McArthur v. Lansburgh.

236. Mr. R. certified having in his hands $75, which the plaintiff not deeming satisfactory obtained an order for R.'s examination. Held, that the order should not have been made; that the order under section 236 cannot be made where a certificate has been made; that if the party thought he could show more property his remedy was by action.

Supplementary Proceedings.-M'ARTHUR V. LANSBURGH.— Per KING, J., July 14, 1851.-In proceedings supplementary to the execution it is not necessary that the affidavit should describe the execution returned unsatisfied as an execution against property" of the defendant. The presumption is that the execution is against property.

66

Semble, that where it appears affirmatively that an alias execution is out and not returned, supplementary proceedings cannot be maintained, and where under such alias execution a levy had been made on property claimed by the defendant, the proceedings under section 292 were dismissed.

P. J. Joachimssen, for defendant.

Supplementary Proceedings.-ANON.-Per KING, J., August 29, 1851.-Where there was money in the hands of the clerk or chamberlain as surplus moneys in the foreclosure suit, and subsequently in another action a judgment was obtained against one of the parties entitled to such surplus, the judgment creditor applied for an order on the chamberlain to appear and answer under section 294. Application refused. The regular course is to apply by motion or petition in the foreclosure suit. The clerk or chamberlain is an "officer of the court," and is not a person or corporation within the meaning of the 294th section.

Bogert v. Vermilyea.

Reviver.-HATFIELI V. BLOODGOOD, at general term, November, 1849.-Held, that the provision of the code authorizing a suit to be revived against the executor of a deceased party, applies as well to the defendant in a cross bill as to the original suit.

Possession of Personal Property.-MERRICK v. SUYDAM, at general term, November, 1851.-Held, that in an action to recover possession of personal property, the provisional remedy of an arrest is applicable only to the party having possession, and cannot be had against one who has absolutely and in good faith parted with the possession before suit brought, and the only exception as to the possession is where the defendant has parted with it with the intent to deprive the plaintiff of the benefit of it, or prevent its being re-taken. In such case only can the defendant be held to bail.

Foreign Corporation.-EGGLESTON v. ORANGE AND ALEXANDRIA RAILROAD Co., at general term, November, 1851.-Held, that a suit against a foreign corporation cannot be commenced and prosecuted to judgment in our courts, unless the cause of action arose in this State, or the corporation has property in this State which can be reached by attachment.

Statute of Limitations.-BOGERT V. VERMILYEA, at general term, November, 1851.-Held, that in an action against one of two joint and several obligors, where, to a plea of the statute of limitations, it is replied that the defendant had been abroad, and the suit had been brought within six years, excluding the time of his absence, it is no defence to aver and prove that the other obligor had been during the whole time within the State. The

Averill v. Taylor.

liability of the contractors being several as well as joint, the sta tute of limitations may apply as to one, and not as to the others.

Witness.-THOMPSON v. DICKERSON, at general term, November, 1851.—Held, that in an action on a bond given on the discharge of a foreign attachment, the debtor is not a competent witness for the defendant, inasmuch as he is substantially the real party. In such action it is not necessary for the creditor to establish a claim exceeding $100. He can recover on the bond any sum that he can prove to be justly owing to him from his foreign debtor.

Depositions.-McCOTTER V. HOOKER, at general term, November, 1851. In a suit commenced after the first code of practice went into effect, the deposition of a witness residing in the State, but more than one hundred miles from the place of trial, was taken pursuant to the provisions of that code; but before the trial, those provisions were repealed by the code of 1849, without any saving clause. Held, that the deposition could not be read, there being no law in existence warranting it, and the repeal of those provisions operating the same as if those provisions never had existed.

Pleading.-AVERILL V. TAYLOR-PER —, J.-The part of the answer objected to may raise a material issue, and matter in an answer should not be struck out if it can in any event become material.

Wood v. Lambert.

SUPERIOR COURT.

FRAZER V. PHELPS.

A referee to whom all the issues in the action have been referred has not authority to order the production of books, &c., by either party where there is no provision to that effect in the order of reference.

The power to order the production of books, &c., is limited to the court or a justice thereof.

Where a referee is ordered to take accounts, the referee's certificate that the production of books and papers is necessary will be regarded as presumptively sufficient to warrant an order for such production. The burden of showing that the order ought not to be made would be upon the adverse party.

MARTIN V. MCCORMICK.-An order for an allowance in addition to costs cannot be made after the entry of judgment.

No allowance can be made under section 308, to the prevailing party on an appeal from a judgment at the special term. See, 2 Comst. 570. Van Rensselaer v. Kidd, 5 Pr. R. 242.

ANON. On the disallowance of a demurrer to a complaint where the defendant has leave to answer on payment of costs, the plaintiff is entitled to costs as follows:

For proceedings before notice of trial,

For the trial, i. e. the argument of the demurrer,

$12 15.

WOOD V. LAMBERT.-The decision of the court upon a demurrer cannot be appealed from as an order; it is a judgment and

Waterbury v. Westervelt.

no appeal can be taken until the judgment is perfected. A defendant who has appeared is entitled to notice of settling the judgment.

Thus, where the complaint was to set aside an assignment as fraudulent, the defendant demurred and his demurrer was overruled. The defendant appealed before judgment was perfected. The plaintiff, without notice to the defendant, proceeded to settle and perfect his judgment. The plaintiff moved to dismiss the appeal and the defendant to vacate the judgment, and both motions were granted.

See, King v. Stafford, 5 Pr. R. 30. Bentley v. Jones, 3 Code Rep. 37.

MCCRACKAN v. WARE.-Injunction-Receiver-Partners.— This was a cross suit. The complaint prayed for an injunction but not for a receiver. The complaint in the original suit, Ware v. McCrackan, prayed for a receiver, and in that suit an injunction had been obtained restraining the now plaintiff, McCrackan, from receiving or disposing of the subject matter of the action, partnership property. On motion for an injunction and receiver in this suit, the motion was granted, although no receiver was asked for by the complaint, and it was held, that:

Where two parties have an equal right to the possession of the subject matter of the action and one has enjoined the other from receiving or disposing of the same, an injunction will be granted as of course, and without any special cause being shown on the application of the party enjoined against, the party who first obtained the injunction enjoining him from recovery or disposing of such subject matter.

--

WATERBURY V. WESTERVELT.-Costs Where questions of law arise pending the trial of an issue of fact, and the presiding judge reserves such question of law for further consideration, and the question so reserved is subsequently decided at Special