New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1851-02-03
United states District Court. SATURDAY, Feb. /
Supreme COurt.....sATURDAY. Feb. l..
Before Chief Justice Edwards;

vs.. William j. BhSs.-Mariage divorce to be
void, by reason Of defendants prior marriage.
Lydia Il. LerisOH VS.. George LeDiSOH.-Decree
of divorce, on the ground of infdety, granted
Charles W. Thompson vs. Charlotte b. IbOmp.
son.-Divorce, on account Of inhdelity, granted.
Nicholas Cantor vs.. Ellen Cdnt0r.-Separation
between man and wife deereed by reason Of the
cruel and inhumaH behavior of the wife.
PARTRIDGE vs. Dodd-Motion to strike out parts
Of an answer, which set out not only the fact it
self which constitutes the Defense bat the evlden-
ces ofthe fact in order TO obtain from the plaintiff
a confession or denial thereof Granted.
Pleadings can no longer be used as instruments
ora discovery The discovery is only by the oral
examination of the party, while the office Of plead
ing is merely to state the cause OF action or mat
ter of defense, and produce single and material
issue which the parties submit to the judgment
of the Court. Motion granted costs to abide event.
John Hoicland vs.. Vim. II. Homeland and others.
A judgment at Special Term is valid and effec-
tual, though appealed from, until 1t Is reversed,
and the parties obtaining it have right to resort
to all the remedies given to enforce 1t, direct or
indirect, unless the proceedings are stayed by
giving the proper security on appeal Tor that pur-
pose. Motion to refer granted.
COODerS vs.. CIaS0ns-Where to bill OF COM
plant, which is not merely an ordinary creditors
BILL bat is bill also to set aside an assignment as
fraud upon creditors. a demurrer is interposed
10 the whole bill because it appears that an exc
cution has not been issued to the proper County,
the demurrer will be Overruled because too broad.
Though the want of such execution might be
good defense to the bill so far as it is one under
the statute, it is defense to the bill so far as 1t
seeks TO set aside the assignment. Demurrer
Overruled.
HubbeH &. Carran vs.. Carlisle g. NasoH-Re-
port of Referee confirmed, and plaintiffs allowed
per cent on the amount reported due, as addition
al costs.
Slater and Others VS.. Carroll and Others.-
In an ordinary case of creditors proving their
claim upon fund, in event the fund will not be
charged with the costs OF 30 proving the demands
Motion for costs denied!
Fraser and Others VS.. GTeenhHl, Richie, &c. VS..
the same. --W here attachments have been issued
as provisional remedies under the CODE in several
suits and the subsequent attaching creditors, show
good reason for suspectiDg collision between the
first attaching creditors aud the debtors, and de-
sire in good faith TO contest the amount claimed
against the common fund by the hrSt attaonin6
creditor, such subsequent creditors may, uhuer
the code, on motion, be made parties defendantto
the first suit.
The subject matter in controversy is not merely
the amount due from the debtor TO the first at
taching creditor but the amount OF the common
fund to which be may be entitled, and in which
the subsequent creditors have an interest, and
therefore cross complaint or an original suit in
the nature Of a cross suit, as required under the
old practice, is no longer necessary, bat under
section 1872 of the Code the presence of the sub
sequent creditors being necessary to complete
determination of the controversy, they may be or
dered to be made parties to the first suit Order
accordingly, costs TO abide the event.
Val and others, Executors, VS.. I0RneHe and
otherS-W here costs are awarded to an attorney
out of an estate 70 which he is indebted, the costs
belong to him personally, and not to his Client and
an attachment will not be awarded against the
executors for refusing to pay such costs, so long
as the attorneys indebtedness to the estate con-
tinues. Motion for attachment denied.
RapelyeS ads CiayksOH. - Defendant, Jacob
Rspelye let in TO defend the merits, on pay.
ment Of costs OF default and subsequent proceed,
iDgs, and Of motion, and on consenting to trial
by a single referee.
IN tie matter Of Cornell, Trustee, Sc.-Conir-
nation of a referee II port refused because an at
torney on record has selected his partner as
referee, and has himself drawn the report instead
of its being the act OF the referee.
Bloodeo0d and Troao Being unable to find out
from the papers what the parties want or what
they are after the notion whatever II 10, must be
denied.
Strepel ads E1HeSt-On an agreement to form
partnership and to put into it certain property
one partner afterwards refusing to form the part
nership to put IN any property, the other party
cannot have an Injunction restraining the disposal
of that property-his remedy is by action for
breach of the agreement. Injunction dissolved
attachment set aside. and place trial changed
from Kings Co. to New York.
Myers,F DC Huntlg-Motion to change place OF
trial. denied, mainly because the moving papers
are so illegible they cannot be read.
Madeira VS.. McM0RnaeS.-In a simple and eX-
press trust where the trustee is capable ofrepre
senting and taking care of the interest OF all
parties concerned, the ceStu1 que must Will not De
made party merely because it will be more con-
veRiept for him to defend in his own name, where
the cestuis que trust are numerous, and the grant
ing his application would necessarily involve the
making parties of large number Of persons, thus
producing unnecessary prolixity delay aud ex-
pense. Motion denied, with costs.
AfattleUs ads. EerStet.-In fOrcible entry and
detainer, where the complaint is for forcibe entry
and detainer it is competent for the Jury OF In
quiry TO find that the entry was peaceaole, put
the detainer forcible, and to an inqulsition thus
formed the defendant must put in traverse or
warrant of restitution must issue:
The affidavit which the plaintiff Is required 70
deliver to the Justice with his complaint IS mere
" directory, and not necessary to jurisdiction
any irregularity therefore, in it, though It might
Justify the Court below in refusing 10 proceed,
will not this Court on certiOrsr in quashing the
inquisition
4 married woman, though the owner of separ-
ate property cannot sue in her own name, with
out Joining her husband on prosecuting by next
friend, as the may require butthis Is an error
which can be corrected by amendment.
Motion TO quash the inquisition granted, unless
the plaintiff, within twenty days, appears by
next friend, and IN case OF such appearance war
rant of restitution will issue, unless the defendant
duly traverses the inqaisitiOn.
Johnson, vs. Wight and otbeTs-Where the
complaint AYERS that the trespass complained OF
was committed on the premises Of the plaintiff,
that is enough to raise an issue on, and II that IS
denied in the ans Eer it is not necessary Tor the
plaintiff in his reply to repeat the sverment
Motion for lease TO amend reply denied, without
costs.
Smart. er'er. vs. PerTine and OtheTs.-The work
g. cbil6ren" In Will will be construed 10 mean
grand children, only where il is manifest that it is
used in that sense by the Testator,-and where
the VIII shows an intention TO confne his bounty
to children living at the Tessator's death Grand
children Of & parent who died before the Tesla