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notice, to prove before an examiner of the court the agreement in question. Desplaces c. Goris, 2 Edw., 422.
That unless one of defendants, within sixty days, deposited $2,025 with the register of the court, for the use of another defendant, a previous order staying proceedings would be vacated. Scribner e. Hickok, 4 John*. Ch, 580.
In a divorce suit, confiding the custody, &c, of the children to the mother. Oodd u. Codd, 2 Id., 141.
For alimony, in addition to usual decree of divorce a vinculo. Miller v. Miller, 6 Id., 91.
That sale be set aside, on payment of costs and expenses. Williamson v. Dale, 8 Id., 290.
Affirming master's report, and ordering infants, by their guardian, to convey their real estate to complainant. Hunter v. Dashwood, 2 Edw., 415.
Of arrest. Martin e. Vanderlip, 8 How. Pr., 266.
Confirming referee's report, on- assessment of defendant's damages sustained by reason of injunction. Willett v. Scovil, 4 Abbotts' Pr., 405.
For bill of particulars of account mentioned in complaint; with affidavit on which it was based. Piatt «. Townsend, 8 ItL, 9.
Of reference before trial of an action on a policy of insurance to ascertain amount of loss. Ehlen «. Rutgers Fire Ins. Co., 6 7<ZM 69.
Of reference in a divorce suit. With consent on which it was based. Diddell «. Diddell, 3 Id., 169, 170, 173, n.
Of reference, to be filed nunc pro tune. Gracie v. Pierson, 8 How. Pr., 218.
To show cause why a judgment against a municipal corporation should not be set aside. Lowber t>. Mayor, &c, of N. Y., 5 AbbotW Pr., 328.
Setting aside judgment against a municipal corporation, and allowing a cross suit to be commenced. People v. Lowber, 7 Id., 158.
Requiring debtor to appear and be examined, in supplementary proceedings. With affidavit. Owen T. Dupignac, 9 Id., 182; Green ». Bullard, 8 How. Pr., 314; and see Bennett v. Hughes, 1 Code P., 4, note.
To show cause, why judgment-debtor refusing to answer questions on examination, should not be committed. Wicker v. Dresser, 14 How. Pr., 466.
Granting motion to dismiss appeal. Ferguson T. Ferguson, 7 Id., 217. Tol. III.—14
On filing remittitur from Court of Appeals. Union India Rubber Co. v. Babcock, 4 Duer, 624, note.
On filing mandate of United States Supreme Court, reversing decision of State court. Davis v. Packard, 10 Wend., 50.
19. Petition. For a roving commission to examine witnesses abroad, in a divorce suit Forrest t>. Forrest, 9 AbbotW Pr., 291.
For discharge of a debtor imprisoned upon a civil execution. Browne v. Bradley, 5 Id., 141.
Pending, appeal from a decision of the surrogate, for a commission to procure further evidence. Caujolle's Appeal, 9 Id., 895.
To sell infant's real estate. With the taxing master's certificate thereto. Matter of Thome, 1 Edw., 507.
Of a father, that the legal title of land, purchased by him while an alien, and conveyed to his wife, who hud since died, might be reconveyed to him from his infant children. Matter of Windle, 2 Id., 585.
20. Quo warranto. People r. Kip, 4 Con., 107, note; Id., 382; People e. Utica Ins. Co., 15 John*., 862; People e. Van Slyck, 4 Cow., 297; People*. Bank of Niagara, 6 Id., 196.
21. Search-warrant, for stolen goods. Mills «. McCoy, 4 Cow., 408.
For books and papers appertaining to a public office. Conover's Case, 5 AbbotW Pr., 196, n.
22. Statement for judgment by confession (under the Code of Procedure), upon a promissory note. Held, insufficient. Dunham v. Waterman, 6 AbbotW Pr., 359; Kendall v. Hodgkins, 7 Id., 809; Murray e. Judson, 9 Jf. T. (5 Seld.), 74.
Upon a balance due for goods sold. Held, insufficient. Kausbaum e. Keim, 7 AbbotW Pr., 23.
Upon a balance due on several judgments, and for money lent. Held, insufficient. Hammond v. Bush, 8 Id., 155.
Upon money lent. Johnstone. McAusland, 9 Id., 216.
Specification under the act of 1818. Marsh v. Lawrence, 4 Cow., 461.
23. Stipulation consenting to the withdrawal of one juror, on a capital trial, and that the trial proceed before the eleven; with postea, and also judge's certificate authenticating the stipulation. People v. Oancemi, 7 AbbotW Pr., 273.
24. Summons. Gauge r. Larocbe, 14 How. Pr., 458.
In action commenced by publication, omitting to name the State in wbicb the complaint would be filed. Held, sufficient. Cook v. Esleeck, 8 Abbotts' Pr., 171; affirmed sub nom. Cook e. Kelsey, 19 N. Y. (5 Smith), 412. To the contrary was Titus v. Relyea, 8 Abbotts' Pr., 177.
Summons and complaint for breach of contract. Held, variant. Tuttle v. Smith, 14 How. Pr., 895.
For examination of adverse party, before trial. Garighe e. Losche, 6 Abbott? Pr., 284, note.
25. Undertaking on behalf of plaintiff on making requisition in an action of claim and deli very. Bowdoin v. Coleman, 8 Abbotts' Pr., 481.
26. Verification. Hunt r. Meacham, C How. Pr., 400; Stannard v. Mattice, 7 Id., 4; Meads c. Gleason, 18 Id., 810.
27. Warrant Of arrest, by a justice of the peace. Blythe o. Tompkins, 2 Abbotts' Pr., 470.
To arrest for malicions mischief. Sleight o. Ogle, 4 E. D. Smith, 445.
To arrest for false pretences. People v. Tompkins, 1 Park. Or., 226.
To arrest a former incumbent of a public office, who has refused to deliver np the books and papers appertaining thereto, to his successor. Oonover's Case, 5 Abbott*1 Pr., 195, n.
To arrest father of bastard on complaint of mother. Commissioners of Almshouse v. Whistelo, 8 Wheel. Or., 194.
To bring party accused of assault and battery before a justice of the peace. People v. Benjamin, 2 Pari. Cr., 201.
To dispossess tenant, in summary proceedings under aot of April, 1820 (Sen. 88, oh. 194); with notice to tenant; and venire. Nichols e. Willard, 8 Cow., 17, n.
To collect an assessment. Gilbert v. Havemeyer, 2 Sand/., 608.
Of the governor to arrest a fugitive from justice. Matter of Clark, 9 Wend., 212.
For execution. People v. Green, 1 Park. Cr., 88, n.
28. Writ Of error. With return. Yates v. People, 6 John*., 838.
Same; with assignment of error, allegation of diminution, certiorari and return. Burr s. Waterman, 2 Cow., 86, n.
Who are Forwarder*
Of inquiry; upon judgment in ejectment Jackson t. Rathbone, Id., 608, note.
Of right. With sheriffs return. Malcolm v. Rogers, 1 Id., 1.
Of nuisance. With declaration. Comes r. Harris, How. App. Cat., 696.
X Who are. One who receives goods to forward for hire, it being known to the owner that he had no interest in the freight of the goods, owned no part of the boats employed in the carriage, and that his only business in relation to the carriage of goods consisted in forwarding them, is not a common carrier, nor liable, like a carrier, as insurer. [5 T. R., 894; 4 Id., 581.] Supreme Ct., 1815, Roberts ». Turner, 12 John*., 282.
Compare Carriers, 5, 28-68, 82; and ExPress Companies.
2. Liability. Persons contracting simply as depositaries or forwarders, are discharged by using ordinary diligence in forwarding the property by responsible persons. Supreme Ct., 1815, Roberts v. Turner, 12 Johns., 282; 1829, Brown «. Denison, 2 Wend., 698. IT. Y. Com. PL, 1856, Dillon v. N. Y. & Erie R. R. Co., 1 Hilt., 281.
See, also, Carrier, and titles there referred to.
3. Advances. Forwarding merchants who have made advances for prior charges on goods consigned to them to be transported and delivered to the ultimate consignees or owners, have such an interest in the goods as entitles them to maintain an action to recover the possession from a third person, to whom the same have been wrongfully delivered by the carrier. The delivery of the goods by the consignor to the carrier in such case, under a special consignment to the forwarders, is virtually a delivery to them,—the carrier being regarded as their agent to receive, transport, and deliver the goods to them. Ct. of Appeals, 1854, Fitzhugh «. Wiman, 9 N. Y. (5 Seld.), 659.
4. Measure of damages. In snch action, where the property, prior to the time of the trial, has, in legal effect, oome to the possession of the general owner, the true value to be assessed and recovered is the value of the Forwarder's Lien.
plaintiff's special property only,—». «., the amount advanced by them, with the freight which would have accrued to them as profit upon the transportation to the ultimate consignee. Ib.
5. Lien. Where forwarders, having a lien for charges, delivered the goods to a carrier under a usage, and with directions, to collect on delivery,—Held, that the carrier having delivered the goods without payment of the charges, was liable to the forwarders. Supreme Ct., 1843, Lee v. Salter, Hili A D. Supp., 168.
As to the Measure of damages, see DamAges, 33-43, 149-161, 219.
As to their Rights and liabilities, consult, also, Carrier, and the titles there,referred to.
3. What is. A franchise, in this oountry, is a privilege or immunity of a publio nature, which cannot legally be exercised without legislative grant. Since the restraining act, the right of banking is a franchise. Supreme Ct, 1818, People e. Utica Ins. Oo., 15 Johns., 858.
2. Railroad The privilege of making a railroad, and taking tolls thereon, is a franchise, and the Legislature may from time to time regulate the use of the franchise, and limit the tolls, unless it has deprived itself of the power by legislative contract. Chancery, 1881, Beekman e. Saratoga <fc Schenectady R. R. Go., 8 Paige, 45.
3. The right to erect a wharf on tidewaters, and to receive tolls for the same, is a franchise, and cannot be exercised by an individual except by a grant from the sovereign power, or by prescription. Chancery, 1832, Wiawall v. Hall, 3 Paige, 813.
*. Toll-bridge. A right bestowed by the Legislature, npon individuals, to ereot and maintain a toll-bridge, is a franchise. A. V. Chan. Ct., 1846, Thompson «. N. Y. & Harlem B. R. Co., 8 Sandy. Ch., 625.
5. A market said to be a franchise. Ketchum v. City of Buffalo, 21 Barb., 294; aflBrmed, 14 IT. 7. (4 Kern.), 856.
6- franchise not to be extended. That a franchise granted by the Legislature to a cor
poration,—e. g., the right conferred on a plankroad company to build and manage their road, —is not to be extended by implication. Auburn & Cato Plank-road Oo. v. Douglass, 9 K 7. (5 Seld.), 444. Compare Aikin ». Western R. R. Corporation, 20 K 7. (6 Smith), 370. See, also, Cayuga Bridge Co. v. Magee, 2 Potytf, 116; aflBrmed, 6 Wend., 86; Mohawk Bridge Co. e. Utica & Schenectady R. R. Co., 6 Paige, 554.
7. Forfeiture. A franchise must be forfeited judicially before individuals can avail themselves s>f misuser or omission to avoid it by law. A. V. Chan. Ct., 1846, Thompson «. N. Y. & Harlem R. R. Co., 8 Sand/. Ch., 626.
As to the right to erect a Dam on a publio river, see Cass (action On The), 8.
8. Disfranchising. No citizen of this State can be disfranchised, unless by the law of the land or the judgment of his peers. Const, of 1846, art. 1, § 1.
As to the Character of a franohise as a contract, and the power of legislation over it, see Constitutional Law, 55, 203.
[Under this title, we present the oases Illustrating the general doctrines respecting fraud, reserving for a separate article tbe subject of Fraudulent Conveyances, while, also, farther instances and special applications will be found under Contbacts, and Evidknck, and tbe titles of the various classes of contracts, conveyances, and personal relations.]
I. What Is Fraud.
1. In general.
2. Undue influence.
4. Fraud in sales of chattels.
A. On the part of the seller.
B. On the part of the buyer.
5. Frauds between vendor and purchaser
6. Fraudulent concealment, Ac., of prop
erty; and criminal frauds. II. Effect Of Tub Transaction.
1. As between the parties.
C. Mutual fraud.
2. Purchasers in good faith, and others,
8. Who are deemed purchasers in good faith.
III. Relief Against Fraud.
What are Franchises.
What ii Fraud;—In General.
I. What K Fraud. 1. In Qenoral. X. There is positive fraud when a party intentionally, or by design, misrepresents a material fact, or produces a false impression, in order to mislead another, or to entrap or cheat him, or obtain undue advantage. [Stor. Eq., § 192.] Supreme Ct., 1847, Willink t>. Vanderveer, 1 Barb., 599.
2. False representation. If a person, knowing that another is abont to deal on the faith of his representation, knowingly make a false representation, and the dealing is upon the faith of it, he shall make that representation good. [6 Ves., 174; 8 T. R., 151.] Fraud, coupled with damage, entitles the injured party to relief in any court of justice. Chancery, 1828, Bacon v. Bronson, 7 Johns. Ch., 194.
3. If the vendor of land, knowing that the purchaser is unacquainted with it, makes a false representation as to any matter which, if true, would materially enhance its value, he is, in equity, bound to make good his representation. Chancery, 1846, Bradley v. Bosley, 1 Barb. Ch., 125.
4. That if the false representations were not the inducement to enter into the contract, the fact that the buyer made such representations during the negotiation of the contract, will not avoid it. Ct. of Appeals, 1858, Bronson e. "Wiman, %N. T. (iSeld.), 182.
5. Parol promise. Fraud, to avoid an agreement, cannot be predicated upon a simultaneous promise to perform something not contained in the agreement. [1 Rawle, 811.] Supreme Ct, 1836, Fisher c. New York 0. P., 18 Wend., 608.
6. The mere giving of a deed of the grantor, with a covenant of warranty for quiet enjoyment, is not a declaration that he was the owner in fee simple absolute. Ct. of Appeals, 1848, Bell v. Stainer, Sow. App. Cos., 522.
7. Mere emotion. Fraud, in judicial proceedings, can never be predicated of a mere emotion of the mind, disconnected from an act occasioning injury to some one. When imputed to the acts of inspectors of election, it implies, ex vi termini, that some legal voter has been designedly and wrongfully deprived of his vote, or that an illegal vote has been purposely and unjustly received by those officer.-, or that a false estimate has been imposed
upon the public as a genuine canvass. Ct. of Appeals, 1858, People «. Oook, 8 K T. (4 Seld.), 67.
8. Taking advantage of ignorance. If one of the parties is, in truth, ignorant of a matter of law involved in a contract, and the other knows him to be so, and takes advantage of the circumstance, he is guilty of fraud, and the conrt will relieve. [Jer. on Eq. Jar., 866; Stor. Eq., § 187, n. 8; Id., §§ 8,162,158.] This rnle applied where the purchaser of a note induced the seller to sign a guaranty that it was "good," by representing that the legal effect of that term was simply that the note was genuine and unpaid. Supreme Ctn 1868, Cooke r. Nathan, 16 Barb., 842.
9. Concealments. Fraud, in the sense of a court of equity, properly includes all acta, omissions, and concealments which involve a breach of legal or equitable duty, trust, or confidence, justly reposed, and are injurious to another, or by which an undue and unconscientious advantage is taken of another. [1 Stor. Eq., § 187.] Supreme Ct., 1866, Gale r. Gale, 19 Barb., 249.
10. Mere possession of a personal chattel, with the consent of the true owner, will not render it liable to the debts of the possessor; but there must be a fraudulent or deceptive purpose in view, to produce that effect. Supreme Ct., 1818, Craig «. Ward, 9 Johns., 197.
11. Possession of insolvent agent Par chasing goods and placing them in the hands of an insolvent agent, other than the vendor, is not presumptively fraudulent. Chancery, 1846, Howard «. Sheldon, 11 Paige, 658.
12. Fraudulent sale on foreclosure. On a foreclosure by advertisement and sale under the statute, the assignee of the mortgagee, acting as auctioneer, on seeing the defendant, who had purchased under the mortgagor, approaching the place of sale, immediately knocked down the premises, for half the sum due on the mortgage, to his brother, as the highest bidder, so as to prevent competition.
Held, that the sale was fraudulent and void, and that the purchaser, to whom a deed had been executed, acquired no title under it Supreme Ct., 1820, Jackson v. Crafts, 18 Johns., 110. See, also, Foreclosure.
13. If an illiterate person is induced to execute a deed, by a misrepresentation of its nature and contents, trie deed is void. Su
What is Fraud;—In General.
preme Ct., 1815, Jackson v. Hayner, 12 Joknt., 469.
14. Husband's gift no fraud on wife. A
husband and father has an absolute right to dispose of his personal property; and an agreement made by him after marriage, though with the intention of depriving his wife of the benefit of the distribution of his personalty, is not a fraud upon his wife or children. Chancery, 1882, Holmes t>. Holmes, 3 Paige, 363.
15. Fraud in obtaining delivery. The seller of articles to be delivered gave his receipt for the buyer's note, and plaintiff obtained this receipt, and after the buyer had absconded, being insolvent, presented it to the seller, without informing him of the fact, and obtained a promise of a delivery and had the articles set apart. Held, that the promise was void, as obtained by fraud. Supreme Ct., 1834, Waldron e. 8tevens,-12 Wend., 100.
16. Compromise. Where the parties to a claim, both being equally informed, compromised,—Held, in the absence of sufficient proof of fraud, that it was valid. V. Chan. Ct., 1840, Day e. Sizer, Clarke, 199.
17. Fraud on judgment-debtor. Where a judgment and execution, which had been fully satisfied, were kept on foot by assignees, fraudulently, for the purpose of speculating on the property of the debtor, and the assignees purchased such property at the sheriff's sale, —Held, that they must release the title so acquired, and deliver up the possession of the lands, and pay the rents and profits, and damages for waste, &o. Chancery, 1820, Troup v. Wood, 4 Johns. Ch., 228.
18. — on owner who had neglected to record his deed. Where A., on purchasing land of B., gave B. a purchase-money mortgage, but neglected to record his deed,—Held, that, under the circumstances, a quit-claim obtained by third parties from B. was fraudulent and void as against A. Chancery, 1820, Lnpton e. Cornell, 4 Johns. Ch., 262.
19. — on the court. A fraudulent act of the party to an action, or of his agents, done for the mere purpose of delaying the cause, may often be treated as a nullity. Supreme Ct., 1840, Anonymous, 22 Wend., 619; Bank of Buffalo «?. Lowry, Id., 630.
20. Otherwise, of a fraud, even by the party, in obtaining a judicial decision. Supreme Ct., 1843, Gould v. Root, 4 Hill, 554.
21. The execution of a release, to restore
the competency of a witness, under a secret agreement with him that the release should be given up and cancelled after the trial, for the purpose of restoring the parties to their former situation, would be a fraud upon the adverse party, and an imposition upon the court; and no party to suoh a fraudulent agreement can therefore come into court, as a complainant, to be relieved because his adversary has not carried such an agreement into effect. Chancery, 1838, Crosier e. Acer, 7 Paige, 187.
22. — on surety. Where one is induced to become the surety of a debtor for part of the sum for which he has compromised with his creditors, upon the representation of the debtor and the creditors that such part is in full, this is a fraud upon the surety, and this constitutes a complete defence, even as it respects the debtor. [8 T. R., 552; 11 East, 390.] Supreme Ct., 1843, Weed v. Bentley, 6 Hill, 66.
23. — on lender. Where a defaulter, who, to obtain funds to replace his defalcation, borrows stock without disclosing the object, this is a fraud upon the lenders; and the employers of the defaulter who have received the stock must restore it. A. V. Chan. Ct., 1844, Rawdon «. Blatchford, 1 Sand/. Ch., 844.
24 — on infant heir. Where a mortgagee, after payment of the debt, filed a bill for foreclosure against the infant heir of the mortgagor, and obtained a sale,—Held, that the decree was fraudulent, and might be set aside upon original bill. A. V. Chan. Ct., 1845, Loomer o. Wheelwright, 8 Sand/. Ch., 185.
25. — on joint purchasers. The act of one who held a oontract for the sale of lands at a fixed price, in concealing the fact, and procuring other persons to unite with him in an agreement to buy the same lands, if possible, at a higher price,—Held, a fraud upon them, and this although their agreement was by parol, and therefore void by the Statute of Frauds. Supreme Ct., 1847, Willink e. Vanderveer, 1 Barb., 599.
26. — on joint-owners. One of three joint-owners of a lease, deputed by his associates to obtain its renewal for the common benefit, and availing himself of his part-ownership, and his connection with the property to obtain such renewal, procured it in his own name, and attempted to shut out his associates. Held, a fraud, and that he must account. [11 Ves., 883; 15 Id., 286; 17 Id.,