*

*

and determine the price to be paid
for the same;"
* "but if
a majority of the persons appoint-
ed should not, within thirty days
after receiving notice of their ap-
pointment, file a report of their
estimate, either party may apply
to the court for a venire to the
sheriff to summon a jury." A
dam having been erected by the
defendants, abutting on the plain-
tiff's land, and a small strip of the
land being taken by them, and the
parties not being able to agree
upon the compensation, entered
into an agreement, in writing, ap-
pointing three persons to deter-
mine the amount to be paid the
plaintiff. After several hearings
before these persons, attended by
the counsel and witnesses of both
parties, the defendant served upon
them, and upon the plaintiff, a
written notice, revoking the pow-
ers of the referees. The referees
failing and refusing to proceed, in
consequence of such revocation,
their fees were paid by the plain-
tiff In an action brought by him
against the defendants, for the
amount so paid, and, also, witness
and counsel fees paid by him, on
said hearings,-Held (WOODRUFF,
MASON and LOTT, JJ., dissenting),
that he could recover them.
ler v. Junction Canal Co.

Mil-

98

ered to the latter a bond in the
penalty of $15,000, conditioned
that the same should be void, if
the defendant should (among other
things) pay a certain promissory
note given by P. to the plaintiff,
and should indemnify and save
harmless the said P. against the
note, otherwise to remain in full
force and virtue. The plaintiff,
after judgment against P. on the
note and execution thereon re-
turned unsatisfied, having brought
this action against the defendant,
claiming a liability, under the con-
dition of the bond,-Held (GROVER,
J., contra), he could not recover.
The covenant made by the defen-
dant is to pay P. the penalty of
the bond; not a promise even to
P. to pay the plaintiff's note. It
is, upon condition of his payment
of this note, and the performance
of the other acts mentioned in the
condition of the bond, that he
may avoid it; but he may allow it
to remain in full force. Turk v.
Ridge.

201

6. One whose shares of stock in a rail-
road corporation have been forfeit-
ed by the company for non-payment
of calls, is not a stockholder within
the meaning of the tenth section
of the general railroad act of 1850,
so as to render him liable to a
creditor of the company for the
amount unpaid on the forfeited
stock, although the debt was con-
tracted by the company before

An action is pending in a court,
though judgment has been recov-
ered therein, as long as such judg
ment remains unsatisfied. Weg-
man v. Childs.
159

Sherman v. Felt (2 Comst. R.,
186); Suydam v. Holden (Seld's
Notes, Appeals No. 4, 16), and
Howell v. Bowers (2 Cromp., Mee,
and Rosc., 621), referred to and ap-
proved.
ld.

Accordingly, under the Constitu-
tion of 1846, providing that “all
suits and proceedings originally
commenced and then pending in
the Court of Common Pleas, on
the 1st Monday of July, 1847, shall
become vested in the Supreme
Court, hereby established" (Art.
14, sec. 5), an execution upon a
judgment recovered in the Court
of Common Pleas on the 28th Sep-
tember, 1846, is properly issued in
the Supreme Court, and supple-
mentary proceedings properly in-
stituted, and a receiver properly
appointed in that court.

ADVERSE POSSESSION.

See BOUNDARIES, 1, 2, 3, 4.

AGENCY.

Id.

Ch. J., and WOODRUFF, J., contra.)
Mills v. Stewart.

384

See ACTIONS PENDING, 1, 2, 3.
CAUSE OF ACTION, 9, 10, 12.
CONTRACT, 4, 5.
DEATH FROM NEGLIGENCE, 4, 5.
DETERMINATION OF CLAIMS TO

REAL PROPERTY.

DISCONTINUANCE OF ACTION, 1.

purchase price of a chattel, has no
power to extend the time of pay-
ment of the balance, upon receiv-
ing part payment. Hutchings v.
Munger.

AGREEMENT.

See CONTRACT, 1 to 7.

155

enlarges the right of appeal, or ex-
tends the jurisdiction of this court.
Id.

4. An order of discontinuance, with-
out costs, even of a legal action,
commenced in the Supreme Court,
for the recovery of money only,
against a sole defendant, though
made after the cause is at issue and
referred, unconditionally and with-
out the consent of the defendant,
is within the power and in the dis-
cretion of that court; and, al-
though expressly made appealable
to this court by the Code, is not
reviewable here. De Barante v.
Deyermand.
355

5.

6.

An order of the Supreme Court,
denying a motion to set aside a
regular judgment in that court, on
the ground that the defendant was
not served with process, and the
appearance for him was wholly
unauthorized, is not appealable to
this court. Foote v. Lathrop. 358

7. No party has a "substantial right,"
within the meaning of section
eleven, of the Code, to have a
regular judgment against him, set
aside on motion. It is in the dis-
cretion of the court, in which such
judgment was rendered, to set it
aside or not; and, even if void,
they may leave the party, affected
by it, to show it so in a proper
action.

8.

Id.

11. Where, on a verdict for the plain-
tiff at circuit, the defendant moved
for a new trial at Special Term of
the Supreme Court, which was
denied, and on appeal from that
order to the General Term, it was
affirmed and the judgment then
entered on the verdict, an appeal
will not lie from such judgment to
this court. Such judgment is not
an actual determination made at a
General Term of the Supreme

See MURDER, 1.
INDICTMENT, 1.

ASSAULT AND BATTERY.

See EVIDENCE, 14.

ASSESSMENTS.

520

REAL PROPERTY, 1, 2.
EVIDENCE, 4.

TAXES, 1, 2, 3, 4.

ARBITRATION.

See AWARD, 1, 2, 3.

ARREST.

See EVIDENCE, 14.
ORDER OF ARREST, 1.

ARREST OF JUDGMENT.

1. Mistakes of the court upon the
trial, or of the jury in giving their
verdict, are no grounds for a motion
in arrest of judgment, which can
only be based upon some defect in
the record. People v. Thompson. 1

ATTACHMENT.

1. Where a debtor is the owner of
securities, pledged at a bank as
collateral to loans, and the sheriff,
with an attachment against such
debtor, served it upon the bank,
with a notice that all property,
effects, rights, debts, credits of the
said debtor in their possession or
under their control would be liable
to said attachment, and particu-
larly that he attached the bank
account, and debt due from the
bank to the debtor;" and subse-
quently, on a sale of such securities
by the bank, a surplus resulted
after paying their loan.-Held, that
under this levy of the attachment,