Muller a. Bayard. for, for a year, and it was understood and agreed between them. that "such lease should be for the benefit of the defendant,' and "in accordance with that understanding, he occupied the premises and paid the rent." The rest of the answer refers to the other wrongs alleged. The defence in regard to breaking the plaintiff's close, therefore, seems to be a justification both by the understanding between the parties, that the interest in the land obtained by the plaintiff should be for the defendant's benefit, and his occupation of the premises with the former's consent. This substantially admits the plaintiff's legal title to the locus in quo, but justifies the act complained of either by the claim of a license to occupy, or tenancy on sufferance, or some right arising out of holding the premises for his benefit. The term "title" in the statute is held to mean "right of possession" (Ehle a. Quackenboss, 6 Hill, 537), and of course legal possession. It does not include either possession in fact or mere right of property (Ib.), and where actual possession is enough to maintain the action, evidence in regard to that does not draw the title in question, although it may be the basis of a right. The trespass in this case was a technical one of entering to carry off movables, and a mere temporary one, not extending to retaining possession, which might be justified under a claim of title. The injury committed was the temporary disturbance of possession only. The answer does not defend the act on the score of right adversely to the plaintiff's title, but in subordination to it by his agreement and permission. A plea of a license does not bring the title to land in question. (Chandler a. Duane, 10 Wend., 563; People a. N. Y. Com. Pl., 18 Ib., 579.) Proof of possession by the plaintiff was all that was necessary under the pleadings, if the defendant had violated it. The evidence given on the trial consisted only of the production of a lease which was admitted in the answer, the rest of the evidence of a trespass consisted in resisting the defendant's claim of entry and occupation by license of the plaintiff. The principal damage done being by carrying off the personal property, there being no injury to the premises committed, it looks as if the suit were brought for trespass, to get full costs although the damages were under 50 dollars. I do not think it a proper case for a certificate. Thompson a. Sargent. THOMPSON a. SARGENT. Supreme Court, First District; At Chambers, July, 1862. JUDGMENT AGAINST MARRIED WOMAN.-FORM OF EXECUTION.SUPPLEMENTARY PROCEEDINGS. The provision of section 287 of the Code, that an execution against a married woman shall direct the levy and collection of the amount against her from her separate property and not otherwise, is directory merely. Proceedings supplementary to execution can be taken upon a judgment against a married woman. Motion to set aside an execution and return, and to vacate an order in supplementary proceedings. Judgment was recovered by William S. Thompson and others against Lydia Sargent, a married woman, for $567.79. An execution, in the ordinary form of executions against property, was issued to the New York sheriff and returned unsatisfied. The plaintiff procured an order, under section 292 of the Code, for the examination of the judgment-debtor, which, with the execution and return, the defendant now moved to set aside. Arnold H. Wagner, for the motion.-I. Such a process as an execution against feme covert was unknown until the act of 1862. (Code, § 287.) The execution allowed is special in its nature, "it shall direct the levy and collection of the amount of the judgment against her, from her separate property, and not otherwise." The execution is restricted to the separate property of the feme covert. If the execution be issued in proper form, and the return, "no property," is made by the sheriff, no further proceeding can be taken under the statute. II. The order supplementary is void. The statute (Code, § 274) says the judgment is to be levied and collected of her separate estate, and not otherwise; an execution is the only process at law upon which a levy and collection can be made, and Thompson a. Sargent. the statutes expressly restricting any other mode of collection, it follows that a judge out of court has no power to order her to appear before a referee, as a matter of course. Before a party can claim any remedy in equity to enforce the payment of a claim, he is bound to show the court, affirmatively, that there is a separate property that can be reached by the court. This was always the rule. The intention of the Legislature was to compel a resort to the court. (Code, § 274, latter clause.) David C. Birdsall, opposed.-I. By the laws of 1860, ch. 90, § 7, any married woman may sue and be sued in any matter relating to her separate property, the same as though she was sole. II. The first means of enforcing and collecting a judgment is by execution, of which there are three kinds. (Code, § 286.) 1. Against the property. 2. Against the person. 3. For the delivery of real or personal property with damages, &c. The first applies to this case, no judge or attorney has the power to alter its express provisions. III. The plaintiffs are then forced to adopt the second remedy to collect their judgment, under section 292. This section makes no distinction between persons, male or female, married or sole, the order of the court applies to all judgment-creditors, there being no provision in the act of 1860 or the Code exempting married women from such examination. IV. Prior to the act of 1860 an action intending to reach the property of married women was an intricate proceeding. The act of 1860, above referred to, was intended to simplify all proceedings against married women who have separate estates. If the defendant's views are correct, then the action of the Legislature is worse than useless, by giving creditors the power of obtaining a judgment and then taking from them all chances of enforcing and collecting it. The action being a personal one, no receiver can be appointed except upon an order of the court after the plaintiffs have exhausted their powers by execution and found property through an examination supplementary thereto. CLERKE, J.-In the execution against a married woman it is not necessary to its vitality that it should contain the words contended for. The words in the amendment are merely di Bulkley a. Marks. rectory; of course the sheriff cannot levy on any other property than the separate property, and unless the execution contains a contrary direction there would be no danger that the sheriff would levy on any other. I hold, therefore, that the execution is valid. Being valid, I also hold that all provisions of the Code in aid of, or supplementary to the execution, apply to this execution, as well as to any other. Motion denied without costs. BULKLEY a. MARKS. New York Common Pleas; General Term, January, 1863. LIMITED PARTNERSHIP.-MISSTATEMENT IN CERTIFICATE.-WITHDRAWAL OF CAPITAL.-DISSOLUTION.-TRIAL.-SPECIAL VER DICT. A statement in the certificate of the formation of a limited partnership, that the special partner has contributed a certain sum, when, in fact, a portion of that sum has been contributed by another person with the design of securing the rights and benefits of a special partner without becoming one, renders all the parties liable as general partners. A special partnership cannot be dissolved by the act of the parties until four weeks after the publication of notice of the intended dissolution. The withdrawal, by a special partner, of his capital, before the actual dissolution of the firm, though after notice of dissolution published, renders him liable as a general partner. In an action for money, where the amount and interest is admitted and a special verdict establishes defendant's liability, an assessment, by the jury, of the amount of the recovery, is unnecessary. Appeal from a judgment. This action was brought by Charles A. Bulkley, Richard Harluck, and Edward H. Bulkley, against Abiel B. Marks, Edmund C. Bramhall, George P. Lord, and Samuel N. Brown, to recover $2,334.18, the amount of two promissory notes. The facts are fully stated in the opinion. The action was tried before Hon. Judge Hilton. The testimony of Brown and Lord taken upon commission was read. Lord, in answering the Bulkley a. Marks. eighteenth interrogatory, said: "Bramhall was in the habit of visiting the store of Lord & Brown; was there frequently during the existence of said firm; he looked at the stock of goods and into the books of said firm as frequently and as long as he saw fit. His visits were to look into the business of the firm." The last sentence was admitted over defendants' exception. Lord's answers to the fifth and sixth interrogatories disclosed, that of $20,000 contributed by Marks to the capital of the firm $8,000 was paid by Bramhall; to the admission of these answers defendants excepted. The 48th, 53d, 57th, 59th, and 60th cross interrogatories aimed to elicit from Lord that at the time of the assignment by Lord & Brown, Lord reserved for his own use various notes and securities; the answers to these interrogatories were excluded, and defendants excepted. The court submitted but one question to the jury, viz: "was Edmund C. Bramhall interested in the limited partnership of Lord & Brown at the time of its formation on January 1st, 1851?" To this question the jury found in the affirmative. The defendants, Marks & Bramhall, having admitted at the close of the case that the plaintiff's claim, with interest, amounted to $3,266.21, the court, upon the rendition of the verdict, directed judgment for the plaintiff's for that amount, and a motion for a new trial having been denied defendants, Marks and Bramhall appealed. Benedict & Boardman, for the appellants.-I. As respects any moneys recovered on account of interest or profits, there was no evidence in the case either that the defendant Marks had received more than he might lawfully take; or, if he had, that it was received in bad faith. Even if he had received on these accounts more than he was entitled to take; yet in the absence of ill faith he was not chargeable for such excess, as a general partner, or in any other manner than by a suit for the benefit of all the creditors. (Innes a. Lansing, 7 Paige, 583; Whitewright a. Stimpson, 2 Barb., 379; La Chaise a. Lord, 10 How. Pr., 461; Lachaise a. Marks, 4 E. D. Smith, 610.) II. Nothing was done in connection with the dissolution, which could be tortured into a withdrawing of the principal of Mark's special capital. 1. The notes created no lien. 2. The agreement of dissolution contains nothing which can be con |