The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1854-06-05

under the circumstances ths boat which first turned
from ber course turned n the wrong direction. 81
OConno', respondent, ask Psgey. apstiaat.-
WOODRUFF, ia Judgment for the defendants Ia
be charged - joint contractors or copartners, and
In which the joint liability Is denied is no bar to On
action by the same plaintiff on the same contract.
against one OF the former defendants in which he Is
first action was rendered upon plea Of payment or
other defence, which, when establish. would be
equally defence in the secc. suit then such udg-
ment would be conclusive against the plaintiff:
Jones snd Bouton, Respondents, rs. Henry prid-
nam, ,nplcaded, etc.-WooDRurF, There Is no
liant can be sustained. The summons was not served
upon him personally. He did not appear, nor au
sno,xe any one to appear for him. Having no &C
tuai ntse ofthe suit, he would be entitled to new
II is sufficient for the disposition of the appeal to
soy that there was evidence whatever before the
Justice that the defendant, Pridham, was liable on
the note upon which the action is brought. By
It is in terms provided that in case the
defendant does not appear and answer, the
plaintiff cannot recover without proving his
case. And, on the other hand, It is hardly
necessary to say that where defendant does APP
pear, and deny all the plaintiffs allegations, the
plaintiff cannot recover without proving his CASE
On this trial all that the plaintiff proved againat the
appellant was the making of the note by the other
defendant, and the endorsement thereof by the ap-
pelant. No attempt was made to show that the liar
bity of the appellant as endorser had been fixed in
any manner. No proof was given Of presentment,
demand refusal or notice to the appellant or OF any
waiver Of demand and notice. So that upon the
proofs, whether the appellant was bound or not
bound by the appearance Of the attorney, who was
by the Justice understood to appear for both deen
dants the proof was wholly insufficient, and the ap-
rJ, 80
judgment as to the appellant must be reversed
BaMge u.s. the NttC York and Erie Railroad Com
pany.-WOoDRUFF, J.-Held, Us often heretofore,
that where the evidence is conflicting the court will
not set aside the report Of the referee upon the facts
although the court are Of opinion that upon the EVIL
found differently, unless the evidence against the
finding OF the referee 50 greatly preponderates or
his finding is far without evidence In its support,
as to warrant the inference of bias corruption, par
TALLY some bad faith or unfarness in the referee
some mistake in law, or in its application in The
case.
Tor plaintiff to prove state of facts warrantng
only conjecture that he may be entitled to recover
lie must make out prma facie right Of action, and
must furnish some criterion by which some amount
and when his own evidence leaves it in doubt not
only what amount the plaintiff is entitled to, but
whether he Is entitled to recover at ALL his COM
plant should be dismissed.
"A clerk whose salary is entered at the end of the
year in the books Of his employers at fixed amount,
which is an increase upon the previous year. and to
whom his account Is submitted upon his leaving his
employers, showing that he had overdrawn, the
correctness of which he admitted, cannot in an &C
ton brought to recover that balance, prove that
his services were worth more than the salary credited
to him in his account. Judgment reversed, aud
judgment for plaintiffs for $S3 so.
Iyunchey vs. Fdulbe,y.-DALY, IA defendant
who pleads to the merits valves any objection to
the process by which he was brought into Court.
The statute which allowed the amendment of process
nection with the Code. It is applicable to the
Marine Court, and under 1t that Court have the
power to amend process. The Marine Court
amended the process by striking ont the name of
of the plaintiffs, which was inserted by mistake.
Held that such an amendment could be made.
Lyons Us. Siory-DALY, Under an agreement
by which the plaintiff bound himself to labor for
aspeciied time, at the lsthnlus of Panama, unless
the defendants physician should certify that he
untitled by sickness to work, further held that it
not necessary that he should obtain written certi
cate from the physician to entite him to Il
what work he had done but that it sufficient that
the physician told the plaintiff, together with
eral other laborers that they must prepare and &c
in the steamer to New York. that they were not I'll
to work.
Ebert, respondent, rs. Kelly, a1aellant-DALY, J
Where, in an action of SANDER, Of having charged
the plaintiff with going to Court and porjnriny him
| self, the jury found verdict for the plaintiff
| and gave him $25 damages. although it was prove
in the most clear and satisfactory manner that th
plaintiff did upon the occasion referred to in on &c
ton between him and the defendant, swear to wha
was false, the verdict and Judgment was set aside
| as fragrant disregard OF evidence on the part 0
| the jury. Judgment reversed.
| Lyman, appellant, vs. Cartwright, respondent
| DAILY, J-I doubt If the debt in question was eve
duly attached. 1t does not appear that any inven
tory was made, or that the notice required by thu
| 2S5th section Of .he code, showing that the deb
wa Rut
ing that the debt was attached in the hands Of thu
payment that It had been assigned to the plaintiff
! for the benefit Of Lyman's creditors. The assign
/ mert WAC -hnwn to them, and they knew that tn,
respondent, as assignor, had acquired title be1or
were rot compelled to pay the debt to the
They had right to issue, and, with =
knowledge of the plaintiffs prior title, they
should have issued. All that the sheriff
in action brought by the sheriff, under section 332,
Or by the plaintiff in the attachment under section
238, they were compelled to pay the debt, they
would have been protected by sach compulsory
they had paid the debt without any notice Of The
assignment, or had paid it upon the liability to the
attaching creditor being established by action the
plaintiff could have no claim upon them. But their
the assignment which they made at their own risk
and peril Robinson Weeks, Code r. v. s.,
3d. and does not discharge their liability to Lymas
assgnor. The Judgment should be reversed, and as
the case has been fully Investigated we think judg.
ment should be ordered for the plaintiff for the
amount due and entered. -
Peters, Appellant, rs. Diossy. Rsspondent-DALY
IA plaintiff in a Justices Court, upon failing In
his proof, may elect to be nonsuited the Justice
upon the trial has the right TO non-suit the plaintiff
II, in his judgment, he fails upon his own showing
to make out his case either upon the ground Of the
incompetency or the insuficiency Of the evidence,
and a judgment Of non-suit, in such case Is no
bar to o second action. But whether the Justice
non.suits or the plaintiff submits to non suit, it
must be done at the time or when the case is sub
med to jury, before the coming in Of the verdict.
If the cause, however, is submitted to the Justice
ard he takes time to make up his Judgment it Ia no
longer in the power of the plaintiff to submit to
judgment, or Of the Justice TO grant IL and II the
Justice should, in such case, render Judgment Of
nonsuit, It would tie regarded and might be pleaded.
as bar to q second action. A Justice's return
should set forth when the summons was retnrnshac
the day issue was joined, the days Of adjournment,
If any the day or days of trial, and the day upon
which judgment was rendered. Judgment affirmed