COUNTY CLERK-(Continued.)
is a ministerial act, which the county clerk may perform by deputy.
Lynch v. Livingston,
1. The county courts are courts of limited jurisdiction; to support their
judgment, the facts necessary to confer jurisdiction must appear in the
record; it must show that the defendant was a resident of the county in
which the suit was commenced. Frees v. Ford,
*176
CREDITOR'S SUIT.
See RECEIVER, 2.
1. Proof of a usage or custom is not admissible, to contradict the legal
import of a contract, the terms of which are plain and unambiguous.
Wadsworth v. Allcott,
*64
1. In an action to recover damages for preventing the plaintiff from per-
forming his contract with the defendant, the profits which the former
would have made on his sub-contracts, do not constitute the proper meas-
ure of damages; such evidence is not competent upon that question.
Story v. New York and Harlem Railroad Co.,
*85
2. The officer who issues void process is not liable in damages to the party
injured, for its execution after the return-day, though he receive the
money collected under it, if without notice of the time of its execution;
after the return-day, the warrant is functus officio.
v. Kidd,
See ASSETS.
WIDOW'S EXEMPTION.
1. Lands dedicated by the owner to public use, as streets, do not become
public highways, until accepted as such by the public authorities. Os-
wego v. Oswego Canal Co.,
1. The legislature has no power, by a special act, to authorize the sale of
the property of parties sui juris, for other than public purposes, without
their consent; and the facts which would create a necessity for the
exercise of such power, will not be presumed, when neither shown
by proof, nor recited in the act. Powers v. Bergen,
*358
1. Before the abolition of the rule in Shelley's case, a devise to A., “to hold
during her life, and then to descend to the heirs of her body, and their
heirs and assigns for ever," created an estate-tail, which the act of 1786
enlarged into a fee. Brown v. Lyon,
*419
1. The liability of co-sureties to each other being fixed by the law, can-
not be varied, by parol evidence of a conversation between the principal
debtor, and the surety who last signed, in which the former expressed
the opinion, that the latter would not be responsible, so long as the
other surety was solvent. Norton v. Coons,
*33
2. A certificate of conviction, made by a court of special sessions, pur-
suant to the statute, and duly filed, is conclusive evidence of the facts
therein stated; though it do not show that the court had obtained juris-
diction of the person of the prisoner. People v. Powers,
*50
3. The judge has a right, at the trial, to reject evidence in support of an
issue, which is wholly immaterial, though not objected to by either party.
Corning v. Corning,
4. In an action for assault and battery, evidence of provocation, is only
receivable in mitigation of damages, when so recent as to raise the pre-
sumption, that the act was committed under the immediate influence of
the passion thus excited.
5. Evidence to impeach the plaintiff's character is not admissible, in an
action for assault and battery, to reduce the amount of damages. ld.
6. A witness cannot be impeached, by proof of specific acts of immo-
rality.
ld.
7. What are necessaries, is a mixed question of law and fact; and there-
fore, the opinion of a witness as to what was a proper expenditure, is
not admissible. Merritt v. Seaman,
*167
8. Entries in the books of a bank, and in the pass-book of a customer, who
was the maker of a note held by it, whilst the bank was the holder of
the note, are competent evidence to prove payment thereof, in a suit by
a subsequent transferree of the note. Jermain v. Denniston, *276
9. A witness may refresh his memory by a memorandum made by a third
person, at the time of the transaction, if he can afterwards swear to the
facts, from his own recollection. Huff v. Bennett,
*337
10. The judge's notes of the testimony of a witness, taken on a former trisi,
cannot be read to discredit the witness, if the judge be unable to testify to
their correctness, from recollection.
ld.
11. In an action for a libel on an attorney, evidence on the part of the de-
fendant, that the plaintiff's application for admission to the supreme court
had been denied, is inadmissible for any purpose.
1. A person is not estopped by erroneous statements made by him, without
fraud, if not made to the party asserting the estoppel, and his conduct
was not influenced thereby. Chautauque County Bank v. White, *236
1. A general objection to the admission of evidence, is sufficient, if it be
one which could not have been obviated, had the grounds been spe-
cifically pointed out. Merritt v. Seaman,
*167
2. A general exception to the charge, containing distinct propositions, is
unavailing, unless each of them be erroneous, and to the party's preju-
dice. Jones v. Osgood,
3. If a specific objection to evidence be made on the trial, no other, which
could have been obviated, can be urged, on appeal. Newton v. Har-
ris
*345
1. Where an order of arrest has been granted, under 179 of the code,
on the ground that the debt had been fraudulently contracted, which
remains in force, it is not necessary that the record should show the
defendant's liability to arrest, in order to justify an execution against
the person, founded on the judgment, under 288. Corwin v. Free-
land,
*506
1. On a note given to an executor, for a debt due to his testator, he may
sue, either in his own name, or as executor; merely describing him as
executor, in the commencement of the declaration, will not prevent its
being regarded as a personal action; it is a mere descriptio persona, and
may be rejected as surplusage. Merritt v. Seaman,
2. In an action brought by an executor, in his own name, upon a note
given to him for a debt due to his testator, the defendant cannot set off
a cross-demand against the testator, and have judgment for a balance in
his favor. Merritt v. Seaman,
*167
3. A payment to the payee of a note, which is not produced, is made by
an executor in his own wrong, if the note be held by another; and the
allowance of such payment, on a final settlement of his accounts, is no
rotection. Bank of Poughkeepsie v. Hasbrouck,
1. The widow of a man who, at the time of his death, kept a house and
servants, is entitled to the exemption given by the act of 1842, though
he leaves no children. Kain v. Fisher,
1. An assignment, for value, of a demand resting merely in expectancy, is
valid in equity. Field v. City of New York,
*179
1. Where goods are shipped in the name of the owner, a consignee who
makes advances to another, on the faith of the shipment, is not within
the protection of the act of 1830, c. 179. Covell v. Hill,
2. A paper signed only by the consignor of goods, who is not the owner,
and intrusted to the master of the vessel, is not a bill of lading, within
the meaning of the factor's act; what is sufficient to affect the consignee
with notice of the ownership of the goods, so as to deprive him of the
character of a bona fide incumbrancer.
3. If a consignee, with power to sell, dispose of the goods in hostility to
the rights of the owner, it amounts to a conversion.
Id.
FEME COVERT.
See MARRIED WOMAN.
1. A misstatement of the relative situation of the neighboring buildings,
avoids an insurance upon personal property; there is no distinction, in
this respect, between an insurance upon the building, and one upon the
merchandise contained in it. Wilson v. Herkimer County Mutual Ins.
*53
1. An adverse claimant of the property cannot be made a defendant in a
foreclosure-suit; if one of the defendants to such suit, by his answer,
set up a claim, adverse to the title of the mortgagor, and prior in date
to the mortgage, the plaintiff should dismiss the bill as to him, unless
prepared to disprove the latter averment. Corning v. Smith,
1. A plea to an avowry, setting up a former verdict, in summary procced-
ings between landlord and tenant, as a bar, is not objectionable, as
equivalent to the general issue. White v. Coatsworth,
See STATUTE OF FRAUDS.
UNDUE INFLUENCE.
1. Where judgment is confessed to secure future advances, and advances
are made and paid to the extent of it, it cannot be set up as a continuing
security for subsequent advances, as against an intervening incumbrancer;
and these facts may be shown by parol. Truscott v. King,
GAMBLER.
See ADMINISTRATOR.
1. A general guardian cannot be allowed for services rendered, or ex-
penses incurred by him, prior to his appointment; nor will a promise by
the ward, after coming of age, to pay the same, authorize such allow-
Clowes v. Van Antwerp,
*466
1. Lands dedicated by the owner to public use, as streets, do not become
public highways, until accepted as such by the public authorities.
wego v. Oswego Canal Co.,
HUSBAND AND WIFE.
See MARRIED WOMAN.
1. The judge has a right, at the trial, to reject evidence in support of an
issue, which is wholly immaterial, though not objected to by either party.
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