Defendant was arrested pursuant PRACTICE. VERDICT. to said order and gave bail. The DENCE. EVI plaintiff procured judgment in said N. Y. SUPREME COURT. GENERAL action on May 22, 1876, for $2,046. An execution was thereupon issued and returned wholly unsatisfied. September 8, 1876, execution issued against the defendant's person, and defendant gave a bond for the jail limits. March 20, 1877, defendant procured his discharge in bankruptcy. Defendant claims he is released by reason of the discharge in bankruptcy from the debt. On that ground the defendant was released from execution against his person. C. H. Bannigan, for applts. Albert Cardozo, for respt. Held, By & 5117, U. S. Statutes, title Bankruptcy, debts contracted by fraud are excepted from the effect of a discharge in bankruptcy. The adjudication upon the subject of the fraud which was made by the granting of the order of arrest upon affidavits showing fraud in contracting the debt remains unreversed. The debt being contracted by fraud as appears from the papers upon which the order of arrest was based, is not discharged by the discharge in bankruptcy. 52 N. Y., 404, is not in conflict with this determination. Order reversed with $10 costs and disbursements. TERM. THIRD DEPT. Decided December, 1877. Where there is nothing to impeach the honesty or fairness of the jury, and there is no great preponderance of evidence on either side, the verdict will not be set aside as against the weight of evidence. It is not error to show by a witness called to give his opinion as to the genuineness of the signature of defendant's intestate, that intestate had presented instruments for discount at the bank where the witness was teller. Proof of admissions made by intestate, near the time when the note in suit bore date, that he had borrowed of plaintiff $1,000 at six per cent. interest (the amount of the note in suit), is admissible as corroborative of competent evidence of the genuineness of such note. Appeal from a judgment in favor of plaintiff entered upon the verdict of a jury. Action upon a promissory note for $1,000 with interest at six per cent. Defendant denies the execution of the note and puts in issue the genuineness of the signature. Appellant claims that the verdict is against the weight of evidence, and that there were errors in the admission of evidence. James Gibson, for applt. Held, That there is no such preponderance of evidence in favor of Opinion by Ingalls, J.; Davis, P. the defendant as should invalidate J., concurs. this verdict, and there is no evidence or accusation of prejudice, passion, or corruption on the part of the jurors, or any of them. There is nothing to impeach the honesty or fairness of the verdict. Held also, That it was not error for the teller of the bank, called to give his opinion as to the signature to the note, to testify that intestate had presented instruments for discount. The evidence was proper as going to show the extent and nature of witness's knowledge. Held also, That the evidence of admissions made by intestate, near the time when the note in suit bore date, was competent and very strong proof of the truth of plaintiff's claim. The admission that he had borrowed of plaintiff $1,000 at six per cent. interest, went far to sustain the genuineness of his signature. Alone it would not sustain a recovery on this note because it does not identify the note, but it is corroborative of competent evidence of the genuineness of the note. Judgment affirmed. Opinion by Boardman, J.; Learned, P. J., and Sawyer, J., concur. U. S. JUDGMENTS. DOCKET. Decided January 31, 1878. Section 1271 of the Code, providing for the docketing of judgments rendered in United States Courts by County Clerks, refers only to the form or manner of the docketing. An execution cannot be issued on such docket. Appeal from an order of the Special Term, denying a motion to set aside an order for the examination of the defendant Purcell in proceedings supplementary to execution. The plaintiff obtained judgment in the United States Circuit Court for the Southern District of New York, and filed a transcript thereof with the Clerk of the County of New York, who docketed the same. The plaintiff thereupon issued execution to the Sheriff of New York County, who returned the same unsatisfied. The plaintiff then obtained an order from a judge of this Court requiring the defendant to appear and be examined concerning his property. Motion was made to set aside the order of examination on the ground that it was not authorized by the facts. On hearing the motion an order was made denying the same, from which this appeal is taken. Geo. F. Betts, for respt. Held, That § 1271 of the Code applies only to the form or manner in which a county clerk shall docket the judgment of a United States Court. That an execution on a judgment rendered in the United States Court and docketed in the Clerk's Office of the City and County of New York is not authorized by § 1271 of the Code and was improperly issued. Order reversed, but without costs, as the question is a new one. Opinion by Ingalls, J.; Davis, P. J., concurring. DISCRETIONARY ORDERS. SHERIFF'S ALLOWANCE. N. Y. SUPREME COURT. GENERAL TERM. FIRST DEPT. The German American Bank, applt., v. The Morris Run Coal Company, respt. The German American Bank, applt., v. The Pittston and Elmira Coal Company, and The Morris Run Coal Company, respts. Decided January 31, 1878. When the law vests in one jurisdiction the exercise of discretion, another should not assume it, unless the case is such as imperatively demands it, to prevent great abuse and wrong. Appeal from an order fixing sheriff's compensation under § 243 of the old Code. The order was made under the provision of said section, allowing the sheriff such compensation for his trouble and expense in taking possession of and preserving the property as shall be fixed by the officer issuing the attachment. The property attached consisted in part of three locomotive engines and tenders, situate upon the railroad of defendant at Corning, N. Y. Real estate was also attached with other personal property. The affidavits on behalf of the sheriff showed that the sheriff held diction the exercise of discretion, another should not assume it unless the case is such as imperatively demands it, to prevent great abuse and wrong. The question for this Court is not what it would have allowed in the exercise of its discretion, but whether there has been a clear abuse of discretion by the officer who granted these orders. Although the sum seems large, yet we cannot say that there has been an abuse of discretion. Orders affirmed, without costs to either party. Opinion by Ingalls, J.; Davis, P. J., and Brady, J., concurring. RAILROAD COMPANIES. LIABILITY OF. TERM. THIRD Dept. William B. Thorpe, respt., v. The N. Y. C. & H. R. RR. Co., applt. said property, amounting in value to N. Y. SUPREME COURT. GENERAL $27,000, for fifty-two days and fifty nights, and until taken from his possession in a replevin action brought against him by one Lynch, an assignee of defendant. The sheriff was compelled to employ counsel. The facts were largely controverted by the defendants. The justice issuing the attachment allowed $500 compensation in each case. Decided December, 1877. A railroad company running drawing-room cars on its own trains, under a special contract with the owner, is responsible for the wrongful act of a servant of such owner in ejecting a passenger from a drawing-room car, to the same extent as if such servant was the servant of the railroad company. Appeal from judgment in favor of Hiscock, Gifford & Doheney, for plaintiff entered upon verdict of a applt. Me Master & Parkhurst, for respts. Held, That while the discretion given by 8 243 of the old Code, to the officer issuing the attachment, in awarding compensation to the sheriff, is to be regarded a judicial discretion to such a degree that this Court would be justified in interfering to correct a clear abuse of authority, yet when the law vests in one juris jury, after denial of a motion for a new trial made on a case and excep tions. The complaint alleges that plaintiff was a passenger on defendant's road from Syracuse to Auburn, on the 24th day of July, 1874, and that defendant's servants unlawfully ejected him from the cars. The answer denies the complaint, and alleges that plaintiff was ejected from a Wagner's drawing-room car, by one of Wagner's servants, for refusal to pay drawing-room car fare. It appears from the evidence that there were in the train two ordinary cars, and in front of these one Wagner car. Defendant passed through the first two and being unable to find a seat went into the Wagner car. Before doing so he met the conductor and paid him the ordinary fare. The porter of the Wagner car demanded twenty-five cents extra fare, which plaintiff refused to pay, saying he would go into the other cars as soon as the first station was reached and there were vacant seats, but refused to do so when the train was in motion. Plaintiff was then violently ejected from the car by the porter. The case was tried before a jury, and a verdict rendered for the plaintiff for $1,000 damages. Edward Harris, for applt. Rollin Tracy, for respt. Held, That to have given the plaintiff a verdict the jury must have found either that it was unsafe to pass from one car to another while the cars were in motion, or that the porter used excessive force. In either event a cause of action is established. Is it against the defendant? It may well be that Wagner is liable, but of that we need not now consider. The Legislature has given the defendant certain franchises. It cannot divest itself of its responsibility under the laws for the proper exercise of its duties. The arrangement between the defendant and Wagner was private and personal. When Wagner's car was put into the train it became a part of the defendant's train, was under the control of its conductor, was in his care and custody. The de fendant and not Wagner ran the train. The Wagner cars were run for joint account. Why then are not Wagner's servants also the servants of defendant? Why is not defendant responsible for their wrongful acts? The Illinois Central Railroad was held liable for an injury to one of its own passengers, on its own road, caused by the fault of a train of the Michigan Central Railroad, running on the same road by the owners permission. RR. Co. v. Barrow, 5 Wall. U. S. R., ̧ 90, 104 and authorities cited. Drawing-room cars, under a contract like that in evidence, were seized for taxes against the company owning the road but not the cars. Kennedy v. St. Louis, &c., RR. Co., 62 Ill., 395; 7 Am. Railway Cases, 346. The owner of a road was held responsible for the use of a patented improvement on cars run on its road, though another road held all its stock, provided the cars, and worked the road under a special contract. York, &c., RR. Co. v. Winans, 17 How. U. S. R., 30, especially top of p. 40. See also RR. Co. v. Brown, 17 Wall. U. S. R., 445, 450, 451; 1 Redf. on Law of Railways, Chap. 22, § 1, p. 588; Macon & Augusta RR. Co. v. Mayer, 49 Georgia, 355. From the authorities. cited we are led to the conclusion that defendant was liable for the acts of the porter to the same extent as if he had been hired by and was in the immediate employment of the defendant. Judgment affirmed. Opinion by Boardman, J.; Learned, P. J., concurs; Sawyer, J., dissents. EXCEPTIONS TO REFEREE'S On the appeal the appellant's coun REPORT. APPEAL. N. Y. SUPREME COURT. GENERAL Decided January 31, 1878. Exceptions to a referee's report must be filed and served before the same can be assailed on an appeal, and likewise an order cannot be attacked in an Appellate Court unless an appeal therefrom has been duly taken. Appeal from order directing payment of receiver's fees by defendant, &c. By an order of this Court dated August 26, 1876, John J. Freedman was appointed receiver of all the partnership property of the firm of Bearup & Carraher. The receiver qualified and took possession of the property. After he had been in possession of the property for a few days, an order was made restoring the property to the defendant upon certain conditions. sel urged that the receiver upon variOus grounds should not be allowed compensation. Prince & Gibson, for plff. J. L. Hawes, for deft. Held, The defendant having failed to file or serve any exceptions to the referee's report within the time given for that purpose, he is concluded by it. If the defendant felt aggrieved by the order appointing the referee or the referee's report, his remedy was to appeal and accept. Having failed to do either, he cannot now assail either. The only question we can consider is the manner in which payment was directed to be made, which was substantially out of the fund. This is undoubtedly the proper mode. Order affirmed. Opinion by Brady, J.; Ingalls, J., concurs. REFERENCE. AMENDMENTS. An order was thereafter made referring to IIon. F. W. Loew the question what amount of compensation the receiver was entitled to, and he N. Y. SUPREME COURT. GENERAL reported a balance due of $389.64. The report was duly filed and notice thereof given, but no exceptions to it were filed or served during the time allowed for that purpose. The receiver then applied to the Court to declare the manner in which he should be paid the sum due him. The Court ordered the defendant to pay same, together with the referee's fees, and to take the receiver's receipt for it, and that such receipt be held in the place of so much assets of the copartnership property in his hands. From that order this appeal was taken. DEMURRER. TERM. THIRD DEPT. Elijah B. Smith and First Nat. Bank of Elmira, applts., v. John T. Rathbun et al., respts. Decided January, 1878. Where a referee on the trial allows an amend ment to the plaintiff's complaint which does not introduce a new cause of action, or which is made to meet an immaterial variance, the defendant is not thereby entitled to demur, and the referee has no power to allow him the privilege. Appeal from an order denying a motion to set aside a demurrer, or to adjudge it frivolous. This action was referred to a referee, |