7., Counter-claim-breach of warranty.] A note made by D., as
principal, and V., as surety, was given in payment for cheese pur-
chased by D. and several others jointly. Held, that damages by rea-
sor of a breach of warranty of the quality of the cheese could not be
set up as a counter-claim in an action against D. and V. on the note.
HOPKINS v. LANE.
Judgment-form of] In an action upon a promissory note
made by D. and owned by V. and others, V. was joined as defendant
upon the ground that he refused to join as plaintiff. Held, that a
judgment might be directed that the plaintiffs recover against D.
alone, without prejudice to the rights of plaintiffs and V. as between
themselves, and this, notwithstanding the demand of the complaint
was for judgment against "the defendants." Ib.
action between partners when demand for money judgment
not demurrable.] The complaint stated that plaintiff and defendant
entered into partnership for a year, that by the partnership agreement
the plaintiff was to furnish the capital and the plaintiff and defend-
ant were to share the profits and losses equally, and that a loss ac-.
crued at the expiration of the partnership for one-half the amount, of
which a money judgment was demanded." Held, not demurrable.
JOHNSON v. KELLY.
action for libel - irrelevant and redundant matter — appealable
order-discretionary one is.] In an action against a "commercial
agency" company for libel, the answer set up that defendants and a
firm in the same business were under a mutual contract, to furnish
each other with information concerning the commercial standing of
business men; that the alleged libelous words were telegraphed to
said firm in confidence, as a warning, for the purposes of their busi-
ness only and for the purpose of eliciting from said firm correct infor
mation concerning plaintiffs for defendants' own use. A motion to
strike out these allegations of the answer, as irrelevant and redun-
dant, was denied. Held, (1) that although discretionary, the order
denying the motion was appealable; and (2) that the allegations were
not irrelevant or redundant, as (a) defendants were entitled to allege
circumstances showing the nature and character of the libel, and
as, (b) under section 165 of the Code, being in justification and miti-
gation of such libel.
JEFFRAS v. MCKILLOP & SPRAGUE Co... . . .
See ACTION, 606; AMENDMENT, 545, 563; ANSWER, 549, 569; Assess-
MENT, 488; ASSIGNMENT FOR BENEFIT OF CREDITORS, 642; AT-
TACHMENT, 138; Costs, 348; DEMURRER, 614; DURESS, 429;
EVIDENCE, 245; JUSTICE'S COURT, 78; MARRIED WOMEN, 163,
632; SET-OFF, 167; VARIANCE, 614, 655.
PRACTICE — Removal of cause to federal court.] An application by a
corporation for the removal of a cause from a State to a federal court
must show that the parties were citizens of different States at the
time the action was commenced.
RISLEY V. IND., B. &. W. R. R. Co......
Removal of cause from State to federal court - National
bank citizen" of State where located.] In an action by a national
bank of New York against a national bank of West Virginia, held,
that the defendant was not deprived of the right to demand a
removal of the cause from the State court to a federal court. National
banks are "citizens" of the State in which they are organized and
located.
CHATHAM NAT. BANK OF N. Y. v. MERCHANTS' NAT. BANK OF
W. VA....
Entry of appearance.] Defendant served a notice of appear-
ance on December 15th, but did not file a petition for the removal of
the cause from the State to the federal court until January 7th, the
petition stating that defendant then entered its appearance and had
not done so before. Held, a valid compliance with the federal statute
requiring the defendant, "at the time of entering his appearance in
the State court," to file his petition. Ib.
Form of action against corporation-parties.] An action
against a railroad company to secure the application of future earnings
of defendant to the payment of dividends due on preferred stock was
brought by one of the holders of such stock on his own behalf, and on
behalf of others having like grounds of complaint; held, (1) that it was
brought in proper form and (2) that the stockholders of defendant were
not necessary parties.
PROUTY V. MICH. SO. & NO. IND. R. R. Co.......
Interest.] The net earnings of the defendant before the action
was brought had been, in part, appropriated to dividends upon com-
mon stock. Held, that the owners of preferred stock were entitled to
interest on the dividends they were entitled to receive from the time
of such appropriation. Ib.
appeal from judgment by default after answer struck out as
frivolous. Stare decisis.] Defendant in a foreclosure suit put in an
answer which was struck out as frivolous. From the order striking it
out defendant appealed, and the order was affirmed, and judgment
taken by default against defendant. From this judgment defendant
appealed. Held, that the order striking out the answer was the law
of the case until reversed on appeal, and the correctness of that decis
ion could not be questioned by the general term in an appeal from the
final judgment.
stay of proceedings of party in contempt.] M. had commenced
an action to dissolve the second marriage on the ground of adultery of
his wife. Held (DANIELS, J., dissenting), that as he was in contempt
for making such contract, it was in the discretion of the court to forbid
him to proceed with an action to dissolve the same.
Discovery-when order for not allowed.] Defendant, one of a
firm, against whom plaintiff brought action for money deposited,
moved for a discovery of the accounts from time to time furnished the
depositor, and the letters written by defendants to him, to enable him
to answer, upon the ground that the books and papers of the firm
had been mislaid, and it would require much trouble to find them. The
loss of the books and that there were no copies of the letters was not
alleged. Held, that a motion for discovery would not be granted.
Party in contempt may move to vacate irregular order.] Plain-
tiff was ordered to appear before a referee and make an affidavit to
be used on a motion by defendant. This he neglected to Go, and an-
other order was made directing him to appear and do so, and pro-
viding for his punishment if he disobeyed. Plaintiff then moved to
vacate the first order, and, upon the denial of the motion, appealed,
and also appealed from the second order. Held, (1) that, if the order
was irregular, the contempt of plaintiff in disobeying it did not pre-
clude him from moving to vacate it; (2) that plaintiff was the proper
person to make the motion, and (3) that the existence of the second
order did not prevent a motion to vacate the first.
Affidavit to be used on motion-party cannot be compelled to
make.] Held, also, (1) that, by section 389 of the Code, a party can be
examined only in the manner prescribed by chapter 6 of the Code;
(2) that section 401, subdivision 7, is not repugnant to the prohibition
in section 389, and its passage did not repeal that section; (3) that a
party to an action cannot be compelled, under section 401, subdivision
7, to make an affidavit to be used in a motion therein, and (4) that the
first order should be vacated and the second reversed. Cockey v. Hurd,
4 Jones & Sp. 42; S. C., 12 Abb. N. S. 308, overruled. Ib.
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Removal of cause from superior court of New York-Laws
1873, chap. 239, constitutional in part.] Defendant moved to remove
a cause from the superior court of New York into this court and to
change the place of trial. Held, that the motion was predicated on
the practice provided by Laws 1873, chap. 239, which was not affected
by the decision in Landers v. Staten Island Railroad Co., 53 N. Y.
450, holding that so much of that chapter as provided for the exten-
sion of the jurisdiction of the courts mentioned in it was unconstitu-
tional.
Due diligence required for motion to change venue.] A motion
to change the place of trial must be made with reasonable diligence,
and where issue was joined September 30, 1873, and the motion was
not made until August 8, 1874, the case having been placed on the cal-
endar and noticed in the county where it was brought, and two circuits
having been held in the county to which removal was sought in the
meantime, held, that the motion was too late. Ib.
13.- Mistake as to order-relief against — new trial.] In an action
to recover an alleged interest in suits prosecuted by defendant, and
for an accounting, the referee decided in favor of plaintiff, and directed.
judgment for a certain amount named. Upon a motion to set aside the
report, it was claimed that defendant had acted under a misapprehen-
sion that the referee had made an order that the issues should be first
tried and decided, and if adverse to defendant, an accounting would be
taken, and that defendant had a set-off, in part, to plaintiff's claim,
which he had had no opportunity to establish. Held, that defendant
having misapprehended the order made by the referee, and having
been deprived of his right to contest the amount of the recovery, the
report should be vacated so far as it related to that question, and the
referee ordered to try and determine the same.
One not a party appearing bound by result of proceeding.]
Where one not a party in an action appears and is allowed to be
heard in a motion therein, it renders such one an actual party to
the motion, and bound by the result thereof.
Appeal from order setting aside verdict — Case not containing
all the evidence. Where a verdict was set aside in the county court on
the ground that it was against the evidence, and the case on appeal
did not profess to contain the whole evidence; held, that the court
could not say that it was not properly granted.
Costs.] The costs on granting a new trial in such case were
in the discretion of the county judge. Ib.
See ACTION, 353, 418, 606, 614,686; ADMINISTRATOR, 266; AFFIDAVITS,
11; AMENDMENT, 545, 563; ANIMALS, 131; ANSWER, 569; APPEAL,
683; APPEALABLE ORDER, 545, 658; ARREST, 422, 547, 664, 672;
ASSESSMENT, 488; ATTACHMENT, 138, 222, 556, 679; CERTIORARI,
87, 133, 289, 438, 638; CLAIM AND DELIVERY, 604; COSTS, 253,
348; CRIMINAL PRACTICE, 1; DIVORCE, 574; EJECTMENT, 143, 279;
ESTATE, 126; EXAMINATION, 542; HIGHWAYS, 398; INJUNCTION,
68; JUDGMENT, 577; JURISDICTION, 230; JUSTICE'S COURT, 36,
78; MANDAMUS, 365, 656; NEW TRIAL, 23, 658; PARTIES, 598;
PLEADING, 113, 311, 578; PROVISIONAL REMEDIES, 82; RE-
CEIVER, 224, 619; REFERENCE, 565, 655, 664, 673, 691; SPECIAL
PROCEEDINGS, 357; STATUTE OF LIMITATION, 686; STAY OF PRO-
CEEDINGS, 565; STIPULATION, 561; SUBSTANTIAL RIGHT, 518;
SUPPLEMENTARY PROCEEDINGS, 572; SURROGATE, 602; Town
BONDS, 116; TRIAL, 497, 586, 606, 658, 690; UNDERTAKING, 663;
VERDICT, 685.
PREFERRED STOCK: See CORPORATION, 230; PRACTICE, 230.
PRESENTMENT: See BILL OF EXCHANGE, 211.
PRESUMPTION OF FACT: See ANIMALS, 131; EVIDENCE, 250; RECEIVER, 614.
PRESUMPTION OF LAW: See EVIDENCE, 420; INSURANCE, 582; MORTGAGE,
420; PROMISSORY NOTES, 78; RAILROAD AID BONDS, 638.
PRICE: See EVIDENCE, 685.
PRINCIPAL AND AGENT: See AGENCY, 259, 426, 674, 694; CORPORATION, 13,
71; PAYMENT, 59.
PRINCIPAL AND SURETY: See GUARANTY, 75; STATUTE OF FRAUDS, 29;
SURETYSHIP, 652.
PRIORITY OF LIEN: See CHATTEL MORTGAGE, 128.
PROBABLE CAUSE: See EVIDENCE, 441.
PROBATE OF WILL: See SURROGATE, 602.
PROCEEDINGS TO OBTAIN OFFICIAL BOOKS, ETC.: See SPECIAL PROCEED-
INGS, 357.
PROFITS: See DAMAGES, 396, 666.
PROMISSORY NOTES-want of consideration—rights of holder with notice.]
In an action upon a promissory note, brought by the indorsee against
the maker and indorser, the indorser, by his answer, set up the defense,
and on the trial offered to prove that the note was made and indorsed
without any consideration, but at the request and for the accommoda-
tion of F.; that this was done upon the suggestion of plaintiff; and
that all the consideration which the plaintiff paid for the note was F.'s
own money. Held, that these facts were sufficient to defeat a recovery,
and if proved would have established a complete defense.
POWERS v. FRENCH.......................
Presumption of ownership from possession.] In an action upon
a promissory note, made by defendant, and payable to plaintiff or
bearer, the note was produced at the trial by a witness, who produced
it under protest, and claimed to own it as the administrator of an
estate. Plaintiff then testified that he owned the note. Held, that
plaintiff was not entitled to recover. A party paying a promissory
note is entitled to the delivery of such note.
CRANDALL V. SCHROEPPEL......
Judgment—when not a bar to another action.] The justice of
the peace gave judgment in favor of plaintiff. Held, that this judg
ment or the payment of it would not protect defendant from another
suit and judgment upon the note by the holder. Ib.
Accommodation indorser — Evidence.] Execution was issued on
a judgment against P. and F., on which P.'s'property was seized and
PROMISSORY NOTES- Continued.
advertised for sale. F., at the request of P., made a note to help raise
money to pay for P.'s property at the sale, and the note was indorsed
by defendant and delivered to plaintiff, who had it discounted together
with one of his own notes, and with the proceeds of the two notes bid
in the property at the sale and held it as security. In an action against
defendant, on the note made by F., the defense was that the note was
made without consideration, and delivered to plaintiff without consid-
eration, to raise money to pay for the property at the sale, and that
plaintiff still held the property which he bid off. Held, (1) that it was
error to exclude evidence offered by defendant of what P. said to F.
when the note was made, as to the purpose to which it was to be
applied, but the fact being afterward proved by other witnesses the
error could not injure defendant; (2) that it was correct to exclude
evidence of what F. said to plaintiff, in reference to the purpose of
the note, after he had raised the money on it; (3) that it was correct
to exclude evidence offered by defendant to show that it was arranged
between F. and P. that the note should not be used, but should be
placed in plaintiff's hands as security to him for purchasing the prop-
erty, and that plaintiff negotiated the note notwithstanding the arrange-
ment was made known to him when he received the note, no such
defense having been set up in the answer; and (4) that a judgment
on the note in favor of plaintiff was right.
Illegal consideration—bona fide holder.] An article was stolen
from the premises of B., and was afterward found in defendant's pos-
session. Defendant was under apprehension that he might be pros-
ecuted, and B. took advantage of this circumstance to induce defendant
to "settle by giving B. a promissory note. B. gave defendant a
receipt in which he promised not to prosecute defendant for any "cause
of action that may have accrued before this date." In the same receipt
B. also promised that if any party should prosecute any criminal ac-
tion against defendant for any cause that may have arisen before
this date" he would refund. B. afterward transferred the note to
plaintiff, who kept a store, at which B. was a customer, and plaintiff
credited the note on B.'s account. Plaintiff was acquainted with the
circumstances under which B. obtained the note. Held, that the note
was void for want of a valid consideration, and that plaintiff was not
a bona fide holder.
, form of — joint and several note.] A promissory note signed by
two persons read, "I promise to pay," etc. Held, a joint and several
See ASSIGNMENT FOR BENEFIT OF CREDITORS, 642; CHATTEL MORT-
GAGE, 128; CONSIDERATION, 120, 322; EVIDENCE, 684; INJUNC-
TION, 68; PARTNERSHIP, 274; PAYMENT, 59; USURY, 690, 697.
PROOF OF DEATH: See INSURANCE, 497.
PROVINCE OF JURY: See TRIAL, 658.
PROVISIONAL REMEDIES — power of county judge to grant order of arrest
-statutory construction Code, § 401.] The place of trial of an
action was Onondaga county, and plaintiff's attorney resided there. An
order of arrest against defendant was granted by the county judge
of Cortland county. Held (following Webber v. Bailey, 9 Alb. Law
Jour. 276), that the order was properly granted. The provision of Code,
§ 401, subd. 3, that orders made out of court may be made by a judge
of the county where the action is triable, or in which the attorney
for the moving party resides, is an enlargement of the powers of a
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