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

upon views similar to those above expressed, we are willing in the present instance to look at the questions of law raised on the trial of this action, and give them our consideration.

I have said enough on the nature of the present review to render it perhaps unnecessary to add that the ground urged for reversal, " that the verdict is against the weight of evidence," cannot be considered on an appeal from a judgment, under » 348. That question should be raised on motion for new trial' at special term, and if it can be reviewed here, it is by appeal, under $ 349, from the order made on that motion.

There are then only two questions in this cause to be examined, and they are raised by the exceptions taken by the appellant on the trial.

First. Did the judge err in refusing to nonsuit the plaintiff ?

Second. Was there any error in his refusal to charge as requested by the defendants counsel ?

As to the first inquiry

When the plaintiff rested, and the defendant moved for a nonsuit, the plaintiff had given no evidence whatever of the ownership of the goods, nor any evidence that the goods in question were not carried by the defendants, and duly delivered at their place of destination. It is necessary in an action against a common carrier for not carrying or not delivering goods, to prove something more than that the goods were delivered to him to be carried. He must be proved to be in default; and without evidence of his default, the plaintiff has not made a prima facie case against him.

This, however, was not the ground of the motion, and was in no part of the case insisted upon by the defendants counsel. His motion for a nonsuit was upon the single distinct claim that there was no sufficient evidence of delivery to the defendant. I am therefore constrained to infer that the state of the pleadings was such as to dispense with proof of ownership and loss or non-delivery. As this appeal is prosecuted by the defendants, and no judgment record or pleadings are furnished by them to the court, we do them no injustice in presuming that they had no other ground for the motion than that specifically assigned in the case they have made.

Besides, the defendants themselves afterwards supplied the evidence of ownership and non-delivery, by producing and giving in evidence a letter from the plaintiff, stating his ownership and the loss of the goods, and that he did not receive them.

Was there then prima facie evidence of the delivery of the goods to be carried ? I think the evidence was clearly sufficient to be left to the jury.

The plaintiff's witness testified distinctly that the goods were addressed to the plaintiff, at Danbury, Ct., - by Harlem Railroad." That at a reasonable hour in the day, (a little after 3 o'clock,) he took the package to the freight cars of the defendants. Not seeing the clerk, he took the goods to the company's office, where they receive freight, and left it there within the enclosure of the railing which Common Pleas. Benedict v. The New York and Harlem Railroad Company. separated the ticket office from the place where freight is put in the office. That numerous packages were there directed to various places on the route; that a person was then within the enclosure, apparently in the employ of the company, engaged in overlooking the goods, and appeared to be sorting them out; that he did not deliver the goods to any one, but left the package within the enclosure, and that such person saw the package left. That he had often delivered goods in the same way before, as well goods marked for the “Danbury Stage Route,” by Crosby stage (which it appears ran from Croton Falls,) as goods marked like the package in question, and never knew any of them to miscarry; and the witness added, the word “Freight Office” is over the door. This testimony is in substance repeated by the witness, with some other particulars in the course of his examination, and in my judgment it established such a case as ought to go to the jury, upon the question of delivery to the company for carriage. And that the mere fact that the person within the enclosure spoken of, said to the witness, in answer to a request for a receipt, that he was not authorized to give receipts, did not so far show either that that was not the proper place to leave the goods, or that he had no authority to take the custody of goods as to render it improper to submit the question to the jury.

Second. The ca states that the counsel for the defendants objected to the charge of the judge, and requested the judge to charge that it was the plaintiff's duty to have left the package at the cars, and that it was negligence on his part to leave it at the office, and that they (the defendants) were not liable.

To the refusal of the judge to give this instruction—the defendants excepted.

I cannot agree that the judge erred in this refusal.

The bearer of the package saw no person at the cars to receive the package, and it cannot be doubted that if he had left the package at the cars in the absence of any agent or clerk to receive it, and a Joss had ensued, the defendants might well disclaim any responsibility. If the jury found that—no person being at the cars—the porter took the package into the company's office, and placed it with other freight within an enclosure provided with a lock, which enclosure was at the time open, and that a person in the employment of the company was then within the enclosure assorting the various packages, and the package was delivered to him or placed in his custody duly marked for carriage and delivery, I cannot perceive that any negligence could be imputed to the plaintiff

, or that any thing was wanting to charge the defendants with the safe carriage and delivery of the goods.

And yet there was testimony to all this given at the trial.

Under all the circumstances I think the judge was clearly right in charging the jury that if they believed that the package was left in the office of the defendants in the charge of any person employed by the company, the defendants were liable.

If the company are confessedly engaged in carrying as a part of their business, it may reasonably be expected by those who have Common Pleas.-Childs v. Geraghty. goods to transport that they will at proper hours have agents or employers at the place where they are accustomed to receive goods, to take charge of packages delivered. And, if a person in their employ at the company's office take charge of goods delivered to be carried, (which the jury in this case bave found,) and through either his negligence or the negligence of other employees, such goods are lost, they are clearly liable.

The judgment (if any) appealed from, must be affirmed with costs.

Before Judge INGRAHAM.

NORAH A. CHILDS against WILLIAM O'DONELL GERAGHTY.

MOTION TO DISMISS AN APPEAL FROM THE SPECIAL TO THE

GENERAL TERM.

The time from which the thirty days allowed for appealing from the special to the general

term commences to run is the service of notice of the judgment entered by the clerk in tho judgment book, and not from the time of filing the roli by the clerk.

The facts appear in the opinion.

Ellis, Burrill and Davison, for plaintiffs.

J. Moncrief, for defendant.

INGRAHAM, J.—The question raised on this motion is, what is the meaning of the term “judgment entered upon the direction of a single judge,” from which an appeal may be taken to the general term, vide section 348 of the Code ?

In this case a verdict was taken on the 7th December, and judgment thereon became final in four days, unless the time was enlarged by the judge. Section 265.

Section 265. Such judgment is by the 278th section to be entered by the clerk under the direction of the judge, and for this purpose the clerk is to provide a book for the entry of judgments; section 279, in which the judgment shall be entered, specifying the relief granted, or other determination of the action. Section 280.

It is the duty of the clerk to include interest upon the verdict in the entry of the judgment, and add the same to the costs, up to the time when the judgment is finally entered. Section 310. The whole of which is to be inserted by the clerk in the entry of judgment.

Although the prevailing party is entitled to a judgment upon the verdict, four days after the judge orders judgment thereon, yet I cannot adopt that as the time intended in 348th section, of which the notice of judgment may be given. Such a judgment is uncertain as to amount, and there would be no quodi by which the judge will fix the amount of the undertaking, or of the sum in wbich the sureties should justify. In the present case the damages are only $56, while the costs are much greater than the damages, and uduil they are as

Common Pleas.-Westervelt v. Nolson.

certained, it would be impossible to say what amount of security should be required to do justice to both parties. If we follow the order prescribed in the code, it is apparent that the entry in the judgment book by the clerk is the judgment in the cause. Section 264 says, that the court shall direct the verdict to be entered, and judgment to be rendered thereon. Section 265 directs such judgment to be entered by the clerk. Section 280 directs such judgment to be entered in the judgment book, specifying the relief granted ; and sections 310 and 311 directs the clerk to insert in the judgment the interest and costs; and section 281 provides for making up a roll after the judgment is entered,

Thus the entry by the clerk in the judgment book becomes the final record of the verdict, and the interest thereon, with the costs and the judgment of recovery, and compels all action of the court that is necessary for the decision of the case. The subsequent act of the clerk in making up the roll by collecting the pleadings and copy of judgments, verdict and other proceedings, is not the judgment, but a necessary act on his part in order to have the same docketed. Section 281, 2. The appeal to the general term may be made in thirty days after notice of the judgment-section 332, that is, thirty days after notice of the judgment entered by the clerk in the judgment book.

The affidavit of the defendants' attorney shows that this judgment was entered in the judgment book on 5th February, 1850, and notice thereof appears to have been given on 6th February ; and notice of appeal was received on 7th February, which appeal the plaintiff now moves to dismiss, upon the ground that the same was not brought within thirty days after notice of the judgment on the verdict which was served on 24th December last.

For the reasons above stated, I do not consider that to be the judg, ment intended, and the notice then posted was unnecessary. The appeal having been brought within thirty days after notice of the judgment entered by the clerk in the judgment book, is properly taken.

This motion must be dismissed.

Before Judge ULSHOEFFER.

JOHN J. V. WESTERVELT, Sheriff of New-York, ads. ROBERT R.

NELSON.

Double costs allowed in acting against sheriff.

The nature of the application appears in the opinion.

Brown and Matthews, for defendant.

James L. Benedict, for plaintiff.

English Cases.--Scarf v. Soulby. ULSHOEFFER, J.—The new Code, $ 258, ($ 303 amended Code,) as to the old statutes, regulating or establishing attorney's fees, substituting a new allowance.

The new allowance to attorney is in lieu of the old, which is repealed. But the 2 R. S., first edition, p. 616 and 617, § 23 and 24, as to double or treble costs, was not an allowance to the attorneys of the additional, but was an allowance to the successful public officer.

The Code may be deemed (as it is) a new law, changing the fees of attorneys, and repealing the former sees. But this does not repeal the sections above referred to, by necessary implication, or in express terms.

The attorney can only recover from his client the new tariff of fees, but the client, in addition to the taxed costs of his attorney, may recover under the Revised Statutes one half, in addition against his opponent. The Code does not repeal the client's claim to add to his recovery the taxed costs, and one half thereof in addition.

If the Code took away the attorney's costs entirely, then one half thereof in addition could not be added to the client, because no attorney's costs would be allowed. But even in this view, we must admit that where some attorney's costs are left, as well as disbursements, referee's fees, witnesses fees, clerk's fees, &c. Code $ 266, S 268, ($ 311 of amended Code,) the client may resort to the old law for additional allowance, if any clause remains unrepealed giving such allowance to the client. The attorney's fees under the Code are provided for in it, and 8 388 (→ 468 amended Code) only repeals laws inconsistent with the Code. It does not seem inconsistent to give a public officer one half more than the tated costs for making a good defence in a case involving his official acts; nor does the new and improved tariff of attorney's fees, although the old tariff is repeated, necessarily preclude the officer from recovering the additional allowance under the sections of old law, which did not give attorney's fees, but which gave one half, in addition to the taxed bill, to the client.

SELECTIONS FROM RECENT ENGLISH DECISIONS.

Before the LORD CHANCELLOR.

SCARF v. SOULBY.-24th November, 1849.

Held, reversing the decision of the Vice-Chancellor of England, that being indebted at the

time of making a settlement in consideration of past cohabitation, is insufficient to set it aside under 13 Eliz. c. 5, without evidence of an intention to defraud the creditors; but a reference was directed as to debts due from the seller at the time of making the settlement.

John Milner, a woollen-draper, and since a stock-broker, by an indenture dated December, 1842, assigned two policies of insurance

* The above decision is under the Code of 1848.

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