3. Where, on such a stating of an
account, it appears that all of the
partners, except one who with-
drew, continued the same business
in the name of the old firm, and,
subsequently to the dissolution, took
a judgment from a dealer with the
old firm as security for the whole
sum then owing to the firm, and
after that, settled with him and gave
him a receipt in full. Such facts are
prima facie evidence that they were
paid in full the balance owing to
the old firm at the time it was dis-
solved.
.id

though there be no specification of
it, or of the facts in respect to it,
contained in the pleadings.......id

Vide PRACTICE, title AMENDMENT, 2.

PARTY WALL.

Vide PRACTICE, title INJUNCTION.

PASSAGE MONEY.

1. Insurance thereon, what is the
contract, and what constitutes a loss
within the policy. Howard et al. v.
The Astor Mutual Insurance Com-
pany,
...38

PAYMENT IN ADVANCE.

1. Freight when not recoverable back
although the goods are not trans-
ported....
...460

PLEADINGS.

1. Generally.
2. Complaint.
3. Answer.
4. Demurrer.

1. Pleadings Generally.

1. Where, in an action by the indor-
see of a note against the makers, the
complaint alleges the making by the
defendants of a note payable by its
terms, to the International İnsu-
rance Company, or order, that such
Company afterwards and before its
maturity "duly indorsed the said
promissory note, and the same was,
thereupon, duly transferred and de-
livered to the plaintiff;" and where
the answer merely avers that said
Company never had "any legal
existence as a corporation," and de-
nies that "it had any legal power
or capacity to transfer said note to

5. Where, in such an action, and up-
on such pleadings, the pleadings
alleging no other defense except that
the note was an accommodation
note and was known to the plaintiff
to be such when he took it, and
that it has been paid from other
collaterals transferred with it as se-
curity for a loan made to the Com-
pany, and where it has been proved
that a loan of $15,000 was made on
the security of $19,000 of collaterals
including the note in suit, and that
only $12,000 of the loan has been
repaid; it is not error to reject evi-
dence of the whole number of col-
laterals; or that judgments have
been obtained upon some of the
collaterals, or of what securities
were at any time received for the

6. A complaint which states that
the defendants, as agents for the
plaintiff, purchased stock, and on
a settlement of the contract of
purchase the vendor was found in-
debted in a sum specified, for which
the vendor gave notes to the de-
fendants as such agents, which they
received for the plaintiffs, and which
have since been paid to them, and
that they refuse to pay over the
same to the plaintiff, states facts
sufficient to constitute a cause of
action, although it does not state
how the vendor of the stock did
or could become indebted to the
vendee. Bates v. Cobb et al.,...29

7. It would, it seems, have been
sufficient if it had stated that the
defendants, as agents of the plain-
tiff on a settlement with a third per-
son received a note for the plaintiff
which was paid to them at maturity
and they refuse to pay over the
money.
....id

8. A complaint in an action brought
to set aside a conveyance of land as
fraudulent, as against the plaintiff,
a judgment creditor, does not state
facts sufficient to constitute a cause
of action, if it does not state that
an execution has been issued on
the plaintiffs' judgment. Mc Cullough
v. Colby et al.,.
.477

9. Where an action is brought by
several creditors of a limited part-
nership as plaintiffs, against the
members of such partnership and
their general assignee, under an
assignment made for the benefit of
creditors, to remove such assignee,
procure the appointment of a Re-
ceiver, and compel a distribution of
the assets, and the complaint merely
states that one of such plaintiffs is
a creditor in a sum specified, "on
several promissory notes of said

firm made before the execution of
said assignment," and that another
plaintiff is "a creditor in the sum
of $1,900 and upwards," the com-
plaint, will be ordered to be made
more definite and certain, so as to
state the several causes of action as
particularly as is requisite in an ac-
tion to recover a judgment in per-
sonam for the same causes of action.
Gray et al. v. Kendall et al.,....666

10. A complaint which seeks to charge
the separate estate of a married wo-
man upon her promise must show
that the consideration of the promise
was some benefit to her separate
estate, or that there was a distinct
intention on her part to charge her
separate estate. Palen v. Lent, 713

11. It is not necessary that a corpo-
ration, plaintiffs, should in the com-
plaint allege that the plaintiffs are
a corporation. Lighte v. The Ev-
erett Insurance Company, .....71€

12. Nor is it necessary, in declaring
against a corporation, to allege that
the defendants are a corporation. id

3. Answer.

13. An answer which professes to set
up a counterclaim, to be sufficient as
a pleading, must state facts which
constitute a cause of action in favor
of the defendant against the plain-
tiff. Merritt v. Millard, ..645

Vide COUNTERCLAIM.

4. Demurrer.

14. An answer which professes to set
up new matter as a defense, and
does not state facts which constitute
one, may be demurred to for insuffi-
ciency, if pleaded after chapter 723,
of the Laws of 1857, took effect.
(Laws of 1857, vol. 2, p. 554, § 153.)
Merritt v. Millard,
.645

Vide PARTNERS, 5.

PLEDGE.

1. Of Goods.

1. When an advance of money is
made on the security of wheat re-
presented to be shipped, with the
understanding that the lender shall
thenceforward have the control
thereof, and that the bill of lading
shall be issued to him, and it is so
issued making the wheat delivera-
ble to his order, the pledge is valid,
the advance is to be deemed made
on the credit of the wheat and the
lender is entitled to retain the wheat
notwithstanding the pledgor has
broken the condition upon which
the wheat was delivered to him.
Durbrow et al. v. McDonald et
al.,
.130

2. Of Stock.

2. A bank that receives shares of it
own stock as security for a note
discounted and causes it to be trans-
ferred to its president, does not by
merely neglecting to sell the stock,
extinguish it nor lose the right to
collect the note. The delay is not
an acceptance of the stock in satis-
faction. Butterworth, Receiver, v.
Kennedy,
.143

3. Of Notes.

3. A moneyed corporation may trans-
fer notes as security for moneys
loaned to it, for the purposes of its
business. Holbrook v. Basset et
al.,
....147

4. On a pledge of notes as such se-
curity, with power to sell the same
at public or private sale for the re-
payment of the loan, a sale is not
the only mode in which the securi-
ty may be available-the notes may
be collected the pledge of pro-
missory notes as security ex vi ter-
mini imports power to collect, and
to collect by suit if necessary. Nel-
son et al. v. Wellington, . ..178

1. Amendment.

1. Where, on the trial of an action
of ejectment, the defendant is per-
mitted to amend his answer, and
allege that his possession is that of
a mortgagee in possession, the plain-
tiff may, in the discretion of the
Court, amend his complaint so as to
convert the action into one to redeem
from the defendant as a mortgagee
in possession. (Per HOFFMAN, J.)
Stoddard v. Rotton,
.378

2. A. & W. being partners, A., with
the consent of W., transferred all his
interest to D.; D. and W. cove-
nanting with A. to continue the
same business, and to collect and
apply the assets of the old firm,
(except such as was necessary to
pay current expenses,) to pay the
debts of the old firm. The new firm
becoming embarrassed, D. instituted
a suit against W. to obtain a disso-
lution of his partnership, an account-
ing between them and a proper ap-
plication and distribution of the
assets: Held, that A. could not, upon
petition, obtain an order that he be
made a party to the action, and that
the complaint be so amended as to
bring him before the Court on
pleadings presenting his alleged
right to an equitable application of
the property of the new firm, ori-
ginally belonging to the old firm, to
the end that his rights in such
property might be determined, and
the property distributed accordingly.
Dayton v. Wilkes, . . . . . . . . . . . .655

3. Such an action is not one for the
recovery of personal property with-
in the meaning of g 122 of the
Code.
.id

2. Appeal.

1. When an action is tried before the
Court without a jury, and the de-
cision does not dispose of all the
questions in controversy but directs
a reference to state an account, no
appeal regularly lies to the General

2. But when the trial of an action is
begun all the issues should be tried
and disposed of, so far as the rere-
rence ordered to take the account
does not embrace them. There are
not to be two trials, one before and
one after the reference. Where a
reference is ordered on a trial, in
order to enable the Court to give
judgment, the hearing which may
be had on the coming in of the re-
port of the Referee is not to be a
trial, but a mere review of what has
been done before the Referee, and
its confirmation or the contrary, and
the application of the decisions al-
ready made on the trial to the ac-
count stated.
.id

4. And where an appeal to the Gene-
ral Term was taken from an order
made on a trial without a jury, ap-
pointing a Receiver and directing a
reference to state an account be-
tween the parties, and such appeal
was argued and decided upon the
merits, all of the proceedings on the
trial being reviewed and considered
and a new trial ordered, the Court
refused to vacate the order granting
a new trial and so reïnstate the order
of reference and appointment of a
Receiver, which they have decided
to be erroneously made.
. . . . . . . . id

5. The proceedings on the appeal to
the General Term in the case, as last
stated, were not without jurisdiction
in such sense that the order of the
General Term was void; nor will
those proceedings embarrass the
plaintiff in prosecuting his case on
the new trial and subsequent pro-
ceedings to final judgment. .....id

10. An order requiring the prevailing
party to cause the judgment roll to
be filed, and to pay costs of the
motion, is an appealable order, and
will be reversed. Heinemann v.
Waterbury,
.686