DISCHARGE.

DEMAND.

1. An attorney in fact, who collects a legacy, is bound to pay it over or remit it without demand; and no demand is necessary before commencing an action against him for money received. [4 Kern, 496.] Supreme Ct., 1864, Power v. Hathaway, 43 Barb., 214.

2. Under a bond given by the agent of an insurance company, conditioned to promptly account for, and pay over and deliver, all moneys, &c., which might come into his hands as such agent, no demand is necessary before euit. Such an agent is not a factor or an attorney within the rule requiring a demand before suit brought. He is bound to remit when the moneys are received, and the existence of any custom allowing time does not extend or enlarge the time differently from what the law made it, to the injury of the rights of the surety. Supreme Ct., 1864, Albany City Fire Insurance Company v. Devendorf, 43 Barb., 444.

3. A chattel mortgage which does not specify a time for payment is due immediately, and no demand for payment is necessary to sustain an action upon it. N. Y. Com. Pl., 1865, Dikeman v. Puckhafer, Ante, 32.

4. In an action against sureties, demand before suit;-Held, unnecessary. Fox v. Parker, 44 Barb., 341.

INDEMNITY: SUMMARY PRO EEDINGS, 4.

DEMURRER.

PARTIES, 18, 19: PLEADING, 28, 31.

DEPOSITION.

1. That a deposition cannot be excluded because the witness, in an answer, refers to a written contract, but the writing is not produced, where the interrogatories do not call for, or mention the contract. Ct. of Appeals, 1864, Hooker v. Eagle Bank of Rochester, 30 N. Y., 83.

2. Where an original record referred to in an interrogatory is out of the jurisdiction and power of the courts, and the court has no power over it, so that it could not be annexed to the commission, and the court could not compel its production, a copy, proved to be such, is admissible. Supreme Ct., 1865, Black v. Camden & Amboy Railroad Company, 45 Barb., 40.

DISCHARGE.

1. The provision of 2 Rev. Stat., 38, § 19-relative to discharges, under certain provisions of the statutes relative to insolvents and imprisoned debtors,amended by adding a provision that all the petitions, affidavits, schedules, inventories, orders, and other papers upon which any such discharge shall be hereafter granted, shall, within three months from the granting thereof, be filed and recorded by the clerk of the county in which the insolvent resided at the time of the presentation of his petition, or such discharge shall be thereafter inoperative, until such papers shall be duly filed and recorded as aforesaid. The record thereof, and a transcript of such record, duly authenticated, shall be presumptive evidence of the facts and proceedings therein contained. The clerk shall receive five cents per folio for record

DISMISSAL OF COMPLAINT.

ing said papers, and no other fee for filing the same. 1 Laws of 1866, 234,

ch. 116.

2. An insolvent's discharge, granted under the laws of this State, is a good defence in an action on a judgment recovered here, in the absence of any evidence as to where the contract was made on which the judgment was recovered. Evidence that the creditor was a non-resident is not material. N. Y. Superior Ct., 1863, Soule v. Chase, Ante, 48.

3. After a defendant, arrested in a civil action, has been discharged from imprisonment under the statutes relative to insolvents, the plaintiffs can not, by merely changing the form of action to a suit for tort, instead of a suit on contract, procure the arrest of the defendant in another court, for the same cause, for the purpose of evading the force and effect of his discharge, and thereby defeating the clear intendment of the statute. City Judge of N. Y., 1866, People v. Kelly, Ante, 432; to the same effect, N. Y. Superior Ct., 1866, Wright v. Ritterman, Ante, 428.

EXECUTION, 7, 8.

DISCONTINUANCE.

In actions or proceedings pending on the 26th of April, 1866, if the defence depends on a deed by the treasurer and county judge, on a tax sale under the Laws of 1850, ch. 298, the party plaintiff therein may discontinue the same, without costs to the adverse party. 2 Laus of 1866, 1825, ch. 820, § 2.

DISCOVERY AND INSPECTION.

1. The provision of section 388 of the Code of Procedure-that the court before which an action is pending, or a judge or justice thereof, may in their discretion, and upon due notice, order either party to give to the other, within a specified time, an inspection and copy, or permission to take a copy, of any books, papers, and documents, in his possession or under his control, containing evidence relating to the merits of the action or the defence therein, does not sanction an order requiring either party to disclose evidence which he intends to introduce against his adversary. N. Y. Superior Ct., 1865, Strong v. Strong, Ante, 233.

2. In the affidavit or petition for a discovery of books and papers, a statement of the advice of counsel and belief of the deponent is not alone sufficient. Ib.

DISMISSAL OF COMPLAINT.

1. Where, after service of a summons and complaint, the defendant obtains an order staying the plaintiff's proceedings until former costs are paid, and the defendant has not paid the costs, and the stay remains in force, the defendant cannot move to dismiss the complaint for want of prosecution. N. Y. Superior Ct., 1866, Unger v. Forty-second street Railroad Company, 30 How. Pr., 443.

2. If it appear on the whole case at the close of the proof in an action for slander, in charging perjury in a former action, that the testimony charged to have been perjury was wholly immaterial, or that the part of it to which the charge of perjury related, if it related to part only, was immaterial,

DISTRICT COURTS.

the defendant is entitled to a dismissal of the complaint. N. Y. Supreme Ct., Sp. T., 1866, Wilbur v. Ostrom, Ante, 275.

3. In an action against the corporation of the city of New York, the defendants set up in their answer, as a distinct ground of defence, the fact that the complaint did not contain the allegation of a presentment of demand to the comptroller as required by the statute;-Held, that a motion on the trial to dismiss the complaint on the ground of such omission should have been granted, and that, having been denied, the objection was available on appeal. N. Y. Com. Pl., 1863, Russell v. Mayor of New York, 1 Daly, 263.

4. Where, in an action to enforce a mechanic's lien, the complaint fails in the requisite allegations to show a case under the statute, it is proper to dismiss the case at the trial. N. Y. Com. Pl., 1859, Bailey v. Johnson, 1 Daly, 61.

CAUSE OF ACTION, 10: COSTS, 7: MARINE COURT, 7, 9: NONSUIT: PLEADING, 32: TRIAL, 7: VARIANCE.

DISTRICT ATTORNEY.

1. Of the powers of district attorneys in controlling prosecutions. The People v. Strong, Ante, 244.

2. Duty of, to act promptly in cases arising under Metropolitan Police act. 1 Laws of 1866, 144, ch. 72, § 32.

3. District attorney of Albany may appoint an assistant. 2 Laws of 1866, 1574, ch. 734.

DISTRICT COURTS OF THE CITY OF NEW YORK.

1. Terms of office of the justice and clerk of the district court for the Eighth Judicial District in the city of New York, extended. Selection of their successors provided for. 1 Laws of 1866, 471, ch. 217.

2. In an action for injuries arising from the defendant's negligence in not repairing a pier in his possession, though some evidence be given to show that he has parted with the title to the pier, the question of title is not to be regarded as raised, so as to have the effect of ousting the district or justice's court of its jurisdiction. N. Y. Com. Pl., 1865, Cannavan u. Conklin, Ante, 271.

3. The statute is imperative, that when it appears upon the trial, in a district court, that the plaintiff is not a resident, and has filed no security, the complaint must be dismissed. [7 Abb. Pr., 421.] N. Y. Com. Pl., 1860, Dean v. Cannon, 1 Daly, 34.

4. And it does not alter the rule, that the fact of non-residence and failure to file security, appear, for the first time, upon a new trial, ordered by the appellate court. Ib.

5. An appeal from a district court of the city of New York, is to be taken to the General Term of the Court of Common Pleas in that city; and the provision of the Act of 1862, authorizing a new trial in the county court of cases tried in the justice's court, does not apply to the courts in the the city of New York. N. Y. Com. Pleas., 1863, McIlhenny v. Wasson, 1 Daly, 285.

ERROR (WRIT OF).

6. It is not necessary that the undertaking given upon obtaining a stay of execution under section 356 of the Code, should embrace the undertaking required by section 354 to perfect an appeal from a district court. N. Y. Com. Pl., 1860, Sperling v. Levy, 1 Daly, 95.

EJECTMENT.

The provision of 2 Rev. Stat., 307, § 29,-which requires that "when the action is against several defendants, if it appear on the trial that any of them occupy distinct parcels in severalty, or jointly, and that other de fendants occupy distinct parcels in severalty or jointly, the plaintiff shall elect against which he shall proceed; which election shall be made before the testimony in the cause shall be deemed closed; and a verdict shall be rendered for the defendants not so proceeded against,”—is not repealed by the Code of Procedure. It relates to the subject-matter of the action, and is retained in force by section 455 of the Code. Supreme Ct., 1865, Dillayev. Wilson, 43 Barb., 261.

ELECTION OF REMEDIES.

1. Where the gist of the transaction is a tort, if it arises out of a contract, the plaintiff may declare in tort or contract, at his election; but, having made his election, he is bound by it. City Judge of N. Y., 1866, People v. Kelly, Ante, 432.

2. Where the creditor holds the bill or note of his debtor only, he is not bound, upon suing on the original demand, to give up the note before the commencement of the action. That is only required when the suit proceeds on the basis of a rescission of the contract. While the debtor's note remains in the hands of the original creditor, it merely suspends the remedy on the original demand until its maturity; and then the creditor has his election to sue upon the note, or upon the original indebtedness. And when he sues upon the original demand, it is sufficient for him to produce and surrender the note upon the trial. Supreme Ct., 1864, Armstrong v. Cushney, 43 Barb., 340.

PLEADING, 9.

ERROR, (WRIt of.)

1. On a writ of error in a criminal case, the default of the defendant in the supreme court does not entitle the district attorney to a reversal of the proceedings in the court of sessions, as a matter of course. It is the duty of the court to determine the case upon the writ of error, and the return thereto, in the same manner it would if the defendant had appeared and argued the case in person or by counsel. Supreme Ct., 1866, People v. Tarbox, 30 How. Pr., 318.

2. It is essential to constitute a record that the judge of the court should sign it; and without such signature it is not record; and a writ of error brought to reverse it, should be dismissed for want of any record upon

EVIDENCE.

which the court can act ;*-So held, where the alleged record was signed by the district attorney instead of the judge. Ct. of Appeals, 1865, Weed v. People, 31 N. Y., 465.

3. Admission of irrelevant testimony not error, if it is afterward made pertinent by other testimony. Supreme Ct., 1865, Black v. Camden & Amboy Railroad Company, 45 Barb., 40.

CRIMINAL LAw, 2.

ESTOPPEL.

A prior incumbrancer of premises covered by a mortgage,-Held, not estoppel, in a peculiar case, by the record of the foreclosure proceedings; nor by permitting a sale to take place without interposing objection. Frost v. Koon, 30 N. Y., 428.

EVIDENCE.

1. Judicial Notice: Presumptions.

1. That the rule that courts may take judicial notice of whatever ought to be generally known, within the limits of their jurisdiction, includes notice of the great lines of public travel and transportation of property, and their connection with each other, and the general course of trade and transportation through the country. Supreme Ct., 1864, Smith v. New York Central R. R. Co., 43 Barb., 225.

2. In any suit under the provisions of the Metropolitan Sanitary Act, the right of the Health Board, or the Board of Police, to make any order, or cause the execution thereof, shall be presumed. 1 Laws of 1865, 128, ch. 72, § 14,

subd. 2.

3. A license to enter premises, upon which one has for years been in the habit of visiting, may be presumed. Supreme Ct., 1865, Martin v. Houghton, Ante, 339.

4. Evidence as to the length of time a path had existed which was used for so entering is pertinent. Supreme Ct., 1865, Martin v. Houghton, Ante,

339.

5. It will be presumed that the requisite undertaking was given by the creditor on issuing an attachment against a vessel, especially where the warrant recites that this was done. N. Y. Superior Ct., 1866, Delaney v. Brett, Ante, 421.

6. In order to warrant a conviction of a licensed tavern-keeper, under the act of 1857, ch. 628, for selling liquors at his bar, on Sunday, proof must be made of an intent, on the part of the defendant, to violate the statute. Where sale is not made by the defendant personally, or in his presence, the presumption of his innocence is not overcome by merely showing that the sale was made on his premises, by his bar-tender, unless the evidence also shows that the defendant in some manner participated in it, connived

The case is obscurely reported, but the above appears to have been one of the points decided.