Claflin & Salters agt. Sanger.

more, made by the general term of this district. In Davis agt. Morris (21 Barb. p. 152), MITCHELL, P. J., held a statement of indebtedness, to be for money lent and advanced at divers times by the plaintiff to the defendant, from 1853 to date, was insufficient.

These decisions, two of which are by the general term of this district, are controlling upon this question, notwithstanding there are some few cases of a contrary tenor, by the judges at special term in other districts, such as Post agt. Coleman (9 Howard Pr. R. p. 64).

The plaintiffs in this action were not the original creditors by whom the goods were sold, and it was suggested that less particularity was required from them than would be from the the persons to whom the debt was orignally due.

There is no distinction made in the statute, and there is no good reason shown for making any such distinction.

The statement is to be made by the debtor and not the creditor, and he can as well state the particulars in one case as the other. He knows the particular transaction out of which the indebtedness arose, and he can state it as easily after the claim has been transferred to a third person, as he could before the transfer.

The motion to set aside the judgment, as to the creditor making this motion, must be granted.

INDEX.

ACTION-for penalties under Metropolitan Police act. Costs of defence."

PAGE

Attorney-General's certificate. Mandamus to compel, &c... 10, 142
When creditor's suit can be maintained by judgment-creditors, after
receiver in supplementary proceedings appointed.....

31

For slander. When the words spoken import perjury...
When plaintiff may unite cause of action as executrix with one as
devisee.....

72

76

On fraudulent representations in purchase of goods-when sustained. 90
For breach of covenant. When notice in summoos may be under
first sub. § 129

... 97

For causing death, under acts of 1847-9. When sustained for the
benefit of next of kin, &c.......

.... 102

For penalty under liquor law of 1857. Notice in summons should be
under first sub. of § 129. Ale and strong beer included in term
"strong and spirituous liquors "..

...193, 442

For penalty under fire laws (1849). Trial by jury is absolute...... 273
When action to set aside an alleged fraudulent agreement, upon

which a judgment has been entered. Cannot be maintained by
the assignee of the judgment......

285

When a religious corporation can sustain an action on an original
subscription......

287

Upon promissory note-parol evidence to prove consideration. Lia-
bility of second indorser, &c.....

385

When judgment against one joint debtor a bar as to others. In cases

of joint and several debtors, when not a bar, &c.........
Until service of the summons, the court acquires no jurisdiction, and
the action is not commenced.......

A misdemeanor is not the source of a civil action in favor of either of
the guilty parties...

407

... 47%

504

Index.

PAGE

ACTION. A cause of action on contract, on which defendant may be ar-
rested, cannot be joined with one where he cannot be arrested;
it seems separate actions may be brought..

AGREEMENT by joint debtors, when within statute of frauds.........
When action, to set aside an alleged fraudulent agreement upon
which a judgment has been entered, cannot be maintained by
the assignee of the judgment......

AMENDMENT—of order containing wrong christian name of a party-of
defective affidavit of justification on undertakings...............
Where a complaint does not state a case over which the court has
jurisdiction, nor facts sufficient to constitute a cause of action,
whether it can be amended-quære?......

517

5

285

120

197

When and how supplemental and amended complaints allowed..367, 390
When summons and complaint required to be amended, in order to

bring in a third person, who has claims to settle, as a party.. 571

ANSWER-in bar of a former suit pending, how discontinuance of first suit
pleaded in reply to the answer, to be effectual.

69

Effect of a sworn denial under the Code

When answer, denying possession, insufficient to put in issue the
plaintiff's title.....

447

APPEAL from order of commissioners of highways, refusing to lay out a
road. How referees proceed on reversing the order.......... 74
Notice of, from judgment at circuit or special term, to "supreme
court," instead of "general of the supreme court," held suf-
ficient....

..... 120

From a judgment of restitution and costs-when the appeal with the
undertakings held sufficient to cover both.......

A party must be held to strict practice where he undertakes to limit
the time to appeal.......

120

192

... 255

Grounds of appeal stated in the notice, when held sufficient
From orders denying motions to vacate orders of arrest, not en-
couraged

Jurisdiction of court below, after appeal to the court of appeals, to
amend their judgment.....

280

... 289, 394

Jurisdiction of court below, after remittitur delivered to the prevail-

.......289, 394

ing party.......
From general term of marine court, N. Y., to common pleas, from
judgment of absolute reversal, will be dismissed or sent back for
an order to be made by the marine court for a new trial. It is
not a final determination of the rights of the parties......
338
From order denying motion to vacate original order of arrest. Effect
of original affidavits, made on information and belief, &c....... 353

.......

Index.

PAGE

.....

........

381

APPEAL. How finding of facts must be settled and incorporated in the
record by the general term, &c.
From judgment entered upon exceptions taken to the charge of the
circuit judge-the only mode of review......
When appellate court will not interfere with the finding of a referee
on a question of fact, particularly a question of fraud......... 524
There is no right of appeal to the county court from the verdict of a

453

jury, given upon the laying out of a private road.......
From marine and district courts to the common pleas, what under-
takings required, their effect, &c........

534

545

ARBITRATION. When a pretended reference of claims against an estate
considered an arbitration..

21

ARREST. After judgment and execution, too late to move to vacate order
of arrest...
Without warrant, for felony, misdemeanor, &c., who may be made by, 100
For alleged conspiracy and fraudulent representations, motion to va-
cate order denied on appeal......

68

.....

280

On appeal from order denying motion to vacate original order of
rest-sufficiency of affidavits, &c. Effect of a judgment opened
on terms, where an award of execution had been preously
made against the person

a4

353

A commission merchant, to sell butter, acts in a fiduciary capacity.
When liable to arrest...

420

A motion to vacate an order of arrest can only be made before judg
ment....

When execution may issue against the person, without and with an
order of the court....

481

A cause of action on contract, on which defendant may be arrested,
cannot be joined with one where he cannot be arrested....... 517

LAW SCHOOL

HARVARD

ATTACHMENT-cannot issue under the Code, to a non-resident plaintiff,

16

where cause of action did not arise in this state...
When a judgment by default not considered evidence of fraud, so as
to authorize an attachment against the defendant.
When motion to set aside attachment not affected by a report of a
referee in favor of the plaintiff....

556

556

An affidavit for an attachment must make out a clear prima facie case.
Facts stated not authorizing an attachment

559

ATTORNEY. Difference between an action and motion, in setting off
judgments, in reference to the protection of the attorney's lien
for costs, &c....
...... 146, 341

A notice of judgment by the attorney, without being signed by him,
or his place of business mentioned, is a nullity.....

192

Index.

.....

ATTORNEY. When may be proceeded against summarily for not paying
over moneys
Liability of plaintiff's attorney to pay referee's fees, on a promise
made to plaintiff..

PAGE

260

..... 289

When assignment of client to his attorney, of a report of referee in

his favor, and judgment entered in favor of the attorney, pre-
cludes a set-off of a judgment against the client......
Power of the corporation counsel of New York, to delegate his au-
thority to act to another.

Power of attorney-requisites of, construction of, &e.....................

341

380

418

ATTORNEY-GENERAL-when his certificate required in action for pen-
alty under Metropolitan Police Act, and how obtained...... 10, 143

BALL-privile

-privileges and liability of sheriff as bail, when may surrender prin-
cipal in his exoneration...

... 439

BANKS AND BANKING. Charter to individual banker when improper, 110
Duties of comptroller, and liabilities of bank officers, &c., in assign-
ment of bond and mortgage deposited as security
..... 110
Laws of 1849 (ch. 226, p. 340), rendering stockholders of banks indi-
vidually liable, is not unconstitutional, and is applicable to banks
chartered before its passage. When court may order apportion-
ment of debts among its stockholders, &c....

......

BILLS OF EXCHANGE AND PROMISSORY NOTES-in an action on
a promissory note, parol evidence competent to prove considera-
tion—liability of second indorser, and right of first indorser to
indorse without recourse..

323

... 385

No recovery can be had on an accommodation note, where more than
7 per cent. has been received on its discount as interest, where
there has been no fraud or false representations......
When the certificate of the maker of an accommodation note estops
him from the defence of usury..

....

BOOKS OF ACCOUNT-when and how evidence.

...... 566

569

399

AUSE OF ACTION. When it did not arise on a promissory note in this

CAUSE

state...

16