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

hector a. thig por Il Il not for the plaintiff now 10
oAiect, that Hs own evidences. yasi not properly
aseAsntiestsd Bat, bssdes, this. when po such
q shipmsnt u the complaint or othsrwise, il Il
enough for the defendant 70 rely upon the presump-
tion HAT The Ccllector, In granting the vessel
clearance. Periornsd she duty imposA upon him By
the g. . SBss 4 sn p 70 III ss
avoid his own contract, giyes some evidence 10 the
contrary. And this dspoaea Of the objection that
the defendant did not prove that the captain gave
the proper bond when the vessel was cleared. In
Judgment ordered for the defendant, With costs, +
Bacon + Bacon ps. Holloscay.- -W0ODRuPr j.
After . careful denomination Of the case as pre-
sented to the referee on the recent trial, i lind
nothing in It 70 change the legal rights Of the parties
ordered: and therefore adopt the opinion Of the
General Term delivered at that time byJudRe Div
as decisive OF the present appeal The refcceA Inds
that the plaintiff before the maturity Of the note in
Serefor their own note Tue ~yess and exchanged
of the like date nc r, .ne saa's Snu
az e se .nis exchange, they had any notice Of
ny ny eqo between the defendant and the payees
y ma@rl, any existed, which think was by no
lne~Ns sufficiently proved) which rendered the note
ts, therefore, by virtue Of the exchange, and the
moment it was Contaminated, became bona tide
holders for value. And If Il were, for the purpose
Of argument. conceded that their holding Of the
note in question was, under the circumstances, as
security, and to indemnify themselves against the
payment Of their own note, exchanged therefor,
still their holding for that purpose was bona 6de,
1VS to tina. sse as nS Eas as sn
holders Of the plaintiffs note,) applied to its pay
assent had perfect right 70 do, the plaintiffs
p ps Ss sSs pa aaa psa BY ts s
paid to the plaintiffs, in money, the sum due to.
them for storage, and the plaintiffs had, in turn,
with money, paid their own note. perceive no oc
casion for reviewing, in detail the decision hereto
fore made at General Term. which, in myjudgment,
s conclusive against the appellant, upon the grounds
Of the present appeal. The Judgment should be Of
frmed, with costs.
The Act of 1853, article 4, S, (Sesson Laws Of
1853, p 446), and the Act therein referred to-Sec
20 and Il Of Act of 1853, Session Laws OF 1853,
r. BY which the violation Of the Ordinances Of
misdemeanor and made punishable by fine or i'm
pris0nment, and do not operate as repsal Of the
penalty given by those ordinances, take away the
right Of the Corporation to prosecute civil action
The right to pass bylaws, affix penalties, and sue
for and recover them for their own use is given by
the City charter, and is not TO be deemed taken
away by implication unless the State law is ire
II the State law and the whole ordinance can
stand together the former does not repeal the lat
ter. When the defendant does not appear on the
trial below the Court will not be astute to discover
defects in the plaintiffs evidence-especially when
it is not claimed that injustice has been done or
that the appellant has any defence on the merits.
Hervier us WOODRUFF IA compost
ton deed, executed by the plaintiff and other credl
so per cent of the defendants Indebtedness in three
instruments at times about six, twelve and eighteen
months; and provided that such payments should
be in full satisfaction and should be release and
discharge Of all indebtedness, claims, Deeds &C.,
from the beginning Of the world, &c. But condi-
ton was annexed-that is to say, provided three
fourths in amount Of the defendants creditors signed
the deed, without any limitation to the time with
in which the signatures should be procured; and to
this was added covenant by the plaintiff, that if
the defendant paid the instruments as they respec-
lively became due, he would not arrest or sue the
defendant for the said debt nor in any manner mo-
lest him. until the expiration Of the term limited for
the payments, and that until then the instrument
should operate as an absolute discharge OF all suits
committed or which might be commenced against
him. Held that the defendant had the full period
thus limited within which to obtain the signatures
OF threefourths of his creditors, and that the in
strument was good defence to any action brought
by the paiatiK within the stipulated time if the
instruments were paid as they became payable by
| the terms OF the composition decd.
! Buckingham, ct al. agt. OiiUer.-WOoDRUPP, T.
| When A. and B. are jointly and seyeraly liable II
| c. for the sum of two hundred dollars, a receip
signed by c., acknowledging the payment by A. o
not operate to release or discharge either Of the
| joint obligors.
Ed,cd. Solomon act. Hoit, ct al--WooDRurF, j.
| When an action is brought upon chose in action
not negotiable in the name Of assignee thereof
| and the defendant seeks to set of claim in his
| own favor, he must prove that the claim belonged
| to him before notice Of the assignment Whether
such setof can be made If such claim was not both
npdn avoh Ii hofor IF fIa Mt
Que'e, Whether sec. 1l2 Of the Code OF Procedure
has not 80 far altered the Revised Statutes, that in
case OF such assignment q clafra may be set of
winch did not exist against the essignor A. sle .ne
OF tne assignment, but afterwards arose and was &C
CURED by the defendant before notice Of such as
signment? Quer.
AMasetf cs. The NeV York and Harlem Rail
road Company WOODRUFF, J.-When railroad
company are duly authorized to lay thertra in one
OF the streets Of the city, they are not at all events
and without proof Of negligence, or want of skill
and reasonable care, liable for accidents which NAV
&c caused :aere1y. rTcccf! q: suck negligence or
want of care or skill in the manner of constructing
or maintaining the track are necessary as between
item and persons exercising the common right of
passing and repassing through or across the street,
Under the proofs in this case, the finding of the
referee upon the question Of negligence held con-
elusive.
Naylor rs. Schenck, a al-WoopRupp. 1.-The
tendency Of another action in favor of the defendant
against the plaintiff for the recovery of damages for
breach Of contract, will not prevent reconferment
OF the same damages by way Of defence to subse-
quent action brought against such defendant upon
the same contract.
Kane and tcife, respondent rs. Duler, appellant.
--WooD.UFP, 1.-THE Marine Court Of tie city
Of New York must render judgment within four
days after cause is finally submitted, or it loses
jurisdiction, and a Judgment rendered after the
lapse of the four days will be reversed. 1t seems
that where the case Is tried by jury, and verdict
for the defendant has been rendered, the omission
OF the court to render Judgment thereon will not
deprive the benefit of the verdict in his favor. That
verdict may he pleaded by him in bar Of another
action, though no Judgment is entered thereon.
The plaintiff in such case cannot, after verdict,
elect to be nonsuH and then maintain another ac-
tion fer the same cause.
Goldsmith, appellant, ps OConnor, respondent.
--WoopEuFF, J.--Where the defendant, employed
the plaintiff to assist him in indiag and procuring
the purchase Of housc--acknow ledged that the
services rendered were useful and promised to pay
for tLem held that he was liable therefore on q
suantim mcmf, although itwasnot proved distinct
y that the purchase was contaminated by the plain
tif's agency One who employs another to aid in