a reference may be compelled by the Held, That the order was regularly made. Section 253 of the Code then in force provided that an issue of fact, in an action for a divorce from the marriage contract on the ground of adultery, must be tried by a jury, unless a jury trial be waived as provided in § 266, or a reference be ordered as provided in §§ 270 and 271. The reference referred to could not be. compelled, but ordered upon the written consent of the parties. of either party. But the difficulty is, independently of the saving clause contained in paragraph 1 of the sixth section of the so called temporary act of June 2, 1877, first, that an action for divorce on the ground of adultery is one in which provision for a trial by jury is expressly made by law, because, though § 253 of the former Code was repealed by the repealing act accompanying the new Code of Civil Procedure, the repcal did not extend to the provisions of the statute relating to divorces (2 Edm. N. Y. Statutes, p. 150, § 40), which makes it the duty of the Court, if the adultery charged be denied, to direct a feigned issue to be made up for the trial of the facts contested by the pleadings by a jury of the county at some Circuit Court. The commissioners to revise the statutes, in omitting the action for a divorce from the provisions of § 968, did so because they intended to specially regulate the trial of such an action by a separate chapter. The chapters subsequent to chapter 13, however, failed to become law, and hence the statute above alluded to (2 Edm. N. Y. Statutes, 150) remains in force in its original form, and is to be taken together with §§ 968, 969, and 970 of the new Code. Section 968 of the new Code, it is true, in enumerating the actions in which the issues of fact must be tried by a jury, omits to name the action for a divorce, and such omission, as appears from the note of Commissioner Throop, was purposely made. Equally true it is that § 969 provides that an issue of fact in an ac- In addition to the statutory right tion not specified in the last preced- thus existing, there is also a constituing section, or wherein provision for tional right to a trial by jury, of which a trial by jury is not expressly made the defendant cannot be deprived by law, must be tried by the Court, without her consent. In the State of unless a reference or a jury trial is New York jurisdiction over actions desired; and that under 8 1013 for the dissolution or suspension of all actions triable by the Court with the marriage contract was, by statute, out a jury may be referred at the dis- conferred upon the Court of Chancery, cretion of the Court, and of its own and the act conferring the jurisdicmotion as well as upon the application | diction provided that if the adultery PRACTICE. REFERENCE. CITY COURT OF BROOKLYN. SPECIAL TERM. George Malcolm v. R. W. Foster, Jr. Decided December 1, 1877. Under the new Code a referee must be sworn, unless the taking of the oath is expressly waived by the parties, either by written stipulation or orally, and such waiver entered on the minutes of the reference. Where a trial before an unsworn referee was pending at the time the new Code went into effect the referee need not be sworn. Plaintiff sued defendant for goods sold and delivered, and defence was a general denial. By consent the issues were referred to a referee by an order charged be denied, the Court should direct a feigned issue to be made up for the trial of the facts contested by the pleadings, by a jury of the county at some Circuit Court (1 R. L., 197). This provision relating to a trial by jury was incorporated into the Revised Statutes (1 Rev. St., 145, § 40; 2 Edm. N. Y. St., 150), and existed at the time of the Constitution of 1846, which provides (art. 1, § 2), as the Constitution of 1822 had previously provided, viz.: "The trial by jury in all cases in which it has been heretofore used shall remain inviolate forever." The word "heretofore," as used in this clause, means before 1846, and it can-made August 11, 1877, and the trial not, to limit its meaning, be carried began August 22, 1877, and witnesses back to 1777, and confined to the cases which at that early period were triable by jury. Wynehamer v. The People, 13 N. Y., 378, 427, 458. Although the issue or issues evolved by the pleadings were, according to the course of the ecclesiastical law, tried, not by a jury, but by the judge, who decided all questions both of law and of fact, and although the practice of the Court of Chancery, as it existed while this State was a colony, dispensed with the trial by jury in all cases, except when specially directed by the Court, the issue of adultery was, in this State, always required to be specially submitted to a jury, and at this time it must be so submitted, unless a trial by jury be waived in some mode prescribed by law. Motion denied, without costs. were examined that day. The ref- John F. Bulwinkle, for plff. McCUE, J.-The order of reference in this action was made August 11, 1877, and after several adjournments before the referee the trial commenced and witnesses were examined on the 22d day of the same month. Although the law then in force required that the referee should be sworn before proceeding (2 R. S., 384, § 44), it had been repeatedly held that the failure to take the oath on the part of the referee was a mere irregularity, and could be waived by the parties by proceeding with the trial without objection. 7 How. Pr., 41. Under the present Code, § 1016, the provisions are much more stringent, and now the referee must take the oath, unless the taking of it is expressly waived either by written stipulation, or orally by the parties if they are of age, and such waiver entered on the minutes of the reference. The trial having commenced before the present Code took effect must be governed by the law then in force. The irregularity having been waived and the trial commenced, all the proceedings to the end of the trial must be held to be waived by the original waiver, and it was not necessary that the referee should have been sworn after the new Code went into operation. Motion to set aside the judgment and order of refereuce must be denied. The merits of the case can only be reviewed on appeal on a case made. We have no authority at Special Term to review the report of the referee. be distributed as they accumulate in the receiver's hands, or upon making the final order in the proceeding. The submission of a brief signed by counsel for "Foote and others, policy-holders," does not make them parties to the application, or bind them by the result. See S. C., 4 W. Dig., 503. On December 14, 1876, the Security Life Insurance and Ann. Co. was dissolved and the respondent appointed. receiver. The appellant applied at the Special Term, upon petition, for an order directing the receiver to prefer matured claims for losses arising by death under policies issued by said company over the claims of existing policy-holders. This motion was denied. The order was affirmed by the General Term. Rob't Sewell, for applt. Hamilton Cole and Wm. Barnes, for respt. Held, That the order did not affect a substantial right so as to make it appealable; that the appellant had no legal right to demand an adjustment of her claim when the motion. was made, or to claim payment before a distribution of the assets among APPEAL. INSOLVENT INSUR- all the creditors; that it rested in the ANCE COMPANIES. PRAC- N. Y. COURT OF APPEALS. Decided November 13, 1877. discretion of the Supreme Court whether to order payment of individual claims from time to time, or to order the assets to be distributed as they accumulated in the receiver's hands, or upon making the final order or decree in the proceeding; that a large number of holders of unexpired policies were not repre losses over the claims of existing policy-sented in the proceedings, and would holders does not affect a substantial right, and is not appealable. It rests in the discretion of the Supreme Court to order payment of individual claims against an insolvent insurance company from time to time, or to order the assets to not have been bound by any judgment adverse to their claim of right. Also held, That the submission of a brief signed by counsel, as counsel for "Foote and others, policy-holders," did not make them parties to the ap-in which the remedy by peremptory plication, or bind them to the result. Appeal dismissed. mandamus could be invoked as fraud and illegality were established, and so Opinion by Allen, J. All concur, there was no clear and unequivocal except Folger, J., absent. MANDAMUS. N. Y. COURT OF APPEALS. The People ex rel. Slavin, applt., v. Wendell, Treas., &c., respt. Decided November 13, 1877. A peremptory mandamus to compel a County Treasurer to pay an account which has been audited by the Board of Supervisors will not be allowed, where it appears that a portion of the claim is fraudulent, and that there is no legal authority for the allowance of another portion. legal right to the remedy, 64 N. Y., 600; that even if a proper case had been made out, the granting of the motion was a matter resting in the discretion of the Court, 49 Barb., 259; that while the Special Term was authorized to issue an alternative writ in a case where the facts were in dispute, or where the parties wish to review the case upon appeal, or upon the suggestion of either party, no such suggestion having been made, it may be assumed that relator's counsel was willing to take the chances of The granting of a peremptory mandamus is a maintaining his right to a peremptory matter of discretion. Although the Court is authorized to issue an alternative mandamus in a case where the facts are disputed, or upon the suggestion of either party, yet, if such suggestion is not made, the party cannot complain that an alternative writ was not granted. This was an appeal by the relator from an order of General Term, affirming an order of Special Term refusing to grant a writ of peremptory mandamus, requiring the respondent, who was the Treasurer of Albany County, to pay to the relator an account audited by the Board of Supervisors. Respondent refused because a portion of the account was, as he alleged, fraudulent, and the relator had been allowed for services in cases where there was no legal authority for such allowance. The relator's counsel did not suggest at Special Term that an alternative writ was desired. N. C. Moak, for applt. N. P. Hinman, for respt. mandamus upon appeal, and did not desire an alternative writ, and he cannot complain that an alternative writ was not granted; and the relator can only pursue his remedy by motion for such relief as he may be entitled to under the order of Special Term. Order of General Term, affirming order of Special Term denying motion, affirmed. Per curiam opinion. All concur, except Folger, J., absent. Held, That no case was made out Evidence tending to explain evidence which has been given by the other party is compe Held, No error. That the parties tent although not responsive to the ques-being in conflict as to the meaning of both writings, Exhibit 16 D, if re tion. tled the controversy or been competent evidence in reference to it. This action was upon four promis-ceived, could not have properly setsory notes. The defendant offered to read in evidence (Exhibit 16 D) a writing which related to transactions long anterior to those involved in this action, and had no connection whatever with the notes in suit. It contained a receipt signed by plaintiff as follows: "Received, Brooklyn, Aug. 13, 1867, from Thomas Jackson, his note for $400, $200 of which I will pay at maturity." Then following figures and initials placed thus: "$400 200.-G. W. M. 200.-T. J." There was no proof of the transaction out of which this receipt arose and no explanation of it except that plaintiff swore that the "$200.-G. W. M.," meant that he had paid that sum for plaintiff. The notes in suit were all dated in 1870, and defendant had put in evidence an exhibit (1 D) relating to one of the notes on which the letters "G. W. M." appeared op posite the figures $100. Defendant claimed that they indicated that plaintiff had the benefit of the $100, and was to pay it, and he offered to read Exhibit 16 D, to show that the letters and figures there were used in the same way. Defendant testified that the letters "G. W. M." on Exhibit "1 D" meant that plaintiff was to pay that sum, and plaintiff had testified that they meant he had loaned that sum to defendant. The evidence was excluded. William H. Hollis, for applt. Joseph M. Dixon, for respt. Vol. 5-No. 14 Plaintiff introduced in evidence two checks, Exhibits 5 and 6. He was asked by his counsel, "Are these checks evidence of any loans that you made during that time?" Defendant objected that there were no marks on the checks to show that defendant ever saw or had them. The Judge said, "You must argue the effect of that to the jury," and overruled the objection. Plaintiff then answered that he loaned him $200 at one time and $100 at another, and stated the purpose for which he made the loan. Held, That as the evidence was not responsive to the question, and as it was proper to explain evidence defendant had given, there was no error. Judgment of General Term, affirming judgment for plaintiff and order denying new trial, affirmed. Opinion by Earl, J. All concur, except Folger and Miller, JJ., absent. TROVER. JOINT OWNERS. SPREME COURT OF PENNSYLVANIA. Given v. Kelly et al. Decided October 29, 1877. Where one of several joint owners destroys or so dismembers the joint property as to unfit it for the purpose for which it was intended to be used, an action of trover by a joint owner will lie. Trover by Kelly and others against Given to recover for alleged misuser, destruction, and conversion of certain |