Digest. 9. It is doubtful whether an appeal to the supreme court can be taken from an order of a county court denying a new trial, until after judgment, and then only in connection with an appeal from the judgment. (Taylor agt. Scorille, 54 Barb. 34.) 10. Although, under section 122 of the Code of Procedure, the court may determine any controversy between the parties before it, yet where neither of the defendants, in his answer, demands of the court any relief, as against the others, but each merely asks that the complaint be dismissed as to him, it is too late to demand any more, on appeal. (Garvey agt. Jarvis, 54 Barb. 179.) 11. An order made by the court, in proceedings supplementary to execution, directing a defendant to be punished for a contempt in not answering questions propounded to him concerning his property and business, is an appealable order, under the Code, (6 248. 349,) as affecting a substantial right. (Forbes v Willard, 54 Barb. 520.) 12. Orders which impose upon a party to an action such a charge as the payment of money, not as the condition upon which some favor or relief is granted to him to which he is not entitled as a matter of right, but imposed upon him absolutely, as an obligation and duty, affect a substantial right, if he ought not to pay it, or a greater amount is imposed than he ought to be subjected to. Such an order is not in the sole discretion of the judge who makes it, but is the exercise of a legal discretion, which, if erroneous, may be reviewed and corrected. (Leslie agt. Leslie, 6 Abb. N. S. 193.) 13. An appeal lies to the court at general term from an order in a divorce suit imposing upon the husband the payment of an allowance for the support of his wife pending the litigation. (Id.) 14. In what cases the N. Y. superior court will order a re-argument on the ground of an alleged misapprehension by the court of a recent decision of an appellate court. (Smith agt. Miller, 6 Abb. N. S. 234.) 15. This court will not review a case upon the exceptions to findings of fact, or the omission to find other facts not found. (Lewis agt. Ingersoll, 1 Keyes, 347.) 16. On an appeal from the special to the general term, the undertaking provided for by section 335 of the Code constitutes no part of the appeal. Its only effect is to stay proceedings upon the judgment. (Genter agt. Fields, 1 Keyes 483.) 17. It would be error for the general term to dismiss an appeal from the special term because the appellant had failed to comply with an order of the special term to execute a new undertaking. (Id.) 18. This case presents merely a question of the construction of the language constituting a clause of the contract. (Blossbury, &c., R. R. Co. agt. Tioga R. R. Co., 1 Keyes, 486.) 19. A patent ambiguity in a written contract cannot be explained by parol evidence. (Id.) 20. No appeal lies from a judgment by (Id.) default. 21. In matters of mechanic's lien in the county of Erie, the court acquires jurisdiction of the subject matter by the personal service of the notice required by statute upon the opposite party within the time required by law. Maltby agt. Green, 1 Keyes, 548.) 22. When there is any evidence of a conflicting character touching material issues the question is one for the jury, and their finding is conclusive as respects this court. (Id.) 23. If there are errors in the findings of the jury, the correction must be made at general term-if the special term sustains the verdict-otherwise the party is without remedy. (Godfrey agt, Johnson, 1 Keyes, 556.) 24. Where a referee in his report has found, as a question of fact, that title and the right to convey were in the vendor at the time the conveyance was made, this court will not review the evidence in the case in order to ascertain whether such conclusion is or is not erroneous. (Farnham agt. Hotchkiss, 2 Keyes, 9.) 25. This court is bound to take the facts as they are stated in the case to have been found by the judge or referee, and compare the judgment rendered with those statements of fact, and if the judgment is in conformity with the facts as found, it cannot be disturbed. (Id.) 26. This court cannot review the decision of a referee where the facts are not found, nor his legal conclusions stated and properly excepted to. (Stratton agt. Cornfield, 2 Keyes, 55) 27. A judgment of reversal of the report Digest. of a referee will not be deemed to have 28. This court will not send back a case 29. It seems that an order of the supreme court, vacating a sale under foreclosure of a mortgage, and opening the judgment therein, is not appealable (McReynolds agt. Munns, 2 Keyes, 214.) 30. It seems that an order by the special term, vacating a judgment upon the ground of fraud and collusion, is within its discretion and will not be reviewed by this court. (Baldwin agt Mayor, &c., of New York, 2 Keyes, 387.) 31. An appellate tribunal has no author. ity to reverse a judgment by reason of defects in the pleadings which neither surprised nor misled the appellant, and which affected none of his substantial rights. (Johnson agt. Hathorn, 11 Keyes, 476.) 32. In this court the report of a referee, so far as it involves questions of fact, is not open for review. (Chamberlain agt. Prior, 2 Keyes, 539.) 33. Where no exception is taken to a decision of the court it is acquiesced in, and the ruling cannot afterwards be reviewed. (Boyer agt. Schofield, 2 Keyes, 628.) 34. Upon the decision of a referee where no case is made, or if made where there is no sufficient finding of facts, the appeal will be dismissed on motion, or if argued, the judgment below will be affirmed. (Goodyear agt. Bishop, 2 Keyes, 651.) 35. However irregular the action of the referee may be in the conduct of the case, his final conclusion can only be reviewed upon a case made in the manner prescribed by the Code. (Id.) ARBITRATION AND AWARD. 6. Assuming that any members of the New York Gold Exchange, personally assenting to the constitution and bylaws of the association, establish there 7. by a valid contract between them and the other members of the association, the only binding force or effect that the seventh article (which provides for settling claims and differences by the arbitration committee thereby appointed) has upon such members, is that it shall have the same force and effect as an agreement in writing made by persons to submit to the decision of one or more arbitrators any controversy existing between them. (Heath agt. N. Y., Gold Exchange, ante, 168). By the Revised Statutes a party is permitted to revoke the powers of the arbitrators at any time before the cause is finally submitted to them for their decision. (Id.) 8. The plaintiffs in this case had a right to revoke and annul, as they allege in their complaint they did, any power to arbitrate, they may have previously conferred upon either the Gold Exchange or the Arbitration Committee thereof. (Id.) 9. Whether, therefore, they be regarded as members of the defendants' organization, as they claim they are in their original complaint, or as having resigned and ceased to be such members. as they allege in their supplemental complaint, they having revoked and annulled any contract of submission to arbitration they may have made, any action which the Gold Exchange or the Arbitration Committee thereof may take in the premises, will amount to nothing. The defendants cannot enforce any award or judgment that they may make or render; quently the plaintiffs could not be affected or injured by it in any way, and are not entitled to a temporary injunction. (Id). conse 1. An award cannot be impeached except for corruption, partiality or gross misbehavior in the arbitrators, or for some palpable mistake of the law or the facts. On these grounds courts of equity interfere to set aside awards, uopn the same principles and for the same reasons which justify their interference in regard to other matters, where there is no adequate remedy at law. Nothing short of this will answer as a ground of interferrence, to set aside the determination of these tribunals. (Perkins agt. Giles, 53 Barb., 342.) an 2. Where no mistake of fact, in award, was alieged in the complaint, nor was it averred, in terms, that the arbitrator had made a palpable mistake in any matter of law; but it was Digest. averred that "said award is contrary to the lawful rights of the parties in real estate," specifying the error to be in a certain holding of the arbitrator: Held, that this was rather in the nature of an objection and exception to an erroneous ruling or adjudgment in a matter of legal construction, than an allegation of a palpable mistake in such matter. (Id.) 3. Mere 'uncertainty, in an award, forms no proper ground for the interference of a court of equity, to set it aside. If it is so uncertain that it cannot be executed, or enforced at law, it is void, and no resort to a court of equity is necessary, either for prevention or relief. (Id.) 4. Held, that the act of the defendant in making and serving the notices of revocation was a breach of the agree ment to submit; and that those acts having induced the three persons named to refuse to make a report, the executor of W., could recover of the defendant all the damages he had sustained in consequence of such refusal, such as the expenses incurred by him in employing counsel, procuring the attendance of witnesses, &c. (Miller agt. Prest. &c., Junction Canal Co., 53 Barb., 590). 5. There is no valid objection to regarding persons appointed by parties pursuant to the above statute as arbitrators, although they are not design. ated in the act either as appraisers, or referees, or arbitrators; and it seems they should be deemed arbitrators, and therefore authorized to hear evidence. (Id.) 2. Whenever a corporation is entitled to maintain an action for libel, it may also procure an order for arrest of the defendant; for the wrong is an injury to the character," within the meaning of the provisions of the Code. (Knick erbocker Life Ins. Co., agt. Ecclesine, 6 Abb., N. S., 9). 3. In such an action, when the words complained of are not libelous on their face, the plaintiff, in order to sustain an order of arrest, must show, by facts and circumstances, how they became libelous, and that the defendant, at the time of their publication, knew their libelous character. (Id.) 4. Averments in the complaint that the defendant, intending to destroy the reputation of the plaintiffs and injure their business, composed and published the matters complained of; and that by reason thereof the plaintiffs were injured in their reputation and business, and lost a large amount of premiums which they otherwise would have received, are not sufficient proof of malice and special damage to sustain an order of arrest. (Id.) 5. Where the cause of action is such that the plaintiff, if successful, may have execution against the person of the defendant, the superior court usually require proof that there is danger the defendant will abscond, to sustain an order of arrest before judement. (Butts agt. Burnett, 6 Abb. N. S., 302.) 6. The provisions of the Code of Proce dure, authorizing arrests in civil actions, do not give the plaintiff a right to arrest the defendant, but it rests in the sound discretion of the Judge to grant or refuse an order. (Knickerbocker Life Ins. Co, agt. Ecclesine, 6 Abb. N. S., 9.) 7. The exercise of this discretion in granting the order, by the judge to whom application for an order of arrest is made, may be reviewed by another judge at special term, upon a motion to vacate the order. (Id.) 8. A defendant arrested, does not, by giving bail, preclude himself from questioning the sufficiency of the plaintiff's complaint, or original affidavits made to sustain the order. (Id.) 9. So far as the facts upon which an order of arrest, in an action of tort, is based are concerned, the court will, in ordinary cases, allow the order to stand, and abide the trial of the issues. The trurth or falsity of such facts should never be decided on a motion. (Nelson agt. Blanchfield, 54 Barb., 630). 10. But where, after the perpetration by the defendant of certain alleged frauds, in the purchase of stock for the plaintiff and refusing to transfer the same to him or to refund the money advanced for such purchase, there was a settlement between the parties, and the plaintiff accepted the defendant's note for $700, 100 shares of a specitied stock, and a due-bill for 200 shares of the same stock, giving a receipt stating Digest. that it was a "receipt and settlement | ASSIGNMENT FOR THE BENEFIT for all cliams" which he held against the defendant: Held, that this was a condonation of the tort, and a waiver of the plaintiff's right to arrest the defendant; and that it was a proper case for vacating the order of arrest, on motion. (Id.) 11. Where a judgment is rendered in a case where the defendant is subject to an arrest and imprisonment, it should be so stated in the judgment, if the plaintiff wishes to avail himself of such remedy. (Carpentier agt. Willet, 1 Keyes, 510). 12. The subsequent indorsement by the justice that execution against the body is to issue, is not sufficient. Such entry, to be availabe, must be entered in and become a part of the judgment. (Id.) 13. The sheriff when sued for an escape may avail himself of the defense, that the defendant was not subject to arrest on the execution. (Id.) ASSAULT AND BATTERY. 1. A justice of the peace has no jurisdiction of an action for assault and battery. (Chapin agt. Cole, ante, 481.) 2. Where the complaint contained three counts-one for assault and battery, one for injury to plaintiff's barn, and the other for converting sheep, and on the trial evidence was given upon all the counts, and a general verdict for plaintiffs for $20: 1. OF CREDITORS. One who indorses commercial paper before maturity, for the accommodation of the payees, without any knowledge of the fact that the note was executed by the makers for the benefit of the payees, upon the faith of a promise by the latter to send the inakers paper sufficient to pay the same, and that such promise has been only partially performed, may, after having been compelled to pay the note, recover the amount of the makers. (Watson agt. Shuttleworth, 53 Barb. 357.) 2. A recovery in such an action will not be defeated by the fact that the makers have executed to the plaintiff a voluntary assignment of their property in trust for their creditors, in which the plaintiff is named as a preferred creditor; where it appears that no dividend has been made under such assignment, nor any application made of money realized from the assigned property, upon the plaintiff's claim. (Id.) 3. The mere acceptance of such a trust by the assignee, will not have the effect to suspend his remedy as indorser, against the makers. (Id.) Held that the defendant was entitled to 5. The omission to do any of the acts recosts. (Id.) ASSIGNEE AND ASSIGNOR. 1. The assignee of a mortgage takes subject to all the equities of the debtor as against the assignor; and any demand which the debtor might apply or set off as against the assignor, may be so applied or set off as against the assignee. (Hartley agt. Tatham, 1 Keyes 222.) 2. A person transferring a promissory note is not the assigner of a thing in action within the meaning of section 399 of the Code of Procedure. (Bartlett agt. Tarbox, 1 Keyes, 495.) 3. The admission of distinct facts during a negotiation for a settlement, is competent evidence against the party making it. (Id.) quired by the statute to render valid an assignment for the benefit of creditors, or the omission of a partner to join in making such an assignment, is nof available, upon motion, to sustain an attachment as against the assignment, except so far as such circumstances bear upon the question of fraudulent intent. (Id.) 6. It seems that where the assignment of the effects of a copartnership, for the benefit of creditors, prefers the credi tors of the individual members of the firm, it is competent, in order to rebut the presumption of fraud, for those claiming under such assignment, and the onus is upon them, to show that there are no individual debts thus preferred. (Hurlbert agt. Dean, 2 Keyes, 97.) 7. Where the referee in such case reports as a conclusion of law the validity of Digest. such assignment, upon the ground that 8. An assignment made directly to cer- 9. Where an assignment is made directly 10. An assignment unaccompanied by instantaneous delivery, is not necessarily void under the provisions of § 6, 2 R. S., 136. It is, as against creditors of the assignor, or subsequent purchasers in good faith, presumptively fraudulent, and he burden of proof to overcome this presumption is upon the assignee. (Id.) 11. A resident of this state executed to divers creditors, also with one exception residents of this state, an assignment in good faith, and to secure the claims of those creditors of certain property owned by him, a part of which consisted of iron safes, then in the assignor's store in Chicago, Illinois. Three days subsequent to this assignment, and without knowledge or notice of it, and before the assignees had taken possession of the safes, certain other creditors of the assignor, also residents of this state, by a process of attachment, duly issued pursuant to the laws of the state of Illinois, attached and levied upon said safes, and, upon subsequent notice of the assignment and demand for the safes by the assig nees, the same was refused. The action under which the attachment was made was prosecuted to judgment, and the safes sold under an execution duly issued. In an action by the assignees against the judgment creditors for whose benefit the safes were sold, to recover the value of the same: it was Held that by the assignment the title to the safes vested instantaneously in the assignees; that by the laws of this state their title was superior to that acquired subsequently under the attachment; that in an action in this state, between cit zens of this state, in regard 2. to a contract made in this state conveying the title to personal property, it must be determined by the law of this state; and that, hence, the assignees in such action against such judgment creditors were entitled to recover. (Id.) ATTACHMENT. Where defendant's damages are assessed upon a reference, on the dissolution of an injunction, the court may order the plaintiff to pay them, and if he refuses, may enforce the payment thereof by attachment. (Patterson agt. Bloomer, ante, 280.) Where in such case, the report of the referee has been confirmed in a proceeding to which the plaintiff was a party, and no appeal having been taken by him, the same is conclusive upon him. (Id.) 3. Notices of pendency and returns to attachments, may be amended by inserting in the notices and inventories, a specific description of a lot of laud omitted by mistake. (Vanderheyden agt. Gary, ante, 367.) 4. On a motion to set aside an attachment, which turns on the question whether the bond of an assignee for the benefit of creditors had been filed when the attachment was issued, a mere denial in the affidavit of the moving party that the security was then fled, without evidence by the certificate of the county clerk, or otherwise, on the point, is insufficient to overcome the positive statement of the assignee that it was filed as required by law. (Place agt. Miller, 6 Abb. N. S. 178.) 5. The notice, accompanying an attachment, to be served by the sheriff on a third person who is in possession of property claimed to belong to the debtor, may describe the property in general terms, without specifying its precise nature and amount. (Drake agt. Goodridge, 54 Barb. 78.) 6. This point, which was so decided at special term, in Greenleaf agt. Munford (19 Abb. 469) was not considered by the general term, in that case, on appeal, nor was the ruling of the special term in respect to it overruled. (Id.) 7. Where the defendant, when called upon, on several occasions, to pay the plaintiffs' debt, put them off, stating that her husband, every night, took all the money which she had received during the day and paid it to persons |