The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1851-02-02
Supreme Court.
SPECIAL. TERM.

Before Chief Justice Edmondsi
FEE l-DEcisIoss.-Psrfridge u.s. Dold.-Motion
strike out part Of an answer which sets on. not o
the fact itseh which constitutes che defence but
eyiasness Of the, fact In order to obtain from
fiesdings can no longer be used ss instrumsnt
discovery The discovery Is only BY the oral exam.
io. o. tns party while the ofaos Of pleading is
TO state the cause OF action matter OF defence
produce single and material issue which the part,
submit to the Judgment Of the court Motion grant,
John Howland rs. VIM. II. Hossland and others.
judgment at special term IL valid and efsctus thou
appealed from, until Il 10 reversed and the parties
tanning II have right to resort to eli the remsd
given to enforce it, direct or indirect unless proos
ings are stayed by giving the proper security on ,
peal for that purpose Motion to refer granted.
which Is not merely ordinary creditors bill but
also bill to set aside an assignment fraud up
creditors, demurrer Is interposed to the whsle b
because 1t appears tb at execution has not been
sued to the proper county the demurrer will be oy
ruled, because tee broad. Though the want Of su
execution might be good defence to the bill 80
IT Is under the statute It Is no defence to
bill 70 far ss 1t seeks to set aside the assia nnent u
murrer overruled
Hubble Carran, Us. Carlisle & Mason.-Report
referee confirmed and plaintiffs allowed five per os
on the amount reported due Is additional costs.
Slater and Others Carroll and otes-In an or
nary case of creditors proving their claims upon
fund In Court, the fsnd will not be charged with
costs Of so proving the demands. Motion for 90,
denied.
Fraser and others rs Grsenhil--Ritehie sc. Us T.
same Where attachments have been issued as pr
visionsl remedies, under the osde, In several sui
and the subseque attaching creditors show good
SON for suspecting colluscn between the first stach
creditors and the debtor, and desire In good faith
contest the amount claim ed against the common fu
by the fret attaching creditor such subsequent cred
ors may, under the code, on motion, be made part
defendant to the first suit The subject matter in
trovsrsy Is not merely the amount due from the debt
to the first attaching creditor but tho cunt Of
common fund to which he may be entitled, and I
which the subsequent creditors have an interest, al
therefore cross complaint, an original suit In
n a he pr6
tice is no longer necessary, but under Sec 1872 OF
Code, the presence Of tho subsequent creditors bel
versy, they may be ordered to be made parties
the frst suit. Order accordingly, costs to abide
event.
Tai! and Others 7ounelie and Others.-where COZ
are awarded to attor ney out OF estate to viii
he IL indebted, the coets belong TO him personally q
not to his client and an win not be awaz
ed against the executors for refu sing TO pay euch
so long as tie attorneys indebtedness to the este
continues Motion for attachment denied
Ropeipe ads, Clarkson. ID efsn dant, Jas3b Rapely
let in to defend on the merits on payment of costs
default and subj equent proceedings, and OF motto
and on coEssntiDg to q trial By single referee.
johnson Us. Wight aud efhers.-Where the complai
AYERS that the trespsss complained Of was commit
the OF the plaintiff that enough to RI.
issue en- and II that is denied in the answer 1t
net necessary for the Plsati6 In his reply to repe
the sverment Motion for leave to amend the rep
denied, without costs
Stuart, Executor, ~. Psrisne and othes-The wo
children. in = will will be construed to mean gran
children only where 1t is manifest that 1t Is used
that sense by the teetstor and whore ths will sho
intention to confns the bounty to children livii
at the testators death; grandchildren of parent wi
died before the tsstator will not BE- understood Deer
accordingly.
where Ahe complaint 10 for forcible entry and d
tsiner Is competent for the jury OF inquiry to al
that the entry Peacesbs but the detainer forcibl
and to ipqueition thus found the defendsy
muit put in traverse, warrant Of resdtution mu
ensus. The affidavit which the plaintiff is requjr,
to deliver to the Justice with his complaint lie msre
and furisd cti
irrei ularty therefore in it, though 1t must justify
court below in refusing to proceed viii not warra,
this court in Quashibg the inquisitio
married woman, though the owner or separa
property, cannot sue In her own name, without joi
Ing her husband or prosecuting BY next friend, 4
the case may require, but this u an error which o.
be corrected by amendment. Motion to quash Il
inqusitiop granted unless the plaintiff within twen
day appears by next friend, and In case Of such
peArance wsrrsnt of restitution will ISSUE unless Il
def. ndsnt truly traversee the inquisition
Myers 4 Co. rs Huniiny- Motion to change place I
trial denied, mainly becauss the moving papers are
Ileglble they cannot be read.
Madei,a MeMonnies-In . simple and EXPIRE
trust where the trustee Is capable of representing
taking care OF the interest OF all parties concerne
the eesfui que will not be made party merely
cause IL will be more convenient for him defend
his own name, where the eesfui que trust
and the granting his application would necessarily
vslvs the making parties OF large number Of person
thus producing unnecessary prolixity, delay, and
pense. Melton denied With costa.
In the matter Of Cornell, trustee, $o.-ConfrmAtlon
. referees report refused, because the attorney
record has selected his partner referee and has hI
self drawn the report instead OF Its being the act
the referee
BiosSgood ads. Trow.-B Being unable to find out fro
the papers what the parties want, or what they q
alter the motion, whatever IL 10, must be denied.
Stispsl ads Ernssf.- On an agreement to form par
nerskip, and to put into certain property, par
ner Afterwards refusing to form the partnership,
put in any property, the other party cannot have
Injunction restraining the disposal Of that propsrt
his rsmedy is by action for breach OF the sgreemen
Injunction dissolved attachment set aside, and pa
rI~l1 hsr go xnv Lts.a IN NJ
Clark and Others Gave, an Duesen and otsers.-A
averment in a pleading that the party has no kno,
ledge information SUFFICIENT to found belief, n
effect denial Of the fact thus pleaded TO- and puts Il
party alleging II to his proof of Il. party makir
such sverment cannot at the same time demur to Il
same allegation and such . demurrer viii be disr,
garded motion TO change the place OF trial. N,
ton to change the place OF trial from New FORK {
Columbia, granted.