CONTEMPT. CONTEMPT. An officer, from whose custody a prisoner was discharged on habeas corpus, and who thereupon immediately rearrested him, was held excused from punishment for contempt, on showing that he intended no contempt, and acted in so doing simply in obedience to the commands of his superior. Supreme Ct., Sp. T., 1858, Matter of Fitton, 16 How. Pr. R., 303. CONSTITUTIONAL LAW. 1. The provision of the constitution (Art. 7, § 23), which requires that every law imposing a tax shall, without reference to any other law, state distinctly the tax, and the object to which it is to be applied, is satisfied by an act stating a tax, and directing the money raised to be paid into the treasury to the credit of the "general fund" of the State. [Sun Mutual Insurance Company a. The City of New York, 5 Sandf., 10; 4 Seld., 241.] Supreme Ct., Gen. T., 1857, The People a. Board of Supervisors of Orange, 27 Barb., 575. 2. The fact that a subsequent section directs the loan of a part of the money raised to the canal fund, does not affect the sufficiency of the designation. Ib. 3. The provisions of the act of 1849 are not unconstitutional, as depriving stockholders of trial by jury; nor as depriving them of property without due process of law; nor as conflicting with the provision that corporations may sue and be sued. The latter provision is enabling, not restrictive, and does not preclude other forms of proceedings. Case of the Empire City Bank, Ante, 192; S. C., 18 N. Y. R., 199. 4. What is "due process of law" considered. Ib. 5. The General Banking Law (Laws of 1838, 253) exempted the stockholders from liability, but reserved to the Legislature the right to repeal or alter it. The constitution of 1846, and the act of 1849 (Laws of 1849, 340), made stockholders individually liable. Held, that the latter provisions were not unconstitutional within the provisions of the Federal Constitution, as impairing the obligation of contracts, in their application to the stockholders in a bank organized subsequently to 1849. Ib. 6. The provision of the constitution of this State imposing individual liability upon the stockholders, requires from them, besides loss of the amount of capital stock paid in, the contribution in addition of a sum equal to the amount of their respective shares of stock. Ib. 7. An action commenced in the county court or Supreme Court, under CONVERSION. §§ 55 and 56 of the Code, upon the discontinuance of an action in a justice's court, involving the title to land, is "an action originally commenced in a court of justice of the peace;" and the provision of section 60 of the Code, giving jurisdiction to the county court of such actions, is constitutional. [Const., art. 6, § 14; Brown a. Brown, 2 Seld., 106.] Ct. of Appeals, 1858, Cook a. Nellis, 4 E. P. Smith's (18 N. Y.) R., 126. CONVERSION. 1. The plaintiff being the owner of goods in the possession of defendant, sold them to a third party and received part payment, and before any delivery to the purchaser, demanded possession from the defendant. Held, that the defendant's refusal to deliver possession was a conversion. Until the purchaser acquires an exclusive right of possession, the contract of sale is no defence to such an action by the vendor. N. Y. Common Pleas, Gen. T., 1855, Minzeskeimer a. Heine, 4 E. D. Smith's C. P. R., 65. 2. If one who has a lien on chattels refuses to deliver them on tender of the amount of the lien, it is a conversion. N. Y. Common Pleas, Gen. T., 1855, La Motte a. Archer, 4 E. D. Smith's C. P. R., 46. 3. An agent who sues in his own name, upon a demand belonging to his principal, and uses for his own benefit the judgment recovered thereon, concealing the fact from his principal, is liable for the conversion in the amount of the face of the demand. N. Y. Superior Ct., 1857, Sharp a. Whipple, 1 Bosw., 557. 4. Demand not necessary to constitute a conversion, when defendant has wrongfully parted with possession. Ib. 5. In an action for conversion, interest is no more in the discretion of the jury than the value. Interest is to be allowed from the time of conversion, as a legal right. [Sedgw. on D., 491; Dana a. Fiedler, 2 Kern., 40.] Ct. of Appeals, 1859, Andrews a. Durant, 4 E. P. Smith's (18 N. Y.) R., 496, 502. CAUSE OF ACTION, 35, 36, 37. CORPORATION. 1. Proceedings to charge the stockholders of a bank with the debts of the corporation, commence with the order of reference and notice thereof in the nature of process to the stockholders. The referee's report is to the Supreme Court, at special term, and the parties interested have a right to appeal to the general term. These proceed CORPORATION. ings are therefore had before a court of general jurisdiction, and in such cases jurisdiction is to be presumed until the contrary appear. Empire City Bank, Ante, 192; S. C., 18 N. Y. R., 199. 2. Determinations in the nature of judgments obtained in such proceedings against the stockholders cannot be questioned for defect of jurisdiction, where the formal steps to subject the persons of the parties to the proceedings have been taken, and the proceedings are such that the existence of the jurisdictional facts may be fairly considered as implied. Ib. 3. Section 28 of the act of 1849 provides that the apportionment may be suspended for certain cause, not exceeding one year. Section 18 provides that if, in the opinion of the justice, further time is required, he may allow it, not exceeding ninety days. Held, that where the apportionment was suspended for a year, and for some weeks after the expiration of the year, for the reason that there was no special term in the district in session, it was competent for the justice at the first special term which was held, to order a delay for the whole period of ninety days, notwithstanding the delay that had already occurred in waiting for a special term. Ib. 4. It seems, that even in special proceedings before a tribunal of limited jurisdiction, provisions of law fixing the time for intermediate steps after jurisdiction has been once acquired are to be deemed directory, and a disregard of them does not avoid the proceedings. Ib. 5. In proceedings under that act, the referee is to pass on and determine the amount of the debts to be paid, as well as the parties who are to pay them. The receiver's statement is not conclusive. Ib. 6. Where the receiver reports certain claims against the bank as disputed and to be litigated, the referee should not charge them upon the stockholders; and if he does so, his report should be referred back. Ib. 7. Who are liable as "stockholders" in such proceedings. Ib. 8. A stockholder who is also a creditor cannot offset his claim against his assessment as a stockholder. Ib. 9. An assessment made by the receiver of a mutual insurance company, under an order of the court, made on his application without notice, is not conclusive upon the person assessed. Ct. of Appeals, 1859, Bangs a. Duckinfield, 4 E. P. Smith's (18 N. Y.) R., 592. 10. It is no objection to the assessment or notice that they do not state the name of each person nor the amount of his liability. If the rate of assessment on each class of notes is stated in such a way that each stockholder can calculate his liability, it is sufficient. Each stockholder is to be presumed to know how many shares he owns. But COSTS. "small notes" where the notes were described in different classes, as and "large notes," without showing what those terms meant, and no explanation appeared in the charter, Held, that the notice was insufficient, and the maker of a note was not in default for not paying. The petition for the appointment of the receiver could not be resorted to for an explanation, for it is evidence only of the necessary preliminary approval by the court of the plaintiff's proceedings. Ib. 11. An adverse judgment against a corporation is presumptive evidence of the debt, in an action against a stockholder, after execution returned. [Slee a. Bloom, 14 Johns., 456; 20 Ib., 669.] N. Y. Superior Ct., 1857, The Central Bank of Brooklyn a. Long, 1 Bosw., 188. 12. History of the law on this subject stated. Ib. APPEAL, 20; CONSTITUTIONAL LAW, 3, 4, 5; JURISDICTION, 8, 9; RELIGIOUS CORPORATION. COSTS. 1. Where an action is dismissed on the ground that the court have no jurisdiction,-e. g., by reason of the non-residence of the plaintiff,but the question of jurisdiction was not raised by the issues in the action, nor presented to be tried on affidavits, but settled by an admission of the party, in open court,-judgment for costs, on dismissing the com plaint, cannot be rendered. Harriott a. The New Jersey Railroad Company, Ante, 284. 2. An appeal to the general term, from an order made at the special term, dismissing an action in such case, does not confer a new jurisdiction within the rule, that an appellate court may grant costs on an appeal from a judgment of an inferior court on the ground of want of jurisdiction. Ib. 3. On dismissing an action for want of jurisdiction to hear and determine it upon its merits, the defendant is entitled to a judgment in it against the plaintiff, for costs. McMahon a. The Mutual Benefit Life Insurance Company, Ante, 297. 4. It seems, that if there were any question as to the powers of the court to render such a judgment, where it has been in fact entered by the clerk, the proper practice to bring up the question would be by an appeal from the judgment. Ib. 5. In an action on the case against J. and W., J. left the State pending the action; W. took charge of the preparation of the cause for trial, and subpoenaed witnesses, and on the trial judgment was rendered in favor of J. and against W. COSTS. Held, 1. That J. was entitled to a full bill of costs, although the same services and expenses enured to the benefit of W. [Canfield a. Gaylor, 12 Wend., 236; Hinman a. Booth, 20 Wend., 666.] 2. The defendant making affidavit that the witnesses subpoenaed by W. were equally necessary for J., their fees should be taxed in W.'s costs. Supreme Ct., Brown a. Bowen, 16 How. Pr. R., 544. 6. When two persons are made defendants, and sued as joint makers of a promissory note, and they answer separately, and one of them pleads infancy as his sole defence, they thenceforth cease to be "united in interest," within the meaning of those words, as used in § 306 of the Code. [Slocum a. Hooker, 13 Barb., 536.] So far from being united in interest, the fact that they severed in their defence, and one rested on his personal exemption, rendered their interests diverse and antagonistic. N. Y. Superior Ct., Gen. T., 1857, Butler a. Morris, 1 Bosw., 329. 7. In such case the judge may on the trial, in his discretion, allow the plaintiff to discontinue, without costs, against the defendant establishing such a personal defence. Ib. 8. The Code has superseded the provision of 2 Revised Statutes, 616, 20, on this subject. Ib. 9. In an action to dissolve a copartnership, and for an accounting, the defendants appeared by the same attorney, but put in separate defences. Held, that they were not entitled to separate bills of costs. Lindo, Ante, 341. Hall a. 10. In cases where the plaintiff on a recovery of less than fifty dollars is, under section 304 of the Code, precluded from recovering costs, the defendant is entitled to costs of course. Landsberger a. The Magnetic Telegraphic Co., Ante, 35. 11. The case of Kalt a. Lignot is an authority to the contrary, only in case the plaintiff's recovery was reduced to less than fifty dollars by a counter-claim established by the defendant. Ib., and see Crane a. Holcomb, Ib., note. 12. In those sections of the Code which relate to costs, "the prevailing party" mentioned is he who has prevailed in establishing his right to costs under the law. A plaintiff who sues for and recovers $30, only, in a court of record, is not the prevailing party, and the defendant in such action is entitled to costs. N. Y. Superior Ct., Gen. T., Peet a. Warth, 1 Bosw., 653. 13. The right to costs includes a right to disbursements. Ib. 14. Where it appears that the M. and F. Bank, although plaintiffs in one of the judgments upon which supplementary proceedings were insti |