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of his standing in any theater." Held, that the jury 2. Demurrer will not lie to the prayer of the complaint. have correctly found that the plaintiff was wrongfully | 38 How. Pr. 97, cited. Ib. discharged, the reason assigned being his refusal to act 3. Trustee of fraudulent trust: waiver of defense : rein a part inferior to the role of characters which he sulting trust: creditor's bill.- Plaintiff brought action in had agreed to represent. But it cannot be held that the nature of a creditor's bill to assail the title to certain he earned wages for services to the defendant when property of defendant, impleaded with one B. G. Stokes, he was engaged in his own pursuits or amusements at who, as was alleged, had advanced money for the purthe south without having obtained any consent or chase of the house and lot, the title to which was taken license of the defendant, or having given him some in the name of defendant, while plaintiff was insolvent, notice of his remaining subject to immediate recall and in fraud of the rights of plaintiff, his creditor. The when wanted, or in some other way offering or con referee, before whom the case was submitted, found in tinuing a tender of his service during the period. addition to the facts stated above, that said Stokes was The absence of an effort to obtain other employment indebted at the time of such transaction to plainappeared by plaintiff's own testimony. If voluntarily tiff in a sum exceeding the purchase-money paid, for idle he failed in his duty to his employer. If he de- which plaintiff subsequently recovered a judgment, sired to claim full contract compensation he could not upon which execution was issued and returned unsatisaccept the employer's dismissal as a license to indulgo

fied. in a relaxation of its requirements and go about his Held, that nothing in the conduct of the former suit own business. Judgment reversed. Polk v. Daly. raises the presumption that the action was not proseOpinion by Robinson, J.

cuted with proper vigor, or that it was urged with the 2. Where tender is equivalent to performance. --The purpose, on the part of the plaintiff, to assail defendtendered performance can only be maintainable as a ant's title or of any connivance between plaintiff and substitute for the actual upon the ground that the Stokes. Sections 51 and 52 of the statute of “Uses and thing agreed to be sold has independent existence, and Trusts," which provide that a trust created in favor of the corpus not being perishable or changeable the title creditors of a party paying the consideration money of had so far passed that the vendor remained but the real estate conveyed to another, may inure to the bentrustee of the vendee in respect to it, and on subse efit of all such creditors, must be deemed to hare been quent payment of the price the specific thing may still waived (Code, $$ 144, 148), inasmuch as the absence of be delivered over, or duly accounted for to the vendee, any other creditor was not presented by answer or deas upon an agreement for the sale and purchase of real murrer. Defendant not only became trustee of a reestate, where the vendor has tendered a conveyance sulting trust to the extent of the money advanced in (21 Wend. 460), and for goods sold, the delivery whereof the purchase of the property, but should be held to an has been tendered. Ib.

account, like any other trustee of a fraudulent trust,

for all benefits she had received from the property. TRUSTS.

Judgment affirmed. Hiler v. Hettrick, impleaded, etc. 1. Property charged with trust : demurrer: pleadings. Opinion by Robinson, J. Appeal from order overruling demurrer. Prior to June 9, 1868, the plaintiff had agreed with the St. Paul and

UNDERTAKINGS. Pacific R. R. Co. to furnish certain sums of money to 1. Liability of sureties on the dismissal of appeal: aid in the construction of a branch road of that com | Code of Procedure. — Appeal from judgment in favor pany. On that day the St. Paul and Chicago Railway of plaintiffs. This action is brought to recover upon Co. (the successor of the former company) entered'into a an undertaking given by the defendants, as sureties, written agreement with one Childs, in behalf of plain under section 334 of the Code, on an appeal to the court tiffs, under which plaintiffs would be entitled to receive of appeals, which was conditioned to pay all costs and certain amounts in money bonds and stock of that damages which should be awarded against the appelcompany. The complaint then avers a subsisting in lant on that appeal, not exceeding $500. That appeal debtedness to plaintiffs of the equivalent of 3,000 was dismissed with costs to the respondents (these shares of stock; also a transfer of the property and plaintiffs), and judgment entered therefor. The appelassets of the company to the defendant Rice in trust, lants here claim, on the authority of Drummond v. and an agreement by him to deliver to plaintiffs said Hudson, 14 N. Y. 60, that the appeal haviug been disshares; the transfer by Rice to the Minnesota Construc missed, no judgment against the sureties was wartion Company with like agreement and trust; the ranted by the terms of the undertaking. Held, in the transfer by the latter company to the defendant, the case cited, the undertaking was given under section 335 Milwaukee and St. Paul Railway Company; that this of the Code, to pay on affirmance, but made no provislast transfer was in fraud of plaintiffs' rights, and was ion for a case of dismissal. The undertaking in the taken with full knowledge of the previous transactions case at bar is under section 334, for it provides for costs and the trust thereby imposed.

and damages awarded the respondents on the appeal. Held, these averments raise the presumption of lia Judgment affirmed. McSpedon et al. v. Bouton et al. bility on the part of the defendants, and of a trust im- | Opinion by Robinson, J. pressed upon the property and against the Construc 1 2. Fuilure to justify no defense to the undertaking. tion Company, and the Milwaukee and St. Paul Com Though proof was allowed of exception to the sureties pany, so as to require an appropriation of said trust on the appeal, and their failure to justify, this constifund, for the payment of plaintiffs. Plaintiffs seem to be tuted no defense to this action. Decker y. Anderson, entitled to some relief, and if defendants are aggrieved 39 Barb. 346, cited. Ib. by any of the averments of the complaint, which are 3. Discharge in bankruptcy: non-joinder of parties: unnecessary or indefinite, the remedy is by motion purtnership: assignees of undivided interests.--The disand not by demurrer. Order affirmed. Thornton et charge of one of the plaintiffs in bankruptcy, pending al. v. St. Paul and Chicago Railway Company et al. the appeal in the former action, has no bearing upon Opinion by Larremore, J.

| the merits of the claim upon the undertaking. Ou bis becoming bankrupt his solvent partner and the assignee an action, and its commencement by him, gives him in bankruptcy become tenants in common of the co- | no lien upon what may in the event of a trial be partnership assets, the latter having an undivided recovered therein. Ib. interest therein. 5 Johns. Ch.70; 3 Paige, 5:27 ; 8 Wend.

CONSTITUTIONAL LAW. 444, cited. The non-joinder of any assignee of an undivided interest was only available as a defense for

1. Chapter 580, Laws of 1872, “An act in relation to non-joinder by way of abatement. Ib.

certain local improvements in the city of New York,"

is not unconstitutional, because one owner of land asWAIVER. See Trusts.

sessed, who has failed to institute proceedings to vacate the assessment until after the time limited for that pur

pose by the act, is not released therefrom, while other COURT OF APPEALS ABSTRACT.*

owners may have procured its vacation as to their lands. ATTACHMENT.

No inequality of taxation is legally produced thereby, Action to recover a debt alleged to be due from de as the lands relieved are required to be re-assessed, fendants to A and B, which plaintiff claimed to have and if any inequality is practically produced by the attached. Judgment was perfected in an action in vigilance of some and the neglect of other owners in which F. was plaintiff against said A and B, on the 31st availing themselves of the prescribed remedy, it is no of August, 1863. On the same day, and a short time fault of the law. In re petition of De Lancey to vacate prior to the entry of the judgment, an attachment assessment. Opinion by Church, Ch. J. was issued in the action to the plaintiff herein, under 2. Proceedings instituted to vacate an assessment unand by virtue of which after the judgment was per der the act in relation to frauds in assessments for local fected he claimed to attach the debt, to recover which improvements in the city of New York (chap. 338, Laws the action was brought. Held, that the power to levy 1858), are applicable only to the lands described in the by virtue of the attachment did not survive the re proceedings; and the vacation of the assessment as to covery of judgment in the action, and that no new those lands does not operate to render the assessment right or interest in the property of defendants could

for the whole improvement invalid. Ib. be thereafter acquired under it. Lynch, late Sheriff, v.

costs. Crary et al. Opinion by Andrews, J.

The statute (Code, $ 367, subd. 6) gives full costs, where ATTORNEYS' LIEN.

costs are allowed upon appeals from orders to this 1. Plaintiff obtained a judgment in an action for court. Brown v. Leigh. Per curiam opinion. assault and battery, which he assigned to his attorney

NEW YORK. as security for costs. Notice of the assignment was given to defendant. On appeal, the judgment was

1. Commissioners of records : constitutional law. ---reversed and a new trial granted, costs to abide event.

One of the commissioners of records for the city and Before the new trial the parties settled, and plaintiff

county of New York, appointed under the act of 1855 executed a release to defendants. Plaintiff's attorney

(chap. 407, Laws of 1855), died. Another ceased to be proceeded with the action, and, upon default, obtained

a resident of this State. The three remaining coma report directing a judgment for plaintiff for fifty

missioners united in certificates to accounts for serdollars and costs. Upon motion of defendant this

vices rendered under their employment by the assignor report was set aside: Held, that, so far as the judg

of relator. The accounts thus certified were presented ment was concerned, the assignment became a nullity

to defendant, the county treasurer, for payment, unby its reversal; that the cause of action was not as

der the provision of the act directing the necessary exsignable; that the provision in the order granting a

penses to be paid by the county treasurer, upon the new trial, making the costs to abide event, did not aid

certificate of the commissioners. Money had been the attorney, as it still remained subject to plaintiff's

regularly appropriated to pay the expenses, of which control whether the cause should again be tried, and

a sufficient sum to pay the accounts remained in the that, therefore, the attorney as against defendant had

treasury. Defendant refused to pay. Held, that as no lien, either legal or equitable, which could affect the

the act made no provision for a vacancy or for an apsettlement. Pulver v. Harris. Opinion by Grover, J.

pointment in the place of the commissioners named, 2. Also, held, that the motion to set aside the report

the three commissioners still in office had power to was not addressed to the discretion of the court, but

act; and all having joined in the certificates, the predefendant had an absolute right to the relief sought,

sumption was that such acts were legally done, and at and the court had no right to impose terms or condi

a meeting of all, the accounts were therefore properly

certified; that as the act provided for a special service tions upon granting it. Ib. 3. An attorney acquires a lien for his costs upon the

by an agency outside the city or county government, recovery of a judgment, and where notice of the lien

the accounts did not require to be audited by an auditis given to the judgment debtor, the court will pro

ing officer of the city or county; that said act was not tect the lien. But retaining an attorney to prosecute

repealed by any of the acts subsequently passed, resaid act is not repugnant to the provision thereof est in the settlement of partnership accounts, it depends (art. 10, § 2), which substantially declares that all upon the circumstances of the case. Ib. county officers whose offices then existed, and whose 5. Compound interest cannot be allowed upon balelection or appointment was not provided for in the ances in favor of one partner, but may be charged upon constitution, shall be elected or appointed by the elect- debits, in cases of bad faith, refusal to account and ors of the county, or such county authorities as the private use of the money of the firm, and the question legislature shall direct. People ex rel. Kingsland v. of its propriety in such cases is one of fact for the trial Palmer, County Treasurer, etc. Opinion by Allen, J. court, whose decision is conclusive. Ib. 2. The policy of the law is to guard against the failure

organizing and remodeling the city and county govern* In the case of the Mechanics and Traders' Bank v. Dakin,

ments, and that the relator was entitled to a perdecided by the commission of appeals, an abstract of which emptory mandamus directing defendant to pay the is given in No. 11 of the present vol., p. 167, a motion was made at the September term of the cominission for a re

accounts. That the duties of the office of commisargument upon the ground that the decision was directly in sioner of records of the city and county of New York, contlict with Thurber v. Blanck, 50 N. Y. 80. The commission denied the motion upon the ground that, as a new trial had

are entirely outside of and independent of the duties been ordered, either party, if dissatisfied with the result, of the office of register of said city and county, and could go to the court of appeals for a final settlement of the controversy. The question, therefore, as to the right

the former does not supersede or in any way interof an attaching creditor to attach a bond and mortgage fere with the latter, and that the office of commisfraudulently assigned by the debtor, and his right to main

sioner of records was not an existing office at the time tain an action to set aside the fraudulent transfer, may perhaps be considered as not yet entirely free from doubt. l of the adoption of the present State constitution, and

VALUABLE CONSIDERATION. of a public service, and a grant of power in the nature

1. Husband and wife: purchaser for value: collateral of a public office to several does not become void upon

security.--Action to foreclose a mortgage. It appeared the death or disability of one or more. Ib.

that, in the fall of 1866, John White, the mortgagor, 3. The repeal of statutes by implication is not favored

being indebted to his wife, defendant Jane White, by the law, and when a latter and former statute can

conveyed the premises in question to his son, the destand together, both will stand unless the former is

fendant John P. White, who, at the same time, conexpressly repealed or the legislative intent to repeal

veyed them to said Jane White. John White, at that is very manifest. Ib.

time, was not indebted, except to his wife and son, and

there was no fraud in the conveyances. The deeds PARTNERSHIP.

were delivered to Jane White, who kept them until 1. The firm of J. C. D. & Co. consisted of five members,

March, 1868, without having them recorded, when John S., G., W., H. and R. W. and H. assigned their inter

P. White, without her consent, destroyed them. In ests to S., and retired. The remaining partners con

November, 1868, John P. White, to secure an indebtedtinued the business under the same firm name. S. and

ness of $1,000, gave the bond and mortgage in question. R. executed chattel mortgages upon their respective

No securities were surrendered, nor did it appear that interests to secure individual debts; the mortgagees

| any agreement was made to extend or suspend the took possession of the firm property under their mort

time of payment. gages, and upon the same day G. sold his interest to a

Held, that the title of Jane White was good as stranger. Plaintiff, the mortgagee of S., purchased

against the mortgagee; that he was not a purchaser the latter's interest upon sale under the mortgage, and

for a valuable consideration, within the meaning of the took an assignment from the purchaser of the interest

recording act (1 R. S. 856, § 1). Carey v. White et al. of R. Defendants, under executions issued upon judg

Opinion by Allen, J. ments against the members of the old firm for firm

2. An extension of time by a valid agreement for debts, levied upon the property and took it from the

any time, however short, is a valuable consideration, possession of plaintiff. In an action for conversion

but the mere taking of collateral securities on time is Held, that the levy was valid ; that, after the dis

not, per se, and in the absence of any agreement besolution of the old firm, occasioned by the retirement

yond it, an extension of time for the payment of the of W. and H., the joint property continued liable for

original debt. (Platt v. Coman, 37 N. Y.440, limited.) Ib. the firm debts; that the transfers by the remaining

3. The authorities upon the question as to what conpartners simply conveyed their respective interests in

stitutes a valuable consideration, collated and disany surplus after paying partnership debts; that the

cussed. Ib. effect of the transfers was not enlarged, nor were the

WILL. rights of the creditors as between them and the as

1. Construction: parol evidence. — A bequeathed cersignees of such interests affected by the fact that the

tain sums of money to “The society for the relief of separate interests of all the partners were disposed of.

indigent aged females." In an action to determine Menagh v. Whitwell. Opinions by Rapallo and Allen,

which of the parties was entitled to the bequest JJ.

Held, that the name of the defendant more nearly as2. It seems, however, that the new firm acquired the

similated to that used in the will, and its objects, as absolute right of disposal of the property, and if it had

disclosed by its charter, were more in harmony with transferred the same, in the absence of fraud, the right

the description of the corporation intended, that of the creditors of the old firm would have been lost,

the testator having with reasonable accuracy described or if it had incurred liabilities and contracted debts, as

and named defendant, it was not competent to show between the creditors of the old and new firms, the

by parol, that an institution of a different name and latter would have the preference. Ib.

character was intended, and that defendant was 3. Lease: interest. — In an action for the settlement

entitled to the bequests. St. Luke's Home for Indigent of partnership accounts - Held, that a lease for a term

Christian Females v. An Association for the Relief of of years, from one of the partners to the firm, for the

Respectable Aged Indigent Females in the city of New purposes of the business, is subject to the continuance

York. Opinion by Allen, J. of the business, and upon a dissolution of the partner

2. The construction of a written instrument is a ship by the death of either of the partners, the lease

question of law, and every court to whom the question terminates. Where, however, the demised premises

of construction is submitted is entitled to the benefit cannot be actually employed during the whole year, and

of every circumstance which the law permits to be the firm has received, at the time of the dissolution, the

considered in determining the meaning of the particusubstantial benefits thereof, and the use during that por

| lar words used. An appellate court, therefore, is not tion of the year for which for the purposes designed

| bound by the conclusions of the court below as to the premises are of any value, the lessor is entitled to

those circumstances. Ib. be credited for the rent for the year in the settlement of the partnership accounts. Johnson, adm'r, v. Hartshorn, ex'r, etc. Opinion by Church, Ch. J.

Ex-Judge Louis Dent, brother-in-law of President 4. There is no fixed rule as to the allowance of inter. I Grant, is very ill, and his speedy death is expected.

DIGEST OF ENGLISH LAW REPORTS FOR

| a further sum became due from them, in respect of difSEPTEMBER.

ferences upon the contracts carried over by them for

the defendant. In an action to recover this sum and ATTORNEY.

the 1688 pounds — 1. Agreement with client as to costs. — An agreement Held (reversing the decision of the court below), that by an attorney with a client "to charge him nothing the defendant was not liable for any thing beyond the if he lost the action, and to take nothing for costs out 1688 pounds, there being no implied promise by a prinof any money that might be awarded to him in such cipal to his agent to indemnify him for loss, caused, action," need not be in writing. Jennings v. Johnson, not by reason of his having entered into the contracts L. R., 8 C. P. 425.

which he was authorized to enter into by the principal, 2. Practice: action brought without authority: staying but by reason of his own insolvency Duncan v. Hill, proceedings. Where an attorney brings an action L. R., 8 Exch. 242. without the authority of the plaintiff, the plaintiff is

FOREIGN SOVEREIGN. entitled to have the proceedings stayed without pay

Jurisdiction of the court to entertain a suit of damage ment of costs. Reynolds v. Howell, L. R., 8 Q. B. 398.

instituted against a vessel belonging to thc Khedive of AGENT.

Egypt: sovereign prince: maritime lien: proceedings in 1. Company: director: warranty of authority: misrep

rem: waiver of privilege.-In a cause of damage instiresentation of fact. — The directors of a railway com

tuted by the owners, master, and crew of the Batavier pany which had fully exercised the borrowing powers

against the vessel Charkieh and her freight, an appearconferred upon it by its special act, in August, 1864,

ance under protest was entered on behalf of his highadvertised that they were “prepared to receive propo

ness the Khedive of Egypt and his minister of marine. sals for loans on mortgage-debentures,” to “replace

A petition on protest was filed on their behalf, stating loans falling due.” W. W. (the plaintiff's testator),

that the Charkich was the property of the Khedive as offered a loan of 5001. ; and, his offer being accepted, he

reigning sovereign of the State of Egypt, and a public in the same month sent his check for 5001. to the

vessel of the government and semi-sovereign State of directors, for which he requested that a debenture

Egypt, and concluding with a prayer to the court to should be issued to him. In pursuance of a resolution

declare that the vessel was not liable to arrest. It apof the directors to that effect, the check was handed

peared from the answer filed on behalf of the plaintiffs, to H., the contractor for the works, who had been (but

and from evidence which was adduced at the hearing had then ceased to be) the holder of seven debenture

of the petition on protest, that the Charkieh, though bonds for 5001. each; and H. was requested to transfer

carrying the flag of the Ottoman navy, had come with one of them to W. W.; and it was, by the same resolu

cargo to England and had been entered at the customs tion, directed “that such bond be on the 1st of October

like an ordinary merchant ship, and that, at the time exchanged for a new one." H. kept the check (which

of the collision, which happened in the Thames, she was duly honored), but was unable to transfer the

was under charter to a British subject and was adrerdebenture; and in pursuance of a resolution of the

tised to carry cargo to Alexandria. The court held directors of the 5th of October, a new debenture-bond

that the Khedive was not entitled to the privilege of a for 5001. was sealed and sent to the plaintiff, as executor

sovereign prince, and pronounced against the protest. of W.W. The defendant, a director of the company,

Semble, that a suit in rem to enforce a damage lien may was a party to each of the above transactions. By a

be entertained without any violation of international decree of the court of chancery of the 14th of Febru

law, though the owner of the res be the sovereign of ary, 1868, the above-mentioned debenture was declared

a foreign State, and that such a suit may possibly be void, as being for a sum in excess of the borrowing

entertained even against property connected with the powers of the company, Upon a case stated for the

jus coronæ. Semble, that if a sovereign assumes the opinion of the court, without pleadings, and upon the

character of a trader, and sends a vessel belonging to argument of which it was agreed that no question of

him to this country to trade here, he must be connon-joinder was to be raised. Held, that the defend

sidered to have waived any privilege which might ant was liable as for a breach of warranty; that the

otherwise attaeh to the vessel as the property of a directors had power under the circumstances to issue

sovereign. The Charkieh," L. R., 4 Adm. 59. a debenture, which would be valid and binding upon the company; and that the plaintiff was entitled

NEGOTIABLE INSTRUMENT. to recover as against him the 5001., together with Debenture payable to bearer: promissory note: custom. interest by way of damages. Weeks v. Propert, L. R., - In May, 1869, the defendants, a limited compauy 8 C. P. 427.

registered under the act of 1862, sold to M. a document 2. Indemnity of agents : stock exchange usage: default under the seal of the company and signed by two directing broker. - The plaintiffs, brokers on the London ors and the secretary. It was numbered and headed Stock Exchange, bought for the defendant (who was with the name of the company, and called “Debenture," not a member of the Stock Exchange), certain shares and proceeded, “The company hereby promise, subject for the account of the 15th of July, 1870, and on that to the conditions indorsed on this debenture, to pay to day, by his instructions, carried them over to the the bearer 1001. on the 1st of May, 1872, or upon any account of the 29th of July, and paid differences amount earlier day upon which this bond shall be entitled to ing to 1688 pounds. The defendant, and various others, be paid off according to the conditions, and interest at principals of the plaintiffs, not having paid the amount eight per cent on the 1st of November and the 1st of due from them in respect of contracts for the 15th of May in each year; and also a further sum of 101. by July, the plaintiffs became defaulters, and on the 18th, way of interest or bonus at the same time as the prinin conformity with the rules of the stock exchange, cipal sum is paid off. In witness whereof the common they were declared defaulters, and their transactions seal of the company has been affixed this 9th of May, were closed, and accounts were made up at the prices 1869.” By the conditions indorsed, a certain numer of current on that day. On the closing of the accounts, I the bonds were to be drawn for twenty-one days before the days for the payment of the half-yearly interest,

REVIVOR AND ABATEMENT. and any bond drawn was to be advertised and paid off

We give below the opinion of Mr. Justice Barrett at with the interest and bonus due, the bond being

the special term, supreme court, first department, In given up and no further interest being payable.

re Alker, public admr., etc. His views are sustained In July, 1869, the bond was stolen from M. In

by the general term in same case, see 8 Alb. L. J. October, 1871, the number of the bond was drawn.

Barrett, J. The referee non-suited the plaintiff, At the end of 1871, the plaintiff purchased the

judgment was entered thereon, and subsequently, upon debenture from S., who had since absconded. The

the plaintiff's motion, the court, at special term, defendants, having notice of the robbery, refused to

vacated the judgment, set aside the report, declared pay the debenture to the plaintiff, and he brought an

the reference ended, and ordered the cause back upon action in his own name, alleging that he was lawful

the circuit calendar for trial. From this order the bearer of the debenture. At the trial it was admitted

defendants appealed, and intermediate the perfecting that similar documents had been treated as negotiable;

of such appeal and the hearing at general term, the it was also admitted that the plaintiff derived title

plaintiff died. Nothing was done to continue the from the thief; but the jury found that the plaintiff

action, and the appeal was heard and decided as had given value for the debenture without notice.

though the plaintiff upon the record were alive. Held, first, that the contract contained in the condi

The question is, whether this was regular, and whether tions prevented the debenture from being a promissory

the order having been reversed except as to the racatur note, even if it had been under hand only; secondly,

of the judgment, the defendants could, without the that it was uot competent to the defendants to attach

presence of the plaintiff's legal representatives, lawthe incident of negotiability to such instruments, con

fully re-enter judgment. If the appeal had been from trary to the general law; and that the custom to treat

the judgment, there would have been no question about them as negotiable, being of recent origin, and not the

it, this court, at the general term, having decided that • law merchant, made no difference, as such a custom,

in such a case, the only proper course to obtain an though general, could not attach an incident to a con

affirmance is to have an administrator appointed and tract contrary to the general law. And the plaintiff,

the action revived in the name of such administrator. therefore, could not recover. Quære, whether an in

(Warren v. Eddy, 13 Abb. Pr. 28.) The claim is of an strument under the seal of a corporation can be a

analogy between the case at bar and that of the death promissory note? Crouch v. The Credit Foncier of

of a party between verdict and judgment. In the England, Limited, L. R., 8 Q. B. 374.

latter case, the statute expressly confers the power NUISANCE.

within two terms after such verdict, of entering judgInsecure coal-plate in a public footway: liability to ment as was done here, in the names of the original repair. — The defendant let premises to a tenant under

| parties. (2 R. S. 387, $ 4.) It has been held, however, a lease by which the latter covenanted to keep them in that the statute only applied to a verdict or plea of repair. Attached to the house was a coal cellar under confession, and that a nonsuit was not included. the footway, with an aperture covered by an iron plate (Spaulding v. Congdon, 18 Wend. 543.) The same rule which was, at the time of the demise, out of repair has been laid down in England under a similar statute. and dangerous. A passer by, in consequence, fell into (Doubiggin v. Harrison, 10 Barn. & Cres. 480.) It is the aperture and was injured. Held, that the obliga true that a report of a referee comes within the spirit tion to repair being by the lease cast upon the tenant, of the act. (Burham v. Burham, 10 Wend. 601.) But the landlord was not liable for this accident. Pretty v.

it must be final in its character. This distinction is Bickmore, L. R., 8 C. P. 401.

recognized in all the cases, and it is the test of the right SHIP.

to enter judgment, under the statute, in the names of Construction of charter party: warranty as to time the original parties. (North v. Pepper, 20 Wend. 677, of ship's arrival at the port of loading: pleading: con- and see Scranton v. Baxter, 3 Sandf. S. C. R. 660, in temporaneous agreement. — By a charter party it was which Seymour v. Deyo, 5 Cow. 289, is oited and distinagreed that the ship Ceres, of the measurement, etc., guished in this particular of finality.) “expected to be at Alexandria about. the 15th of De Here the referee merely dismissed the complaint. cember," being tight, etc., should, “with all conve The statute was, therefore, inapplicable, and even the nient speed," sail and proceed to that port, and there original judgment would have been irregular if the receive from the charterers a cargo of cotton seed. In plaintiff's death had occurred prior to its entry, though an action against the owner, the breach alleged in the subsequent to the report. Apart from the statute, the declaration was, that the said ship was not expected court has no inherent power to enter judgment directly to be at Alexandria about the 15th of December, 1871, against a party deceased, and the provisions of the act but was then in such part of the world and under in question cannot be extended. (Lewis v. Rapelyea, 1 such engagements that she could not perform those Barb. 29, and cases above cited.) The only power which engagements and arrive at Alexandria about the said the court exercises independent of the statute is, where day. Held, a good breach – the descriptive statement | a party dies after verdict and before the decision, on a amounting to a warranty that the ship was in such a motion, for a new trial to direct the entry of judgment position that she might reasonably be expected to as of a date preceding such death. (Ryghtmyre v. arrive at Alexandria by the day named. Plea, that, Durham, 12 Wend. 245.) at the time of making the charter party, the ship was, But here no application has been made to enter to the plaintiff's knowledge, engaged for a certain | either the order of affirmance or the new judgment voyage, and that the charter party was made subject nunc pro tunc, as of a date preceding the plaintiff's to a condition that she should, with all convenient decease; on the contrary the defendants have entered speed, fulfill her engagement and then proceed to the their judgment directly against the plaintiff, as of port of loading, and that she did so. Held, upon the course, aud as of a date when he was not in existence. authority of Young v. Austen, L. R., 4 C. P. 553, a This as we have seen can only be done under the statgood plea. Corkling v. Massey, L. R., 8 C. P. 395. ute, and then only in the cases specified or contem

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