The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1854-11-05
Court OF Common rlsas-GsensEsl Tern.
Hon. Judges lDsrahsn !F. - ~ woodruff, predd-

Parsoms. Assienee Of Cotton sssinst Ssydam--
WQNpEu!r, J-Wben the whole merits have bssa
judgment, becsule there y . variance bet tween tbs
complaint and the proofs y particular IN which
the parties bsye not been msled but viu on appeal
either disregard the vsri.aos Or direct an amsnd.
not stating with sufficient particularly the several
Acts proved, the party COMPLAINING thereof should
apply by motion a. special term to have further
upon such report, tho appellants counsel refused
to accept an order which was rendered 70 him, the
court will not reverse the Judgment for such mper.
lection. When witness Is called. sworn and exam
med by the plsiptt and then defendant declines =
crosse xamine him, but after the plaintiff rests his
case the defendants moves for n0n.suit, which be.
ing denied, he calls the witness to the stand again,
it is not proper for the referees to administer the
oath second time, not even although the defendant
requests il. Under the circumstances last stated,
the examination Of the plaintiffs witness by the de-
PENDANT sfter the plaintiff bad Eested ia In the M
ture OF a cross examination, and the defendant does
not by such examination make tie witness his own
in such sense that he may rot contradict him by
other testimony. The rule that party may not
contradict bis own witness, does not import that he
may not give evidence In trect support of the issue
on his part however much 1t may conflict with the
testimony of his witness, but only that he may net
contradict for the purpose Of impeaching HIS credi
biity
Rouissom vsrsus Cisrk-wooDRuPF, J.-When .
patty is engaged in erecting house upon his own
ground, neither he nor his workmen are bound to
floors across beams, or use other means for the pro-
tecti0n of iDtruders who voluntarily enter the UNI
finished house and venture TO walk across the beams
or around Its well holes When the owner Of lots Of
ground upon the rear OF which are buildings occu-
pied by bis tenants, opens way for their fngress
and egress through an adjoining lot which they USE
while he IL improving the front OF the lots by put
ting up front buildings, their visitors have no such
license visitors that they can aver right to pass
through the unfinished buildings. In such case,
when the buildings Ia front are enclosed and new
alley ways arranged along side Of the walls, aud the
tenants In the rear begin 10 use them, an obstruc
ton OF such alley ways does not give either the
tenants or their visitors right 70 pass through the
houses and nc 5ordipgly when the father Of two OF
nignt season. and finding the alleys alongside the
new houses obat ucted. attempted 70 gropc his way
through tie basement hall aud fell down into the
cellar, held that be acted at his peril. and could
maintain 10 action for the injcry received founded
On the negligence OF the mechanics employed In the
erection.
Fireman, VI. Nsmton, 81 ai-wooDRuFF, j.
IT, IT not Necessary Necessary Tor an assignee to give
witness (Iner sec Ion 800 Of the Cooley unless the
evider CO 10 ofered against an assignee or an exc
cutor or administration. claim for damages for
Such assignment would have been good before the
enactment Of the Code, though the assignee conId
not then have brought the action thereon in his own
Dame The defendants in such ease have pleaded
the non oinder Of the plsintifs assignor party
defendant, in abatement Of the action, and that
plea being adjudged bad on demurrer in the court
below, the defendants pleaded to tie merits, and
abatement was raised by pleading to the merits and
the decision on the demurrer could not be revised.
But it seems that it is not necessary p make TIE
assignor party in the suit in such case. notice
will not be liable for baggage unless it ia checked,
1t be Of any force, will mt protect them against
the claim OF passenger Who delivered his baggage
to their agent on board the boat, and demanded q
hrf cd In nhfo IN nopo fha
Whose duty it was to give checks was not present.
Wright rs. Me- Glaze WOODRUFF Jon appeal
from judgment Of the Marine Court where It sp-
peaTed that after the trial Ia that court commenced
and witnesses were examined, the case was ad.
jourDed for nine days and that the Judge was pre-
vented by sickness from attending the adjourned
day, and the return does not state By whom or in
what manner the cause was Continued. otherwise
than that it appeared by the records Of the court"
the cause was adjourned from such day for the
term Of four days, and again for two days, and
again for seven days, ard again for four days. then
for three days, ano SO on, and finally sgsin for
seven days. 1t not appearing ttat ether Of the par
ties IVES present on either Of the days. Or that any
consent wss given. Held that that court had lost
produced by the plaintiff ex pare after tie day last
name d, Ia erroneous.
Daub cs. Holman WOODRUFF, 1.-The accept.
ance of rent from assignee Of lease, though &C.
knowedged to have been paid by such assignee, and
in bis own name, does not discharge the original
lessor from his covenant to pay the rent thereafter
accruing nor affect the liability Of the surety for
such lessor. The creation OF q new tenancy and
substitution of another tenant under an express
agreement to that effect, would amount to sur
render, and discharge tie lessee and his surety.
Robinson, ct al. Ds. acknowledgements j.
Under limited partnership, when the special part
ner DOES not pay In the amount Of his capital spec
fed in TIE certificate be may, when the firm becomes
insovent assigns the property of the firm for the
benefit OF creditors, be compelled on complaint in
pay in the deficiency Of bis capital to be used for
the payment Of the creditors Of the firm.