues of fact were raised for the 8. The contents of every writing are to be
determination of the jury under proper proved by the paper itself and by that
instruction from the court. That it was alone, if the paper be in existence.
error for the court below to determine as Therefore, in cross-examining a witness,
the time of the default of the company,
2. In an action of this description, the


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.


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.


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


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

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

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


the statute, is such debts as were due at

burden of proof is upon the plaintiff to
establish that the debt was contracted 13. Therefore, where the company bad
by the corporation.


given its promissory note, which, by its

terms, was not due or payable untileifler
3. The pendency of an action against all the default of the company to tile its

the trustees of a mining company, to report--heid, not to be an existing debt
enforce their liability for falsely certify- for which a trustee then in office would
ing that all the capital had been paid in, be made liable.


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