ASSESSMENT OF DAMAGES.

transaction with the same parties, he made an assignment for the benefit of creditors, which showed only $1607 assets.

Held, in the absence of explanation on his part, evidence of fraud in contracting a debt on the faith of the first representations. Supreme Court, Scudder a. Barnes, 16 How. Pr. R., 534.

10. The fact that the plaintiff in another action which has since been discontinued, caused the defendant to be arrested on an order which was absolutely void for want of authority on the part of the court, does not preclude him from issuing another order in a second action, commenced for the same cause. Supreme Court, Sp. T., 1858, Schadle a. Chase, 16 How. Pr. R., 413.

11. An agent or attorney to whom money is paid by his principal for the purpose of making a specific appropriation of it, is liable to arrest on his refusal to pay it back on demand before he has paid it over. It is no excuse that the plaintiff has consented to its being held for a different purpose, unless the arrangement in respect to such purpose is such as to render the agent a stakeholder under liability to retain it. Ib.

12. To warrant arrest of a defendant whose fraud is alleged as the ground for the order, the fraud must be clearly proved. If there is a serious doubt as to the fraud, an order of arrest is not allowable. Claflin a. Frank, Ante, 412.

ASSESSMENT OF DAMAGES.

1. Upon application to the court for relief, upon failure to answer in an action for damages for a wrong, the court has power to direct the damages to be assessed at the circuit. Dillaye a. Hart, Ante, 394. 2. Where the cause of action in such case is one that has excited public attention, and it is probable that the question as to what extent provocation may be admitted in mitigation will arise, a motion that the assessment of damages should be had at the circuit should be granted in order to give the parties the right of challenge, and other advantages of a regular trial of the question. Ib.

ANSWER, 6.

ASSIGNMENT OF CAUSE OF ACTION.

1. A cause of action against a common carrier for negligence in not delivering property sent by him, is assignable. [McKee a. Judd, 2 Kern, 622; 2 Rev. Stat., 447, § 1.] Supreme Ct., Gen. T., 1857, Smith a. The New York and New Haven R. R. Co., 16 How. Pr. R., 2. The test of the assignability is, would the cause of action survive to

277.

ASSIGNMENT OF CAUSE OF ACTION.

the personal representatives. [Zabriskie a. Smith, 3 Kern, 322; Raymond a. Fitch, 2 Crompt. Mees. & W., 588; The People a. Tioga C. P., 19 Wend., 76; Comeggs a. Vase, 1 Pet., 213.] Ib. And compare Yerton a. Wiswall, 16 How. Pr. R., 8.

3. The assignee of a claim resting in account in sueing for it, offered as proof of his title to it the following assignment: [Date.] I sell and transfer this account to William Richardson against David Mead. [Signature.]

Held, sufficient. 1. It should not be presumed that the assignment was without consideration. [2 Cow. Tr., 47.]

2. It is not necessary for the assignee of a thing in action to prove that he paid a consideration, if he shows that he is the real party in interest. [Code, § 111, Arthur a. Brooks, 14 Barb., 533; Barnes a. Perine, 15 Ib., 249; Robertson a. Gardner, 11 Pick., 146.] Supreme Ct., Gen. T., 1858, Richardson a. Mead, 27 Barb., 178. See to similar effect, Nichols a. Atwood, (Niagara Co. Ct.), 10 How. Pr. R., 475.

4. An assignment of a cause of action to be sufficient to enable the assignee to bring action and call the assignor as a witness, must be a fair and bona fide transaction, in which the interest in the claim passes to the assignee for his benefit, and not for the use of the assignor. And where it appears that the assignment was merely colorable-made only for the purpose of enabling the assignor to be a witness to make out the case against the defendants-and with the clear intent that the money, if recovered, should be paid to the witness, the witness comes fully within the desciption of a person for whose immediate benefit the action is prosecuted. N. Y. Common Pleas, 1855, Bell a. Drew, 4 E. D. Smith's C. P. R., 59.

5. S. and C. assigned their claim against B., resting in account to P., and gave him a written assignment with a blank in which to insert the assignee's name. He transferred the same to W., inserting W.'s name

therein.

Held, in W.'s action, that P. was an assignor, and having been admitted to testify, the defendant was entitled to testify in his own behalf. N. Y. Common Pleas, 1855, Waldron a. Baker, 4 E. D. Smith's C. P. R., 440.

6. One who takes an assignment of a judgment with knowledge of a stipulation entered into by his assignor, the original judgment creditor controlling the method of enforcing it, cannot maintain an action to have the stipulation vacated upon the ground that his assignor was induced to enter into it by fraud of the other parties to it. The assignment of the judgment is an affirmance of such stipulation, and

ATTACHMENT.

does not carry with it any cause of action for fraud. Borst a. Baldwin, Ante, 351.

7. B. assigned his claim against the defendants to A., who brought an action thereon. B., acting as the agent of A., in endeavoring to collect the claim, was induced by one of the defendants to enter into a stipulation by which judgment should be entered against both defendants, but to be enforced only in a certain way. Judgment having been entered pursuant thereto, A. assigned the judgment to B.

Held, that B. could not have the stipulation vacated on the ground of fraud on the part of the defendant in obtaining it. Ib.

CAUSE OF ACTION, 2; DEFENCES, 2; EXAMINATION OF ASSIGNOR; TRIAL-tit. New Trial, 8.

ATTACHMENT.

1. Upon an attachment against the property of one of several copartners, the sheriff may seize the leviable property of the copartnership, take it into possession, and sell the defendants' interest in so much thereof as necessary. Goll a. Hinton, Ante, 120.

2. The cases of Stoutenburgh a. Vandenburgh (7 How. Pr. R., 229) and Sears a. Gearn (7 Ib., 383), overruled. Ib.

3. An attachment, in so far as it relates to chattels, differs in nowise from an execution as to the rights and duties of the officer in levying it. Ib.

4. The provisions of section 237 of the Code-respecting proceedings for satisfying judgment in an action in which property has been attached-amended so as to allow the court to order a sale of evidences of debt, attached. Laws of 1859, Voorhies' Code, 6th ed., 323, § 237.

EXECUTION, 5.

ATTORNEY AND CLIENT.

1. The Code has not abolished the lien of an attorney for his costs upon a judgment recovered by him. Such lien is not measured by the taxble costs, but covers any portion of the damages which may have been stipulated as the compensation for the attorney's services. [Sherwood a. The Buffalo and New York Railroad Company, 12 How. Pr. R., 136; Haight a. Holcomb, 16 Ib., 160, 173; S. C., 7 Abbotts' Pr. R.] Ct. of Appeals, 1858, Rooney a. Second Avenue Railroad Company, 4 E. P. Smith's (18 N. Y.) R., 368.

2. It had been agreed between the plaintiff and his attorney, that the

BAIL.

latter should commence and prosecute this action to its final termination, without fee, and at his own risk, and upon his final success he should receive for his services one half the recovery, and if the amount should not exceed $600 he was also to have the taxable costs. The judgment recovered, including costs, was $1179.17. Of this amount, according to the terms of the agreement, the attorney became entitled to $589.58. The plaintiff gave the attorney an irrevocable power of attorney to receive the amount of the recovery. Of these facts the defendants had sufficient notice.

Held, that the defendants negotiated with the plaintiffs for a compromise at their peril; and that an order vacating the satisfaction of the judgment entered on the record by the plaintiff, without payment of his attorney's compensation should be affirmed. Ib.

3. Before judgment a party may settle his suit without reference to the possibility or probability that his attorney might obtain his costs by a future trial and judgment. The attorney's lien must be perfected by a judgment, to preclude a settlement in disregard of it. Ct. of Appeals, 1859, Shank a. Shoemaker, 4 E. P. Smith's (18 N. Y.) R., 489.

4. An attorney cannot recover of his client fees of counsel associated with him, without proving that he employed such counsel at the client's request, or, with his sanction, paid such fees. N. Y. Common Pleas, 1855, Cook a. Ritter, 4 E. D. Smith's C. P. R., 253.

5. An attorney may be summarily required on motion to pay over to his client moneys belonging to the client, although the moneys were not received in any legal proceeding, or the attorney employed in any legal proceeding. It is enough to entitle the client to such remedy, that the attorney received the money in his professional capacity. Grant's case, Ante, 357.

6. A., being an attorney, received money from B. to invest on bond and mortgage for B., but did not do so.

Held, that the court being satisfied that he would not have been employed had he not been an attorney, he was liable to be summarily required on motion to repay it. Ib.

CAUSE OF ACTION, 48, 49.

BAIL.

1. After bail given upon an appeal to the Court of Appeals, under section 341 of the Code, had been duly excepted to, a notice of justification before the county judge was given, as required by section 193, but at the time specified in the notice, the bail did not appear to

BANKING CORPORATIONS.

justify; nor did the attorney of the respondent, or any one else in his behalf, attend for the purpose of examining them, and no further steps were taken by either party with a view to a justification.

Held, that the failure of the respondent to attend was a waiver of his exception, and it was none the less so that the sureties failed to attend. It is not the duty of the judge before whom the examination is to be had, to proceed in the absence of the respondent. The latter is the actor, and loses the benefit of his exception unless he attends. Ct. of Appeals, 1859, Ballard a. Ballard, 4 E. P. Smith's (18 N. Y.) R., 491. 2. In such case, although the bail neglect to attend, they are to be deemed sufficient, if the respondent has failed to institute the examination. A partial justification is required from them at the outset (§ 341), and the presumption therefore is in favor of their sufficiency. Ib.

BANKING CORPORATIONS.

Banking corporations directed to keep a list of stockholders, &c., which shall be presumptive evidence of the facts required to be entered therein, in proceedings under the act of 1849, to enforce responsibility of stockholders. Laws of 1859, 880, ch. 365.

BASTARDY.

1. On adjourning an examination of the defendant in bastardy proceedings, the justices are required by the statute (1 Rev. Stats., 644, §§ 11, 12,) to take a bond from him for his appearance at the adjourned day. Held, that the "appearance" intended was not merely a temporary one, but his continued appearance and attendance until the examination and subsequent proceedings are finally closed. Supreme Ct., Gen. T., 1858, The People a. Jayne, 27 Barb., 58. 2. The defendant, after giving the bond, appeared, and after the examination voluntarily departed, contrary to the direction of the justices. The justices took a recess, and after reassembling, and calling, and waiting for the defendant, made an order of filiation in his absence, and adjourned without day.

Held, 1. That his voluntary departure and not being present to answer and receive notice of the order was a breach of the bond.

2. That it was immaterial that he intended to return, or actually did next day return to the place and offer to the justices to submit himself to imprisonment upon their warrant, as in the case of neglect to give a bond. Ib.

3. That it was immaterial in an action on the bond, whether the justices had power to proceed to make the order in defendant's absence. Ib.