DAMAGES 2. The "act in relation to capital punishment and to provide for the more certain punishment of the crime of murder" (Laws of 1860, p. 712) did not abolish all punishment for murder "of the first degree." It clearly affirms the common-law right to execute persons convicted of murder in the first degree. It nowhere professes to abolish the penalty of death for that crime; and the right to inflict it is recognized in several different sections. The fact that the act so amended a section of the Revised Statutes as to declare that persons convicted of murder should be punished as therein provided, and that the section providing the mode of taking the lives of persons so convicted was expressly repealed, does not make the common-law mode of inflicting the death penalty inapplicable to cases where that punishment is recognized by such act or the Revised Statutes as amended by that act. Ct. of Appeals, 1863, People a. Lowenberg, 26 How. Pr., 202. DAMAGES. 1. In an action to recover the possession of specific personal property, or the value thereof in case a return cannot be had, and for damages, the plaintiff may recover damages arising from the depreciation of the goods, during the wrongful detention by the defendant. N. Y. Su perior Ct., 1861, Young a. Willet, 8 Bosw., 486. Ib. 2. It is unimportant whether the decrease in value arises from the defendant's act or default, or from other causes. 3. In an action by the owner of leasehold premises, for damages for an injury thereto, without malice, and from a cause which could be ascertained and its continuance prevented at a moderate expense, it is error to estimate the damages at the difference between the value of the lease before and after the injury. N. Y. Superior Ct., 1861, Terry a. The Mayor, &c., of New York, 8 Bosw., 504. 4. Though the jury may, in an action for false imprisonment, give damages beyond a mere compensation to the plaintiff for his injuries, and inflict a punishment upon the defendant for his conduct, yet such damages must not be arbitrary. Supreme Ct., II. Dist., 1863, Brown v. Chadsey, 39 Barb., 253. 5. In an action for forcible and malicious injuries, the jury may give punitive damages. N. Y. Superior Ct., 1861, Walker a. Wilson, 8 Bosw., 586. 6. In an action for trespass, in wrongfully entering the plaintiff's office, and there making a disturbance and a violent assault upon the plaintiff's clerk, it appeared that the defendant went there for the purpose of demanding payment of a small debt, with the malicious intent of provoking a quarrel with the clerk in case he was not paid; and that DEFENCES. he assaulted and wounded the clerk in pursuance of this intention: Held, that a verdict of $400 damages was not excessive. Ib. 7. Rule of damages, in an action by a principal against his brokers for unlawfully selling stocks deposited with them as collateral security for advances, &c. Brass v. Worth, 40 Barb., 648. EVIDENCE, 44, 61, SHERIFF, 5. DEBTOR AND CREDITOR. DEFENCES, 13; DEMAND BEFORE SUIT, 4; REDEMPTION; SHERIFF, 4; SUPPLEMENTARY PROCEEDINGS, 3-5. DEED. The president and secretary of a corporation executed an assignment of its property, and attached the seal of the company thereto, without any specific authority from the company to do so:-Held, not a proper execution of the instrument, and that the want of authority on the part of the officers could not be cured by any proof of execution made before the commissioner. Supreme Ct., I. Dist., Sp. T., 1863, Murray a. Vanderbilt, 39 Barb., 140. EVIDENCE, 25. DEFAULT. The settled power of the court to set aside inquests, and to open defaults in its discretion, for the purpose of attaining justice by a fair trial, may be exercised even after open and confessed negligence. Supreme Ct., 1863, Leighton a. Wood, Ante, 177. INQUEST; JUDGMENT, 3, 4. DEFENCES. 1. The acceptor of a bill cannot defend on the ground that the drawer's signature was not his true name. N. Y. Superior Ct., 1861, Clafflin a. Griffin, 8 Bosw., 689. 2. The recovery of judgment by defendants against plaintiff having been given in evidence by way of set-off, the defendants are at liberty to avail themselves of such recovery as an estoppel, if the record so warrant, without regard to the theory of the answer. Supreme Ct., I. Dist., 1864, Collyer a. Collins, Ante, 467. 3. A judgment in favor of the owner of a vessel against the builder, for DEFENCES. damages for a failure to complete the vessel according to contract, is a bar to an action by the builder for extra work performed during the building of the vessel. (SUTHERLAND, J.; to the contrary, LEONARD, J.) Ib. 4. The fact that the plaintiff has availed himself of his cause of action as a counter-claim against the present defendants in an action still pending, is a bar to his action. (SUTHERLAND, J.; to the contrary, LEONARD, J.) Ib. 5. A plaintiff who has set up his cause of action as a counter-claim against the same parties in a previous suit, should be put to his election between the two modes of relief, but is not otherwise barred by the former action. (LEONARD, J.; to the contrary, SUTHERLAND, J.) 1b. 6. In an action where the defendant may set up his counter-claim or setoff in answer to the plaintiff's demand, he has his election to do so or to bring a cross action. (LEONARD, J.) Ib. 7. An agent has no right to dispute the title of his principal to moneys received by him for the principal's use. Nor has he a right to resist. an action for the amount so received on the ground that the money was paid on an illegal contract between the original parties [1 B. & P., 3; 1 Ib., 296; 3 Story R., 182]. Supreme Ct., I. Dist., Sp. T., 1863, Murray a. Vanderbilt, 39 Barb., 140, 8. Under the practice as sanctioned by the Code, the defendant in an action to recover the possession of lands, may rely upon any equitable defence he may have. If he holds under an agreement to purchase, he may set up the same facts which in a court of equity would entitle him to a conveyance of the land. [12 N. Y., 266.] Supreme Ct., II. Dist., 1863, Traphagen a. Traphagen, 40 Barb., 537. 9. An action conflicting under the Revised Statutes respecting the determination of claims to land (2 Rev. Stat., 313, § 3) is, under the Code, subject to the same rules as all other actions; and the same defences to defeat the right to such relief may be set up by the defendant, and also equitable relief by way of counter-claim. N. Y. Superior Ct., 1864, Peck a. Brown, 26 How. Pr., 351. 10. The fact that the plaintiff's action is a substitute for a former special proceeding (if it be so exclusively, and not one to remove a cloud upon the title), does not deprive the defendant of the right granted by the Code (§ 150) of setting up equitable defences in any kind of actions. [12 N. Y. R., 266; 17 Ib., 270.] Ib. 11. In ejectment by the purchaser of land at a sheriff's sale, against the judgment-debtor, the latter cannot avail himself of the fact that he had sufficient personal property to satisfy the execution on which his land was sold. His remedy was to apply for relief against the execution or DEMAND BEFORE SUIT. the sale. Supreme Ct., VII. Dist., 1863, Lathrop a. Singer, 39 Barb., 396. 12. In an action of a nature which was formerly cognizable at law, the plaintiff is not required to anticipate and avoid matters of defence, and is at liberty to disprove or impeach them, although he has put in no reply. Supreme Ct., 1863, Van Nest a. Talmage, Ante, 99. 13. The giving of a negotiable security for a demand does not preclude the debtor from setting up a defence which was in existence when the security was given. So held, where the action was upon such subsequent security, and not upon the original demand. Supreme Ct., I. Dist., 1864, Hancock a. Palmer, Ante, 335. 14. A defendant relying on an account stated, if he fails to prove that it was mutually adjusted, and the balance ascertained, may fall back upon the accounts and prove that there is, in fact, a balance due him, unless his pleading is so framed as to show that he relies solely on the account stated. N. Y. Com. Pl., 1863, Goings a. Patten, Ante, 339. 15. The objection that the plaintiff, a foreign administrator or executor, cannot maintain an action in this State in his representative capacity, applies merely to his capacity to sue; and it is waived unless taken by demurrer or answer. N. Y. Superior Ct., 1863, Robbins a. Wells, 26 How. Pr., 15. ANSWER; COUNTER-CLAIM; DIVORCE, 5, 6; EVIDENCE, 71, 72, 73; LANDLORD AND TENANT, 3; LIMITATIONS OF ACTIONS; RECOUPMENT. DEMAND BEFORE SUIT. 1. Where an agent for the purchase of land paid for it with money part of which he lent to his principal, and part of which belonged to his principal, and, without his principal's knowledge or assent, took the conveyance in his own name;-Held, 1. That the principal could maintain an action for a conveyance of the land, without making a tender of the money the agent had advanced, and a demand of a conveyance. 2. That as the principal was the equitable owner, one who was in possession under him could maintain trespass against the agent for interfering with the premises. 3. That the equitable right of such possessor was a defence to him in an action of ejectment brought by the agent to recover possession. Supreme Ct., III. Dist., 1862, Safford a. Hynds, 39 Barb., 625. 2. A vendee of goods under an executory contract of sale, who refuses to perform, and to receive the goods, has no interest subject to levy, DEPOSITION. but if the sheriff, having an execution against him, seizes the goods while directed to him, and unclaimed by any other person, a demand on the sheriff is necessary before an action for the conversion will lie by the vendor. Supreme Ct., I. Dist., 1863, Hicks a. Cleveland, 39 Barb., 573. 3. If the vendor assigns the claim for the price under the contract of sale, or the goods themselves, this does not transfer a right of action for the previous conversion. The assignee must demand the goods before he can sue the sheriff. Ib. 4. Demand necessary before suit for money loaned to be on credit on the borrower's books. Payne a. State, 39 Barb., 634. Compare Carroll a. Cone, 40 Ib., 220. DEMURRER. The joinder of unnecessary parties defendant does not justify a demurrer for defect of parties. Supreme Ct., 1864, Kolls a. De Leyer, Ante, 312. DEFENCES, 15. DEPOSITION. 1. Under the act of 1840,-authorizing a judge of the N. Y. Common Pleas having issued a summons to a witness whose deposition is required to inforce obedience as in case of a subpoena, -the power of the court or judge is not restricted to enforcing the attendance of the witness. It is an essential part of the power to compel the witness, after appearing, to testify. Moreover the Revised Statutes expressly authorize courts of record to punish for contempt "all persons summoned as witnesses, for refusing or neglecting to obey such summons, or to attend or be sworn or answer as such witness." And where the witness who attends before the court in pursuance of such mandate, and is duly sworn, the court has power to require him to answer proper questions, on pain of contempt, whether the examination is conducted by the judge personally, or by counsel in his presence. N. Y. Com. Pl., Sp. T., 1864, Clark a. Brooks, 26 How. Pr., 254. 2. It is not an essential pre-requisite to a proceeding for contempt in such case that the witness should have been specifically directed by the court to answer some particular question addressed to him. No doubt, where the refusal arose simply from a belief that a particular question was objectionable, that course would and should, as matter of practice, be adopted. But where the object of the refusal was to test the question of the power of the court, and where the counsel for |