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Lee and others v. Heirberger.

the time the amended complaint was served, the plaintiff signed judgment. I think the defendant had twenty days after service of the amended complaint to answer or demur thereto, and that the judgment entered by default, at the expiration of the twenty days from the service of the first complaint, and before the expiration of the twenty days from the service of the amended compiaint, was irregular, and must be set aside for irregularity, being signed too soon.

Order to set aside judgment.

SUPREME COURT-SPECIAL TERM.

SEPTEMBER, 1848

Before EDMONDS, Justice

LEE AND OTHERS V. HEIRBERGER.

Section 249 of the Code.

On an application for an order under section 249 of the Code, Held, That an affidavit following the alternative wording of the statute is not suffi cient.

THIS was a motion for an order to examine a person under section 249 of the Code. The motion was founded on an affidavit that the party sought to be examined "has property of the judgment debtor, or is indebted to him," these being the precise words of the statute.

Edmonds, J.: This motion cannot be granted on the affi davit as it now stands. In order to obtain the order sought for by this motion, it is not sufficient that the affidavit follows the wording of the statute; it must be positive, either that the person has property of the judgment debtor, or that he is

Noble v. Trowbridge.

indebted to the judgment debtor, or that he has property and is indebted to the judgment debtor; but it cannot be put in the alternative.

Motion denied.

SUPREME COURT-SPECIAL TERM.

SEPTEMBER 8, 1848.

Before EDMONDS, Justice.

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NOBLE V. TROWBRIDGE.

Frivolous answer-practice as to.

H. S. Garr, for plaintiff, moved for judgment as for want of an answer, on the ground that the answer put in was frivolous.

Stryker, for defendant, showed cause.

Edmonds, J.-Sept. 8. The number of answers and demurrers clearly frivolous, and for delay, which the present prac tice has engendered, renders it necessary that some course of practice should be established in reference thereto. I will take the papers and consult my brethren of this district on the subject.

Sept. 16. I have consulted my brethren of this district on the course to be pursued with reference to frivolous answers and demurrers, and announce that in future the practice will be that where a frivolous answer or demurrer is put in, the plaintiff may apply for judgment as for want of an answer, on the notice prescribed for special motions; and if the answer or demurrer be adjudged frivolous, judgment will be

Thomas v. Haight.

given as if on default for want of an answer.

If adjudged not to be frivolous, the cause will be put on the circuit calendar, in its proper place, and be tried or heard in its order. Sept. 23. I have doubts as to this answer being frivolous, and if I decide the matter now there will be no appeal from my decision. I therefore decline to say that the answer is frivolous.

Motion denied.

NEW YORK CIRCUIT.

SEPTEMBER, 1848.

Before EDMONDS, Justice.

EDWARD J. THOMAS V. SAMUEL W. AND FLETCHER M. HAIGHT.

A person who gives himself out as a partner in a firm doing business under the name of A. & Co., is an active, and not a dormant partner, and cannot retire from the concern without giving notice of the dissolution. Such a person, when he retires, will still be liable for debts contracted in the name of the firm by the remaining partner, with dealers with the firm, unless actual notice of the dissolution be given to such dealers.

A person who has sold to the firm three several times after notice of who constituted the firm, is a dealer within the meaning of the rule.

THIS was an action of assumpsit tried at the New York Circuit, September, 1848. It was brought on a promissory note signed by S. W. Haight & Co., and was given for a bill of goods bought of the plaintiffs in 1843.

It appeared on the trial that a firm, under the style of S. W. Haight & Co., had been doing business in Rochester, consisting of S. W. H., who was the active partner, and F. M. H., who was the cashier of a bank in Rochester, and not taking any active part in the affairs of the company. In 1841, F.

4-vol. 2.

Thomas v. Haight..

M. H. wrote to a person in New York that he was a partner in the concern. That letter was shown to the plaintiff, on the strength of which he sold to S. W. H. three bills of goods in 1841, '42, and '43, for the last of which this note was given.

On the part of the defendants it was proved that in September, 1841, F. M. H. sold out his interest in the concern, but gave no notice of the dissolution until 1842, when it was published in a newspaper in Rochester, but there was no evidence that any notice had ever been given to the plaintiff.

Edmonds, J., charged the jury that F. M. H. was not a dormant partner, and therefore entitled to withdraw without notice. That if the plaintiff was a dealer with the firm of S. W. H. & Co., knowing that F. M. H. was a partner, he was entitled to actual notice of the dissolution, in default of which F. M. H. was responsible to the plaintiff for any debt contracted in the name of the firm by the remaining partner, though after an actual dissolution. And if the jury believed that plaintiff had been such actual dealer, and had not received actual notice of the dissolution, their finding must be for him.

Verdict for plaintiff.

ORANGE CIRCUIT-SPECIAL TERM.

OCTOBER, 1848.

Before EDMONDS, Justice.

CROSBY AND OTHERS V. LEWIS AND OTHERS.

A devise to "children" means "legitimate children," if there are any; and evidence dehors the will will not be admitted to show the testator's intention to be otherwise.

INCREASE CROSBY, by his last will, devised as follows: "I will and bequeath to my daughter, Mary Lewis' children, the

Crosby and others v. Lewis and others.

farm which I purchased of the Seggars, called the Seggar farm, together with the one hundred acres I purchased from Dr. John Morrison, to them and their heirs forever.

Cyrenius Crosby, a legatee in the will named, died hefore the testator, and the plaintiffs, his children, filed their bill against the executors of Increase Crosby, and Mary Lewis, and her children, for payment of the legacy.

S. J. Wilkin, for plaintiffs.

J. W. Brown, for defendants.

Edmonds, J.: In this case, the question was as to the meaning of the term "children," used in the will of the testator, and whether, in the term "children," could be included an illegitimate child. In this case there are legitimate children to answer the description contained in the will-and that being so, I think the illegitimate child is not included. There is nothing in the will, itself, manifesting any intention to include the illegitimate child, and such an intention cannot be inferred from any facts out of the will, nor can evidence of such facts be admitted for the purpose of showing the intention of the testator.

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