A plaintiff is not required to plead his own
negligence. Knaresborough v. Belcher, &c., Co.
355
Where the summons was for relief, and the
complaint was in tort, and for the purposes of an
appeal the action was determined by the com-
plaint, and the counter-claims did not arise out
of the contract or transaction set forth in the
complaint, neither were they connected with
the subject of the action. Held, that the counter-
claims were not available, for the words,
"the subject of the action," mean the facts
constituting plaintiffs cause of action.
mier v. Griswold
A posthumous child does not possess until
born any estate in the real property of which
his parent died seized, which would affect the
power of a court to convert the property into
personalty. Knotts v. Stearns.
495
Such child takes the property in the condition
it is at his birth.
If the child had a contingent interest in the
property such as required his representation in
the suit for its sale, he was represented by those
who would have had the part coming to him,
Ib.
had he not been born.
A purchaser at a judicial sale is not bound in
any case to see to the application of the pur-
lb.
chase money.
One authorized by a power of attorney to do
certain things in his discretion, with power of
substitution, may substitute with a like dis-
cretion. Wicks v. Hatch.
As to when an order of arrest and an arrest
under $40 of the bankruptcy act is discharged,
Whether an affidavit of merits can be required and the effect of the words, or until the fur-
in an action of tort. Quere. Lehmaier v. Gris-ther order of the court in the order on the dur-
wold.
5ation of arrest. Asher v. Pease.
Where the averments of a plaintiff's affidavits Objections to matters of form or mode of
are squarely denied, and the fact to be deter-procedure, for the first time, must be made be-
low. First National Bank v. Colby.
mined depends wholly on the oath of the par-
ties, who stand before the court entitled to
equal credit, there is not such a preponderance
of evidence in the plaintiffs to justify favoring
the granting of an order of arrest. Smith v.
Kimball.
11
Process of justice, when acting judicially,
voidable, but not void; and a justice is not lia-
ble for erroneous determination. Harrison v.
Clark.
61
Service of foreign corporation, how done.
Barnett v. Chicago, &c., R. R. Co.
67
As to the effect of certain issues as controlling
another of the issues. See Fulton v. Andrew.
96
The findings by a jury in issues in equity are
not controlling on the court. The court may,
What is a prima facie case for attachment. upon the trial, make such findings as it sees fit,
Thurston v. Loewal.
going to the extent of superseding the findings
of the jury by findings of its own. Smith v.
Chasseaud.
Amendment of pleading, when allowed.
Statute of limitations, not to be avoided. Pot-
tier v. Matthews.
An attorney cannot be changed in the court
of common pleas for the city and county of
New York without an order of the court.
Krekier v. Thaule.
When proof has been received to show the
Where an order was made in supplementary state of accounts between the parties, without
proceedings for a debtor to appear and be ex-objection, a motion to strike out the proof as
amined as to his his property, and the defend-to certain items of payment as irrelevant, was
ant did not appear in obedience to the order, properly overruled, because there was no plea
but filed a petition in bankruptcy, and procured
an injunction staying proceedings. Held, that
he was guilty of contempt, and must be
punished. Spaid v. Hage.
of payment-it was too late to raise the objec-
tion. Such an objection proved must be made
on the trial, so that an imendment may be asked
for. Chapman Slate Co. v. Sucliffe.
Election of cause of action, and extension dition of paying costs and an extra allowance,
An order granting a discontiuance on con-
of time to plead. People v. Tued.
must be appealed from if the party is aggrieved
by the condition. If he avails himself of the
benefits of the order, he must comply with the
conditions. Dabman v. Schulting.
449
The N. Y. laws of 1868 provide, that if the
summons be returnable on the day on which it
is issued, it shall be served at least two hours
before the hour at which it is returnable, and if
not returnable on the same day, it shall be served
at least two days, before the day on which it is
returnable, aud the summons must be made re-
turnable in not less than three or more than
five days. Frost v. Marvin Safe Co.
A summons returned nihil habet, and an alias
served, constitute but one case, and a fi. fa.
issued under the term and number of the
original is not improper. Shaw v. Keneath.
A fi. fa. and attachment execution may both
issue and be pursued at the same time, and
plaintiff will not be compelled to elect upon
which he will proceed, unless property is seized
under either sufficient to pay the judgment. Ib.
A defendant cannot appear and join issue of
fact or law, without waiving all objections to
the regularity or sufficiency of process. Og-
densburgh, &c., R. R. Co. v. Vermont, &c., R.
R. Co.
363
When an order is made allowing a supple-
mental complaint to be filed, and no appeal is
taken from the order, a motion to strike out
the supplemental complaint will be denied.
Prouty v. Lake Shore, &c., R. R Co.
Where an attorney makes a motion in the
case for his own benefit, costs may be allowed
against him. Eisner v. Hamel.
450
On the trial of special issues to a jury, unless
a party moves for a new trial, he shall be
deemed to have acquiesced in the finding.
The motion must be made on a case and excep-
tions, and the case and exceptions must be set-
Hgernan v. Cantrell.
tled as in other cases.
451
A motion to strike out a whole answer to a
question when a part of it is competent, is de-
fective, and an objection thereon is not avail-
able on appeal. Adams v. People.
Where the second order entered is only an
amplification or amendment of the first order
have been taken from the second order.
it is not a good objection that the appeal should
lb.
An instrument taken for a precedent liability
is not held by the owner of the claim bona fide,
since he has surrendered nothing.
Ib.
A clearly defined issue of fact must go to a
jury. An answer in such a case is not a friv-
olous answer.
Ib.
A party may be examined before issue joined,
notwithstanding Rule 21, of the superior
court, as amended in 1874. Glenny v. World If there is no bill of exceptions the judgment
Mut. Ins. Co.
404, will be affirmed. Garren's Appeals.
A railroad company is not at liberty to allow
cars to run without any one to control them, on
a track over which they permit people to pass
frequently. Sutton v. New York, &c., R. R.
Co.
examination is made of the cars running over
A railway company must see that the proper
its road, whether its own or another's, to pre-
ation, such as scraping the oil and dirt from an
vent injury to passengers. A minute examin-
axle, is impracticable, since it would stop the
traffic.
Richardson v. Great Eastern R. R. Co.
211
The depots for cattle and freight are within
the purposes for which railroads are construct-
ed. New York &c. Railroad Co. v. Metropolitan
Gas Light Co.
227
Taking land without condemnation. Measure
of damages. Daniels v. Chicago &c., R, R. Co.
287
Lands taken compulsorily, or by deed. Smith
v. New York &c. R. R. Co.
313
Subscription to a railroad, whether good
when the plan and name were changed. Charge
such a charge. Musselman v. Brandywine &c. R.
to jury of fact not in evidence. Materialty of
Fences are to be erected and maintained by
a railroad company. Leasing road, effect of,
Running past station is not negligence. on this duty. Ditchell v. Spuyten Duyvel &c.
Taber v. Delaware, &c., R. R. Co.
Facts to show that a fire was caused by a
railway engine. Facts competent to show de-
fects of construction, or want of management
of engines, by which fires on the line of the
road are caused. Westfall v. Erie R. R. Co.
A railway company is not liable for insult-
ing language used by a conductor of a train in
a personal attack on a passenger, though arising
out of an act in the performance of the conduc-
tor's duty. Parker v. Erie R. R. Co. 382
days is good. It is not a waiver of the con-
A limitation of railway ticket for twenty
dition that the ticket has been taken on part of
the road, after the limitation; nor that similar
tickets have been taken on other occasions,
without proof that a valid arrangement had
been made to that effect with the oicers of the
company. Iill v. Syracuse &c. R. K. Co. 383
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