The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1853-05-02
Important Decisions.
oVyt,DrsnsD nntrnn

SUPREME COURT.
Bffore the Hon Judge Roosevelt
Arm 20 John Tha9sbv w Il. Arery-The con, plant
appears is liable to tie obec ion Of yagueness and
uncertainty. 1t prof,sses to be founded on published
written statements having special relation to legal
proceeding whereas from the style of the charge it
Vious that the words complained OF used in written
affidavit made by attorney 10 pending. sup
posed TO be penapg IN somo court Of justice IN which
affidavit the deponent ayerred his belief that the 6re
mentioned in it. and the claim set up in consequence,
"were a iaud upon the Hudson River Insurance Com.
pany After setting forth the document with marks of
quotation the plaptiG seys he "c0mplaiDs that the
efore laid writing and bcaon though
by ell his present must needs DO very nu
rieus to him in the very large community OF business
men and other citizens in New York, aud tend
to niure him very ferously to his great damage
and great discredit in his business aforesaid" lie
does not give any precision to the intended object of
the charge by avement does he alege that he has
sustained any actusl damage in consequence of it 1t is
true that setting fire to building merchandise ut
constitutes the crime Of arson in the third degree2 r.
S., 6G6; but this complaint contains allegation that
the piani had Insurance. or that the maker of tho
affidavit charged intended to charge him. with the
crime Of setting fro to any property insured with
the intent to deraud insurance company. Peaongs,
Il Is true are under hs Code to b. literally nterpreteJ
but Is not competent for The court to make for
party by Interpretation. Ills complaint, however
drawn must state facts sufficient TO constitute o
OF action This complaint does not The defendants dc
murrer must therefore, be allowed, with liberty, how
ever, to the plaintiff within twenty days to amend, on
payment Of costs.
ihorlcs Coac0@ and others US. Morris H. Fuller aud
os ordered that suggestion Of the death Of the do
feDJant Buell. be entered the record, and that the
soton proceed against the surviving defendants.
Ip7a. IoorhiS end GaohGr VIM H. Batter and others
The executors Of deceased partner cannot be sued
Nv the creditors az tie finn until tho ordinary remedies
have been exhausted against the surviving partner
less IL lie averIed and ADMITTED proved that tko
vivor is ipsoNcn The law gives the assets OF the firm
for the purposes of liquidation TO the survivor alone
and for that justly deyoves upon him alone in the
first instance The Guty Of pay ing the partners in debts
Innovations in this previously long and wall established
rule have tpiy been made by the English
the cases OF Dsyayne Noble Russell ard Nyloe da5
ana Wilkinson Henderson, Myne and Keen, 532
But courts not convinced by tLe reasoning for IT,
have not followed the change On y contrary Id the
case OF Laurence the Trustees OF the Leake Watts
Orphan House Denis, 6T7 the Court Of Errors after
fun argument and Win the English cases before them,
determined by unanimous vote, that there good
reason either in principle convenience, for dersng
from the ancient rre Nor il there in the more recent
code Of procedurJ sny provision expressly repeating o.
paipsbly noow.stent with tho rule tnus soenny rati
fed rule of proceeding affecting substantial rights,
when expire sally enacted 10y statute or Deliberately aud
directly. after full argument, settled and declared
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