The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1854-11-06


ment, but at the same time to originality and com
prehensiveness Of design.
Court or Common PIeas-t,cncrnl Term.
Hon. Judges Ingrahsn (F. J.) and Woodruff, prssid-
Smith rs. Dodd ss ai.Wwoopnrrp, J.-1n an 40
tion where the plaintiff AYERS tie failure Of the de-
fendsnt to make advances as required by an agree
meDt between the parties, - the ground uuon
which he demanas Judgment; and also claims that
he, BY reason thereof, has been required to make,
and has made, numerous advances; and, ON the
other hand the defendants in their answer aver that
they have made oil the advances which they were
bound 70 make. reference is proper to take the
reference may be ordered before the other Issues
submitted to jury for trial. It seems that in an
action in which reference may lawfully be made,
an order Of judge at special term, deciding that
cannot be appealed nom.
Schneider At al %. Boyer WooDRuFF; IA
meIe opinion Of the Cont, entered as an order with
ne ne Clerk At q eeiA term y these word,:-"A mo
to the PLAINTIFF right to costs the erdct it is
ordered that the plaintiffs are entitled to their
cost lie not an order from which appeal lies to
the special term It is but an opinion, and until it
is made effective by some judgment or award of
costs It avais nothing. When the action ID in sub
stance the former action Of waste and the complaint
alleges forfeiture and recovery Of possession is
prayed for the title to real estate apPssrs by the
tees Courts have no jurisdiction.
kusstN rs. Roberts ct Gl--WOODRUFF, J.--WEen
chatte Is hired for limited period Gas for a day
or mighty at definite pr Q, and the hirer negecss
he is not liable, in an action brought TO recover for
the Of the cbatte TO be charged at tse same rate
for every day or other period tnat may elapss The
recovery should be limited TO the value Of the use
for the entire period Of the detention. The price
agreed for ole day ia not the standard Of value,
wien the definition having continued for several
months, on computation By the day. amounts to
many times the whole value OF the chattsl aud in
terett.
Miller o.. RitS-WoopRUFF jim On action by
tie psyer Of note against the maker, it IL good
defence that such note was given to the plaintiff to
meIt to return to su,h maker, and that the plain
tin has never returned such previous note. In such
case the note sued upon Ia without consd GRAFTON.
It will not aid the plaintiff in such case to admit
that he holds both notes in his possession.
Cias kson It aivs MifchsU.--W ooDRuPF J-When
tappcars by the complaint that the plaintiffs ore only
entitled to the principal of fund held in tsust-an
the ruat fixing the rate Of interest to be allowed for
the ufeofthe fund ct five per cent instead Of per
cent was inserted imp operly and By the uadue niu
ence Of the trustee and the prayer Of tie complaint
countto the plaintiffs for interest a. tie rate Of seven
per cent from the time the trust was created. Held
bad On demurrer, the plaintiffs not being entitled to
the interest 81 all until the principal be anne dne to
law upon the principal, after such prn ipsl became
payable to them, they should have 50 dscIar d. The
matter demured to proceeds entirely upon the ground
of gay in the act Of tire trustee and makes that
the foundation of claim to the two per cent differ
ence between five and eevea per cent.
GCfriscn ~. Piace-W0oDRuFF jim an action
for naicious prosecution, If want of probable
cause Ia shown, malice Is infered-express malice
for ally period, however short, without probable
cause the law plesumes that be sustained damages.
Special damage reed net be svsrred or proved.
Whether the defendant had probable cause not is
o. question for the Court when the facts are not
disputed and when the facts arc in dispute it bs.
cents mixed question of law and fact, upon which
& jury must pass under instruction from the Court
respectr the rules Of law applicable to the subject.
Gcld'ict rs. Ryan..WoopEUFF, Where cat.
tc brought to market by .drover, and they are
cod to butcher to be slaughtered, il there be ne
tier fraud nor express warranty, the maxim caceot
smpto, applieen0 warranty of soundle ss Is implied
found to have been bruisea on the jniney, held in
the absence OF any proof misrepresentation con-
ceament OF even knowledge Of the injury sustained
by the CATTLE that the vender was not liable without
an express warranty that no such defect existed.
Graud and Olhsrs ps. Stage 8. Beach.-IsGRA.
HAM, F.J.-An action for damage for Libel against
The members Of company or association. otrer than
partners or persons having community OF interest
Ia which they can sustain damage, cannot be main.
tanned by them jointly. Where tae libel only al
ludss TO some Of the company. they cannot maintain
joint action. Whether any one Of tie company
could maintain action In such o case is doubted.
Ore Of two persons re.erIed TO in libel must chow
that be IL the person alluded to before he can 70.
cover, and csnrot call on the defendant to show 10
whom the libel Ieftrlec.
SAME Mimic rs. the Mayor &C., Ct NclD York
koRAHAM, +. J.-Uldsr the act Of 1853 relstivs -
the Police Department, the. Mayor has no d'scre-
icr Any pow or 10 Iefuse pay TO ms mber OF the Po
lice DeFa tment while absent from duty, L. such alb
eI &C is caused by sickness or injury contracted in
The public service. Tee provisions Of the act OF lSi9
gi,it such power TO the Mayor are repealed by the
act q 1863. The Police Department cannot by rule
lsquiIefr m poll emin tte performance by him
Of spy condition prior to such payment inconsistent
WITH the set. SO that the regulation requiring a
certificate Of the phJ stefan Of the department. before
payment which he may or may not give is incOr sis
tart with the statute and void.
Ga, 6nv rs. Wright INGRAHAM, Il. J.--Whers
defendant mistakes the re,u n day, aud a'teads on
another day IN corssqutn ofsuch mist Ike he may,
en- ricof thereof, excuse bis defaat. Mere forget
fulLtsa OF the day Is 70 excuse. In order TO show
ba, injustice has been do1e By the judgment the
defendant fhould show by tie witDs 90 whom he
ie es to prove lis defence the error that has been
committed, sLd his mere affidavit Is not uficiens,
If coItrsdcted by the plaintiff and other Witnesses.
Itohour rs. Rooch-JNGRlnAM L. Where q