New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1853-05-02
vigilance l. sbundAn,y adequate Re protect hs profession
The d-af decree submitted Cor consideration must Be
mOeined 10 meet the suggestions above expressed
John Tharsby at Wm. L.Avery.

were used IN written sfissvi, made by an attorney
csuse pending supposed 10 be pending IN some C"aN
Of Justice in which affidavit the deponen, averret hs
b.ief that the fire mentioned in il ard The claim at ia
consequence fraud upon the Hudson River iassr
ance Company This charge, We be- We was Afterwards
withdrawn.
AFTER setting forth the document WI marks Of quostiss
The plaintiff ssys he complains that me sforesaid writing
ana publication even though decre,ed by All bis pressnt
seousntance must needs be very injurious him in the
very large community OF business men and other citixeS
in New York and tend to njure hun very seriously to has
great damage and great dscredi IN ms business sorsAa
he does give any precision as TO the Intended ooses
f the charge by svsment does he allege that he hn
sustained any actual damage in consequence oft
II true that setting FIRE 10 building or 10 merchandise
AZ the time insured with intent prejudice the insurer.
constitute. the crime Of arson IN the third degree
66 but this complaint contains allegation that the pan
n had any insurance. that the maker OF the ahtsvN
clsged or intended to charge him with the crime OF sst
ting hre 10 any property insured and with the inent~
oeraud any insurance company. - .
Plesc ngS true under the code to be literally N
erpreed-but is not competent for the Court to make
for party by interpretation His complaint now
ever drawn must state facts sufficient to constitute cause
of action. This complaint does not
The defendants demurrer must therefore, be allowed
with liberty however to the plaintiff within twenty days.
20 amend on payment OF costs.
In the matter OF one Hundred and Twenty Fifth ST.
expenditure OF between $4,000 and $4,000 out Of the City
Treasury has already been the result OF this proceeding
The Commissioners ask that the report which they
heretof re presented 20 the Court containing Just and
true estimate and be referred back to them
der suggestion that although majority of the parties ia
rested opposed TO further proceedings yet they the
Commissioner alter the awards and assessments
their opinion TO make them acceptable No particulars
specified and zone of the proposed alterations are n
dcated distinctly otherwise. On the other hand the
statute of 80 is positive. that upon hearing the sppoa
ton confirm the report majority in amount of the per
sons interested shall appear and object further
ceedngs upon the report the Court shall oder the same 70
be discontinued and the same shall thenceorth @ d,scos
hHRed In the present case not only majority, bat
majority in amount OF than two thirds, objec-an<
although than months have elapsed since the date
Of their signatures have seen IT, with ample time fse
reconsideration to withdraw their objections
Under such circumstances, would il be discreet
the power updoubted 10 continue the proceedings sn1
aggaySte the expense upon the Treasury IN view OF mere
speculative possibility by further reference TO the
Commissioners The case Of Canast has been cited
an authority for doing. There the report Il SAID
referred bach several times The circumstances how
ever were different But they the same, my Judicial
experience the results in that has not been
coursgng as to inducea repetition OF the precedent
An order must therefore be entered directed by the
statute that all further proceedings in the matter be dscoa
Charlie. Converse and others as Morn. Fuller ard 9,h.~
Ordered that suggestion Of the death OF the defendant
Buell. be entered the record and that the action proceed
against the surviving defendants
VIM voOrhies another sgt. wm L. Baxter and others.
The executors Of deceased partner cannot De sued by
the creditors of the firm until the ordinary remedies have
been exhausted against the surviving partner unless bs
avered and admitted proved tina; the survivor nse
vent
The law gives the assets Of the firm for the purposes a
liquidation to the survivor alone and for that Justly
devOlyes him alone, in the first instance the duty
paving the:partnership debts
innOv atoms in this previously long and well established
rule have recently been made by the English Courts in he
cases Of Devagne sgt Noble Russell & Mylne 0s.
and Wilkinson VS.. Henderson Myne and Keen, 5js
But Courts, not convinced by the reasoning for II
have not followed the change On the contrary in tho
case Laurence the Trustees Of the Lake and Watts
Orphan House, Deno ST. the Court of Errors after fun
argument and with the English before them deter
mined by unanimous vote that there good reason,
either in principle or convenience for departing from the
ancient rule.
Nor there in the more recent code Of procedure. any
provision expressly repeating or palpaby inccnsstek
with the rule thus sOlemny ratified.
a rule Of proceeding affecting substantial rights When
expressly enacted by statute deliberately and directly.
after full argument settled and declared by judicial deter
mnaon in the highest Court known TO the law ought NOT
90 be gh repealed presumed to have been intended
be repealed by subsequ legislation dness the sub
sequent enactment be clear as TO leave no room foe
doubt repugnant to admit Of possibility OF the
two provisions working together discover nothing
OF the kind in the new code
To constitute cause OF action, therefore against the
ecutors of deceased partner where there is surviving
member Of firm il still ndispensaby heretofore that
the plaintiff should aver insolvency in the survivor.
No such allegation being contained the present COM
plant the executors had right 20 degr tOt for insult
cency-and 70 them il must be dismissed with costs
Leave to amend is not granted because the requisite
amendment could not be made consistently with the truth
being suggested and not disputed that the surviving part
neris perfectly solvent
In the matter of the petition OfElzs Thsyer &c.
Where party contracting 10 sell real estate dies ines
tate before executing conveyance his administrator may
apply for order to compel the infant heirs to complies
| the sale
In such case the widow has rg. so far as her interests
concerned 20 treat TIE properly real personal
But she cannot claim both dover and thirds II she elects
to take her dover her estate for life in onehird para
mount 10 the rights OF credtorsh her thirds her Interest
outright in third Of the proceeds Is 90 be computed
tie surplus after payment fall her husbands debts
Let an order BE- entered directing conveyance by the
guardian the name OF the infant heirs upon the purchAs
complying with the terms Of sale and directing the pro
cseds to he distributed a. above indicated.
Juliette d NJ Hall ast Edwin r. Hall
/ Defc 4, Eag 10 - A.
legged adultery and the other matters stated IN tie cora
plant and to report the same with his opinion thereon v
Stephen B. Brophy az, wsser A. White
attorney acting for vile 10 obtaining sdyorce from
her husband whether absolute or limited cannot sue the
latter for the costs Of the proce. 6ngs unless upon actual
promise pay expressly made BY him. clearly niersbs
from his language conduct Such costs do not within
the meaning OF the law under the denomination Of
necessares furnished 70 the wife their object and their
tendency being to sustain but to defeat the marital re-
laton
In the action for divorce il is competent for the wife 10
apply for allowance TO herself by way OF amOny aad
ia dusDg such allowance, the Court in that suit looking
into all the circumstances proper determine whaher
any and what amount should be ordered TO be paid 70
her 10 deay among other charges the expense OF employ
ing counsel such motion i appears from the papers
was in fact made, and, after full hearing denied
No precedent be found Of lawyer in such case turn
ing round and in his name sueing the husband u
Messon Waoby 265, Lsdd rs. Lynn and Is Connect
cut Rep, Az Shelton vs. Pendeton.l
TIE conclusion arrived at by the referee appears there
fore and for other sufficient reasons the evidence iss
be right and the compliant mast accordingly be- a. sd-
judged by him, dismissed, with costs.
SUPERIOR COURT-GEsERAL TERS.
DECISIONS.
Melchior Kramp and others sgt. George Barclay sne
otheFs-same sgt ssme-Nonsut set aside, and new t1s
granted, costs 10 abide event.
John L. Ersncia and others agt Leo Delbanss-Repogf
set aside, and trial granted costs 10 abide event