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As the general rule, it is a matter resting in his discretion; and, unless it is quite palpable that that discretion was unwisely exercised, and injustice has been done, the refusal of the judge to permit a further examination would not furnish a ground for ordering a new trial. N. Y. Superior Ct., 1860, Treadwell a. Stebbins, 6 Bosw., 549.
21. Where the judge at the circuit allows an amendment of the answer to meet the proofs in the case, the plaintiff cannot demur to it for insufficiency. If it is insufficient, advantage can be taken of it by claiming that the judge should direct a verdict in the plaintiff's favor. Supreme Ct., 1861, Therasson a. Peterson, 22 How. Pr., 98. 22. Where counsel for the defendant, at the time of making his requests to charge, his attention being directly called to the want of evidence to sustain it, did not specify any portion of the testimony tending to support it, his exception to the refusal will not be upheld. [3 Den., 598; 13 N. Y., 338.] N. Y. Superior Ct., 1860, Kiernan a. Rocheleau, 6 Bosw., 148.
23. Where it is important for a party to have a fact not in issue by the pleadings passed upon by the court, his request should be made on the trial before the decision, or by a motion afterwards to have the same inserted, or upon the settlement of the case, when the opposite party could be present. There is no reason why such should not be the practice in regard to a trial by a court without a jury, as well as in regard to one before a referee, which is the established practice. [6 How. Pr., 492; 13 Ib., 411; 2 Sandf., 641; 4 Ib., 691.] Great injustice would ensue if a new trial could be had for a refusal to insert in a decision already written and filed, adjudications upon facts not mentioned in the pleadings without a request before such a decision to pass upon such facts. If the refusal to accede to such request was made in court, either upon a motion to insert the determination of the particular fact in the case, or on the settlement of such case, and it. was improperly refused, the remedy would be by motion for a resettlement, or appeal from such denial as an order on a motion, not by exception to it as to a decision on a trial so as to send the whole case for a new trial. N. Y. Superior Ct., 1860, Heroy a. Kerr, 21 How. Pr., 409.
24. In an action against a banking corporation as indorsee of a bill of exchange, if defendant would raise the objection that plaintiff must prove defendant's authority to purchase such drafts, he should move for a dismissal of the complaint on this ground, and thus give plaintiff an opportunity to supply the defect. Supreme Ct., 1861, Bank of
Louisville a. Ellery, 34 Barb., 630.
25. In an action upon a note of a third party, which defendant had
guarantied and passed away to W. in exchange for his, and to which the defence of usury was set up,-Held, that it was erroneous in the judge at circuit to charge the jury that the transaction would not be usurious, if at the time of the sale of the note W. supposed the note good, and the parties to it able to pay it, and if the bargain between them was a bargain for the sale of this note only, and without intent to evade the statute, &c. Supreme Ct., 1860, Thomas a. Murray, 34
26. And it was further erroneous in that the judge left it to the jury to
28. That it is not error to refuse to charge the jury as requested by a
29. Proper form of charge in respect to delivery of goods to carrier. N. Y. Superior Ct., 1860, Haslam a. Adams' Express Co., 6 Bosw., 235.
30. Evidence and charge in a case where usury in the discount of an accommodation-note was the defence. Supreme Ct., 1860, Gould a. Rumsey, 21 How. Pr., 97.
31. The court will not disturb a verdict on the ground that the proof was insufficient, when the nonsuit was moved for, in cases where the deficiency was afterwards supplied. [11 N. Y., 102; 7 Johns., 179; 8 Foster (N. H.), 44; 2 Hill, 620; 6 Dana, 395.] Supreme Ct., 1860, Kent a. Harcourt, 33 Barb., 495.
32. When a question as to the admissibility of evidence arises, upon the trial, it is erroneous for the judge to direct a verdict subject to the opinion of the court at a general term. The provision of section 265 of the Code,-that where, upon a trial, the case presents only questions
of law, the judge may direct a verdict subject to the opinion of the court, applies to cases where the facts being found or conceded, it only remains to pronounce the law. [16 How. Pr., 542; 29 Barb., 180; 16 N. Y., 602.] Supreme Ct., 1861, Bell a. Shibley, 33 Barb.,.
33. Where, no general verdict being rendered, the answers of the jury to specific questions, not covering the whole case like a special verdict, are taken and referred to the court at general term for judgment upon the answers, and the questions of law arising in the case, this is a mistrial for which the judgment should be reversed. Ct. of Appeals, 1861, Manning a. Monaghan, 23 N. Y., 539,
34. The proper practice in such cases fully stated. Ib.
35. At the close of the testimony, on a trial by the court, without a judgment, the judge, after hearing counsel, wrote out a statement of certain findings of facts and conclusions of law, which statement was not signed by him or filed or delivered to the party in whose favor it was made, nor was any order entered upon it as a decision of the matters in issue. It concluded with a statement that certain matters deemed important did not appear from the evidence before the court, and an order that the parties produce witnesses on a day named, touching those matters. On that day defendant appeared and examined a witness as to the matters mentioned in the order. The case was thereupon submitted to the court, and the judge held the matter under advisement for the purpose of assessing and fixing the amount to be allowed defendant; and meanwhile his term of office expired.
Held, that the trial had, in fact and in law, never been finished when the judge went out of office, and there was consequently nothing to review on a motion for a new trial. A new trial of the issues, de novo, must therefore be ordered. Supreme Ct., 1861, Putnam a. Crombie, 34 Barb., 232.
ABATEMENT, 5, 9; DEPOSITION; EVIDENCE; NEW TRIAL; VENUE; VERDICT; WITNESS.
Where a court of equity interposes to compel a trustee to give up property purchased in his own name for his own benefit, which belonged, or rightfully belongs to the trust-estate, it does so in aid of and to protect the right of the cestui que trust [5 Ves., 679; 9 Ib., 295; 1 Stor. Eq. Jur., §§ 321, 323]; and if the cestuis que trust were competent to act for themselves, and with a full understanding of the facts have re
linquished any claim, the court will not interfere. N. Y. Com. Pl., Sp. T., 1860, Clark a. Law, 22 How. Pr., 426.
1. Where the undertaking, filed on granting an order of arrest, is not indorsed with the approval of the justice who granted the order, pursuant to Rule 4, the order, on motion, will be vacated with costs. The rule clearly requires it, and that the filing of the undertaking, without any such approval, is not a compliance with the requirement of the rule, and subjects the party to the "penalty" therein specified, to wit: that the proceedings be held irregular, as if no undertaking had been given. Supreme Ct., Sp. T., 1861, Newell a. Doran, 21 How. Pr., 427.
2. There is no distinction, in this respect, between an order of arrest and an attachment or injunction, which will dispense with the approval in one case, and not in the other. In the case of an attachment, it is true, the undertaking of the plaintiff alone cannot be taken, but surety is required, while in the other two cases, the undertaking may, in the discretion of the judge or justice, be without surety. In the case of an order of arrest also, where the undertaking of the plaintiff alone is taken, he is required to justify in double the sum specified in the undertaking. But the undertaking in such case needs the approval no less than where sureties are taken, for by Rule 6, personal sureties are in all cases required to justify. The justification, therefore, does not dispense with the indorsement of the approval. The rule, in its terms, applies equally well to all three of the cases mentioned, and must have effect in cases of arrest, as well as in injunction and attachment cases. Ib.
3. When sureties, in an undertaking on appeal, fail to justify on exception, it is as if no undertaking had been given. N. Y. Superior Ct., Sp. T., 1862, Chamberlain a. Dempsey, Ante, 421.
4. Under an order made on the rejection of proposed sureties, granting the appellant ten days' time to file a new undertaking with new sureties, and staying all proceedings on the part of the respondent during said ten days, the appellant must not only file a new undertaking, but procure the justification of his sureties within the time. Ib.
5. It is not necessary for the respondent to except to the new sureties. Ib.
6. A second undertaking duly filed and served under such circumstances, without justification, does not operate as a stay. Ib.
7. It seems, that an undertaking required as a condition of granting a
USE AND OCCUPATION.
stay of proceedings pending an appeal from an order, will be an available security to the respondent if the order be affirmed. N. Y. Superior Ct., Sp. T., 1861, Winterhoff a. Siegert, Ante, 182.
8. Where an undertaking, given to stay proceedings on appeal from a
10. Sureties may be let in to defend on the merits in the place of their
11. Requisites of undertaking on appeal, to stay proceedings under § 335 of of the Code. Power of court to require new sureties. Act of April 23, 1862.
12. Action on undertaking under § 348, when may be brought. Ib.
CLAIM AND DELIVERY; STAY OF PROCEEDINGS.
USE AND OCCUPATION.
1. Under 1 Rev. Stat., 748, § 26,—providing that "any landlord may recover, in an action on the case, a reasonable satisfaction for the use and occupation of any lands or tenements, by any person under any agreement not made by deed,”—the action for use and occupation may be maintained, if the defendant either held or occupied the premises. It was formerly well settled that the action would lie where the lands were held by the defendant without being actually occupied, and this provision of the Revised Statutes does not alter the rule. Supreme Ct., 1848, Hoffman a. Delihanty, Ante, 388.
2. The cases of Wood a. Wilcox (1 Den., 372) and Beach a. Gray (2 Ib., 84), explained.
CAUSE OF ACTION, 17; COMPLAINT, 13.