CASE. 6. Where a party to an action has appeared by an attorney, his adversary is not at liberty to deal with the party himself in the management of the action. Supreme Ct., I. Dist., Sp. T., 1863, Chadwick a. Snediker, 26 How. Pr., 60. BANKING ASSOCIATIONS. CORPORATIONS. BILLS, NOTES, AND CHECKS. 1. Where one draws a bill of exchange payable to his wife, her indorsement of the bill gives the indorsee a title which enables him to recover upon it against the acceptor. The validity of the indorsement does not depend upon a question of contract or obligation as between the husband and wife; but by his directing the bills to be paid to her or der, she is made his agent to receive the money, and with the necessary authority to indorse and transfer the bill. N. Y. Superior Ct., 1863, Lee Bank a. Satterlee, Ante, 6. 2. A bank having discounted a note for a dealer, is not liable for failing to charge a prior indorser, on the dishonor of the note. Supreme Ct., 1864, Lake a. Artisans' Bank, Ante, 232. 3. It seems, that a bank to whom negotiable paper is delivered for collection merely, discharge their duty by a proper demand of payment, and by giving notice of non-payment to their principal, without giving the proper notice also to other indorsers, unless some contract or commercial usage be shown to raise a more extended obligation. Supreme Ct., III. Dist., 1863, The State Bank of Troy a. The Bank of the Capitol, Ante, 364. 4. The duty and obligation of banks, acting as agents for the collection of negotiable paper, in respect to notifying indorsers, stated. Ib. ACTION, 12. BILL OF PARTICULARS. A pleader, claiming on an account stated, who refuses to furnish the items of his demand, pursuant to section 158 of the Code of Procedure, should be precluded from giving evidence of such items further than may be necessary to prove the settlement of the sum due. N. Y. Com. Pl., 1863, Goings a. Patten, Ante, 339. CASE. 1. After judgment entered absolutely, a case or exceptions cannot be annexed to the judgment-roll for the purpose of review, except by special order. N. Y. Superior Ct., 1863, Anderson a. Dickie, Ante, 83. CAUSE OF ACTION. 2. Where judgment was entered absolutely, the appellant subsequently made a case to which the respondent proposed amendments, and the case was settled on notice, but no leave was given to annex the case to the judgment-roll. Held, 1. That the judgment could be reviewed only for errors appearing in the judgment-roll itself. 2. That the respondent was regular in bringing the appeal to argument on the judgment-roll alone. Ib. 3. Under the 37th rule of the court of common pleas, the moving party must, within ten days after settlement of the case, file with the clerk of the court a copy of the case as settled, and the original papers containing the case and amendments as they came from the judge or referee. The object of the 37th rule was to compel him to file it with the clerk in ten days after settlement, under the penalty of its being declared abandoned. The ten days, by the rule, are computed from the time of the settlement, which is, when the case is settled by the judge, in the presence of the parties, or when the case, with the allowed amendments, or the corrections made by the judge, are delivered by him to the moving party, or, as is the habit in this court, to the clerk of the court. The party making up the case is then entitled to the possession of it for at least ten days, that he may prepare the copy of it as settled, which, under the forty-second rule, he is required to serve upon the opposite party eight days before the time of noticing for argument; and before the ten days have expired he is to file the original paper, that is, the case and amendments as they came from the judge or referee, with the corrections or allowances made by him, with the clerk. N. Y. Com. Pl., Sp. T., 1864, Parker a. Link, 26 How. Pr., 375. AMENDMENT 6; APPEAL. CAUSE OF ACTION. 1. A plaintiff cannot be permitted to recover judgment upon a cause of action not in existence at the commencement of his action. Supreme Ct., 1863, Wattson a. Thibou, Ante, 184. 2. Where a debtor and creditor have made an agreement reciting the payment of the debtor's obligation, except a specified sum, an action by the latter to recover that balance is properly brought upon the original obligation, not upon the subsequent agreement. Supreme Ct., 1863, Van Nest a. Talmage, Ante, 99. 3. In an action upon a bond in which there was a proviso that the obligors should "control and compromise" a suit, it is not necessary for the plaintiff to show affirmatively that the obligors were allowed to control and compromise the suit. This is not a condition precedent, CAUSE OF ACTION. but a proviso or defeasance, which the obligors must set up by answer and maintain by proof. Supreme Court, V. Dist., 1863, Jarvis a. Sewell, 40 Barb., 449. 4. Where one erects a building upon the line of his own premises so that the eaves or gutters project over the land of his neighbor, the appropriate remedy is an action for a nuisance, and not an action of ejectment. Supreme Ct., VII. Dist., 1863, Aiken v. Benedict, 39 Barb., 400. 5. The grantee of land held adversely to the grantor, cannot maintain an action upon the deed against the person thus holding adversely, even though such grantee had no knowledge of the adverse possession. N. Y. Superior Ct., Sp. T., 1861, Lowber a. Kelly, Ante, 452. 6. Where L. received from W. a deed of land which was held adversely by K., and, on W.'s refusal to bring ejectment, L. commenced an action against K. and W. to establish W.'s legal, and L.'s equitable title, W. not defending,-Held, that the action could not be maintained against K. Ib. 7. Under a covenant in a lease that the sub-cellar of the premises should be "free from percolation of water through the walls," an answer in an action against the tenants for rent, that during a period, exceeding several quarters, the water had percolated through the walls, and rendered the premises unfit for use, is not a claim for damages during each quarter respectively, to be set off against the rent due at the end of that quarter, but a claim for general damages as being caused by one continuous occurrence. N. Y. Superior Ct., 1864, Benkard a. Babcock, Ante, 421. 8. An action by a creditor, to enjoin his debtor from making an assignment or disposing of his assets to the preference of other creditors, in violation of an agreement by which he had obtained credit from the plaintiff, and to have his assets appropriated pro rata between the plaintiff and other creditors, does not preclude the same creditor from bringing a subsequent action to recover judgment against the debtor upon the same indebtedness. The cause of action in the first case is upon an equitable demand triable by the court, and the costs are in the discretion of the court, and before the Code a court of law would have had no jurisdiction of the case. In the second case the cause of action arises upon express contract, is a legal demand, is triable by a jury and not by the court, and plaintiff's right to costs is absolute, and a court of equity strictly would have had no jurisdiction of the case. These causes of action are not the same, within the rule that a former action pending for the same cause abates the present action. N. Y. Superior Ct., 1861, Paige a. Wilson, 8 Bosw., 294. CERTIORARI. 9. The Code does not establish any new rule of determining the identity of causes of action in this respect. Ib. 10. A cause of action against a foreign corporation, as indorser of a promissory note, which, by its terms, is payable in the City of New York, is a cause of action arising within that city; and the Superior Court has jurisdiction thereof, though the plaintiff be a non-resident. N. Y. Superior Ct., 1861, Spencer a. The Rogers Locomotive and Machine Works, Ante, 110. 11. In an action brought upon the bonds and coupons of a railroad corporation of another State, but payable in this State, the cause of action arises here, and this court has jurisdiction, though both parties are foreign corporations. [23 How. Pr. R., 180.] Supreme Ct., I. Dist., 1863, Connecticut Mutual Life Ins. Co. a.. Cleveland, &c., R. R. Co., 26 How. Pr. R., 225. 12. A new substantive cause of action cannot be set up by supplemental complaint. Supreme Ct., 1863, Wattson a. Thibou, Ante, 184. ACTION; CLOUD UPON TITLE; FALSE IMPRISONMENT; LIBEL. CERTIFICATE. COMMON SCHOOLS. CERTIORARI. 1. A common-law certiorari, to review the proceedings of a board of officers or inferior tribunal, may be granted on an ex-parte application. Supreme Ct., Sp. T., 1864, Matter of Woodbine street, Ante, 112. 2. A certiorari does not lie to review proceedings in a habeas corpus case, until after a final determination of the case: it does not lie upon an order committing defendant for a false return. Supreme Ct., I. Dist., 1863, Husted's case, Ante, 326, note. 3. The allowance or refusal of a writ of certiorari to review the proceedings of local public authorities in laying assessments and awarding damages, rests in the sound discretion of the court. Supreme Ct., I. Dist., 1864, Matter of 80th street, Ante, 324. 4. In such cases, the writ should be refused, to avoid public inconvenience, where the relator has other adequate remedy by legal proceedIb. ings. 5. A certiorari to review an ordinance directing a local improvement, must be applied for immediately: it should be refused, if the applicants have suffered such delay that the assessment has been made and partly collected and paid over. Supreme Ct., II. Dist., Sp. T., 1858, Matter of Tompkins square, Ante, 324, note. 6. Several writs of certiorari may be issued in one case, where this is CHATTEL MORTGAGE. necessary in order to bring up the entire record. Supreme Ct., Sp. T., 1864, Matter of Woodbine street, Ante, 112. 7. A certiorari issued under 2 Rev. Stat., 736, § 27, which requires the district attorney to sue out the writ when judgment shall have been stayed upon any indictment, brings up the indictment as well as the exceptions. Supreme Ct., I. Dist,, 1863, People a. Monnais, Ante, 345. 8. A conviction will not be reversed on the ground that, in the return to the writ of certiorari, it merely appears that the jury was regularly impannelled, without the words "and sworn." Supreme Ct., I. Dist., 1864, Reynolds a. People, Ante, 413. 9. Where it appears by the return to a writ of certiorari that the inferior tribunal or officer was without jurisdiction, it is immaterial whether the relator raised the objection in the proceeding under review, or not. Supreme Ct., II. Dist., 1863, The People on rel. Lord a. Robertson, 26 How. Pr., 90. CHATTEL MORTGAGE. 1. Under the provision of the Laws of 1833, ch. 270 (2 Rev. Stat., 3d ed., 196), which requires chattel mortgages to be refiled annnally, "together with a statement exhibiting the interest of the mortgagee in the property thereby claimed by him by virtue thereof," a statement is sufficient which annexes and refers to another document filed with it, if the two papers, read together in connection with the original mortgage, disclose the interest of the mortgagee intelligibly. N. Y. Superior Ct., 1861, Beers a. Waterbury, 8 Bosw., 397. 2. On refiling a chattel mortgage, which, by its terms, was given to secure the payment of notes, and also to secure the mortgagee against outstanding liabilities, the statement annexed was that the amount of the unpaid notes constituted the amount of the mortgagee's interest, and made no reference to any claim that the mortgage was held as a security against the outstanding liabilities. Such outstanding liabilities then, in fact, existed, and a copy of an agreement between the parties, which was annexed and filed with the statement, and referred to in it, stated that the mortgage was given to secure such outstanding liabilities. But this agreement was made some months before the making and filing of the statement; Held, that as against subsequent purchasers, the renewal of the mortgage was good as to the amount claimed as due upon the notes; but it was not good as to any of such outstanding liabilities. Ib. 3. An understatement of the amount due does not affect the validity of the mortgage as to the amount which is stated; but the mortgagee cannot as against the parties designed to be protected by the statute, |