INDEX.

All cases reported in the Court of Appeals, will be found under the head of "COURT OF
APPEALS," in the order of time in which they were decided.

Some errors will be found in the volume; but none, it is believed, but what their correc-
tion will be readily suggested, without a particular reference to them.

This volume commenced in July, 1849, and ended in September, 1850.

ACTIONS, the old suit in equity for the "partition of lands," is now merged in the "civil ac-
tions" under the code, and as such, may be prosecuted by summons and
complaint. Myers agt. Rasback, 83.

VOL. IV.

an action for breach of promise of marriage, is within the class specified in the
first subdivision of the 129th section of the code, where the summons is is-
sued in conformity therewith. Williams agt. Miller, 94.

it is an action arising on contract, and is for the recovery of money only, id.
an action cannot be maintained against a subscriber to a voluntary subscrip-
tion paper. No consideration to uphold the promise. Stoddard agt. Cleve-
land, 148.

Action for divorce. See HUSBAND AND WIFE; Hallock agt. Hallock, 160.
action against sureties as endorsers jointly liable. See SURETIES; Bradford agt.
Corey, 161.

it seems, an action in the nature of a creditor's bill, against the judgment
debtor, and others colluding with him to defraud the creditor may be com-
menced. Davis agt. Turner, 190.

see HUSBAND AND WIFE; Coit agt. Coit, 232.

in an action (under the code) against several defendants to recover damages
for the breach of the contract, held, that the plaintiff must recover against
all the defendants or not at all, unless in one of the excepted cases pro-
vided by statute, that is, where the defendants hold different relations to
the plaintiff, and where "a several judgment may be proper," (code, § 274,)

272.

thus, where one defendant moved for a commission to examine a co-defendant
under 397, held, that the papers not showing that a several judgment
would be proper, a prima facie case was not made out for a commission, id

58

ACTIONS-continued.

an action against a foreign corporation, is now, as a suit was formerly, a proceeding against its property only, unless there is a voluntary appearance by the defendant. Hulbert agt. The Hope Mutual Ins. Co., 275, 415.

the service of a summons upon a president of such corporation who happens to be temporarily in this state, and who does not voluntarily appear, does not give the court jurisdiction of the defendant, for the purpose of rendering personal judgment upon contracts made in this state, or for debts due to residents of this state. Such a service must be regarded as a statutory notice that proceedings are about to be instituted against the defendant's property, id.

it is not required (code, §227) that the attachment should accompany the service of the summons. It may be served afterwards, id.

an action on the case for negligence, sounds in tort, and a defendant therein may be arrested on a ca. sa. Burkle agt. Ells, 288.

a breach of the duty of a common carrier is a breach of the law, for which an action lies founded on the common law, and which wants not the aid of a contract to support it, id.

although an action of assumpsit will lie in such a case, upon an implied contract, yet, in an action on the case founded on the breach of the law it must be regarded as sounding in tort, id.

Action against sheriff for escape. See SHERIFF; Tanner agt. Hallenbeck, 297.
see HUSBAND AND WIFE; Tippel agt. Tippel, 346.

a summons issued against a corporation by its corporate name, and subse-
quently a declaration issued against the trustees by name, without any refer-
ence to a suit having been commenced by summons, held, that they might
be treated as two separate suits. Lucas agt. The Baptist Church, 353.
an action brought against a sole defendant, to recover the possession of land,
may be continued after the death of the defendant intestate, against his
heirs-at-law claiming to have succeeded to his legal rights and to own the
land. Waldorph agt. Bortle, 358.

an action to recover real property should be brought against the person in the
actual occupation or possession; and add all persons who claim an interest
in the controversy adverse to the plaintiff, id.

see REAL ESTATE; Cooke agt. Passage, 360.

the code may abolish the forms of actions, but the principles which govern
them are retained. An action based upon carelessness or negligence cannot be
referred. McMaster agt. Booth, 427.

an action cannot be sustained by a plaintiff for money had and received, upon
a bill of exchange negotiated to the general agent of the plaintiff, without
proving affirmatively that the money for which the bill was purchased was
the money of the plaintiff. De Peyster and Whitmarsh agt. Winter, 449.
in the absence of such testimony, it is the duty of the court to non-suit, id.

AFFIDAVIT, the form an affidavit of merits, upon a motion to change the place of trial, should correspond with the former practice and decisions. Lynch agt. Mosher, 86.

in an affidavit upon which an order of arrest is to be founded (§ 181,) two things must appear. 1st, that a sufficient cause of action exists. 2d, that it is among those specified in the 179th section. Pindar agt. Black, 95.

AFFIDAVIT-continued. the entitling the affidavit in a suit, may now be disregarded under § 176 of the code, as not affecting the substantial rights of the adverse party, id.

an affidavit verifying a pleading is defective (subject to amendment) in using the words "information and belief," instead of saying "information or belief," as required by § 157. Davis agt. Potter, 155.

see IRREGULARITY; Anonymous, 290.

AMENDMENT, see SUMMONS AND COMPLAINT; Walker agt. Hubbard, 154.

an affidavit verifying a pleading is defective (subject to amendment) in using the words "information and belief," instead of saying "information or belief, as required by § 157. Davis agt. Potter, 155.

ANSWER, the court may allow an answer to the complaint to be put in after 20 days.
Allen agt. Ackley, 5.

an answer will be stricken out, on motion, where it states facts which do not
constitute a defence, and is immaterial as between the defendant and plain-
tiff, but is intended to form a case for adjudication of equities between co-de-
fendants, under § 230 of the original code. Woodworth agt. Bellows, 24.
the facts stated in a complaint are to be taken as true by a defendant who
does not answer, but he is not to be deemed as admitting anything con-
tained in the answer of a co-defendant, in which he has not participated,
id.

if an answer of a defendant stood before the court as proved or admitted, by
a co-defendant (not answering,) it seems, that it would form a case for adjudi-
cation of equities under § 230 of the code, id.

an answer verified according to the first code and served on the day of the passage of the second code, held, properly verified. Gamble agt. Beattie, 41. an answer which denies a material allegation in the complaint, cannot be stricken out as "frivolous." Davis agt. Potter, 155.

what are "false," "frivolous" and "sham" answers, as contemplated by the code, id.

where a defendant is allowed to answer on payment of costs, the court will not impose the further condition that the defendants shall not set up the defence of usury. Grant agt. Mc Caughin, 216.

when facts material to the defence occur after the joining of issue, leave will be given, on motion, to set them forth in a supplemental answer, and the plaintiff will have 20 days to reply to such supplemental answer. Radley agt. Houghtaling, 251.

where a defendant denied the whole of plaintiff's complaint (which was for taking sundry articles of personal property) by alleging generally that he "denies each and every allegation alleged in said complaint," held sufficient, and a complete denial to the whole complaint. Kellogg agt. Church, 339. an answer which alleged that the plaintiff who brought the action was not the real party in interest, nor an executor or administrator or a trustee of an express trust, or a person expressly authorized by statute to sue without joining with him the person for whose benefit the suit is prosecuted, held bad on demurrer, for the reason that it did not state the facts upon which the defendant relied to sustain his allegation that the plaintiff had no right to sue. Russell agt. Clapp, 347.

ANSWER-continued.

a defendant cannot both demur to and answer at the same time, a single cause of action alleged in the complaint. Slocum agt. Wheeler, 373.

APPEAL, an appeal to the special term on a bill of exceptions taken at the circuit, under the code, is irregular, where the suit was commenced before the passage of the code. Clark agt. Crandall, 127.

appeal taken from an order of a surrogate. See PRACTICE; Suffern agt. Laucrence, 129.

an appeal, in a case commenced in Chancery and pending in the Supreme Court, on the first Monday of July, 1847, under § 460 of the code, which provides that an appeal may be taken from a final decree, &c. pending in the Supreme Court on the first day of July, 1847, held, to be authorized by and to come within the object and intent of that section. The section was not unconstitutional. It affected the remedy only. Burch agt. Newbury,

145.

the right to appeal is not lost, where the collection of costs is coerced-is not voluntary, id.

no appeal can be taken to the Supreme Court from the order of a County Court reversing the judgment of a justice of the peace, where the County Court has ordered a new trial. Burnett agt. Harkness, 158.

where an appellant elects to dismiss his own appeal, he must enter an order to that effect, and pay the respondent's costs, id.

see TRIAL; Pepper agt. Goulding, 310.

an appeal does not lie from the special to the general term upon an order refusing to strike out of a pleading alleged immaterial, impertinent or scandalous averments. Whitney agt. Waterman, 313.

see COSTS; Taylor agt. Seeley, 314.

see JURISDICTION; Matter of Hicks' Will, 316.

what orders involve the merits, and are appealable from the special to the general term, stated. St. Johns agt. West, 329.

where there are several issues of law and fact, an appeal does not lie until the final determination of all of them. Bentley agt. Jones, 335.

nor does an appeal lie from a judgment until it is entered and perfected. The time for appealing begins to run on service of notice of the entering of the judgment, id.

an order of a single justice refusing to strike out matter as irrelevant and re-
dundant in a pleading, is not an appealable order to the general term. What
are appealable orders, as settled in the second judicial district. Bedell agt.
Sickles, 432.

an appeal from a surrogate's order, admitting or refusing to admit a will to
probate should, in the first instance, be heard at general term.
Aikin, 439.

ARREST, see AFFIDAVIT; Pindar agt. Black, 95.

See ACTIONS; Burkle agt. Ells, 288.

Watts agt.

ASSAULT AND BATTERY, no more costs than damages can be recovered under the code, in cases of assault and battery where the damages are less than $50. Holines agt. St. John, 66.

ASSAULT AND BATTERY-continued.

where three defendants were sued in an action of assault and battery, and appeared separately and defended by different attorneys, a verdict rendered against one of them, and the other two acquitted; held, that under sections 304 and 305 of the code, the defendants acquitted were entitled to costs against the plaintiff. Section 306 was held to refer to equity causes of action as formerly understood. Hinds agt. Myers, 356.

ATTACHMENT, see INJUNCTION; Krom agt. Hogan, 225.

see ATTORNEY; Cottrell agt. Finlayson, 242.

a solicitor for plaintiff in a partition suit is not liable to be attached for not paying to one of the commissioners his fees included in the taxed bill and collected from the defendants. Lamoreux agt. Morris, 245.

See ACTIONS; Hulbert agt. The Hope Mutual Ins. Co., 275.

an attachment may issue against a person as a non-resident, under § 227 of
of the code, who is a temporary resident of this state with his family, where
it appears he has recently resided out of the state, but at present is unset-
tled. Burrows agt. Miller, 349.

an attachment may issue in the first instance by a judge, under § 302 to pun-
ish, as for a contempt, all disobedience of orders made by him in "proceed-
ings supplementary to the execution," or an order to show cause may be
issued first. In either case, copies of the affidavits upon which the applica-
tion is founded should be served. In the matter of Smethurst, 369.
see POWER; id.

the sufficiency of affidavits upon which an attachment issues cannot be re-
viewed on habeas corpus, id.

ATTORNEY, an attorney is only liable for costs ($100) where the defendant could have

Hulbert agt. Newell, 93.
equitable right of set-off.

required security to be filed in the cause. an attorney's lien for costs must yield to the latter claim in equity overrides the former. Ferguson agt. Bassett, 168. see SET-OFF; id.

The

an attorney is liable to be proceeded against by attachment, if he fails to pay over money collected for his client, on demand. Cottrell agt. Finlayson,

242.

but the bringing an action and recovery of a judgment against the attorney, is a waiver of the right to an attachment, id.

an attachment will not issue against an attorney, without a previous demand of payment, id.

see ATTACHMENT; Lamoreux agt. Morris, 245.

it seems, that under the code, an attorney cannot claim a lien for costs upon a judgment. Davenport agt. Ludlow, 337.

CASE AND BILL OF EXCEPTIONS, see PRACTICE; Thompson agt. Blanchard, 210. a case cannot be turned into a bill of exceptions or special verdict, after judgment of the Supreme Court upon it, without a stipulation to that effect at