7. The provisions of the act prohibit- ing corporations interposing the defence of usury (chap. 172, Laws of 1850) only prevent the avoid- ance by a corporation of its own contract upon the ground of usury. They do not apply to a case where the corporation suc- ceeds to the rights of a party who might avail himself of the provi- sions of the usury laws. Where, therefore, property is pledged to secure a usurious loan, a corpora- tion succeeding to the rights of the pledgor is not prohibited from demanding and recovering the property pledged. M. E. Nat. Bank v. The C. W. Co.
See INSURANCE, LIFE. MANUFACTURING CORPORA-
Costs on appeal in an action at law are in the discretion of the court only when the judgment is reversed in part and affirmed in part, or where a new trial is granted. The addition to a judg- ment in this court of the words "with costs," or without costs,' cannot affect the right of the pre- vailing party in such action. Ayers v. The W. R. Corp. 660
See ABATEMENT AND REVIVAL, 1. CONOR v. DEMPSEY (Mem.), 665.
COURT OF OYER AND TER- MINER.
1. A decision of the Supreme Court, reversing a conviction in the Oyer and Terminer and granting a new trial, is a judgment within the meaning of chapter 82, Laws of 1852, and, as far as that court is
Upon a trial in the Court of Oyer and Terminer the court has no power to grant a motion to dis- charge the prisoner upon the ground that the corpus delicti has not been proven. After the trial has commenced the verdict of the jury must be pronounced; but this may be done under the advice and direction of the court. All ques- tionsof law arising upon a criminal trial are to be determined by the court, and it is the duty of the jury to regard and abide by such determination. Where the case, therefore, presents a question of law only, the court may and it is its duty to instruct the jury to acquit the prisoner, or direct an acquittal and enforce the direc- tion; and a refusal to give such instruction or direction in a proper case is error. If the prosecution leave some element necessary to constitute the crime entirely un- proved, it is a clear case for the interposition of the court. Id.
COURT OF SPECIAL SESSIONS (CITY OF NEW YORK).
A provision for the reorganization of the Court of Special Sessions of the city of New York is not em- braced in and is not connected with the subject of providing for the government of that city. An act providing for either is "local." The insertion, therefore, in the city tax levy act for the year 1870 of a section designed to accom- plish the reorganization of said court (section 49, chapter 383, Laws of 1871), was in hostility to section 16, article 3 of the State Constitution, which declares" that no private or local bill, etc., shall embrace more than one subject, and that shall be expressed in its title," and said section is void. Huber v. The People. 132
concerned, is final. A writ of See WETMORE v. CANDEE (Mem), 667.
1. Upon a trial in the Court of Oyer and Terminer the court has no power to grant a motion to dis- charge the prisoner upon the ground that the corpus delicti has not been proven. After the trial has commenced the verdict of the jury must be pronounced; but this may be done under the advice and direction of the court. All questions of law arising upon a criminal trial are to be determined by the court; and it is the duty of the jury to regard and abide by such determination. When the case, therefore, presents a question of law only, the court may, and it is its duty to instruct the jury to acquit the prisoner, or direct an acquittal, and enforce the direc- tion; and a refusal to give such instruction or direction in a proper case is error. If the prosecution leave some element necessary to constitute the crime entirely un- proved, it is a clear case for the interposition of the court. The People v. Bennett. 137
2. The same strictness in regard to exceptions will not be enforced in criminal as in civil cases; but the court will look at the substance, with the view to promote justice. A motion in form for the absolute discharge of a prisoner may be re- garded as, in substance, a request to direct an acquittal, or that the court instruct the jury, as matter of law, that the prisoner could not be convicted. Id.
3. Of the crime of murder or man- slaughter, the corpus delicti has two components, viz.: death as the result, and the criminal agency of another as the cause. There must
be direct proof of one or the other. Where one is proven by direct evidence, the other may be by circumstances. In determining a question of fact upon a criminal trial from circumstantial evidence, the facts proved must not only all be consistent with, and point to, the guilt of the prisoner, but must be inconsistent with his innocence.
4. A motive for the commission of the crime cannot be imagined; but the facts from which such motive may be inferred must be proven. A suggestion, therefore, in a charge to the jury, of a motive, not warranted by the evidence, which may have influenced their minds to the prejudice of the prisoner, is error. (GROVER and PECKHAM, JJ., dissenting.) Id.
1. Successive actions cannot be maintained for the recovery of damages, as they may accrue from time to time, resulting from an in- jury to the person, the consequence of a single wrongful act, but the party injured is entitled to recover, in a single action, compensation for all the damages resulting from the injury, whether present or prospective. The limit in respect to future damages is, that they must be such as it is reasonably certain will inevitably and neces- sarily result from the injury. Filer v. N. Y. C. R. R.
The rule giving the plaintiff, in an action for the conversion of property, the benefit of the high- est market price between the time of conversion and trial, is not an unqualified one. In an action against a consignee, where the evidence shows it was the intent of the owner, and the agreement between the parties, to have the property sold when it reached a certain price, and where it also appeared it would have been diffi- cult, if not impossible, to have preserved the property until the time when the price was fixed, an allowance of a price thus fixed, greater than that agreed upon, is error. Matthews v. Coe.
4. In an action of trover, interest is
as necessary a part of a complete
indemnity as the value itself, and, See READ v. PREST., ETC., D. AND
Although, where a wife has obtained possession of the husband's pro- perty from his bailee by a fraud, the bailee could maintain an ac- tion against both husband and wife for the wrong, that is not a defence to and will not bar a re- covery by him against the bailee. A liability of a plaintiff jointly with another cannot be set up as a bar to a claim due him individu- ally, nor can a conditional or de- feasible liability bar one which is absolute and unconditional. Kow- ing v. Manly.
See STATUTE OF FRAUDS, 5. KETCHAM . TROXELL (Mem.), 677.
H. CANAL CO. (Mem.), 652.
2. The release by a wife of her inchoate right of dower operates only against her by way of estoppel. It must accompany or be incident to a conveyance by another, and binds only in favor of those who are privy to and claim under the title created by that conveyance, and if the conveyance is void or ceases to operate, she is again clothed with the right which she has released. (The case of the Manhattan Co. v. Evertson, 4 Paige, 457, distinguished, and that of Meyer v. Mohr, 1 Robt., 333, questioned.) Id.
See ASSESSMENT AND TAXATION, 8, 9, 10, 11, 12, 13.
1. One tenant in common cannot, by his sole act, create an easement in the premises held in common. Nor can a tenant in common, who owns other premises in severalty, so use the last as to acquire or exercise, for the benefit thereof, an easement in the property held in common; and he cannot, by grant or by operation of an estoppel or otherwise, confer upon another rights and privileges which he does not himself possess. Crippen v. Morss. 63
2. Where, therefore, a tenant in common, in a grant of premises held by him in severalty, has attempted to create an easement in the premises held in common, a subsequent grantee of all the tenants in common is not estopped, by the fact of his succeeding to the interest of the one who granted the easement, from asserting, as
a grantee of the co-tenants, the invalidity of the grant of the easement, and as against him it is void.
Where the owner of a tract of land lays it out into lots, and intersects it with a street or alley for the convenience of the lots, and sells a lot bounding it upon said street or alley, the purchase being made in reference to such convenience, the purchaser acquires an easement 'in the street or alley which cannot be recalled. Such an easement is not lost by mere non-user, and where the non-user is claimed as evidence of an abandonment of the right, it is a question of intent dependent upon the circumstances, and therefore, a question of fact. Wiggins v. McCleary. 346
The occupancy and use of lands for the purpose of constructing and maintaining ditches, as authorized by the provisions of the act appointing commissioners for draining certain lands in the town of Royalton, Niagara county (chap. 774, Laws of 1867), is such an interference with the proprietary interests of the owner as entitles him to the just compensation made necessary by the Constitution. (Con. of State, art. 1, § 6.) It subjects the lands to an easement in behalf of the public, depriving the proprietor of the full and free enjoyment of them. People ex rel. v. Haines. 587
5. Nothing less than a legal title in perpetuity will serve the purposes of the act or the object contemplated. The title to the easement can only be acquired by a grant in proper form. It was the duty of the commissioners, before entering upon the lands and constructing the ditches, to procure a grant from the owner, either by voluntary donation or for an agreed compensation, or upon an appraisal of damages as prescribed by law. Id.
1. The docketing of a judgment in the office of the county clerk,
under the provisions of the act of 1840 (chap. 386, Laws of 1840), is not essential to the conclusiveness of a judgment in an action to recover possession of real property. If such judgment is docketed by the clerk of the court where rendered, as judgments in courts of record are required to be docketed (2 R. S., 360, § 13), it is sufficient. If the judgment was obtained by default, after three years from such docketing, it is conclusive upon the defendant, and upon all persons claiming from or through him by title accruing after the commencement of the action. (2 R. S., 309, § 38.) Sheridan v. Andrews. 478
See STATUTE OF FRAUDS, 6.
EQUITABLE LIEN. See CAUSE OF ACTION, 5. CORPORATIONS, 5. PARTNERSHIPS, 2, 3, 5.
Although relief will sometimes be granted by a court of equity to one who has not complied with the strict terms of his contract, yet it will only be done in cases where the party seeking it makes out a case free from all doubt, shows that the relief he asks is under all the circumstances equitable, and accounts in a reasonable manner for his delay and apparent omission of duty. Delevan v. Duncan. 485
2. Where, however, one has entered into possession of premises, the subject of such an action, claiming under title not derived from de- fendant, and accruing before a recovery therein, the subsequent acquisition by him of a title from defendant does not deprive him of the right of claiming possession under the prior title, and the judg-See ment is neither conclusive nor any evidence against him; but in order to dispossess him plaintiff must prove his title.
3. The only office of a notice of lis pendens is to give constructive notice to, and to bind, by the subsequent proceedings, those who may deal with defendant in respect to the property involved in the action during its pendency and before final judgment. No notice is necessary to make the judgment effectual as against parties claiming under defendant by transfer subsequent to the judgment. The judgment disposes of the rights of the parties, is a matter of public record, and is conclusive both upon defendant and any subsequent grantee. Id.
4. A notice of lis pendens is unnecessary in an action to recover possession of real property, even as against a purchaser pendente lite. The plaintiff in such an action can only recover upon a legal title; it is only against mere equities that a purchaser without notice is protected. Id.
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