New-York daily tribune., 1858-07-31
LAW LETKLLIGENCE.
CASE or CANCENI.

them to 90 before tie Court Of fAppe.s which meets
on the scoLd Thursday IN September. Tne prisoner
ordered 10 be executed the ID day Of Septem-
Der, and therefore, uness the stay granted the
wilt Cf error would amount to nothing.
Mir. Ashmesd argued in suppor, Of the motion for
stay OF pioceediDgs ooLterdug that new and grave
questions were Involved.
DIstrict-Attorney McKeon opposed the motion, and
cited authority to show that the night Of trial by
twelve lurcIs codld be viewed. lie asked TO amend
the ppers to be attached to the record 60 thA. they
would show definitely the order Of proceedings.
Mr.. Asbnes sd sad te would not object TO the amend
| nents proposed-which show that Judge Nrghts
amendment OF the postea was made by order Of the
General Ierm-and the papers we're ordered to be 80
an ended.
Judge Irgraham reeerved his decision, and Cancemi
was taken back to the Tombs.
CHanBERs-JrLY 3c-Befors Judge ISss.H,M-DrcIsroys
Jas Butler sgt. Lewis Wickwire.-I the plaintiff
will s,ipue 70 offer any proof Of tbs agency Of Le v
then the motion denied II such stipulation not given within
days, the motion il granted ooss 10 sbid- event
Isaac Edwards sgt. the Mayor &c-Auowance OF
John Campbell ct al. sgt. Horace 8. Taylor
Motion denied; defendants costs 10 abide event
Elias Burcbell a2t. james Strauss et aL-Moton
denied plaintiff e costs, slo, to abide event
Emily b. Wines sgt. Gilbert Il. Winss.-Divorce
granted
Alfred C. Post agt. Sarah A. Birmingham ct al
Judgment Of foreclosure and sale ordered Oh report MI K C.
Joseph Lowell ct al sgt David Sterling, impeaded.
Motion cepied; costs, so. to sbes event
Before Judge SUTHERLAND
Mori, Linda agt John Wolie--Motion to set aside
attachment granted, with 10 costs
The People ex rel. the President, &C., Of the Tre
Bank and others sst Richard b. Cenno y kc Motion
for mar danus denied with $40 costs.
Chas Mapes agt. Geo. C. BY xbie ct .l.-Motion to
eIspcs oIdsrsi T. Ra,sls. spp9at .ueh receiver
1Ss .aS l % s ss sr din es
SUPREME CoURr-GrsEK.L TrsN.-July 2e.-Before
Ann Ciopey VT Peer B. Sweeney, Public Admins sr,Or.
This action was brought to recover $4,000 for ser
vices rendered by plaintiff for James Ridgway in his
hfeine wbIe plant Fl stsLding 10 the supposed
relation Of wife, II appears that the marriage cere-
mony solemnized between the plaintiff and james
Ridgway in 1921, plaintiff believing that they were
lawfully married. In September, in the same year,
CatharlLe Ridgeway commenced an action tor divorce
agelnst James Ridgway. He was married to her IN
1872 and her name was then Cstharne Dob; and IN
1915 he separated from her. In June lS!2, decree
was entered dissolving the marriage. In lS!o the
marriage ceremony again solemized between
plaintiff and James Ridgwsy, she believing that ne
was competent TO contract marriage. james kid8Wsy
died in S47. AT the time of the fret marriage he was
worth about 81 0O0 and at the time Of his death he
had amassed $l5O,0OO. She claims tha: 1t WAS par
tally owing TO her Efforts that Mr. Ridgway was
enabled to accumulate this fortune. There were
twelve children by the marriage, eight of whom are
row living. Prior to his marriage with Catnerne Doo
he had once been married and had issue by ooth mar
riaees. One child, Elizs Ann, and one grandchild,
George W. Rdgway, surviving issue OF bis deceased
son Joseph-the issue by the fret msrrisge-snd one
grand hid, the sole surviving issue Of daughter oy
his second marrige, claim to be the only aEfu heirs
The defendant demurred to the complaint and after
the argument at Special Term the demurrer was over
rued Defendant appealed to tue General Term, and
the orier Of Special Term was reversed and judgment
for defendant was given on tpe demurrer.
The case was argued at the last General Term, and
thelfollowing is the opinion OF the Court:
SUTHERLAND, J.-Unlees the Code, by aboshng
the distinction between actions at law ard suits in
equity and the forms Of such actions aud suits and OF
pleadrgs theretofoIe existing intended f. of
and Of WRONGS nOt before the prop SUBJ ITS OF
judicial investigation and remedy, can now be Judcl-
ally investigated and remedied. the facts state ID the
plsntis complaint il this action do not constitute
cause OF setion ard the demurrer Of the defendant 10
thst compliant is wei taken. II -
/ am not aware that any one has ever claimed for
the Ccde charged against tue Code mission or pur
pose 80 bold, novel, sweeping and dangerous.
1t cannot be supposed that the abolition IN WORDS
of the distinction between actions at law ana suits IN
equity by the Ccde intended to break up ths Well
settled fundamental principles OF lpita of con'on
law and equitable jurisdiction, ard open to courts as
nron.r subjects OF judicial discretion class CT morSl
wIorgs or msfortunes no! before the esit pae SUP
itcts Ct legal equitable investigation or redress
Nor can it be supposed that the abolition OF t1e
forms Of actions was intended to create or justify
uovel ard unprece dented causes g acton. ,
Although the form OF the acu'n oi assunpsl. anu
of the Die sdnss therein has been abolished, yet tue
obligation of contracts and the distinction between On
express and an implied assuupsit remain, aud, no.
withstapdipg the Code IN large Class Oh cases 10" Is
before the Code, it Is eny on tue theory OF an ;n'
piled assuppsit inferred from the conduct, stu alton
10 or mutual relations OF the parties that justice can
be enforced and the performance OF legal duty CON-
PEELED.
IL is 70 longer necessary and perhsps not even
proper in such case for the plaintiff to aege n Dis
complaint sny promise ths part Of the defendant
but he must state facts, which If true accord ns 70
well settled principles of law would have authorized
him to aege ard the court to irfera promise on the
paIt Of the deft ndant before the Code.
Tie form of sssumpsit is no longer necessary nor
perhaps ev proper such csse but facts suii'
CeIt to and to put Oh paper were 5~iu ~
II follows from what has been said that the principal
que s rased by the demurrer in this case IS there
icing no express promise pre'eLded or alleged In tne
complaint whether the law imples promise from tue
facts therein stated. .,.
The action is for services rendered by the plaintiff
for James Rogwsy in his lifetime, while the ps NTH
was standing in the supposed relation OF VIE.
Its alleged in the complaint that t1e marriage csre-
uopy was soemnized in due form of law between the
| plaintiff ard james Rdgwdy in ls9l, she believing
| that they were lawfully married, ard hvlng and Co
bsbtrg with him as bis wife that on or about the
18th Of September 1891 proceedings were instuted 10
the Court of ChsIceIy OF this S.ate against James
! Rdaw.v fer divorce by Ca,hsine Rdg way. to whom
| be had been married urder the name OF Catnanne
Dob, in the year 1872, and from whom ne naa SePa'
rsted in 1876 that on about the 18th day OF June,
lS22 decree was made oissoivlog tie marriage De-
tween the said Cathsiine and james; tast about the
| Ssnuer of ls-5 the marriage ceremony WAS sgsn
sok nnZed in due form OF law between the said plain.
tiff and the ssid James Ridgway tina. bsfore and at
the time of the ceremony of marriage 10 $50, the
plsntif was informed aid believed tbs. the SAID
| James Rdgwsy was competent to contrac; marriage
| with tie plaintiff ard that the plaintiff believed tast
the msrrsee wss valid ut,Il after the dea fJames
Rcpwsv; that from tie time OF the first marrlsgs
| ceremony uLtil James Rcgsays ces.h IN lf|,
the plaintiff and the said Jsm:s hved snd
| oetsbited tcseteer So husband AID wife, and
| were Known ard repued a. such; tha al TIE
| time OF tie frst marisge ceremony, J'ms'