CASE. 3. In an action on such bond, for failure to appear, the judgment is to be for the full penalty of the bond. [People a. Tilton, 13 Wend., 597.] Ib. 4. Whether the justices have power to waive a breach of the bond, and commit the defendant, as for a neglect to give a bond. Query? Ib. CASE. 1. In a case settled after trial by the court, there was a formal statement of the "conclusions of fact," and thereafter it was stated that thereupon the court rendered the following judgment: Held, that the court would deem the conclusions enunciated in the judgment as the conclusions of law; and that the only conclusions stated in the judgment, which should be treated as conclusions of fact, and to have been intended to have been so stated, were those which, from their nature, must, if found at all, have been found as facts. N. Y. Superior Court, Gen. T., 1857, Milbank a. Dennistoun, 1 Bosw., 281. 2. Where fraud, as a conclusion of fact, was necessary to sustain a judgment, but it was not found as a fact, but assumed in the judgment obviously as a mere conclusion of law, Held, that the judgment must be reversed. Ib. 3. The jury, under direction of the court, found specially, on certain questions of fact, and found a general verdict for the plaintiff, subject to the opinion of the court at general term on the questions of law. The case submitted on motion for judgment thereon, to the general term, did not contain the charge to the jury. Held, that it was to be assumed that correct instructions were given to the jury, in respect to all questions of law which were material as a guide to their deliberations, and as to the legal effect of the facts which they might find to be established by the evidence; and the jury having rendered a general verdict for the plaintiff, must be deemed to have found in his favor, under those instructions, every material fact in issue, so that if there was, upon the evidence, any matter of doubt or conflict, it must be deemed settled by the general verdict. In such case the court are not called on to consider any other questions than such as were raised on the trial, and such as arise upon the special finding, which, so far as it is inconsistent with the general verdict, must control the latter. [Code, § 262.] The issues therefore made by the pleadings must be taken to have been found, under proper directions, in favor of the plaintiff, except so far as the facts specially found should control that result. N. Y. Superior Ct., Gen. T., 1857, Sharp a. Whipple, 1 Bosw., 557. CAUSE OF ACTION. 4. It seems, that where the appellant causes notice of his exceptions to the conclusions of law of the referee to be embodied in the judgment-roll, and seeks to review the judgment, as though a case or exceptions had been made and settled, and formed part of the record, this appeal will only raise questions that would arise upon the record, without any exceptions. Such a notice has no place in the judgment-roll. To make the exceptions a part of the record, according to § 281, they must be settled according to § 268. Supreme Ct., Gen. T., 1858, Conolly a. Conolly, 16 How. Pr. R., 224. 5. The preparation and use of a case, on motion for a new trial on ground of newly discovered evidence, does not preclude the party from submitting a new and different case on appeal from a judgment subsequently entered, after denial of his motion. Leavy a. Roberts, Ante, 310. APPEAL, 21, 22. CAUSE OF ACTION. 1. Although by the Code, the distinction between actions at law and suits in equity is abolished, yet the principles, by which the rights of the parties are to be determined, remain unchanged. The Code has given no new cause of action. In some cases parties are allowed to maintain an action who could not have maintained it before, but in no case can such an action be maintained where no action at all could have been maintained before upon the same state of facts. Ct. of Appeals, 1858, Cole a. Reynolds, 4 E. P. Smith's (18 N. Y.) R., 76. 2. Q. delivered certain of his property to the defendants on condition that they made certain advances to him, that they should transport and sell the property and reimburse themselves and pay, out of the residue, Q.'s indebtedness to one H. Held, 1. That H., though not cognizant of the arrangement at the time, could maintain an action against the defendants for payment of the amount which they had undertaken with Q. to pay him. [Van Epps a. McGill, Lal. Supp. to H. and D., 209; Blunt a. Boyd, 3 Barb., 209; Barker a. Bucklin, 2 Den., 45; Farley a. Cleveland, 4 Cow., 432; Delaware and Hudson Canal Co. a. Westchester Co. Bank, 4 Den., 97.] 2. That no assignment from Q. to H. was necessary to enable him to maintain the action. 3. That Q. was a competent witness for the plaintiff in such action. He was neither a party, nor one for whose immediate benefit the action was prosecuted. Supreme Ct., III. Dist., Gen. T., 1858, Hale a. Boardman, 27 Barb., 82. VOL. VIII.-30. CAUSE OF ACTION. 3. The fact that a third party had made an assignment to the plaintiff, purporting to pass the cause of action when the original cause of action was in the plaintiff, and such assignment did not operate to pass any thing, did not make the plaintiff assignor in bringing the suit within the rule admitting the defendant to testify in his own behalf in such 4. Fraud is not necessarily to be imputed to one who, being insolvent, purchases goods without disclosing his insolvency, no inquiries being addressed to him in respect thereto. Ct. of Appeals, 1858, Nichols a. Primer, 4 E. P. Smith's (18 N. Y.) R., 295. 5. To enable the vendor to rescind an executed sale and reclaim the goods on the ground of fraud in the purchaser in inducing the sale, the fraud must be affirmatively and clearly shown. Ib. 6. If a vendor who is entitled to rescind the sale and retake possession of goods delivered, actually elects to do so instead of proceeding to collect the price, he disaffirms the sale and cannot afterwards sue for the price. The remedies are not concurrent, and the choice between them once being made, the right to follow the other is forever gone. [Littlefield a. Brown, 1 Wend., 404; S. C., 7 Ib., 454; 11 Ib., 467; McElroy a. Mancius, 13 John., 121; Sanger a. Wood, 3 John. Ch. R., 416, 422; Jenkins a. Simpson, 2 Shep., 364; Butler a. Miller, 1 Comst., 496.] Ct. of Appeals, 1859, Morris a. Rexford, 4 E. P. Smith's (18 N. Y.) R., 552. 7. His right to disaffirm is effectually asserted by issuing writs of replevin and causing the property to be taken and delivered on them. Ib. 8. In such case it is not proper to instruct the jury in an action for the price, that the fact of having reclaimed the goods is a circumstance tending to show that there was no sale. They should be instructed that it was a positive disaffirmance. Ib. 9. The doctrine of pleading the pendency of a former suit in abatement has no application to the case. The suits are not for the same cause, but are founded on totally inconsistent causes. Ib. 10. Of the action on a debt barred by the statute and revived by a new promise. Winchell a. Hicks, 4 E. P. Smith's (18 N. Y.) R., 558. 11. Though the defendants never had full possession of all they hired, they are still liable on a quantum meruit for the part occupied. [Etheridge a. Osborne, 12 Wend., 529, and see Lawrence a. French, 25 Ib., 443, 447.] N. Y. Superior Ct., Gen. T., 1857, Hurlbut a. Post, 1 Bosw., 28. 12. The lessor cannot, in an action on the lease for rent, recover rent for the period during which the lessee was resisting summary proceedings, instituted by the lessor to recover possession on the ground of CAUSE OF ACTION. forfeiture by non-payment of rent. The summary proceedings are irreconcilable with the idea of a continued tenancy. [Hinsdale a. White, 6 Hill, 511; McKeon a. Whitney, 3 Den., 452.] N. Y. Common Pleas, 1855, Crane a. Hardman, 4 E. D. Smith's C. P. R., 339, approved in S. C., Ib. 451. 13. Whether compensation for such period could be recovered in an action for use and occupation,-Query? Ib. 14. The lessor who has dispossessed the lessee for non-payment of rent, may recover, by action, the expenses of the proceedings, although he might have collected them by warrant. N. Y. Common Pleas, 1855, Crane a. Hardman, 4 E. D. Smith's C. P. R., 339. 15. That an agreement sued on contemplated a further agreement merely for further assurance, does not preclude the plaintiff from a recovery upon it, where it in itself sufficiently defines the rights of the parties; and the plaintiff's allegation of performance of all conditions. includes the fulfilment of any necessary act in relation to the contemplated new contract. N. Y. Superior Court, Gen. T., 1857, Rowland a. Phalen, 1 Bosw., 43. 16. A subscriber to the stock of a corporation is not, upon their refusal to deliver the certificates, entitled to maintain an action to recover the subscription as money paid [20 Wend., 94]; and the same rule is applicable to one who purchased the stock, or the right to it, before the subscription was paid. Supreme Court, Gen. T., 1857, Arnold a. The Suffolk Bank, 27 Barb., 424. 17. The remedy in such case is an action for conversion or for breach of contract to deliver the certificates, in which the measure of damages is not the subscription, but the market value of the stock. [20 Wend., 91.] Ib. 18. If one guarantees the collection of a claim within a reasonable time, provided legal and proper steps were taken to enforce such collection, the recovery of judgment against the debtor, and the issue and return. of two successive executions against him, are sufficient to render the guaranty operative, although an appeal by the debtor from judgment is still pending, it not appearing that the remedies by execution had been stayed or interfered with by the appeal. N. Y. Common Pleas, 1855, Pollock a. Hovey, 4 E. D. Smith's C. P. R., 473. 19. That the vendor, to maintain an action against the purchaser for breach of an executory contract of sale, must show a tender of performance on his part, as well as a breach on the defendant's part. N. Y. Common Pleas, Gen. T., 1855, Dunham a. Pettee, 4 E. D. Smith's C. P. R., 500. 20. A plaintiff suing for a debt which was payable in specific articles, CAUSE OF ACTION. e. g., for goods sold upon an agreement that they should be paid for in blue and brown building-stone for certain houses, must show that the articles were not delivered, and that a delivery was demanded and refused. N. Y. Common Pleas, Gen. T., 1855, Hunt a. Westervelt, 4 E. D. Smith's C. P. R., 225. 21. The question on which the right to damages depends, in an action to recover for injuries sustained by reason of the defendant's negligence, is not which party was most to blame, but has one suffered damage from the fault of the other, without having contributed thereto by his own fault, or want of ordinary care and prudence. N. Y. Common Pleas, Gen. T., 1855, Clark a. Kirwan, 4 E. D. Smith's C. P. R., 21. 22. The rule that the plaintiff cannot recover where his own fault contributed to the injury, is to be applied with caution where the fault of the defendant is clearly established. Ib. 23. It seems, that in an arrest upon valid process, issued by a competent tribunal having jurisdiction, there is no trespass, and false imprisonment will not lie, even though such arrest be maliciously procured by the prosecutor without probable cause. In such case the remedy of the party aggrieved is an action for malicious prosecution. Sleight a. Ogle, 4 E. D. Smith's C. P. R., 445. 24. A cause of action for negligence, &c., causing death, under the acts of 1847 and 1849 (Laws of 1847, ch. 450; Laws of 1849, ch. 256), survives against the representatives of the wrong-doer. The subject of the action is property-the value of a life. [See Quin a. Moore, 15 N. Y. R., 432.] The statute was not intended merely to remove the legal disability of death from actions brought to recover for personal injuries. It is true that the statute says the party committing the injury shall be liable, notwithstanding the death of the person injured; but it does not say it for the purpose of continuing the action or the cause of action existing before the death, but for the purpose of declaring that the death of a party should not be, as it formerly had been, an effectual bar to a claim for damages against the wrong-doer, who ought to suffer for his misconduct. The action authorized is a new action, not another action continued. It would not be proper, if an action for the injuries had been commenced during the life of the party injured, to continue it after his death, under this statute, but it is a new and independent action which is thus authorized. So the cause of action is not the same, but different. It would not be necessary or admissible, in an action under this statute, to incorporate in the complaint any averments of personal injury or special damage, or circumstances of aggravation to the person injured; nor would it be |