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Digest.

tunc as of the day of the trial and hearing, the plaintiff having died two

days subsequent to such trial and hearing.
It is not analagous to the case where the plaintiff dies before verdict.

Ehle agt. Moyer, 244.
SEE DEMURRER, Drummond agt. Husson, 246, 275.
SEE Practice, Hewitt agt. Howell, 316.
Where one of several plaintitfs dies, pending an action, the cause of

which survives, and the defendant enters judgment against all, no
order to proceed in favor of the surviving plaintiffs having been made,

the judgment is irregular, and must be set aside. The judgment can not be amended, and allowed to stand as against the

surviving plaintiffs, because it is a joint judgment. Holmes &. Palmer agt. Honie, 383.

LIABILITY,

TY, in reference to fiduriary character.
A merchant who received goods on consignment upon condition that he

would advance to the consignor a certain amount in cash, and then
consign the goods with the bills of lading and invoices, to responsible
parties in Europe, for sale and returns, guaranteeing the faithful dispo.
sition of the property and returns of accounts of sales, together with
whatever balance there might be over and above the advances made,
the consignor holding himself responsible to the consignee for any
deficiency, Held, that on a deficiency of the amount of goods returned
on sales by the parties in Europe, for which the consignee was liable
on his guarrantee, and the consignor on his promise to the cousignce,
the consignee did not act in a fiduciary capacity where he had received
the amount of the deficiency from the consignor and had not paid over
the same to the parties in Europe, for which they sought to hold him

to bail. Angus agt. Dunscomb, 14. SEE ATTORNEY, Yates agt. Blodgett, 278. An agent employed to collect moneys for his principal, is liable to arrest

where he appropriates such money to his own use. In such a case the agent assumes a special trust and acts in a fiduciary

capacity,and comes within section 179, sub. 2 of the Code. Stoll agt. King, 399.

LUNACY. The Court have no jurisdiction to appoint a committee of a lunatic

or order a sale of his property, upon petition of his friends and relatives, before a commission of lunacy has been issued and returned. In the matter of Hugh Payn, an alleged lunatic, 220.

LIEN. Respecting mechanics' lien in New York city.

Where several claims are filed against the owner and suit brought against

him by one of the claimants, and the amount is unascertained, the RIED WOMEN. A married woman can not appear and defend in

Digest.

owner (defendant) can not be permitted to allege that he is indebted to the contractor in a less sum than the plaintiff's claim against the contractor, and be allowed under Ş 122 of the Code to pay the balance into court, and have the claimants substituted in his place. It is not a case for an interpleader. The amount is unliquidated, and the notices of the claims are not for the same debt. Chamberlain agt. O'Connor,

45. In an action by the contractor against the owner under the Mechanics'

Lien Law of 1851, (city of New York,) to enforce a lien filed with the
county clerk, the owner may set off' a demand against the contractor
arising out of other matters than those connected with the contract.

Owens agt. Ackerson, 199.
The lien law passed July 11, 1851, applies to cases where the contract

was made before its passage, if the labor was performed or the mate

rials furnished afterwards, and is not in that respect unconstitutional. The claimant must show that a payment has become due upon the con

tract of the owner before he is entitled to recover. A judgment of non-suit, or dismissal of the proceedings on the trial is a

bar to a second proceeding to enforce the same lien. Sullivan agt. Brewster and Gale, 207.

MARRIED

person an action brought against her alone. It must be done by a next

friend or guardian. Henderson agt. Easton, 201. Under the act of April 7th, 1S1S," for the more effectual protection of

the property of married women,” the title of the wife, during the mar. riage, to her property real and personal, and the rents, issues and profits thereof, remains the same as if the marriage had not taken

place. Where a married woman retains the possession, or right of possession,

of her property, the fact that she allows her husband to have the charge and management of it, and to fatten her swine, will not entitle him to the increase of her animals, or the pork made from the swine, but they

will belong to her. The payment in part, by the wife, and from the rent and produce of her

property, for chattels purchased by the husband, will not vest in her a

title to them. Where a husband is permitted by his wife to occupy her land, and receive

and dispose of the products, the law will not, in the absence of proof of an express agreement that she should share in the products, or that he should account to her, imply such a contract, but will rather regard her as having made a gift of the use of the land to the husband while such occupation continued. Van Sickle agt. Van Sickle 265.

Digest.

MARRIED WOMEN.
SEE Parties, Brownson and Wife agt. Gifford, 389.

Ripple agt. Gilborn, 456.
Howland agt. Fort Edward Paper Mill Co., 505.

MORTGAGE FORECLOSURE. Where in a foreclosure suit upon a bond

and mortgage, the plaintiff' alleged a breach of the conditions of the bond, and averred “ that the bond is accompanied by a mortgage with the same condition as the bond,” and the answer denied that the mortgage contained the conditions alleged to be broken; on demurrer to the answer, on the ground that the conditions of the bond must control that of the mortgage, Held, that the complaint not setting out the mortgage, the defendant was entitled to judgment on the demurrer. The defendants had tendered a material issue. Dimon agt. Bridges,

16. After a judgment of foreclosure, directing that the purchaser be let into

possession, and a sale of the premises, the purchaser on proof that he has exhibited the sheriff''s deed and the order confirming the sale, to the party in possession, and demanded the possession of the premises, is entitled ex parte to an order for a writ of assistance. No notice of

the application therefor is necessary. A grantee of the purchaser is entitled to the same remedy, on the further

proof that the deed from the purchaser to him has also been exhibited

to the party in possession. An equitable claim by judgment creditors against the tenant in possession

and affecting the premises, can not be heard upon a motion for a writ of assistance or motion to vacate such writ. N. Y. Life Insurance

& Trust Co. agt. Rand and others, 35. The plaintiff in a mortgage foreclosure suit can not have, under $ 274 of

the Code, a contingent personal judgment against some of the defendants, before final judgment of foreclosure and sale. Cobb agt. Thorn

ton, 66. Where mortgaged premises are sold upon a decree of foreclosure and

sale, and a parcel is sold by the sheriff and bid off by the plaintiff, he is not at liberty to refuse to consummate such sale or revoke his bid; and direct the sheriff to re-sell the same parcel with other lands, and if the sheriff, in pursuance of such direction does re-sell the same, the sale

will be set aside as irregular. Woodruf agt. Bush, 117. Also, who may designate where different parcels sold, id., 117. Where a mortgagee conveyed to the defendant as collateral security for

$3000, certain things in action, among which was a mortgage on thirty-six lots in Williamsburgh, which was subsequently foreclosed by a bill filed by the mortgagee and the defendant, and all the lots sold and purchased in by the defendant at a less sum than was due from the mortgagee; and upon such purchase the defendant subsequently received large advances upon sales of the lots, Held, that the plaintiff, who

Digest.

had subsequently purchased all the mortgagee's interest, could not redeem the lots as owner of the equity of redemption, or compel an

account of the proceeds of the sales. After the sale the mortgagee's equity of redemption in the mortgage was

gone, consequently his interest in the lots was extinguished. The purchase by the defendant was as valid as if it had been made by a

stranger. He did not act as a trustee of the mortgagee. Hoyt agt. Martense, 196.

MOTION. Where a motion is made and denied without any leave given to

renew it, the motion can not be again heard without first obtaining leave of the Court. And this relief can not be granted under the general prayer, as a legitimate object of the principal motion. The necessary facts must be shown, and the special relief asked for. Bel.

linger agt. Martindale, 113. A motion to strike out irrelevant or redundant matter, or to correct a

pleading, must be noticed " before demurring or answering the plead-
ing, and within twenty days from the service thereof.(Rule 40.)

Roosa agt. Woodstock Turnpike Co., 237.
An answer served after notice of motion to strike out irrelevant matter

in the complaint, waives the motion. 439.

PARTNERS

ARTNERSHIP. The statute does not prevent a limited partner, if he is

willing to assume the liabilities that follow, from acting as a general partner, unless by the articles of co-partnership he is excluded from a control as a general partner. Ind this restriction may cease at the

expiration of the partnership. The statute authorizes an accounting between general and special part

ners, the same as other partners. And this liability to account must be as necessary and proper after as before the dissolution. Therefore, a receiver may be appointed in the same manner in cases of special

partnership, as in others. Hogg agt. Ellis, 473. Where two partners failed, and an assignment was made by one of them,

approved by the other, to pay certain debts of the concern, and among Other property assigned, was a balance of $5,409, due by the partner

who made the assignment, to the firm : On a claim by the other partner to an account for his share of the $5,409,

on the ground that he had paid certain notes and judgments due by the firm, Held, it appearing that there were creditors protected by the assignment, who were not paid, that these creditors had a prior right

to be paid out of that debt. Consequently, they should be called in and represented, by a proper

amendment of the complaint, before any decree could be made for the

plaintiff. Johnson agt. Snyder and Schenck, Assignee, 198. Vol. VIII.

71

Digest.

PARTNERSHIP.

Where two partners agreed, in writing, to dissolve, and that one of the

firm should leave, and the other assume the business and settlement of the debts, due to or by the firm, and be responsible to the other for the amount that would be coming to him, Held, that this was not a mere assignment in trust, to convert the property into money, and pay the outgoing partner his share; the remaining partner was to have the right to use the partnership property as his own, and was person

ally responsible to the other partner, for his share. And in the absence of fraud in the management of the concern, the

outgoing partner could not institute proceedings to wind up the business and appoint a receiver. Weber agt. Defor & Lambelet, 502.

PAROL AGREEMENTS, not allowed as a general rule, in settling litigated

suits. Mulligan agt. Brophy, 135. A parol agreement for renting real estate, made for one year, to com

mence at a future period, is not void under the provisions of the

Revised Statutes, respecting fraudulent conveyances, &c.
Where possession is taken under a parol lease, void by the statute, it

enures as a tenancy from year to year, and can not be terminated by

either party, except at the end of the year. A parol agreement for one year, to commence in future, is not void under

the provisions of the Revised Statutes, declaring certain contracts void which are not performed within a year from the making thereof. Taggard agt. Roosevelt, 141.

PARTIES. Verdict set aside because of misjoinder of a plaintiff, in an action

for a tort. It seems one of the plaintiffs may be struck out on motion, on giving a

new undertaking, &c., although an attachment has been issued, and

the property of defendant seized. Travis agt. Tobias, 333. As to the misjoinder of parties plaintiff. The interest of Mrs. Brown

son (the wife) in her father's estate, became hy virtue of the will and the operation of the statute, her separate property. Therefore, held, on demurrer by all the defendants, that the suit by the plaintill's, to ascertain and establish the rights and interests of the parties, and that partition be made, should have been brought by Mrs. Brownson alone;

her husband was improperly joined as plaintill. It seems, that in respect to parties, the Code has not changed the system

of practice which existed in courts of equiry. (See Coule § 114, Story's Eq. Pl. SS 61-2 and 3.) That is, whether or not the wife should sue alone, or be joined with her husband, is to be determined now, as

before the Code, by the settled practice of courts of equiry. As to the w.isjoinder of parties defendant. A demurrer will lie for the

nonjoinder of the proper parties defendant, but not for the misjoinder

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