PARTIES

2. Occupying real property in cities as a hog-yard, slaughter-house, and fat and offal boiling-house, is prima facie a common nuisance; but the presumption may be rebutted by showing that the business is so carried on as not to endanger the health, or interfere with the comfort, of the neighboring inhabitants. N. Y. Superior Ct., Chambers, 1863, Dubois a. Budlong, Ante, 445.

3. The remedies to abate a nuisance by removal, or by action, or by indictment, discussed. Supreme Ct., 1862, Harrower a. Ritson, 37 Barb.,

301.

OATH.

Every person who, in foreign countries, is authorized by law to take and certify the acknowledgment and proof of deeds, shall also have power to administer oaths and affirmations to be read in evidence, and used in any of the courts of this State, or otherwise. Laws of 1863, 449, ch. 246, $3.

NOTARIES.

OFFER TO ALLOW JUDGMENT.

A judgment entered upon an offer to allow judgment, under the Code, § 385, for the full sum demanded in the summons and complaint, is valid. Supreme Ct., 1862, Ross a. Bridge, Ante, 150.

JUDGMENT, 13, 14, 21.

OFFICER.

A policeman in a populous city was directed to kill a dog which had bitten a child, or bring the dog to the station-house; he disobeyed the order. Held, that such disobedience was unwarranted, and justified punishment. Supreme Ct., 1862, People a. Board of Police, Ante, 167.

PARTIES.

1. An action on an administrator's bond is properly brought in the name of the People. [5 Seld., 176; 3 Abb., 450; 8 How. Pr., 152.] Supreme Ct., 1862, People a. Townsend, 37 Barb., 520.

2. Where a promise is made to one party for the benefit of another, the latter, though a stranger to the contract, may recover in a suit directly against the promisor, and founded on the promise. Supreme Ct., 1861, Scott a. Pilkington, Ante, 280.

3. Where the plaintiff is in the possession of negotiable paper, with appar

ent title, and no contradictory evidence to overthrow it, he shows a legal

PARTIES.

right as owner to recover. This rule applied in a peculiar case, where the defendant contended that plaintiff was not the real party in interest. Supreme Ct., 1861, Brown a. Penfield, 24 How. Pr., 64. 4. Where, in an action by one of two executors, no objection was taken, either by demurrer or answer, that the other was not a party plaintiff, the defendant cannot make the objection at the trial. [Code, §§ 144, 147, 148; 16 N. Y., 266; 3 Kern., 336.] Ct. of Appeals, 1862, Scrantom a. Farmers & Mechanics' Bank of Rochester, 24 N. Y., 424. 5. An action, brought by one who was an executor, to recover a bank deposit, made by him as such,-Held, brought by him in his capacity

6. What agreement constitutes a mortgage within the rule that a mortgagee cannot bring ejectment for the mortgaged premises. Sahler a. Signer, 37 Barb., 329.

7. In an action to recover the possession of lands, no other person should be made a defendant except the party in actual and exclusive possession. Thus, where a receiver of a corporation is in possession, the corporation is not a proper party defendant. [15 How. Pr., 358; 2 Kern., 580; S. C., 12 Barb., 352; 14 How. Pr., 439; 23 Barb., 228; 16 How. Pr., 308.] Supreme Ct., 1862, Schuyler a. Marsh, 37 Barb

350.

8. Subdivision 2 of section 136 of the Code,-which provides if the action be against defendants severally liable, the plaintiff may proceed against the defendants served in the same manner as if they were the only defendants, is not restricted to common-law actions on contract. Supreme Ct., 1862, Billhofer a. Heubach, Ante, 143.

9. The necessity of bringing in as parties others who are interested in the subject-matter of the suit, is in no degree avoided by section 119 of the Code,-which declares that "when the parties are very numerous, and it may be impracticable to bring them all before the court, one or more may sue or defend for the benefit of the whole,-where there is nothing in the pleadings to show that the parties come within the conditions of that section, either as to number or position. Supreme Ct., Sp. T., 1862, Garner a. Wright, 24 How. Pr., 144. 10. In an action against partners to recover money lost in gaming, a recovery against one of the defendants, without amendment, is regular. The defendants are wrongdoers, and severally liable. N. Y. Com. Pl., 1862, Betts a. Hillman, Ante, 184.

11. A proceeding to compel the supervisors to exercise their discretion in auditing a claim against the county, should not be against the supervisors "individually, specifying in the process, pleadings, and proceedings, their name of office," pursuant to 2 Rev. Stat., 474, § 96.

PARTIES:

It is not an action against the "officers named in the preceding 92d section," to which the provision of section 96 refers; but, since it is to compel a performance of duty by the Board, and not by the supervisors individually, it is properly brought against the Board. Supreme Ct., 1861, People a. Supervisors of Cortland, 24 How. Pr., 119. 12. Where a married woman carries on business upon her own account, and purchases goods upon credit for such business on her own account, an action may be brought against her the same as if she were unmarried, and a judgment recovered, and the amount collected by execution out of property belonging to her in her own right. [Laws of 1860, 157, ch. 90; 21 How. Pr., 309.] The act of 1860 impliedly recognizes the right of the wife to enter into such contracts as the one upon which such an action is brought, by declaring that her bargains and contracts in and about the carrying on of any trade or business, shall not be binding upon her husband, nor render him, nor his property in any way liable therefor; and as a preceding section declares that she may carry on any trade or business upon her sole and separate account, it necessarily follows that she is the party to be held responsible for the contracts and bargains she makes in business. The act also declares that "she may sue or be sued in all matters having relation to her property;" and the whole taken together shows very clearly that it was the design of the Legislature that, upon all contracts made by her in the course of business, she should be proceeded against the same as if she were unmarried; that an action might be brought against her, a judgment recovered, and the amount collected by execution out of property belonging to her in her own right. N. Y. Com. Pl., 1862, Klen a. Gibney, 24 How. Pr., 31.

13. The complaint, in an action against husband and wife, stated a cause of action for slanderous words of the wife, and a further cause of action for slanderous words of the husband.

Held, that the two causes of action were improperly joined. N. Y. Com. Pl., 1863, Malone a. Stilwell, Ante, 421.

14. In an action brought by a creditor for himself and all other creditors who might come in and avail themselves of the action, against an assignee for the benefit of creditors, the complaint claimed an accounting by the assignee, and that the assignment be reformed by substituting the true name of an indorsee with the plaintiff on a promissory note preferred in the assignment, instead of the name appearing in the assignment, which was alleged to have been mentioned or copied by mistake. Held, that the indorsee, whose name was sought to be superseded by substituting another, and the assignors, and perhaps other creditors, standing in a lower class than that in which such note was

PENALTY.

stated, were necessary and proper parties on account of the demand for a reformation of the assignment. Supreme Ct., Sp. T., 1862, Garner a. Wright, 24 How. Pr., 144.

ACTION; ATTACHMENT; DEMURRER.

PARTITION.

A partition under the act of 1785 [1 Greenl. Laws, 165] is not valid, if it appears by the record that only two of the three commissioners attended upon and superintended the balloting for the lots. The statute must be strictly pursued, Supreme Ct., 1862, Schuyler a. Marsh 37 Barb., 350.

PARTNERSHIP.

1. 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 partN. Y. Com. Pl., 1863, Bulkley a. Marks, Ante, 454. 2. A special partnership cannot be dissolved by the act of the parties, until four weeks after the publication of notice of the intended dissolution.

ners.

Ib.

3. The withdrawal by a special partner of his capital before the actual dissolution of the firm, though after notice of dissolution, renders him liable as a general partner. Ib.

PENALTY.

1. A provision in an agreement that for its breach the party shall "forfeit" a fixed sum, implies a penalty, not liquidated damages. Supreme Ct., 1862, Salters a. Ralph, Ante, 273.

2. The owner of land agreed with another person that the latter might temporarily use it, and should make certain improvements, providing that if he fulfilled his agreement, he should pay no rent; but if not, he was to pay rent at the rate of $200 a year in addition to the expense of restoring the premises.

Held, that it appearing that the sum named was a fair rent for the premises in question, it was not to be deemed as a penalty, or even liquidated damages, but as the rent, from which the tenant was to be exonerated in a certain contingency. Supreme Ct., 1860, Manice a. Brady, Ante, 173.

PLEADING.

PILOT LAWS.

CERTIORARI; TRIAL, 24.

PLEADING.

1. In pleading a written instrument,-e. g., a release,-if the only materiality of the date is, that it was after another event, it is sufficient to say that it was so. N. Y. Superior Ct., Chambers, 1862, Kellogg a. Baker, Ante, 286.

2. If in pleading a deed executed by a married woman, the pleader states that it was executed by attorney, he must also state the facts which make the case one in which such mode of execution is valid, or his pleading is demurrable. Supreme Ct., Sp. T., 1859, Johnston a. Taylor, Ante, 339.

3. In an action upon promissory notes assigned to the plaintiff, and for goods sold,-Held, that the plaintiff might properly allege in his complaint, on his "information and belief," that the notes were executed by the defendant; and he might allege in the same way that the goods were sold to the defendant; for they might have been sold by his agent. A motion to strike out the words "on information and belief,' was therefore denied. Supreme Ct., Sp. T., 1862, St. John a. Beers, 24 How. Pr., 377.

4. In an action under the Code to recover back money received by the defendant from the plaintiff, the fact that the complaint states fraudulent representations of the defendant, by which the plaintiff was induced to pay him the money, which he seeks to recover back, does not necessarily stamp the action as one in tort, or show that the cause of action is not assignable. Having money that rightfully belongs to another, creates a debt; and wherever a debt exists without an express promise to pay, the law implies a promise; and the action always sounds in contract. Under the Code, this implied promise is treated as a fiction, and the facts (out of which the prior law raised the promise), are to be stated without any designation of a form of action. And the law gives such judgment as, being asked for, is appropriate to the facts. Ct. of Appeals, 1862, Bixbie a. Wood, 24 N. Y., 607. 5. It is no objection to a recovery in such case, that fraud is not proved, if sufficient facts appear to warrant a recovery as for money had and received; especially when the words in the complaint charging fraud may be regarded as matter of inducement. Ib.

6. Under a complaint (in a justice's court) which contained a count for