DEFENCES.

ten dollars costs of motion, and on stipulation that the cause be placed on the calendar of the May general term, and argued without further notice. Ib.

DEFENCES.

1. The fact that the defendant has taken and perfected an appeal to the Court of Appeals from the judgment of affirmance, is no defence to an action by the respondent upon the undertaking given on the first appeal. Heebner a. Townsend, Ante, 234.

2. A debtor cannot resist the claim made upon him by the assignee of the debt, on the ground of inadequacy of the consideration paid by the assignee. N. Y. Common Pleas, Gen. T., 1855, Mills a. Fox, 4 E. D. Smith's C. P. R, 220.

3. In an action against the sureties of an individual banker with whom the State officers had deposited public moneys, which they were directed by statute to deposit with a banking association, the defence set up was that the officers had no power to deposit with an individual banker and to take security therefor.

Held, that the defence was frivolous. If they had no power, yet since they were not expressly prohibited by law, the security was at most only voidable at the election of the State; it was not subject to be impeached by the defendants. The act of the officers was not illegal, as a criminal violation of duty, and the case was not within the terms, reason, or spirit of the general rule making void all transactions prohibited by law. [State of New York a. The City of Buffalo, 2 Hill, 434.] Ct. of Appeals, 1858, The People a. McCumber, 43 E. P. Smith's (18 N. Y.) R., 315.

4. It is an absolute and complete defence to an application for a mandamus to compel the Comptroller of the State to pay money, that no appropriation has ever been made by law for the payment of the claim, as required by the constitution, art. 7, § 8. Supreme Ct., III. Dist., Gen. T., 1858, The People on rel. Woodworth a. Burrows, 16 How. Pr. R., 27.

5. It is a good answer to an action, that a party is legally interested on each side of the question. No party can be both plaintiff and defendant in an action. [1 Chit. Pl., 46; Blaisdell a. Ladd, 14 N. Hamp. R., 129.] And this answer could always be given under the general issue. [Hammond a. League, 6 Bing., 197.] Supreme Ct., Gen. T., 1858, Trustees of Meth. Ep. Church in Pultney a. Stewart, 27 Barb., 553; compare Cole a. Reynolds, 4 E. P. Smith's (18 N. Y.) R., 74. 6. Taking the note of the debtor, or a transfer of property from him,

DEFENCES.

merely as collateral security, without any agreement to extend the time of payment of the original debt, does not operate to suspend the remedy against the principal upon the original debt, or against his surety. [Twopenny a. Young, 3 Barn. & Cres., 208; Gahn a. Niemcewicz, 11 Wend., 320; Hubbell & Curran a. Carpenter, 1 Seld., 171; Pitts a. Coneydon, 2 Coms., 352; Bangs a. Strong, 7 Hill, 250.] N. Y. Superior Ct., Gen. T., 1857, Williams a. Townsend, 1 Bosw., 411. 7. Mere delay to sue the principal, however long continued, does not discharge the surety. Ib.

8. In an action in the names of the Board of Commissioners of Excise, for penalties under the act, an answer that the plaintiffs had no right to bring the action, and that they had never anthorized it to be brought, contains no defence. The commissioners alone have a right to object that the action is brought without their authority. [Thayer a. Lewis, 4 Den., 269.] Supreme Ct., Circuit, 1858, Pomroy a. Sperry, 16 How. Pr. R., 211.

9. The builders and owners of an unfinished barge, on which the sheriff had levied executions, transferred it to the plaintiffs by an assignment void upon its face as against creditors. The defendants claiming that the barge had been their own from its commencement, brought replevin against the sheriff and obtained possession. The plaintiffs having discharged the sheriff's levy, demanded the barge of the defendants, and brought trover.

Held, 1. That the replevin suit and the possession obtained through it by the defendants, in no way affected the rights of the plaintiff.

2. That the defendants could not, as mere creditors at large, defend their possession by reason of the fact that the assignment to the plaintiff was void as against creditors. To enable a creditor to attack an assignment as such, he must have judgment and execution. [Hastings a. Belknap, 1 Den., 190.] Until then he is a mere stranger, and the fact that he has obtained possession, in hostility to the debtor, gives him no right to resist to the fraudulent transfer. Ct. of Appeals, 1859, Andrews a. Durant, 4 E. P. Smith's (18 N. Y.) R., 496.

Ct. of

10. The judgment of another State cannot be given any greater effect here than it has by law in the State where it was recovered. Appeals, 1858, Suydam a. Barber, 4 E. P. Smith's (18 N. Y.) R., 468. 11. By the statute of Missouri, "all contracts which, by the common law, are joint only, shall be construed as joint and several. In all cases of joint obligations and joint assumptions of copartners or others, suits may be brought and prosecuted against any one or more of those who are so liable." Under this act the plaintiff recovered judgment in Missouri, against one of several joint debtors.

DEFENCES.

Held, that the recovery against him was no defence for the others in an action here against all, upon the same contract. Ib.

12. Under the Code, the joinder of a defendant, not liable at all in the action, is not a ground of defence to any one but the party not liable.

Ib.

13. A creditor may sue, notwithstanding the pendency of an action by the debtor against him, in which his demand might be set up as a counter-claim. N. Y. Common Pleas, Gen. T., 1855, Lignot a. Redding, 4 E. D. Smith's C. P. R., 285.

upon

14. The defendant, failing in a defence pleaded in justification, may rely the same matter in mitigation. N. Y. Common Pleas, Gen. T., 1855, Hunt a. Bennett, 4 E. D. Smith's C. P. R., 647, and see Russ a. Brooks, 4 Ib., 644.

15. In an action by the landlord, under 2 Revised Statutes, 505, § 30, to recover possession of the land for non-payment of the rent reserved, the tenant may plead and show a partial eviction from the easement by way of counter-claim and equitable defence, and is not driven to a cross-action. It is essential to ascertain whether any, and how much rent is due; and in coming at this, the defendant ought to have the advantage of any equitable answer he may have to the claim for rent. Ct. of Appeals, 1859, Blair a. Claxton, 4 E. P. Smith's (18 N. Y.) R., 529. 16. If a plaintiff charges, in his complaint, for a general indebtedness for goods, and work and labor bestowed upon them; and proves that there were specific prices; and it appears from his evidence, or the evidence of the other party, that there were defects in the goods or work, it follows that there was never an indebtedness to the extent claimed; and the amount allowed to him should be limited accordingly. It requires no counter-claim to reduce the amount.

So held, where the defect was one that was not discovered until after issue joined. Ct. of Appeals, 1859, Moffet a. Sackett, 4 E. P. Smith's (18 N. Y.) R., 522.

17. In an action on an insurance policy, issued to the mortgagee as collateral to the mortgage debt, the fact that the mortgage has been paid is not available as a defence, unless stated in the answer. N. Y. Superior Ct., Gen. T., 1857, Grosvenor a. the Atlantic Fire Insurance Co. of Brooklyn, 1 Bosw., 469.

18. An insurance company are bound to give notice to a dealer, presenting in good faith preliminary proofs of loss, what they deem to be defects in such proof, instead of holding the objections in reserve to defeat or delay the claim. If they do not raise the objections at the time of presenting the proofs, they may be deemed to have waived it.

DEMAND OF COPY OF COMPLAINT.

N. Y. Superior Ct., Gen. T., 1857, Peacock a. the New York Life Insurance Co., 1 Bosw., 338. But compare Irving a. the Park Excelsior Fire Insurance Co., 1 Ib., 507.

ANSWER; CAUSE OF ACTION, 8, 27; CONVERSION, 1.

DEMAND OF COPY OF COMPLAINT.

A notice of appearance, which requires "all papers" in the action to be served on the defendant's attorney, and specifying a place for the service, is a sufficient demand of service of a copy of the complaint. Walsh a. Kursheedt, Ante, 418.

DEMURRER.

MARRIED WOMAN, 5; PARTIES, 8.

DEPOSITION ON COMMISSION.

1. A non-resident party is entitled to the issue of a commission to take his testimony on his own behalf. Block a. Haas, Ante, 335. See Fairbanks a. Tregent, Ante, 66.

2. The return to the commission was indorsed upon the interrogatories, which, and the deposition of the witness, were annexed and secured to the commission.

Held, admissible. [Hurd a. Pendrigh, 2 Hill, 502.] This case is to be distinguished from Fleming a. Hollenbach (7 Barb., 271), where the return was on a separate piece of paper, which was attached to the back of the answers to the interrogatories. Supreme Ct., Gen. T 1858, McCleary a. Edwards, 27 Barb., 239.

DISCONTINUANCE.

1. If after the defendant puts in an answer of infancy, the plaintiff proceeds so that the costs are increased, his subsequent application for leave to discontinue should only be granted on his payment of costs after service of the answer. Supreme Ct., Sp. T., 1858, St. John a. Hart, 16 How. Pr. R., 192.

2. If before the service of an order allowing a party to discontinue on payment of costs, the adverse party has noticed the cause for trial, he is entitled, as a part of the costs on the discontinuance, to the fee for proceedings subsequent to notice of trial. Hall a. Lindo, Ante, 341.

COSTS, 7.

DISTRICT COURTS OF THE CITY OF NEW-YORK.

DISTRICT COURTS OF THE CITY OF NEW-YORK. 1. In a proceeding to enforce a mechanic's lien, it is no objection to the jurisdiction of the justice that the accounts between the parties exceed $400, if the amount claimed by the plaintiff does not exceed $100. N. Y. Common Pleas, Gen. T., 1856, Foley a. Gough, 4 E. D. Smith's C. P. R., 724.

2. It seems, that where one adjournment has been ordered by the mutual consent of the parties, the justice may, for good cause shown, direct a further adjournment for the whole time for which he might have adjourned the case when the issue was joined. N. Y. Common Pleas, Gen. T., 1855, Berrian a. Olmsted, 4 E. D. Smith's C. P. R., 279.

3. Under 2 Revised Laws, 374, § 95, six jurors are properly impannelled to try a cause in the district courts of the city of New York. N. Y. Common Pleas, Gen. T., 1855, Avogadro a. Bull, 4 E. D. Smith's C. P. R., 384; and see 1 Laws of 1857, 717, ch. 344, § 34. 4. It seems, that a constable serving process issued out of a district court of the city of New York is not disqualified to appear and conduct the cause as attorney for the plaintiff. The provision of 2 Revised Statutes, 434, § 45, does not apply to those courts. N. Y. Common Pleas, 1855, Hitchcock a. Van Pelt, 4 E. D. Smith's C. P. R., 485.

5. The attorney who appears for the plaintiff in the district courts is not bound to produce his authority, unless it is required by defendant. 2 Revised Statutes, 233, § 45, does not apply to the Marine and District Courts in this city. [See 2 Rev. Stats., 267, § 231; Ackerman ɑ. Finch, 15 Wend., 652.] N. Y. Common Pleas, 1855, Silkman a. Boiger, 4 E. D. Smith's C. P. R., 236.

6. A judgment rendered after the time within which the justice is required by statute to render judgment, is without jurisdiction, and should be reversed. [2 Rev. Laws, 370, § 87; extended to eight days by Laws of 1857, 707, § 47; 19 Wend., 371; 7 Cow., 147; 11 Barb., 96.] N. Y. Common Pleas, Gen. T., 1855, Berrian a. Olmsted, 4 E. D. Smith's C. P. R., 279.

7. The mere fact that it was proved that a former trial has been had between the same parties, when the return does not show how such trial terminated, will not warrant the reversal of the judgment of a district court for a plaintiff, upon an issue there, on a plea of former judgment. N. Y. Common Pleas, 1855, Morrill a. Whitehead, 4 E. D. Smith's C. P. R., 239.