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sel do not sustain the position. rately state and number the several causes See 56How., 359.

of action alleged, unless the right is exIn re Burtnett, 8 Daly, 363 ; in re

pressly reserved. Goldsmith, 10 Daly, 112; in re Appeal from an order requiring Brown, 10 Daly, 115; in re Koonz, plaintiff to separately state and 11 W. Dig., 55; in re Sweezy, 62 number the several causes of action How., 215; 6+ id., 353; 10 Daly, 107; set forth in his complaint. in re Isidor, 59 How., 98, explained The complaint was served Aug. and distinguished.

2, 1851. Defendant's time to anWhen the petition shows that swer or demur was extended by there is reasonable ground for ap- stipulation until Sept. 18. The prehending that the assignor has motion papers herein were served fraudulently disposed of his assets, on that day. The time to serve or that the assignor or assignee answer was again extended to and have fraudulently omitted assets including the first day of October from the inventory, or placed upon by an order of the county judge. the schedules claims which are The order was not dated, and the fraudulent in whole or in part, an court was unable to determine examination may and should be whether it was procured before or ordered.

after the time to answer or demur, The order is not objected to be- as extended by stipulation, had excause it does not state the subjects pired. to be inquired into, or in anywise The notice of motion was for an limit the scope of the examination, order to compel plaintiff to sepanor is it objected that the informa- rate and number the several causes tion upon which petitioner founds of action alleged, and that the comhis belief is not set forth in the pe plaint be made more definite and tition.

certain. Order affirmed, with costs.

John H. White, for applt.
Opinion by Follett, J.; Hardin,

J. D. Decker, for respt.
P.J., and Boardman, J., concur. Held, That a motion to correct a

complaint on the ground of its

being uncertain or indefinite must PLEADING. PRACTICE.

be made within twenty days from V. Y. SUPREME COURT. GENERAL the service thereof. Rule 23 ; 1 TERM. FIFTH DEPT.

Abb., N. S., 406 ; 8 How., 237; 21 William T. Brooks, applt.,

id., 23+; 7 Robt., 161; 4 Sandf.,

70.5. Daniel M. Hanchett, respt.

Held also, That as defendant did Decided April, 1885.

not reserve the right to move to An order or stipulation extending the time correct the complaint, either in his to answer the complaint implies an ad- stipulation or in the order obtained, mission that it is sufficient in form to re

he waived all such objections to the quire an answer, and is a waiver of the right to move to make more definite and complaint. It involved an admiscertain or to require the plaintiff to sepa- sion that the complaint is in form


sufficient to. require an answer.

H. In case he should die without Sandf., 6.57; 3 Abb., N. S., 266; 34 children, then after my wife Eliza How., 238.

Ann's death, and my son Charles Order reversed, with ten dollars H.'s death, my will is, all the propcosts and disbursements and the erty, real or personal, that may remotion denied, but with leave to main, shall go to Augustus Southdefendant to answer or demur wick.” After testator's death, and within ten days after the service. during the lifetime of his mother, of a copy of this order.

Charles H. was sentenced to State Opinion by Haight, J.; Barker Prison for life, and was there conand Bradley, JJ., concur.

fined at the time of the trial. He was unmarried and had no children. After the widow's death

Augustus Southwick conveyed the WILLS.

land to plaintiff, and defendants N. Y. SUPREME COURT.


are in possession under a parol

lease from Charles H. TERM. FIFTH DEPT.

The court below held that plainJohn M. Avery, respt., v. George tiff was entitled to recover the Everett et al., applts.

land ; that the will referred to a

civil as well as a natural death, Decided April, 1885.

and that as Charles was dead "in A will providing for an estate in remainder

the eye of the law” the remainder in case of the death of another, refers to a natural and not a civil death.

to Augustus took effect. At common law, a felon imprisoned for life Rhodes, Coons & Higgins, for

could acquire an estate by grant or devise, | respt. which would not devolve upon his heirs

Il’m. Tiffany, for applts. by reason of his civil death, nor in such case would an estate in remainder depend- Held, That as the words of a will ent upon his “death" vest in interest or must be given their ordinary meanin possession.

ing, except where some other is necAppeal from judgment entered essarily or clearly indicated, the upon the decision of the court on a word “death” must be construed trial before the court without a to mean natural death only; that jury.

the testator could not have had in Action to recover possession of contemplation the civil death of his lands devised to defendant's lessor,

son and intended to provide for Charles H. Southwick, by the last that event. will of his father. The will devised Held also, That at common law to the widow all testator's real es- upon conviction for a felony and tate as long as she should remain sentence to imprisonment for life unmarried, “but on her decease or the felon's estate would not descend remarriage then what remains of to his heirs, nor would an estate in said real or personal property I

remainder vest in possession. give and devise to my son, Charles The statute provides that the

felon shall“ be deemed civilly in the common law. Under this dead." 3 R. S., 994, 10, 6th ed. statute it was held that a suit

What is meant by civil death against the felon is abated. 2 and what are the consequences re

Johns. Cas., 407. That a pardon sulting therefrom? At common would not affect the administralaw the disability of the felon was tion upon his estate, but would not considered to be the strict civil restore him to the relation of father death that attaches to persons en- and give him the right to the custering into religion or who have tody of his children. 10 Johns., been banished the realm. He 232. Upon the revision of the statcould not bring an action or enjoy utes, the words “to all intents and his property, but he could be purposes in the law” were omitted. charged in a civil suit and be com- This change was for a purpose; the pelled to plead to the merits. He object was to place the felon under could acquire, even though he no greater disability than existed could not enjoy. He could pur- at common law. Service of process chase lands to him and his heirs, upon the felon in State prison is and could lease and demise, and valid and gives the court jurisdichis estate would not descend to his tion. 1 Abb. Ct. App. Dec., 186. heirs. Coke Litt., 200 ; 1 Blackst. If the effect of his sentence was to Com., 132; 2 B. & Ald., 268-275; transmit his personal estate to his 5 B. & Adolph., 765; L. R., 1 Com. administrators, and devolve his Pleas, 389, 397, 100; 6 Johns. Ch., real estate upon his heirs, should 118-127.

not his creditors resort to the adThe laws of 1799 provided that ministrators instead of the felon? the felon “shall be deemed and He may be a witness in civil and taken to be civilly dead to all intents criminal actions, and a habeas corand purposes in the law.In 24 pus may issue for that purpose. Johns. Ch., 248, Chancellor Kent The Revised Statutes (in force at said that this act was only declara- the time of Mrs. Southwick's death) tory of the existing common law, providing for the determination of and enacted for greater caution. the fact whether a person having a But in 6 Johns. Ch., 118-127, he prior estate for life is alive or not, again referred to this question and provided that if the life tenant is to his former opinion, and stated in prison he shall be produced upon that he did not pursue the subject habeas corpus and his identity esto the extent that he should have tablished. 2 Rev. Stat., 343–7. done; that he has since had the If it appears that the life tenant benefit of a full and able discussion, is dead, possession of the lands and of a diligent and accurate re- shall be awarded to the remaindersearch upon the question. He man; but there is no provision that laid particular stress upon the lan- possession shall be awarded because guage of the statute, and appears of civil death. Consequently, if to have reached the conclusion Augustus Southwick had insti. that the statute did effect a change tuted these proceedings, the court would be bound to discharge them JUSTICE'S COURT. JURISDICand award costs against him. These

TION. provisions, with a few changes, are now embraced in the Code. N. Y. SUPREME Court. GENERAL

TERM. FIFTH DEPT. 23022319.

The remark of Balcolm, J., in 10 George Brisbane, respt., v. The Abb., 370, to the effect that the Bank of Bataiva, applt. rights and liabilities of a person

Decided April, 1855. civilly dead are as entirely gone as though he were actually dead, was

Though the amount deposited in a bank, as

well as the checks drawn upon and paid not necessary to the decision of the

by the bank, exceed $400, these items do case, and not well considered.

not constitute a matter of account beThe conclusion is that the effect tween the parties of which a justice court of the civil death of a person con

has no jurisdiction, where the only item

in dispute is a certain check claimed to victed of felony is to be determined have been drawn by the depositor. by common law; and by that law the felon's estate did not descend

Appeal from judgment of county to his heirs, nor would an estate in court, reversing judgment of a jus

tice's court. remainder take effect.

Action to recover the sum of $2., The statute provides that no con

a balance alleged to be due plainviction for any offense whatever tiff upon deposits made in defend(except treason) shall work a for- ant's bank. The answer was a feiture of any goods, chattels or general denial, settlement and paylands, or of any right or interest ment in full. Upon the trial plaintherein. 2 R. S., 6th ed., 994,- +2. tiff testified to having made deposAugustus was a cousin of Charles its in various sums with defendH., and could not be his heir at ant, amounting in the aggregate law while his brother or sisters are to $6,128.50. He also testified to living. Charles H. was entitled to the drawing of checks on the bank the land upon the death of his in various items amounting to mother, and that event having $5,351.01; but also admitted that happened it would be in the nature they have returned checks to hini of a forfeiture to deprive him and for the whole fund deposited exhis heirs of it. To hold otherwise, cept the sum of $25. When plainif Charles H. should be pardoned tiff rested defendant's attorney

moved to dismiss the action on the or escape, marry and have children, neither he, nor his children on his ground that the accounts of both death, would have any interest in parties proved on the trial exceeded

the sum of $100, and therefore that in the land.

the justice had no jurisdiction of Judgment reversed, and new trial the case. The motion was granted, ordered.

and judgment was entered against Opinion by Haight, J.; Barker plaintiff for the costs of the action. and Bradley, JJ., concur.

Appeal was taken to the county

court, which reversed the judg. 365, explained and distinguished as ment.

being cases of mutual accounts of George Bowen, for applt.

both parties against each other. William Tyrell, for respt.

The claim of plaintiff, by payHeld, That this was not a case ments conceded to have been made, of mutual accounts between the was reduced down to the amount parties, the sum total of the ac- of $25; and the only question to be counts of both exceeding $100, and litigated between the parties was therefore not within the jurisdic- as to the payment of that sum on tion of the justice, Code Civ. Pro., the eleventh day of November, 1877, 2863, since defendant had no ac- upon a check drawn by plaintiff. counts or claims against plaintiff, Of this the justice had jurisdiction. but was simply an action to recover Judgment of county court afa balance claimed to be due and firmed. remaining unpaid upon an indebt- Opinion by Haight, J.; Barker edness for moneys deposited at di- and Bradley, JJ., concur, Corlett, vers times with defendant.

J., not sitting The amount deposited in the bank, as well as the checks drawn

DELIVERY ORDER. VENDOR'S upon and paid by the bank, largely

LIEN. exceeded $100; but these items did not constitute an account between

N. Y. SUPERIOR COURT. GENERAL the parties in the meaning of the

TERM. code. When a check drawn upon John U. Anderson, assignee, the bank was presented and paid respt., v. Clement Reed et al., it extinguished pro tanto so much applts. of the demand as was paid, and

Decided March 3, 1885. only the balance remaining unpaid became an account between the

Where the holder of a sold note, being the

vendee therein named, makes a delivery parties, and that amount alone can

order in favor of a third person, which is be taken into consideration in de

accepted by the vendor, such third person termining the question of jurisdic- is entitled to the property referred to in tion. Plaintiff conceded that the

said sold note as therein provided, upon whole amount had been repaid ex

the fulfillment of the conditions of the

original contract by the parties thereto. cept a certain sum. That item then

Consequently, if payment was to be made became the only amount that can in the vendee's notes, which are duly be considered upon the question of

given and accepted in payment, the holder

of such an order is entitled to the property jurisdiction. 17 W. Dig., 279; S.

or its value, though the vendee becomes C., 13 Abb. N. C., 60; 4 Civil Pro., insolvent before the maturity of his said 311; 47 N. Y., 89-92; 4 Civ. Pro., notes. This holds good as to property to 227; 15 How., 250; 41 id., 146; 8

be manufactured. id., 263; 1 E. D. Smith, 538; 10 Appeal by defendant from judgWend., 557, 537; 52 Barb., 147, ment and order denying motion for Gilliland v. Campbell, 18 How.,

new trial. 177; Stilwell v. Staples, 3 Abb., Plaintiff brought this action as

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