Superior Court.-The People, &c., v. Locke.

was convicted, and that on the same day Carlton offered, in pursuance of the provisions of the statute, to make and deliver an inventory of his estate, and an account of his creditors, and to execute an assignment. That thereupon, before the execution and completion of the assignment, and before any order for such assignment was made by the judge, an adjournment was had on the application of the relators, to the 19th of December. That Carlton never afterwards appeared; that the recognizances were forfeited, and ordered to be put in suit for the benefit of the relators.

To this declaration the defendant demurs, assigning a large number of causes, a few of which it will only be necessary to notice.

It is certainly very questionable whether the recognizance is not entirely void. The language of the seventh section is: "and in case of an adjournment, such officer may take recognizances with or without surety, at his discretion, from the defendant, for his appearance at the adjourned hearing." $60, 2 R. S., p. 214, 2d ed., declares that "no sheriff or other officer shall take any bond, obligation or security by color of his office, in any other case or manner than such as are provided by law, and any such bond, obligation or security taken otherwise than as herein directed, shall be void. See also People v. Meigham, 1 Hill, 298. The act under which this recognizance was given does not in terms certainly call for an undertaking that the debtor shall appear at the adjourned hearing, and also at such other times and places as the hearings may from time to time be adjourned to. Though the act may in one sense be considered a statutory remedy for the collection of debts, yet the proceedings under it partake much of the character of criminal proceedings, and it may well be that it was the intention of the legislature that frequent adjournments should not be had, and that the debtor should not be harassed by an unnecessary and protracted contest; that at the adjourned hearing the creditors should be prepared for the examination, or if the debtor shows cause for a further adjournment, it should be with the assent of his surety, or by entering into new recognizances. At all events, the statute speaks of the adjourned hearing; not of adjournments from time to time and from place to place.

But there is another serious difficulty. The act of 1840, incorporated as § 8 in third edition R. S., declares that the defendant shall not be entitled to the adjournment or postponement mentioned in the 7th §, unless he shall give a bond in a penalty in twice the amount of the debt, conditioned that he will not remove his property out of the jurisdiction of the court in which the suit is commenced, until the final decision of the matter. It may be remarked, that this eighth section being the amendment of 1840, speaks of the adjournment, and also of the final decision, the latter expression not occurring in the 7th §. The declaration contains no averment that the bond required by the act of 1840 was given, or that it was waived by the relators, or by the defendant in this suit, who became the surety for the personal appearance of the debtor. The adjournment was granted, as appears by the recognizance, and by the averments in the declaration,

Superior Court. Shore v. Shore.

on the application of Carlton, the debtor. It seems to us that the want of such an averment must be fatal to the plaintiffs. If such a bond had been given, it might materially have diminished the risk of the defendant. If Carlton had been possessed of property, or had given sufficient security, the relators might have secured their debt. In short, it was very material when Carlton applied for the adjournment, that he should give not only a recognizance for his personal appearance, but also a bond conditioned that he would not dispose of or remove his property until the final decision of the judge.

But what was the final decision referred to in the condition of the recognizance, admitting that it was well taken, and was obligatory upon the defendant? Did not the final decision of the matter referred to take place on the 16th of December, when the judge decided that the allegations against Carlton were sustained. That decision settled the rights of the parties. The debtor had been tried and convicted. If the relators had failed in their proof, or Carlton had disproved the allegations, he would at once have been discharged by the judge. If the decision had been in favor of Carlton, it would have been final; and we are of opinion that it must be considered as a final decision when pronounced in favor of creditors.

The matter in controversy, charged in the petition and affidavits of the creditors, and denied by the debtor, was whether the debtor had or had not committed the fraudulent acts. The judge decided that he had. That decision settled the matter in controversy. There was no longer any discretion to be exercised. The debtor must then pay the debt, or secure it, or make, or secure to be made, an assignment of his property, or be committed to the gaol of the county. If on the 16th of December, when the judge pronounced his decision in the matter, there had been a bond given pursuant to the requirement of the act of 1840, and Carlton had been required to furnish a sworn inventory of his property, together with an account of his creditors, and also to execute forthwith an assignment of his property, the provisions of the statute would have been complied with. But no bond was given, and no assignment was insisted upon, and the adjournment took place on the application of the creditors.

Upon the whole, we think the demurrer well taken, and it must be allowed with costs.

SHORE V. SHORE.

SUIT FOR A DIVORCE BY MARRIED WOMAN-NEXT FRIEND.

Under the provisions of the code, a married woman can sue for a limited divorce, without the intervention of a next friend.

THIS was an application to vacate an order, and to dismiss the

Superior Court. Shore v. Shore.

complaint on the ground that the wife cannot sue her husband for a limited divorce, without a next friend.

R. D. Holmes, in support of the motion, referred to the case of Carter v. Carter, decided in the common pleas, in which Judge Daly held that a plaintiff in a suit for a limited divorce must sue by her next friend, and in which he made an order for the next friend to justify in $250.

Van Hovenburgh, contra.

CAMPBELL, J.-The complaint was in the name of the wife against the husband, alleging ill-treatment, and asking for a limited divorce. An order was made allowing alimony. A motion is now made to vacate the order, and also to dismiss the complaint, on the ground that the wife cannot sue her husband without a next friend.

The 14th of the code is as follows:-" When a married woman is a party, her husband must be joined with her, except that 1. When the action concerns her separate property, she may sue alone.

2. When the action is between herself and her husband, she may sue or be sued alone."

It would seem as if the mere reading of the last subdivision was all that was requisite. She may sue or be sued alone. If the word "alone" has any meaning, it cannot refer here to her husband. We cannot certainly construe it as follows:-" When the action is between herself and her husband, she may sue, or be sued," without her husband. The law only means that she may sue, or be sued, without the intervention of any other party. Under the former laws, the wife might sue in her own name alone, where she proceeded against her husband for an absolute divorce. It was held, however, that where she sued for a separation from bed and board, she could do so only by her next friend. The language of the statute was, however, different in respect to the two proceedings.

It is unnecessary here to refer to the provisions of the Revised Statutes on these subjects; but it may be remarked, that in the leading case of Wood v. Wood, 8 Wend. 357, in the court of errors, Chief Justice Savage, and a very considerable minority of the court, held that even under those provisions the wife could sue for a separation without the intervention of a next friend. But if, under the code, the wife cannot sue for a separation without a next friend, neither can she, it would seem, sue alone for a divorce absolute. Her right to sue for one or the other is now given together in the same section, and without any distinction. She may sue, or be sued alone, when the action is between herself and her husband. She may sue him, or he may sue her for a divorce absolute, without any intervening party. No one doubts this proposition; and yet the same language is applied to all actions between husband and wife. I cannot see how the distinction can be taken, and I must hold, that where the

Common Pleas.-Benedict v. The New-York and Harlem Railroad Company.

action is for a limited divorce, the wife may sue in her own name alone. The motion must be denied, but without costs. My associates, to whom this opinion has been submitted, concur with me.

*

N. P. Common Pleas.

Before INGRAHAM and WOODRUFF, Judges.

CHARLES BENEDICT against THE NEW-YORK AND HARLEM RAILROAD COMPANY.

APPEAL FROM JUDGMENT OF SPECIAL TERM ON VERDICT.

An appeal to the general term, from a judgment rendered on a verdict, must be brought to a hearing on the judgment roll.

The only proper mode of presenting the questions of law which alone can be discussed on such appeal, is by a bill of exceptions, or special verdict, which should be incorporated in the judgment roll.

On such appeal, the court cannot examine questions of fact, nor entertain the objection that the verdict is against the weight of evidence.

A motion to set aside a verdict, and for a new trial, may be made at special term, upon a case, and on such motion, a review of the evidence on the trial may be had, if the grounds of the motion render it necessary.

From the order made on such motion, an appeal may be taken under § 349 of the code of procedure.

In an action against the defendants, (a rail road company,) as common carriers, for the loss of goods, proof that the goods were left in the office of the company, properly addressed, in the charge of a person in the employment of the defendants, and with other freight left there for transportation, is sufficient to charge the defendants with the duty of safe carriage and delivery.

But such proof is not alone sufficient to warrant a recovery; there must be some proof of loss or failure to deliver. The defendants must be shown to be in default.

THIS was an appeal to the general term, from a judgment rendered on a verdict. The facts sufficiently appear in the opinion of the court.

C. W. Sandford, for the appellant.

W. Austin, for the respondent.

WOODRUFF, J.-I have serious doubts whether this appeal comes before us in a form entitling the appellant to be heard in the general term. Section 348 of the Code of Procedure, provides that an appeal upon the law may be taken to the general term, from a judgment entered upon the direction of a single judge of the same court.

And section 349 provides, that an appeal may in like manner be taken from an order made by a single judge of the same court in certain specified cases.

There is nothing in any of the papers submitted, to show from what the appeal in the present case is taken. No order made by a

* Duer and Mason, Justices.

1

Common Pleas.-Benedict v. The New-York and Harlem Railroad Company. single judge, and no judgment entered by direction of a single judge or otherwise, appears in the papers.

The appellant has made a case, giving the history of the trial at special term, down to and including the verdict, with the evidence in detail, but without the pleadings, (save that he has entered in his case parenthetically, that either party is at liberty to refer to the pleadings,) and without any order or any judgment whatever. Doubtless the appellant intends that this court shall review a judgment entered upon the verdict; but there is no notice of appeal before us from which even this intention can be ascertained; and it does not appear that any judgment has yet been rendered in the cause.

Appeals from judgments on verdict at special term can only be heard upon the judgment roll. Such appeals are upon the law only, and are not to be regarded as motions for a new trial upon the evidence, or upon any questions of fact, or a supposed erroneous finding of facts upon the evidence. The issues in the action-the ruling of the judge in the progress of the trial, so far as excepted to-the exceptions to the charge, if any-the verdict, and the judgment éntered thereon, are all to be laid before the court on appeal, and the judgment roll is the only proper evidence of those proceedings in cases like the present.

It is in many instances proper to make a case, for the purpose of a motion to be made at special term to set aside a verdict, or grant a new trial, and from the order made by the single judge thereupon, an appeal may lie under section 349, in which event the appeal will be heard upon the same papers.

There are also certain specified instances, in which a hearing may be had at general term, on a case by express provision of the code and rules of the supreme court; e. g., on review of a report of referees upon the whole issue, (Code, § 272, Ct. Rule, No. 24,) a case agreed between the parties without trial, (Code, § 372.)

But on an appeal from a judgment rendered on a verdict, the cause is to be heard upon the judgment roll; and the proceedings on the trial, so far as necessary to present the questions of law to be reviewed, and so far only, should be incorporated in the judgment roll, if the questions of law to be reviewed arose in those proceedings. Whether the history of those proceedings should, for the purpose of an appeal to the general term, be put in the form of a bill of exceptions or special verdict in the first instance, or may be made up in the form of a case, and be incorporated in the roll in that form, it is unnecessary in the present case to say, though I am clearly of opinion that the former is the only proper mode. (§ 281, sub. 2.)

The court of appeals have, however, repeatedly decided that on a further appeal from the determination made at general term, that court cannot hear the appeal upon a record containing a case, but only on a bill of exceptions or special verdict.

No objection, however, is made by the respondent to the hearing of this appeal in the form in which it is now before us, and although No. 32 of the rules of the supreme court is obviously founded