COURT OF APPEALS.

contingent charges, of the allowance of which the supervisors are the sole judge, unless the Legislature itself provides for it. Supreme Ct., 1861, People a. Haws, Ante, 204.

2. The fees of a sheriff for services in actions brought for the benefit of the metropolitan police fund, or the treasury of the State, are not county charges. Supreme Ct., Chambers, 1861; People a. Haws, Ante, 192. 3. The fees of a sheriff for services in actions brought for the commissioners of excise of this county, are county charges. Ib.

COUNTY CLERK.

1. Clerks of counties are, by virtue of their offices, made clerks of the Supreme Court [Laws of 1847, ch. 280, § 65; Code, § 311; 18 Barb., 469], and they have power to adjust costs of a proceeding by mandamus. Supreme Ct., Sp. T., 1861, People a. Colborne, 20 How. Pr„,

378.

2. The county clerk has no authority to tax costs in street cases. Supreme Ct., Chambers, 1861, Central Park Case, Ante, 107.

COUNTY JUDGE.

1. County judges authorized to designate days for the attendance of petit jurors at County Courts and Courts of Sessions. Laws of 1861, 14, ch. 8.

2. A county judge who has granted an order in an action in the Su

preme Court,-e. g., an order of arrest,-has no power to vacate it on notice. Supreme Ct., 1860, Rogers a. McElhone, Ante, 292.

APPEAL, 12.

COURT.

COSTS, 14.

COURT OF APPEALS.

1. Only such questions of law as were properly raised by exceptions in

the court below can be reviewed in the Court of Appeals. Ct. of Appeals, 1860, Ingersoll a. Bostwick, 22 N. Y. (8 Smith), 425.

2. The Court of Appeals will not inquire whether witnesses were or were not competent, when the facts to which they testified were established by other unobjectionable evidence. Ct. of Appeals, 1860, Schenck a. Dart, 22 N. Y. (8 Smith), 420.

APPEAL.

DEFAULT.

COURT OF SESSIONS.

1. Proceedings in any Court of Sessions, except in the city or county of New York, in which the county judge shall, for any cause, be incapable of acting, the Court of Sessions shall, by rule, transfer to the Court of Oyer and Terminer, which shall have the same jurisdiction that Courts of Sessions have in such cases. Laws of 1861, 172, ch. 96, § 1. If either of the justices of the sessions shall, for any cause, be disqualified to act therein, the county judge shall designate some other justice of the peace of the county as a member of the court. Ib., § 2.

2. The Court of Sessions cannot order a nolle prosequi to be entered on an indictment pending therein for an offence which it has not jurisdiction to try. [Limiting 19 Wend., 201.] Supreme Ct., 1860, People a. Porter, 4 Park. Cr., 524.

3. That court cannot try a charge of rape. [2 Rev. Stat., 208; 19 Wend., 192.] Ib.

LARCENY.

CREDITOR'S ACTION.

1. No action can be maintained by a creditor to set aside a conveyance of land by his debtor as fraudulent, until he has not only recovered judgment, but issued execution against the land. [Reviewing many cases.] N. Y. Superior Ct., 1859, McCullough a. Colby, 5 Bosw.,

477.

2. The complaint, in such an action, must allege the issuing of an execution, or it states no cause of action. Ib.

3. Although an execution be issued after the commencement of the action, the fact cannot avail the plaintiff in any way, and an amendment to his complaint, for the purpose of alleging it, cannot be allowed. Ib.

CRIMINAL LAW.

ACQUITTAL; ARREST, 23; COMMITMENT; CONVICTION; CORONER'S INQUEST; COURT OF SESSIONS; DEMURRER, 3, 4; ERROR; EVIDEnce, 13, 19, 24; FINE; FORMS; INDICTMENT; JURY; LARCENY; NEW TRIAL; NOLLE PROSEQUI; RECOGNIZANCE; TRIAL.

DEFAULT.

Where, after defendant has appeared by attorney, the plaintiff obtains a consent from the defendant in person for a discontinuance, and faila to notify the attorney, or to enter an order for discontinuance, a de

DEFENCES.

fault taken by such attorney will not be set aside except upon payment of costs. N. Y. Superior Ct., Sp. T., 1861, Pilger a. Gore, Ante,

244.

APPEAL, 32.

DEFENCES.

1. Where the plaintiff does not bring before the court the requisite parties to enable defendant to avail himself of an equitable defence, so that the court may adjudicate finally upon all the questions in controversy, the defendant may commence a new action in the nature of a cross-suit, and bring in the requisite parties for full affirmative relief in equity; and the plaintiff in the first action cannot set up in answer to the second action, in bar, a former suit pending for the same cause, because the parties are not the same. Supreme Ct., 1861, Auburn City Bank a. Leonard, 20 How. Pr., 193.

2. In such a case, the court will grant a stay of proceedings in the first action, where it is not clear from the pleadings that they would dismiss the complaint in the second action for insufficiency, on the trial, or sustain a demurrer to it; but the stay may be on condition that both actions be referred to the same referee, and tried together. Ib. 3. Where a sheriff, acting under an attachment issued as a provisional remedy under the Code before judgment, has seized property claimed by a third party under an assignment from the defendant in the attachment, and judgment has been subsequently recovered in such action against the defendant, the sheriff and the plaintiff in the attachment may show, in defence of an action against them to recover the property, that the alleged assignment was fraudulent and void. Supreme Ct., 1861, Schlussel a. Willet, Ante, 397.

4. Where such judgment was not recovered until after the action brought to recover the property was at issue, and the fact was not set up by pleading, but it appeared that the plaintiff was aware of its existence, and on the trial admitted the fact,-Held, that the omission to plead the fact might be disregarded as an immaterial variance. Ib. 5. A sheriff who, acting under a warrant of attachment issued as a provisional remedy under the Code, in an action before judgment, has seized property claimed by the vendee under an assignment from the defendant in the attachment, and who has subsequently, upon a judgment recovered in the attachment-action, and execution issued thereon, sold the attached property, may, in defence of an action against him by such vendee to recover the value of the property, plead and prove these facts, and that the alleged assignment was fraudulent and void

DEFENCES.

as against the attaching creditor. Supreme Ct., 1861, Jacobs a. Remsen, Ante, 390.

6. But such defence must be pleaded. If the judgment is not set up in the answer, it cannot be proved. Ib.

7. To an action brought to recover the value of property wrongfully taken, and not merely damages for a trespass, title in the defendant at the time of commencing the action is a complete defence. Ib. 8. In any action, it would be material on the question of damages. Ib. 9. In an action upon a policy of insurance, it is no defence to show that the insured sold his interest in the property after the injury had been suffered, which eventually, though after such sale, resulted in its destruction. N. Y. Superior Ct., 1859, Crosby a. New York Mutual Ins. Co., 5 Bosw., 369.

10. It is no defence to an action upon a policy of insurance that the insured had, before the loss, agreed to sell, and since the commencement of the action had actually sold, the property insured. N. Y. Superior Ct., 1859, Shotwell a. Jefferson Ins. Co., 5 Bosw., 247.

11. It is a good defence to an action against a surety in a recognizance, that it was taken on an illegal arrest of the principal. [17 Pick., 152; Theobald, 2, 207; 3 McLean, 158.] Supreme Ct., 1858, People a. Shaver, 4 Park. Cr., 45.

12. In an action on a promissory note, the defence was, that the note was made in violation of the usury laws of a foreign State. By those laws the contract was declared not to be avoided, but, by way of penalty for a violation, a forfeiture of three times the excess of interest reserved was to be allowed in an action on the contract; or, if paid, to be recovered back. Held, that the defendant could not, in this State, avail himself of the penalty, even by way of defence. N. Y. Com. Pl., 1861, Willis a. Cameron, Ante, 245.

13. In an action for money received for the plaintiff's use, the fact that it was paid in fulfilment of an illegal contract between the plaintiff and the party who paid it, is no defence, if the defendant did not know the nature of the contract at the time he received the money. [1 Bos. & Pul., 3; 1 Bail., 316; 11 Wheat., 258; 5 Seld., 73.] N. Y. Superior Ct., 1859, Merritt a. Millard, 5 Bosw., 645.

14. Defence of special contract, not to be liable for ordinary neglect,— Held, valid, on behalf of a common carrier of passengers. Boswell a. Hudson River R. R. Co., 5 Bosw., 699.

ACCOUNTING, 2; ADVERSE POSSESSION; AFFIRMATIVE RELIEF; ANSWER,

DEMURRER.

DEMAND BEFORE ACTION.

1. In order to maintain an action for the recovery of goods fraudulently obtained from the plaintiff, where he has received nothing towards their purchase, and has, therefore, nothing to restore, all that is necessary to do to entitle him to reclaim his property is to assert the right to rescind the contract for fraud, and to demand the goods. Supreme Ct., 1860, Bliss a. Cottle, 32 Barb., 322.

2. Such a demand, however, must be made before the commencement of the action, which cannot be maintained upon a demand involved merely in the commencement of the action itself.

A subsequent ratification of a demand, made previously to suit brought, by one unauthorized to make it, is not sufficient to sustain the action. Ib.

CAUSE OF ACTION, 10, 11; CONVERSION; EVIDENCE, 26.

DEMURRER.

1. A demurrer to any pleading admits the facts stated in it, for the purposes of the entire case. After decision thereon, the party may, by the special permission of the court, withdraw his demurrer and take issue upon the facts. But while the demurrer remains upon the record, the facts admitted by it cannot be controverted,-so far, that is, as the particular series of pleadings is concerned which terminate in the demurrer. If there are other issues involving the same facts, they are not affected by the demurrer.

Accordingly, where, to a defence of the Statute of Limitations, the plaintiff replied successive absences of the defendant from the State, and defendant's demurrer to it was overruled, with liberty to withdraw it upon terms, but he went to trial without complying with those terms,-Held, that the reply was admitted, and no evidence was required of the facts therein stated. Ct. of Appeals, 1860, Cutler a. Wright, 22 N. Y. (8 Smith), 472.

2. Substantial and radical defects in a complaint may be reached under the general allegation in a demurrer that it does not state facts sufficient to constitute a cause of action. Supreme Ct., 1861, Spear a. Downing, Ante, 437.

3. The rule that, on demurrer, the party committing the first fault shall have judgment rendered against him, applies to criminal as well as civil actions. Buffalo Superior Ct., 1854, People a. Krummer, 4 Park. Cr., 217.