COMPLAINT. 7. Such holder is confined to the disposition of the note specified by the trust instrument. Ib. 8. A complaint by the payee of a note to order, seeking to charge as indorser or as garantor one who wrote his name upon the back of the note before its delivery to the payee, is bad on demurrer. Waterbury a. Sinclair, Ante, 399. 9. It seems, that the only way in which the payee of a note can make it available in his own hands, against an indorser, is to indorse it first without recourse, and then take the indorsement of the third party as the source of his title. Ib. 10. A complaint for breach of promise of marriage is not demurrable, because it shows that the defendant was married at the time of the promise, if it appear that the fact was unknown to the plaintiff. Blattmacher a. Saal, Ante, 409. 11. The defendant was married at the time of the promise, and deceived the plaintiff by representing that he was unmarried. Held, that the agreement was not illegal on her part, and the defendant's disqualification to perform such a promise was no defence. Ib. 12. It seems, that the existence and terms of an implied warranty as material and traversable facts, are just as necessary to be alleged in the complaint as those of an express warranty, where in each case the breach of the warranty is the cause of action. N. Y. Superior Ct., Gen. T., 1856, Prentice a. Dike, 6 Duer, 220. 13. A claim for services was stated as follows: That the plaintiffs, at the time hereinafter mentioned, and before and afterwards, were partners and stockbrokers at, etc., and that they reasonably deserve to have from the defendant for their services as such stockbrokers, in making purchases and sales of stock, which they were employed by the said defendant to make, and which they did make as his brokers, during the year 1854, a large sum of money, to wit, the sum of $115 or thereabouts, and that the defendant has not paid the said commissions, or any part thereof to the plaintiffs. Held, sufficient on demurrer, though it would be obnoxious to a motion to make more definite and certain. N. Y. Superior Ct., Gen. T., 1856, Merwin a Hamilton, 6 Duer, 244. 14. The complaint stated that John Garner was seized of the premises in question, in his own right in fee, and was in the lawful possession of them on and before the 1st of May, 1843. That he died so seized in that year, intestate, leaving one of the plaintiffs, his widow, and the other plaintiffs, his only heirs-at-law him surviving. That those named as heirs were seized in fee, and entitled to the possession, subject to the CONTEMPT. life estate of the widow in an undivided third part thereof. That the defendants were wrongfully in possession, and claim a right thereto, and although often requested, refused to give up the possession, and unjustly withheld possession from the plaintiffs; and it prayed judgment that they deliver up possession to the plaintiffs. Held, a sufficient statement of a cause of action. N. Y. Superior Ct., Gen. T., 1857, Garner a. The Manhattan Building Association, 6 Duer, 539. 15. Where there had been a fraudulent over-issue of the certificates of stock of a corporation, beyond the amount allowed by its charter, by the act of its transfer agent, and a part of such certificates were held by parties who took with knowledge of the fraud, and a part had passed into the hands of innocent purchasers, for value, and without notice, and for a part of the certificates which had been returned by the holders new certificates, representing in part spurious and in part genuine stock, had been regularly issued by the company, Held, 1. That the corporation could maintain an action against all persons who claimed stock under the spurious issue, to have the certificates representing such issue declared void. 2. That the complaint of the corporation joining all such parties as defendants, was not multifarious. New York and New Haven R. R. Co. a. Schuyler, Ante, 41. 16. The mere joinder of too many defendants is not a ground of demurrer by any one of them against whom the complaint sets forth a good cause of action. Ib. 17. Of the position of a corporation as a trustee for the corporators. Ib. CONTEMPT. A party is not justified in disobeying an order, because it is merely erroneous. The Arctic Fire Insurance Company a. Hicks, Ante, 204. HABEAS CORpus. CORPORATION. 1. An injunction and receiver will not be granted against a corporation at the suit of a stockholder, on the ground that the company has been dissolved, and its charter annulled by a foreign government, where the decree of dissolution is not absolute, but declares that the company shall be considered in existence for certain specified purposes; and where the company has property in this State, over which the foreign government had no jurisdiction, and it appears that it will be more conducive to the interests of all the stockholders, not to disturb the COSTS. existing management and arrangements of the company, and that to grant the relief asked for, would produce irreparable injury to a majority of the stockholders. If the decree of the foreign government dissolving the corporation and annulling its charter, is recognized here as binding on the company and its stockholders, and by its terms the property of the company is to be seized and held subject to the order of commissioners therein appointed, to whom all right and title to the property is intended to be passed, a stockholder could not, in the courts of such foreign country, apply for a receiver, and therefore he cannot apply for a receiver here. Supreme Ct., Gen. T., 1857, Hamilton a. Accessory Transit Company, 26 Barb., 46. 2. After a receiver of an insolvent railroad corporation has been appointed, and an order made restraining proceedings against the company by any creditor, a creditor cannot bring an action under section 10 of the general railroad act, against a stockholder whose subscription is unpaid, to enforce his personal liability. The right of action for unpaid subscriptions is transferred to the receiver by his appointment, and an action thereon by a creditor is in effect an action against the company. Ct. of Appeals, 1857, Rankin a. Elliott, 16 N. Y. (2 E. P. Smith's) R., 377. CAUSE OF ACTION, 1, 5, 16, 17; COMPLAINT, 15, 16, 17; RECEIVER. COSTS. 1. The prevailing party is entitled to a second fee for proceedings before notice of trial, and for proceedings subsequent to notice of and before trial, after service of amended pleadings. Considerant a. Brisbane, Ante, 345, note. 2. The defendant attended, and was examined as a witness in his own behalf on the trial of the action; and for the purpose of doing so, travelled from the city of Rochester to the city of New York. Held, that on prevailing in the action he was entitled to tax fees for such travel and attendance, as for any other witness. Rogers a. Chamberlain, Ante, 452. 3. In a foreclosure action the defendant may offer to pay the amount due upon the mortgage, and such costs as he may think proper; and upon a refusal to accept the amount, he may apply to the court for leave to pay the amount due, and such costs as the court may in its discretion allow; and the court should entertain the application and permit the payment, fixing the costs, and upon the payment being made, order a discontinuance or stay of the action, as may be proper. Barton a. Cleaveland, Ante, 339; (but see Pratt a. Ramsdell, Пb., 340, note.) COUNTER-CLAIM. 4. Upon such settlement of an action, equitable in its nature, the court may impose, as terms, payment of such allowance authorized by the Code as is equitable under the circumstances of the case. Ib. 5. It is competent for the parties to settle such an action, the defendant paying or securing such allowances to the attorney; and if no advantage is taken of the defendant, and the sum is not greater than that which the court would have allowed, the court will sanction the payment, and enforce securities given to the attorney for the sum. Ib. 6. In an action in which a warrant of attachment had been issued, the parties agreed before the cause was at issue upon a settlement, by the terms of which the plaintiffs were to discontinue on payment to their attorneys, of the costs. Held, that the costs to be paid included a full allowance, under sections 308 and 309 of the Code. Brown a. The Safeguard Insurance Company, Ante, 345. 7. The plaintiff is not entitled, under section 309 of the Code to charge an allowance, on tender of debt and costs, made before judgment. Brace a. Beatty, Ante, 445. ATTORNEY, 2, 3; SURROGATE'S COURT. COUNTER-CLAIM. 1. In an action in the nature of trover, by a plaintiff who has indorsed notes or bills of exchange, brought to recover the value thereof from a defendant, in whose possession they are, and who claims title thereto through the plaintiff's indorsement, it is competent for the defendant to set up title in himself, demand of payment, protest, and notice, and ask by way of counter-claim a judgment against the plaintiff as indorser. Xenia Branch Bank a. Lee, Ante, 372. 2. Such a claim is a proper subject of counter-claim in such action, both as arising out of the contract which forms the foundation of the plaintiff's claim, as arising out of the same transaction as his cause of action, and as immediately connected with the subject of the action. Ib. 3. Section 150 of the Code analyzed and construed, and the doctrine of counter-claims discussed. 4. In an action for chattels the defendant cannot set up as a counter-claim a demand against the plaintiff, by virtue of which he claims a lien upon the chattels. The lien is matter of defence, but the defendant cannot have affirmative relief upon it in the action. Gottler a. Babcock, Ante, 392, note. 5. In an action for slander the defendant cannot set up in an answer which contains a general denial, a counter-claim against the plaintiff for a slander alleged to have been uttered by him shortly before the COUNTY COURT. day specified in the complaint. Fellerman a. Dolan, Ante, 395, note. DEFENCES, 3, 4. COUNTY COURT. 1. Proceedings for partition of lands constitute a special case within the meaning of the Constitution (Art. VI., § 14), which authorizes the Legislature to confer jurisdiction on the county courts in special cases, and under the Code (§ 30), those courts have jurisdiction of partition actions. Court of Appeals, 1857, Doubleday a. Heath, 16 N. Y. (2 E. P. Smith's), R., 80. 2. The statute conferring upon county courts jurisdiction of actions for the foreclosure of mortgages is not unconstitutional. Arnold a. Rees, Ante, 328. 3. The phrase "special cases," in the provision of the constitution, authorizing the Legislature to confer equity jurisdiction in special cases upon the county judge, means cases to be specified. Ib. 4. The case of Kundolf a. Thalheimer (2 Kern., 593) commented on and qualified. Ib. COURT. 1. In the application of the principle of stare decisis, decisions of the late Supreme Court should be regarded as decisions of the same court with the Supreme Court as now organized. As a general rule, all questions carefully, clearly, and distinctly decided, upon full argument, by the old Supreme Court, or by any general term of the Supreme Court as at present organized, should be regarded in the Supreme Court as set at rest until the decision is reversed in the court of last resort. (16 Johns., 402; 20 Ib., 722; Jones on Bailm., 45.) Otherwise where the point decided was not the leading or chief point in the cause, did not receive full discussion, or was only incidentally decided. Supreme Ct., Gen. T., 1857, Olcott a. The Tioga Railroad Company, 26 Barb 147. 2. It is no objection to the validity of an order made at general term that one of the three judges, who composed the court when the deci sion embodied in the order was announced, did not hear the argument of the motion. If three judges hear the argument, it is to be presumed that they consulted on the decision; and if one of the three is absent when the decision is announced, and his place filled by a judge who did not hear the argument, the latter is not to be deemed to have decided or taken part in the decision. Ct. of Appeals, 1857, Corning a Slosson, 16 N. Y. (2 E. P. Smith's) R., 294. 3. The law will not recognize or enforce the decisions of a tribunal cre |