Digest. the parties agree to be husband and wife, and cohabit and recognize each other as such. It is immaterial whether a person who pretended to solemnize the contract was or was not a clergyman or magistrate, or that either party was deceived by his false representation of that character. (Hayes agt. People, 25 N. Y. R. 390.) 14. It is no answer for the accused that, having a wife living and so incapable of a valid marriage, he did not intend or consent to a marriage in fact, but obtained the consent of the woman by fraudulently imposing upon her the form of a marriage by a pretended clergyman. A married man, it seems, imagining himself to effeet mere seduction, may blunder into bigamy. (Id.) 15. Proof of the manner of intercourse subsequent to the contract is admissible, as a corroboration of the prosecutrix's testimony as to the actual marriage. (Id.) 16. An indictment charging, in the same count, an assault to have been committed "with intent to do bodily harm," and also with intent to kill," being offences against distinct statutes, saved from the objection of duplicity by its not charging the assault to do bodily harm," to have been "without justifiable or excusable cause." (Dawson agt. People, 25 N. Y. R. 399.) 17. This qualification, being in the enacting clause of the statute, must, it seems be negatived to make a good indictment under it; and the charge of an indictment to do bodily harm is surplusage, which does not vitiate a count fully charging an offence under another statute. (Id.) 18. After judgment, an allegation in the caption of an indictment that it was found by a grand jury of good and lawful men" is to be deemed good, though not stating the names nor the number of the jurors. The objection must be taken by motion to quash, or by demurrer. (Id.) 19. The statute requiring the filing of an indictment is directory. The omission to file does not, it seems, avoid the indictment. If otherwise, an averment that it was filed with the clerk of the county is equivalent to an averment that it was filed in the court of general sessions. (Id.) 20. A recognizance taken in a criminal case, conditioned that the prisoner shall appear at the next court of oyer and terminer, to answer to an indictment; that he shall not depart without leave of the court," and that he shall abide its order and decision," by its terms requires, substantially, his appearance on the first day of term and de die in diem during its continuance, unless discharged by the court. The obligation is not answered by an appearance on the first day of the term, or by appearing and submitting to a partial trial; but that he shall at all times until surrendered, or ordered into custody, submit himself to the jurisdiction or authority of the court, during the whole term of the court, and until the trial is ended. (People agt. McCoy, 39 Barb. 73.) See TRESPASS, 9. DAMAGES. 1. The measure of damages against a purchaser for not performing the contract of purchase, is the difference between the price agreed upon and the actual value at the time of refusal to perform, or of bringing the action. Where, after the purchaser's breach of contract, the land is sold under a foreclosure against the vendor, and there is a deficiency upon the sale, with which he is personally charged, it is error to award to the vendor as his damages, the difference between the contract price and the price of the foreclosure sale, together with the amount charged upon him for the deficiency. The price at the foreclosure sale, is no evidence of its value. (Wilson agt. Holden, 16 Abb. 133.) 2. Special damages, or damages not naturally resulting from the injury complained of, cannot be proved unless specially averred. Under a notice given under $399 of the Code, that the plaintiff will be examined "as to the amount of damages sustained," it is error to admit testimony as to items of special damage, not averred in the complaint. (Johns agt. Lias, 16 Abb. 311.) 3. It is not an objection to his recovery of single damages that the complaint goes upon the statute of willful trespass. (Dubois agt. Weaver, 25 N. Y. R. 123.) 4. Where damages are sustained by the makers of a promissory note, in consequence of the breach of an agreement by the payees, to apply the pro Digest. ceeds of a certain consignment of wheat to the payment of the note, such damages cannot be set-off or made the subject of a counter claim, in an action brought upon a subsequent note, given by the same makers to the payces of the first, and transferred to the plaintiff after maturity-the first note having been collected, and the second being a new and independent security, and resting on a distinct consideration. (Titus agt. Himrod, 39 Barb. 581.) See SHERIFF, 9. See EVIDENCE, 13. See PARTNERS and PARTNERSHIPS, 11. 12. 13. 14. See CONTRACTS, 19. See FALSE IMPRISONMENT, 4. 5. DEED. 1. Where a deed is made upon the express condition that the grantee shall keep, maintain and support the grantors, and that if he fails to do so, the conveyance shall be void, and the premises revert back to the grantors; the condition involves a forfeiture of the premises, upon a failure of the grantee to perform, and is intended as a security in the nature of a penalty for its performance. It is a condition subsequent, and upon failure to fulfil, the grantors have a right to re-enter upon the premises. (Spaulding agt. Hallenbeck, 39 Barb. 79.) See MARRIED WOMEN, 20. 21. DEFENCE. 1. The accommodation indorser of a note given for chattels sold cannot, at law, avail himself of a breach of warranty as to the quality of such chattels, by way of defence, recoupment or counter claim. (Gillespie agt. Torrance, 25 N. Y. R. 306.) 2. Such a defence does not rest upon a failure of the consideration of the contract on which the action is founded, but is the setting off of one distinct claim against another. (Id.) 3. In such case, it is the right of the principal to set up a counter-claim, if sued, or bring his separate action, and the surety cannot make the election for the principal, or do anything to impair his right of recovery in a separate action. (Id.) 4. It seems that the surety would be re 5. lieved in equity, in case of the insolvency of the principal: Per SELDEN, J. (Id.) The indorsee of a note, for a consideration not to be paid till the note should be collected, is the real party in interest to maintain an action thereon. (Cummings agt. Morris, 25 N. Y. R. 625.) 6. The note having been transferred, when past due, to one who was to use the avails, in his discretion, for the benefit of the payee's family, the maker cannot set up, by way of defence or counter claim, that the payee was, at the time of the transfer, indebted to him for advances made to a firm of which they and a third person, not a party to the suit, were partners, of which no account had been stated, though the payee die insolvent subsequent to the transfer. (Id.) 7. Conceding that there is now no objection to setting off, against a legal demand, a claim arising out of contract which can only be liquidated in equity, the set-off is inadmissible, for the want of a party-the third partnerwho would be essential to a suit for the establishment of the claim. (Id.) See ANSWER. See UNDERTAKING, 5. See MORTGAGE FORECLOSURE, 11. DEMURRER. 1. It seems, that where it appears on the face of the complaint that the plaintiff brings suit here as a foreign administratrix, and the defendant does not take the objection by demurrer to the plaintiff's legal capacity to sue, it is waived, under §§ 144, 1847 and 148 of the Code. (Robbins agt. Wells, ante 15.) 2. Where only part of an answer is demurred to, the defendant, under leave to amend, can only amend the defective portion of the answer, and cannot set up new defences; but he may add, to the part demurred to, anything which would strengthen the defence as originally made, even if such matter had from any cause been passed over and left unanswered in the first pleading. (Fielden agt. Carelli, ante 173.) 3. Redundant and irrelevant matter, and a demand for unsuitable relief, do not render a pleading a subject of demurrer. (Bishop agt. Edmiston, 16 Abb. 466.) See COMPLAINT, 6. Digest. DETERMINATION OF CLAIMS TO LAND. 1. An action given under the Revised Statutes respecting the determination of claims to land (2 R. S. 313, § 3) is, under the Code, subject to the same rules, as all other actions; and the same defences to defeat the right to such relief may be set up by the defendant, and also equitable relief by way of counter claim. (Peck agt. Brown, ante 350.) certain period, the plaintiff is not required to proceed by supplemental complaint, but may commence a second action demanding the same relief for alleged adulteries with the same person, charged to have occurred after the commencement of the first action; and an answer of the defendant to the second action, of another action pending in the court for the same cause, is insufficient. (SUTHERLAND J., dissenting.) (Cordier agt. Cordier, ante 187.) See MARRIED WOMEN, 4. 5. 6. 7. 8. 2. Where the order of the court requires DISCOVERY OF BOOKS AND PAPERS. 1. The court has power to compel a discovery of books and papers containing evidence relating to the merits of the action, under the provisions of the Revised Statutes, as well after issue joined as before. (Morrison agt. Sturgis, ante 177.) 2. The 388th section of the Code is not a substitute for the provisions of the Revised Statutes, but auxiliary thereto. Under either statute the court must be satisfied that the books or papers contain evidence relating to the merits of the action. (Id.) 3. It is not enough that the party believes or is advised that the paper eontains material evidence. Facts must be shown to support such belief. Nor is it enough that the paper may, or even probably will, furnish information to obtain evidence which may be material. The paper itself must contain evidence, either by itself or in connection with other proof. (Id.) DISTRICT COURTS. 1. Under the act of 1863, amending the Revised Statutes relating to "summary proceedings to recover the possession of land," the affidavit upon which the process is issued by the district courts in the city of New York, must be sworn or affirmed to before the clerk or his deputy. If not sworn to, all subsequent proceedings, with the affidavit, are void. (People ex rel. Cole agt. Alden, ante 166.) See JUDGMENT, 8. DIVORCE. 1. In an action for a divorce for alleged adulteries of the defendant, during a the defendant to stipulate to refer the action, as a consideration for leave to answer, it is erroneous. The defendant has a right to have any defence on the merits to such an action tried in the usual manner. (Id.) See ALIMONY, 1. 2. 3. See NEW TRIAL, 14. 15. 16. DOWER. 1. An alien widow cannot be endowed of lands of her husband, who was a naturalized citizen of the Uniten States at the time of his death, where the marriage took place prior to the aet of the legislature of this state passed April 30, 1845, when both husband and wife were aliens, and the widow never having been a resident of this country. (Greer agt. Sankston, ante 474.) 2." Any woman being an alien who has heretofore married or who may hereafter marry a citizen of the United States, shall be entitled to dower in the real estate of her husband, within this state, as if she were a citizen of the United States." (Laws 1845, ch. 115, §3.) (Burton agt. Burton, ante 471.) 3. "Any woman who might lawfully be naturalized under the existing laws, married or who shall be married to a eitizen of the United States, shall be deemed and taken to be a citizen of the United States." (Act of Congress, Feb. 10, 1855, 10 Stat. at Large, p. 604, § 2.) (Id.) Digest. alien white woman, whether resident or not, married to a person who was at the time of the marriage a citizen of the United States. But if construed with liberality, it would only extend to an alien woman resident in this country, though married abroad to an alien, and who came to this country with him or followed him here, and in that way, or in one of these ways identified herself with the country of his adoption. (Id.) 7. 6. The statute requiring notice of pro- EVIDENCE. 1. Although the technical rule is, that under a complaint setting out a contract, and averring its performance by the plaintiff, evidence in excuse for non-performance is not admissible, yet, under the Code, the plaintiff may amend his complaint, and then give the evidence. (Hosley agt. Black, court of appeals, ante 97.) 2. The rule is, if an offer of evidence contains any matter not admissible as evidence, the whole may be rejected. (Id.) 3. Where the contract declared on is in writing, no condition can be engrafted upon it by parol evidence. (Id.) 4. Hearsay evidence is admissible to show the death of a person after a considerable lapse of time; but it is not receivable when the alleged death was of recent occurrence, and when it may fairly be supposed that other and more satisfactory evidence could be obtained. (Stouvenel agt. Stephens, ante 244.) 5. Hearsay evidence is intrinsically weak, incompetent to satisfy the mind of the existence of a fact, and by its admissibility frauds may be practiced under it. (ld.) 6. Where a party introduces in evidence an affidavit of his adversary, in which it is stated that a previous affidavit made by the former is false, it does not authorize the admission of such! A judgment is not evidence of any of the facts determined by it, except as against parties and privies. Where the defendant, to show the truth of his representation that he was a partner of H., offered the judgment roll in an action brought by his assignee against H., tending to show the existence of such partnership, it was decided to be inadmissible against a stranger to that action. (Id.) In an action to recover damages for the breach of a contract to purchase real estate, where a defence of defect in title is interposed, the burden of proof is upon the plaintiff, to show affirmatively that he had a good title. Although a conveyance with possession under it, is, in the first instance, presumptive evidence of title to real property, it is not enough where direct issue is taken on the title. (Wilson agt. Holden, 16 Abb. 133.) 9. In an action upon a promissory note, where the plaintiff's title to the note is disputed, he is entitled to have the jury instructed that the holder of a negotiable promissory note, who produces it upon the time, is presumed to be a bona fide holder, and that the burden of proof is on the defendant to show the contrary. Where the presumption of law is in favor of one party, it is error to refuse to so instruct the jury, although the adverse party has already introduced evidence sufficient to sustain a verdict overthrowing such presumption. (Potter agt. Chadsey, 16 Abb. 146.) 10. Conclusive evidence means either a presumption of law, or evidence so strong as to overbear in the case to the contrary. In an action for malicious prosecution in arresting the plaintiff for a felony, the fact that the plaintiff was, on the hearing, committed by the magistrate to await the action of the grand jury, is not conclusive evidence of probable cause. Although in such action, want of probable cause is a question of law, yet the question may properly be passed upon by the jury, in the absence of any request to the judge to instruct them as to the law. (Haupt agt. Pohlmann, 16 Abb. 301.) 11. A refusal to non-suit, will be sustain ed on appeal, if it appears that there was finally in the case sufficient evidence to be submitted to the jury. (Id.) Digest. 12. It is competent to show by parol the grounds on which a verdict or judgment was rendered, when the grounds become material and do not appear on the record. (White agt. Madison, court of appeals, ante 481.) 13. Evidence offered in a case of breach of warranty, which has a legitimate tendency to satisfy the jury that the warranty was not broken, or which may be material upon the question of damages, if there was a breach of the warranty in part only, is properly admissible, and its exclusion is sufficient ground to reverse the judgment. (Lytle agt. Erwin, ante 491.) assignment is entitled to inquire of the assignor as to his object and intent in making it. (Id.) 20. In an action for the firing of a building by a steam engine, the plaintiff is entitled to give evidence of the distance at which sparks emitted by the engine had kindled fires. (Hinds agt. Barton, 25 N. Y. R. 544.) 21. A notice that the defendant would be a witness in his own behalf as to all the alleged facts in the plaintiff s complaint," does not specify the points as to which he was to be examined, as required by the Code in force in 1857. (Id.) 14. The plaintiff, to show that his prop-22. The liability of the owner of the en erty had been applied to the defendant's use, in payment of a note made by the defendant and indorsed by the plaintiff, proved that the defendant pointed out the property to the sheriff and declared that it was the plaintiff's: held, that the defendant was entitled to prove his statement in the same conversation that the note was the plaintiff s debt and he was to pay it. (Rause agt. Whited, 25 N. Y. R. 170.) 15. The rule of evidence, in respect to parts of the same conversation, laid down in The Queen's case (2 Brod. & Bing. 297), disapproved, and that in Prince v. Samo (7 Ad. & Ell. 627), approved: Per SUTHERLAND, J. (Id.) 16. In an action for deceit in the sale of land, evidence of statements by the defendant, after the deed was put into the plaintiff's hands and before the parties had separated, is admissible either as bearing upon the question of good or bad faith in similar representations made before the deed was drawn or upon the question whether the delivery of the deed was complete. (Thomas agt. Beebe, 25 N. Y. R. 244.) 17. Parol evidence, it seems, is admissible, in addition to the written contract of sale or mortgage, that, by the agreement of the parties, the brewer was not to sell the barley delivered under the contract, or malt made from it, without the plaintiff's permission. (Wooster agt. Sherwood, 25 N. Y. R. 278.) 18. Evidence is inadmissible, in support of the assignment, that the parties did not agree aliunde that the assignor should retain possession. (Forbes agt. Waller, 25 N. Y. R. 430.) 19. The party seeking to impeach the gine turns upon actual negligence in its use, and not upon its being constructed in the form generally adopted, and used in the ordinary mauner, with the usual precautions. (Id.) 23. Medical testimony, as to the personal injuries likely to be produced, under a given state of facts, is admissible, where the witness states the precise facts on which he bases his opinion, and the court does not withdraw from the jury the right or liberty to consider whether those facts were established by the testimony. (Wendell agt. Mayor, &c., of Troy, 39 Barb. 329.) 24. Before evidence of the acts and decla- See CONVERSION, 1. See PARTNERS and PARTNERSHIPS, See BANKING CORPORATIONS, 3. 4. See FALSE IMPRISONMENT, 4. 5. |