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.
Vide PRACTICE, title INJUNCTION.
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
1. Freight when not recoverable back although the goods are not trans- ported.... ...460
1. Generally. 2. Complaint. 3. Answer. 4. Demurrer.
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
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
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
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. 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. 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. 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
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
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