COMMON SCHOOLS.

afterwards claim that any greater sum is secured by the mortgage than is mentioned, in terms or by intelligible reference, in his statement. Ib. 4. Notice of the facts, to render such a defective statement sufficient as against subsequent purchasers, must be actual notice, not merely of the mortgage, but of the actual amount for which the mortgage was held as security when they purchased. Ib.

5. A chattel mortgage was given to secure, among other things, liabilities of the mortgagor assumed by the mortgagee, and the schedule annexed specified money paid for taxes to the amount of $300, and the complaint in an action to foreclose the mortgage claimed only the payment so specified; but on the trial proof was received, without objection, of the payment of another tax, and its recovery was allowed; Held, that this was error, for as against subsequent purchasers not having any notice of the mistake by which this other tax was omitted, only the amount specified in the schedule could be recovered. Ib.

CITY COURT OF BROOKLYN.

It is the duty of the City Court of Brooklyn to grant a new trial where a verdict against evidence has been rendered. Supreme Ct., 1864, Suydam a. The Grand-street and Newtown Railroad Company, Ante, 304.

CIRCUIT COURTS OF THE UNITED STATES. Congress may give the circuit courts exclusive jurisdiction in any cases in which the Supreme Court of the United States has appellate jurisdiction. Supreme Ct., I. Dist., 1864, Jones a. Seward, Ante, 377.

CLOUD UPON TITLE.

Mere threats and designs against the grantee in possession of real property, accompanied by declarations of the invalidity of his deed are not to be deemed a cloud upon title. Supreme Ct., I. Dist., Sp. T., 1863, Mad. Ave. Bapt. Ch. a. Mad. Ave. Bapt. Ch., 26 How. Pr., 72.

COMMON SCHOOLS.

1. A certificate, issued under the Laws of 1851, ch. 386, § 11-making it the duty of the city superintendent, under general regulations of the Board of Education, to examine into the qualifications of persons proposed as teachers of common schools in the city of New York, and to grant certificates,-need only specify in which class of schools the person is qualified to teach. N. Y. Common Pleas, 1863, Gildersleeve a. Board of Education, Ante, 201.

2. And where, under this statute, and a by-law of the Board of Education

COMPLAINT.

which required that the certificate given should express the grade of the teacher, the superintendent gave a certificate expressing the grade, and that the teacher was qualified as first assistant of a grammar school:

Held, in the absence of evidence of any further regulation of the board, that the teacher might lawfully serve as principal of the primary department of a grammar-school. Ib.

3. The power of the board of trustees to employ teachers under the same statute, coupled with the general authority to conduct and manage the schools, necessarily implies the right to remove them, especially under a by-law of the Board of Education regulating the proceedings on such removal. Ib.

4. The power of the city superintendent, under the same statute, to annul the certificate given to any teacher, is distinct from the power of the trustees to remove a teacher. Ib.

5. Under section 10, subd. 7, of the same statute, which authorizes the trustees by the vote of a majority to declare vacant the seat of any trustee who shall refuse to attend three stated meetings, the tender by a trustee of his resignation, with its acceptance by a majority, renders his seat vacant. Ib.

COMPLAINT.

1. In an action by "F. H. & J., commissioners of highways," the complaint commenced: "The plaintiffs, commissioners of highways, complain." Held, that a cause of action in the plaintiffs, as commissioners, could be proven. Supreme Ct., 1863, Fowler a. Westervelt, Ante, 59. 2. In actions brought by the plaintiff in a representative capacity, an averment in the body of the complaint of such representative capacity, and also that the action is brought by him in such capacity, is sufficient to sustain a recovery in that capacity. Ib.

3. A complaint against executors, &c., seeking to charge them in their representative capacity, cannot be sustained on demurrer, if the facts alleged show only a personal liability on their part. Supreme Ct., I. Dist., Sp. T., 1864, Bartlett, a. Hatch, Ante, 461.

4. In an action in the Superior Court of the City of New York, against a foreign corporation, where the complaint states a cause of action of which the court has jurisdiction, it is unnecessary to aver that the plaintiff resides within the City of New York. N. Y. Superior Ct., 1861, Spencer a. The Rogers Locomotive and Machine Works, Ante,

110.

5. Where the complaint against the indorser of a promissory note, alleges due demand, non-payment and protest, and that the defendant had due

COMPLAINT.

notice of such non-payment and protest, it is sufficient, without averring notice of the demand also. Ib.

6. Where the complaint alleges an agreement between the defendant and A., and an assignment of it by A. to the plaintiff, the plaintiff cannot recover by proving such an agreement between himself and the defendant. [Per Bosworth, Ch. J.] N. Y. Superior Ct., 1860, Curtiss a. Marshall, 8 Bosw., 22.

7. Under a complaint claiming title to land, and demanding a judgment establishing it and directing a conveyance from the defendants, the plaintiffs cannot recover damages on proving merely a breach of a covenant as to adjacent premises. N. Y. Superior Court, 1861, Van Zandt a. The Mayor, &c., of New York, 8 Bosw., 375.

8. Under a complaint alleging that defendant wrongfully took and detained goods, to the damage of the plaintiff $5,000, but without any allegation of special damage, the plaintiff may recover damage from depreciation resulting by reason of the lapse of time. N. Y. Superior Ct., 1861, Young a. Willet, 8 Bosw., 486.

9. Under such a complaint, evidence that the goods depreciated from change in the market value or from decay arising from inherent causes, and not resulting from any neglect on the part of the defendants, is admissible.

Ib.

10. In the complaint in an action on judgment, it is necessary to aver that leave to prosecute the action had been obtained. Under section 71 of the Code of Procedure,-declaring that no action shall be brought upon a judgment rendered in any court of this state, except a court of a justice of the peace, between the same parties, without leave of the court for good cause shown on notice, &c.,-leave to prosecute is a condition precedent to the right of action on the judgment. Hence, according to rules of pleading, such permission should be averred, or the complaint fails to show a cause of action. A cause of action is synonymous with right of action—a right of recovery, and a complaint which does not show a right of recovery, fails to show a cause of action. The complaint should state facts sufficient, if admitted or proved, to authorize a recovery of judgment. But the holding of a judgment against a party merely, does not, since section 71 of the Code was adopted, give a right of recovery on it. As a condition precedent to a right of recovery thereon by a party to a judgment, leave to prosecute must be obtained of the court. Without an allegation that such permission has been obtained, the complaint fails to show a cause of action. Supreme Ct., IV. Dist., 1864, Graham a. Scripture, 26 How. Pr., 501.

11. A complaint alleged that the defendant made a note in the name of

COMPLAINT.

a third person, payable to an insurance company of which plaintiff was receiver, for insurance made by the company, and that the company issued the policy upon no other consideration than the note and the advance premium, relying on the authority of the defendant to execute the note. It also set forth the proceedings in an unsuccessful suit against the pretended principal on the note, and demanded judgment for the costs of that suit, together with the full amount of the note, the assessments for losses being equal to that amount; and, upon plaintiff's recovery, the amount of the note, less the assessment paid, was made the measure of damages, as if the action had been upon the note; but the allegations and proof showed that the share of the losses of the company chargeable upon the note during the time covered by the policy prior to its surrender, were equal to the amount of the note.

Held, that it was to be regarded as an action on the implied warranty by the defendant that he was agent, and not upon the contract. On the facts stated, the law implies a warranty of authority by the defendant to execute the note, and it was unnecessary, under our present system of pleading, to allege that legal inference. [4 Coms., 249, 253.] In an action on the note as the contract of the defendant, a claim for the costs of a suit to enforce the note against the pretended principal would be absurd. And no question having been made before the jury as to the proper measure of damages, none could be made on an appeal to the Court of Appeals. The judgment must therefore be sustained. Ct. of Appeals, 1863, White a. Madison, 26 How. Pr., 481.

12. If the action were on the note, proof that the maker was in default would be necessary; but if it is on a warranty, such proof is not necessary. Ib.

13. If the action were to be regarded as an action simply to charge the defendant as the maker of the note, the record in the case of the unsuccessful action against the alleged principal would not be admissible against the defendant. But resting the plaintiff's right of recovery upon the warranty, the record is admissible to show that the plaintiff had been subjected to the expenses of an action in attempting to enforce the contract against the principal whom the defendant undertook to bind. These expenses, the action being brought in good faith, were a legitimate item of damages in the present action. [37 L. & E., 275; S. C., 86 Eng. C. L. R., 786; 40 Eng. L. & E., 182.] Ib. 14. Where a complaint is susceptible of no other interpretation than a charge of illegal arrest, detention and restraint of liberty, the action is to be regarded as one of false imprisonment and not of malicious prosecution. N. Y. Superior Ct., 1864, Burns a. Erben, 26 How. Pr., 273. 15. Under a complaint framed to set aside an assignment merely on the

CONSTITUTIONAL LAW.

ground of fraud, it is not competent for the plaintiff, on a failure to obtain the principal relief, to insist on a judgment settling the construction of the instrument. Supreme Ct., I. Dist., 1864, Hotop v. Neidig, Ante, 332.

16. Under the liberal system of amendments established by the Code of Procedure, a judgment of contribution, in a proper case, may be sustained although the complaint demanded the recovery of a specific sum. Supreme Ct., III. Dist., 1862, Denman a. Prince, 40 Barb., 213. 17. Instances of scandalous and irrelevant matter in a complaint in an action for conspiracy. Mussina a. Clark,* Ante, 188.

PLEADING.

CONFESSION OF JUDGMENT.

A judgment by confession in a justice's court, invalid by reason of an omission to annex an affidavit as required by statute, is void only as against creditors. It is valid and binding upon the defendant notwithstanding such omission. [2 Cow., 548; 3 Rev. Stat., 5th ed., 444, § 106.] Supreme Ct., V. Dist., 1863, Stone a. Williams, 40 Barb., 322.

CONFLICT OF LAWS.

An insurance policy which was made in this State, by a New York company, in favor of American citizens, in pursuance of an agreement abroad by the company's agent, and which was countersigned by such agent abroad, as required by its terms in order to render it binding, must, when drawn in question in the courts of this State, be judged by the laws of this State, in the absence of any evidence as to the foreign law. N. Y. Superior Ct., 1861, Huth a. The N. Y. Mutual Insurance Company, 8 Bosw., 538.

CONSTITUTIONAL LAW.

1. Section 5 of the Act of Congress of March 3, 1863, relating to habeas corpus, and regulating judicial proceedings in certain cases,—which provides that the defendant in any action for arrest or other trespass, &c., done under color of the authority of the president, or any law of Congress, may have such action removed into the Circuit Court of the United States, is constitutional and valid. Supreme Ct., I. Dist., 1864, Jones a. Seward, Ante, 377.

* An appeal was taken to the general term from this decision, and after the argument of the appeal, and before any decision had been rendered thereon, the plaintiffs withdrew the complaint, and an order for a judgment of discontinuance was entered.