EXCEPTION

to have his answer stricken out, is not sufficient to found an order upon, on his default to appear, striking out his answer, or punishing him for contempt. Ib.

EXCEPTION.

An exception to evidence relevant as to one of two co-defendants, but irrelevant as to the other, must be stated as being taken by the defendant, as to whom it is irrelevant. If stated generally as taken by the defendants, it is not error to overrule it. Black a. Foster, Ante, 406.

EXCISE.

MANDAMUS, 2, 3.

EXECUTION.

1. The levying upon personal property of a warrant for the collection of an unpaid tax, does not defeat a previous levy of an execution upor the same goods, by the sheriff. Fuller a. Allen, Ante, 12.

2. A bona fide purchaser at sheriff's sale obtains a title to such goods free from any lien for the tax. Ib.

3. The defendant perfected his appeal from a judgment of a justice's court, after execution had been issued, and when it was in a constable's hands; but before levy, he served a copy of his undertaking upon the plaintiff, though not upon the constable. After receiving the copy undertaking, the plaintiff directed the constable to levy.

Held, that the levy should be set aside, as made in bad faith. Jones a. McCarl, Ante, 417.

APPEAL, 28.

EXECUTORS AND ADMINISTRATORS.

CAUSE OF ACTION, 9; SURROGATE'S COURT.

HABEAS CORPUS.

1. Upon habeas corpus to inquire into the detention of a person committed for contempt, only two questions can be examined-1st, the jurisdiction of the tribunal by which the relator was committed; and 2d, the form of the commitment. The People on rel. Mitchell a. The Sheriff of New York, Ante, 96.

2. Where the contempt charged is the refusal of a witness to answer a question, the commitment cannot be impeached on habeas corpus merely for a supposed error in requiring the witness to answer an improper question. Ib.

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4. The decision of a Court of Special Sessions upon an indictment for misdemeanor, though assumed to be erroneous, cannot be reviewed upon the return to a writ of habeas corpus. Supreme Ct., Fifth Dist., Gen. T., 1857, The People a. Shea, 3 Parker's Crim. R., 563.

INDEMNITY.

It seems, that one who covenants to pay the plaintiff all sums which should be recovered against G. H., and C. H. his wife, in a certain action then pending in, &c., is not liable to pay a judgment entered for a a sum of money to be collected out of the separate estate of the wife only. Cheesbrough a. Agate, Ante, 32.

BOND; CAUSE OF ACTION.

INJUNCTION.

1. It is only where a threatened illegal or unconstitutional act of a municipal corporation, e. g., unlawfully filling up plaintiff's lots; or levying an illegal tax or assessment, will be productive of irreparable injury, or must lead to a multiplicity of suits, that an injunction will lie to restrain it. (Mayor of Brooklyn a. Meserole, 26 Wend., 132; Bouton a. City of Brooklyn, 15 Barb., 375; Mace a. The Trustees of Newburgh.) Supreme Ct., Gen. T., 1857, Blake a. The City of Brooklyn, 26 Barb., 301.

2. An individual resident and tax-payer of a municipal corporation, or creditor holding its stock, payment of which is not yet due, cannot maintain an action against the corporation and its grantee to avoid a sale and conveyance of real estate, illegally or improvidently made by it. Roosevelt a: Draper, Ante, 108.

3. The only action sustainable in such case is one by the Attorney-Gen

eral. Ib.

4. One person cannot sustain a civil action for an injury of a public nature, when the damage he sustains is no greater than that sustained by every other member of the community. Ib.

5. Even if the Attorney-General may bring an action in the name of the people, to restrain a municipal corporation, it can only be to restrain it from committing a fraudulent or illegal disposition of the corporate property. The People and Flagg a. Lowber, Ante, 158. 6. Such fraud must be distinctly charged in the complaint, where it is the foundation of the action. Ib.

7. An individual owner of real property, upon the public street of a city, may maintain an action to enjoin the construction there of a railway, which would be a nuisance. Milhau a. Sharp, Ante, 220.

INQUEST.

8. Where a nuisance occasions, or is likely to occasion, a special injury to an individual, which cannot be compensated in damages, it may be enjoined, at the suit of such individual. Ib.

9. If an officer, to whom a warrant for the collection of a tax has been issued, proceeds to levy it upon and collect it out of property, formerly belonging to the tax-debtor, but which had been sold on execution against him to a bona fide purchaser before the issue of the warrant, he may, in an action brought by the purchaser, to restrain the sale, be enjoined from interfering with the property so far as to separate it and sell it in a mode disadvantageous to the plaintiff, upon the plaintiff's securing or paying into court the amount of the tax to abide the event of the action. Fuller a. Allen, Ante, 12.

CORPORATION, 1; LIMITATION OF ACTIONS, 3.

INQUEST.

In an action for goods sold, the only defence was, that the plaintiff was not the vendor. When the cause was called, the defendant's counsel, being actually engaged in another court, applied by his clerk for an adjournment, which was denied, and an inquest taken. After entry of judgment the plaintiff issued execution against property, and this being returned unsatisfied, issued execution against the person, on which the defendant was arrested. The defendant then moved to set aside the inquest, on the grounds: 1. That his defence was meritorious; 2. That his witnesses were absent from the city when the cause was called; 3. That his counsel was actually engaged in another court at the time, and that his clerk, by whom the affidavit to obtain the adjournment was prepared and the application made, had not sufficient skill to pre pare the affidavit properly, and that the application was denied because of its insufficiency.

Held, 1. That the inexperience of the clerk was no ground for setting aside the inquest. If the court and opposing counsel depart from the established rule governing the conduct of proceedings in open court, so far as to give indulgence to application made by persons not qualified to practice, such want of qualification ought not to be urged as any ground of relief on facts then existing, and which ought then to have been laid before the court.

2. Though the engagement of counsel is generally regarded as a ground of indulgence, yet where, as in this case, one adjournment had already been had on that ground, and the adjournment asked for would have put the cause over the summer vacation for three months, it ought not to be granted.

3. In respect to the absence of defendant's witnesses, it was not

JOINDER OF CAUSES OF ACTION.

shown that their testimony was material, or that the defendant had used due diligence to obtain their attendance. Both these things must be shown to make the absence of witnesses a ground of adjourning a

cause.

4. That the long delay in making the motion to vacate the inquest, in connection with the facts disclosed in reference to the alleged defence, were alone sufficient ground for denying the motion. N. Y. Superior Ct., Sp. T., 1856, Fake a. Edgerton, 6 Duer, 653.

JOINDER OF CAUSES OF ACTION.

A cause of action for false representations in inducing the plaintiff to enter into a contract, and a cause of action for a breach of the same contract may be joined. Robinson a. Flint, Ante, 393, note.

JOINT-STOCK ASSOCIATION.

1. The articles of an unincorporated Joint-Stock Association provided in substance, that either of the associates might sell any of his shares of stock; but that, before selling them to any other person, he should offer them to the Association; and that no sale should give the purchaser any control in the business, nor any interest in profits, until scrip should be issued to him by the other associates.

Held, 1. That a sale of shares without an offer to the Association was valid, but did not constitute the purchaser.a partner, nor did it work a dissolution; but the purchaser, being registered and getting his certificate, could demand and receive dividends declared to his vendor, on a power of attorney from him.

2. That the assignor of the shares was not a necessary party to an action by the purchaser, against the Association for a dividend. Harper a. Raymond, Ante, 142.

2. Where a contract in writing is made contemplating the subsequent execution of an instrument-e. g., an assignment of stock,—and such instrument is afterwards executed, delivered, and accepted in pursuance of the contract, the contract and instrument contracted for may be read together to determine the intent of the parties; but if the last in date is unequivocal, it must control the former. Ib.

3. A contract in writing was made for the sale of certain stock, and all the "right, title, and interest" of the holder therein; and on the fol lowing day an assignment was made by the seller, and accepted by the buyer, as a full performance of the contract. This assignment transferred the stock, "and all future benefit and dividends thereof."

Held, that the title to any dividend declared on the stock prior to

JUDGMENT.

the contract of sale, but not drawn by the seller, did not pass by the sale. Ib.

4. Dividends declared periodically, under articles of a Joint-Stock Association, are subject to be reduced, on the retiring of the shareholder to whom they are declared, by deducting his share of any debts of the association which were not considered in declaring such dividend. Ib.

JUDGMENT.

1. If, on appeal to the general term, a judgment, rendered on a verdict of a jury or on a trial by the court or referees, is reversed upon the ground of error at the trial, the general term cannot render a judgment in favor of the appellant. Meyer a. The City of Louisville, Ante, 6.

2. A judgment in favor of the appellant in such case may, on motion, made at general term, be corrected so as simply to reverse the judgment below, and order a new trial. Ib.

3. It seems, however, that an affirmative judgment for the appellant might be rendered where the facts have been duly found, and the only question which arises is, which party is entitled to judgment. Ib. 4. A mortgagee is not concluded as to the amount due upon a prior mortgage, by a judgment or award thereon in an action or arbitration between the mortgagor and the prior mortgagee, commenced subsequent to the execution of the second mortgage. Ct. of Appeals, 1858, Campbell a. Hall, 16 N. Y. (2 E. P. Smith's) R., 575.

5. One action for damages may be brought against several defendants for an injury single in its nature, caused by their concurrent acts, e. g., against two railroad companies for injury by a collision between their respective trains, and a joint judgment is not improper if both are shown to be liable. N. Y. Superior Ct., Gen. T. 1857, Colegrove a. The Harlem and New Haven R. R. Companies, 6 Duer, 382. 6. If in such case either defendant seeks a separate trial, he must raise the question by demurrer. Ib.

7. In 1847, T obtained a judgment against B and others on a note given by them to D for about $2800. That note as alleged, was obtained from the makers by D by fraudulent representations, which rendered the same void; and in order to prevent an inquiry into the consideration, D, together with N, who had some interest in the note, induced T to allow the same to be prosecuted in his name, without his having any interest in such note or judgment. The defendants in that suit did not become aware of the fraud, and the want of interest on the part of T, until after the recovery of the judgment. In 1838, T filed