N. Y. Superior Court.-Tracy v. Leeland.

dant broken it to pieces, or damaged it intentionally, so that its value was thereby lessened or destroyed, that would be a wilful injury, within the meaning of the act. But nothing of this kind is pretended. The plaintiff rests his right to an arrest on the sole ground that a wrongful concealment and witholding of the property, is in itself a wilful injury to it. I cannot so understand it. The two things are in their nature entirely different, and the distinction between them is clearly stated in this very section, which authorizes an arrest generally, "where the action is for an injury to person or character, or for injuring, or for wrongfully taking, detaining, or converting property." Injuring property, therefore, is not within the meaning of this section the same as taking detaining or converting it. A female, can however be arrested only for injuring property, and not for taking, detaining or converting it-and even then it is not for every injury done to it, but only for a wilful, or wanton and malicious injury. No doubt an injury is done to the plaintiff himself, by witholding from him his property and the defendant is guilty of a wrong, or in the old phraseology, of a tort in so doing; but that is certainly very different from an injury to the particular piece of property itself.

I should not have thought it necessary to have dwelt upon this at such length, if it were not for the case of Starr v. Kent, 2 Čode, Rep. 30, which the counsel for the plaintiff pressed with much earnestness in support of his position. That was a motion to discharge the defendant, who was a female, from arrest; and according to the report, it was contended on behalf of the plaintiff, that "the concealing or removing of the property so that it could not be found or taken by the sheriff, was a wilful injury to the plaintiff's property in the property so removed or concealed;" and of that opinion "the report adds," was "his honor, Judge Daly, and the motion was denied." His honor did not however, give any written opinion himself, and I cannot but think that there must be some mistake or omission or misapprehension of some important fact, on which the decision of the judge was founded.

The report, if it means anything, means that the detaining of property is a wilful injury to the estate or interest of the plaintiff, in the property detained; and therefore subjects a female who detains it, to arrest; thus giving an entirely different signification to the word. "property" from that evidently intended by the code. With the greatest respect therefore, for the learned judge, I cannot regard the report of his decision as an authority for the position which it purports to sustain.

This view of the principal question renders it unnecessary to consider the other questions discussed on the argument.

The motion to discharge the defendant must be granted on the ground that the facts do not warrant her arrest under the code, with ten dollars costs; but on condition that the defendant stipulate not to bring any action.

N. Y. Superior Court.-Leggett v. Mott.

Before OAKLEY Ch. J., and SANDFORD and PAINE, Justices. 29th May, 1850.

LEGGETT V. Morr.

REPORT OF REFEREE.

A report of a referee upon the whole issue may be brought before the Special Term on a motion for a re-hearing when such order may be made granting or denying the application, as to the judge may seem just. The ruling of Campbell J. in Haight v. Prince, approved of. It is in the discretion of the court at Special term to look into the matters of law as well as of fact, arising upon the report of the Referee, and to direct a re-hearing in respect of erroneous rulings of the law.

When the report is complained of as being contrary to evidence, an examination of the legal points involved, will be convenient and proper, in connection with the argument on the evidence; but where the report is assailed in respect to its legal conclusions alone, the judge will be inclined to refuse a stay of proceedings with a view to a motion for a rehearing, and will leave the party to his remedy by appeal from the judgment.

The circumstances appear in the opinion:

By the Court. In the case of Haight v. Prince, it was held by Campbell J., after consulting Duer and Mason, justices, that a report of a Referee upon the whole issue, might be brought before the Special Term on a motion for a re-hearing when such order might be made, granting or denying the application, as to the judge should seem just. (2 Code Rep. 95.) The question being presented in this case, in our branch of the court, we have conferred with our associates, (the six justices being present,) and it is the unanimous conclusion of the court, that the decision of Campbell J. was correct. Whether the court will look into the matters of law, as well as of fact, arising upon the report of the referee, and direct a re-hearing in respect of erroneous rulings of the law; will of course be in the discretion of the court, at the Special Term. Where the report is complained of, as being contrary to the evidence an examination of the legal points involved will generally be convenient and proper in connexion with the argument on the evidence. Where, however the report is assailed in respect of its legal conclusions alone, the judge will be inclined to refuse a stay of proceedings, with a view to a motion for a re-hearing, and will leave the party to his remedy by appeal from the judgment.

The considerations which lead us to this result, will be briefly stated.

The amended code of 1849, allows of no appeal from a judgment upon the facts involved. The appeal to the General Term from a judgment is limited to matters of law. (Am. Code § 348.) This would cut off entirely any review of the finding of a referee upon the facts, or of the verdict of a jury, or the decision of a judge upon the facts on a trial without a jury; unless there be some mode of reaching it, other than on appeal from the judgment. In Droz v. Lukey, we decided in January last, that a motion to set aside a verdict as against evidence, might be made at the special Term, on a case

N. Y. Superior Court.-Leggett v. Mott.

settled in the usual manner; and that such motion might be made after judgment, the party obtaining a stay of proceedings for the purpose. We see no good reason, why the motion may not be made without any formal case, before the judge who tried the suit founded on his notes of the testimony.

As to reports of referees, the code, it appears to us is explicit in making a provision independent of an appcal in the first instance. Section 272 after providing that the report may be reviewed in like manner as a decision of the court on a trial enacts that a re-hearing may also be granted by the court.

A re-hearing, as we understand it, is obtained on a motion only; and this is brought on before a judge, either at chambers or at special term. If it be for a new trial on the merits, it must be moved before the judge, in court, i. e. at the special term. (Amended Code, § 400, 401, and 350.)

We are referred to the 24th rule of the Supreme Court, adopted in August last, as imperatively restricting the examination of the reports of referees, to an appeal to be heard at the general term. As this rule in the broad application claimed for it, would conflict with the latter part of section 272 of the amended code, allowing a rehearing, we think it was intended to apply, as in its literal terms it does apply only to a review of the referee's report, for which purpose a case must be made; and as the appeal is limited to the law of the case, it follows that rule 24 applies only to a review of the report of a referee, on matters of law.

It is nevertheless a convenient practice to make a case on which to found a motion for a rehearing, in the manner prescribed by the rule of the Supreme Court; and that course will be required in our court in future.

The practice, therefore, in respect of reports of referees, may be thus stated. The party deeming himself aggrieved by such a report, may prepare his case, and appeal from the judgment on the matters of law involved. Or he may apply to a Or he may apply to a judge of the court, for an order to stay the proceedings on the referee's report, for the purpose of moving for a rehearing. The judge will exercise a discretion, as to staying the proceedings, regulated by the nature of the action, the points proposed to be raised and, the danger of loss if collection of the demand be delayed; and he may impose terms on granting a stay. If the report be complained of as against evidence, there is no redress, except by the motion for a rehearing. On obtaining a stay, the party must proceed to make and settle his case, and bring it on to be heard before the court at special term. An order will thereupon be made, either granting or denying the motion for a rehearing. From this order either party may appeal to the general term, as provided in section 349 of the amended code. And such appeals will be heard with other calender causes at the general term. rule accordingly.

In Chancery.-Cowell v. Watts.

SELECTIONS FROM RECENT ENGLISH DECISIONS.

In Chancery.

Before the LORD CHANCELLOR.

COWELL V. WATTS.-Jun. 29, 30, 1850.

PAROL AGREEMENT-SPECIFIC PERFOMANCE-LACHES.

Where a party to a joint contract (not in writing) for building houses, had for the space of 18 months not interfered in the management or asserted any claim in the speculation: Held, that he was estopped from enforcing specific performance of the agreement.

THIS was an appeal from the Vice-Chancellor Knight Bruce, dismissing a bill for the specific performance of an equitable agreement between the plaintiff and the defendant, for the joint taking a piece of ground called the Grange, at Brompton, for building purposes. The bill alleged that a Mr. Bonnin, who had obtained a lease of the premises from the trustees of Smith's charity, agreed to underlet such portion as he should not require, to the plaintiff and defendant; that they entered into an agreement for a partnership to build thereon; and that a deposit of £100 being required, the plaintiff discounted a promissory note of Bonnin for that amount, of which the defendant gave an IOU for £50, and in May, 1843, the lease to Watts was signed. The agreement between the plaintiff and defendant was not in writing, but it was alleged that the plaintiff had turned some sheep and other cattle of his on the land in 1843, and that some of the old materials from the house had been sent to repair the plaintiff's stables. The defendant, however, stated that the note was a mere bill transaction, and that the plaintiff's cattle were turned out of the land in 1845. The plaintiff had taken no part in the speculation for eighteen months, and the defendant had the whole under his sole control. The Vice-Chancellor having dismissed the bill on the ground of the lapse of time, this appeal was presented.

Swanston and Metcalf, for the appellant.

J. Russell and Foster, for the respondent, cited Dale v. Hamilton, 5 Hare, 369; Norway v. Rowe, 19 Ves. 143.

The Lord Chancellor said that according to the decision of Lord Eldon, in Marquis of Hertford v. Boore, 5 Ves. 719, the plaintiff had by his laches in setting up his claim deprived himself of any benefit to arise from the speculation, and dismissed the appeal with

costs.

Common Pleas.-Tassell v. Cooper.

In the Common Pleas.

TASSELL V. COOPER.-Feb. 15, 1850.

BANKING FIRM AND CUSTOMER-LIABILITY.

On special case, held, that a bank cannot, as between its customer, set up a jus tertii for having dishonored two cheques, although monies stood to his credit at the bank.

THESE were two actions against the public officer of the London and County Bank in debt to recover the sum of £128 1s. 10d., balance of plaintiff's banking account, and in case for damages for dishonoring two of the plaintiff's cheques and disclosing the particulars of the account to a third person. A verdict was taken by consent for the plaintiff in the first action for £128 1s. 10d., and in the second action for nominal damages, subject to a special case. It appeared that in 1844, the plaintiff was a co-tenant with one Palmer of a farm belonging to Lord de Lisle, in Kent, and opened an account, and that shortly af ter, upon ceasing to be such tenant, he became the steward or bailiff, and in that capacity was in the habit of paying to his account, at the Tonbridge Branch Bank, moneys received for Lord de Lisle, and amongst other sums, a cheque for £180 4s. 8d. from Messrs. Vines & Co,, for wheat sold on his lordship's account, and which was paid to the bank in January, 1847, In October, 1846, however, Lord de Lisle being dissatisfied with the state of the plaintiff's accounts, had directed him to confine himself to looking after the men, and not to receive any more moneys. His lordship then applied to the manager of the branch bank to inspect the account, and upon being refused, obtained the instructions of the London manager, on January 28, to examine the account, there being a sum due to him of £517. It then appearing there was £128 1s. 10d. standing to the plaintiff's credit, Lord de Lisle gave notice to the bank to hold the same, engaging to hold them harmless in so doing. The plaintiff having drawn two cheques on the bank, which were dishonored, he, on 20th February, demanded the balance of his account, and soon after commenced the present actions.

Joseph Brown, for the plaintiff.

Crouch, for the defendant.

The Court said, the cheque from Messrs. Vines had been duly cashed, and the bankers were debtors to the amount thereof, and could not set up a jus tertii, the transaction being a simple transaction between the plaintiff and the bank. He was therefore entitled to a verdict for £128 1s. 10d. in the first action, and in the second action on the first count, for improperly dishonoring his cheques, but for the defendant on the second count, charging a breach of the duty of bankers not to disclose their customers' accounts without license.