en by the prevailing party, when no objection was made to the evidence on the trial, (and there is no proof of surprise or fraud,) although such improper evidence may have influenced the jury.

The court may grant a new trial as well where the damages are inadequate, as where they are excessive, if the case be such as clearly to indicate that the jury have acted under the influence of partiality, bias or perverted judgment. Where the plaintiff recovered a judgment in an action for the defendant's negligence, by which the plaintiff was injured and sustained serious bruises upon his mouth and face, and one of his teeth was broken off, and the jury rendered a verdict for ten dollars damages only.

Held, that the damages were inadequate, and new trial granted on judgment of costs, unless the defendant prefers to consent that the verdict be modified by increasing the amount to one hundred dollars.-Richards v. Sandford.

94

which states the making of the note, and sets forth a copy of it, and which also states that the payee and the second endorser, before the maturity, endorsed it, in writing, and that before it fell due, the plaintiff became and is now the holder and owner of it, is good in substance, without a formal averment that the second indorser delivered it to the plaintiff. The word endorsement, in common acceptation importing a delivery, the averment of an actual endorsement, and possession by the holder before maturity, are equivalent to an allegation that it was endorsed to the plaintiff. The two averments, are, together, sufficient, prima facie, to establish that the holder has a good title to the note. Griswold agt. Loverty. 316

PRACTICE.

Service of summons-privilege of non-resident witness. Seaver agt. Robinson. 120 There is no authority, under the Code or otherwise, to order the examination of a defendant in order to enable the plaintiff to frame his complaint.

Such practice was unknown in courts proceeding according to the course of the common law. There were cases in chancery in which such a discovery was allowed to aid in framing a declaration at law. They were to discover parties or facts. The Code appears to pre-suppose a complaint served or prepared in every case. The facility of amendment, both as to parties and facts, renders the practice, as in chancery, unnecessary. Roche and an'r, agt. Farran.

121

It is to be considered as the settled practice of the Superior Court, that a party may be compelled to produce books and papers at the trial, under the 390th section of the Code, by a subpana duces tecum, served in the usual manner. Held, upon consultation with all the judges.

There is a discretion in the judge to decide as to the necessity and extent of the production and inspection called for. The subpana should be as specific as a notice under the former practice to a party to produce documents at the trial. Cases cited as to such notice.

It appears that the rule at law in our State has been, that notice to produce a paper and a perusal of it, does not oblige the party calling for it to use it in evidence. The English rule is otherwise.

It seems that no use can be made of documents produced under a subpoena by the party, unless he is examined as a witness, although inspection may not compel the party to call him. Stalker and an'r, agt. Gaunt and others. An application to produce books, &c., under

124

the Code or the Revised Statutes, where the case is before a referee, cannot be allowed, where an affidavit is positive that the books contain no item which is not in an account rendered, and the account no item not in the books.

But where the case is before a referee to take an account between parties as to whom the right and liability of accounting parties is established, (such as partners,) the referee may, by order, be empowered to make a general call for books, &c., according to the former chancery practice. The party, in such case, is not bound to be satisfied with the oath. He may examine the books himself, subject to the general rule as to sealing up portions relating to other matters. Higgins agt. Bishop. 127 A party who is to be examined as a witness previous to trial is to be compelled to at tend, and is to be examined in the same manner as a witness examined conditionally. This is regulated principally by the Revised Statutes.

A summons, as therein prescribed, appears to be the proper mode of procuring the attendance under the 391st section of the Code.

Semble, that a subpoena duces tecum may issue under this section as well as under the 390th. Jarvis agt. Clerk.

129

A petition for a discovery of books and papers should shew the character of the entries, and how they are material to the case; the nature and extent of the power of the Supreme Court before the statute of 1830, and afterwards before the Code observed upon.

The proceedings under the statute being still

in force, are to be governed by the rules of the Court of Chancery.

Generally speaking, discovery of books, &c., should not be allowed where competent testimony is easily attainable to the facts by witnesses, much less when it can be obtained by the examination of the party as a witness. Stalker and an'r, agt.

same on two grounds: 1st. That he had appealed to the General Term of the Marine Court, which appeal was undecided; 2d. That the plaintiff had instructed the sheriff to return the execution immediately, as there was no property to levy on. The defendant made an affidavit in which he stated that he had abundant property to satisfy the execution, but was not called upon by the sheriff for payment. Hell, that the supplementary proceedings should be stayed until the appeal in the court below should be disposed of.

Also, held, that the execution has been improperly issued and returned. Order for examination discharged. Ritterband agt. Maryatt.

158

The Court at Special Term has the power to enlarge the time for taking an appeal from a judgment to the General Term. Seely agt. Pritchard.

245

The fact that a plaintiff is permitted to enter judgment on a verdict recovered, for the purpose of better securing the recovery, does not deprive a defendant of the right to move to set aside the verdict, on a case duly made and settled.

Where a defendant, in an action on contract, dies pending the action, and it is continued by order of the Court, against his personal representatives, the plaintiff will recover costs against the estate of the deceased, if the verdict be one which would have entitled him to recover costs of such defendant, had he not died. Benedict agt. Caffe and o'rs.

262

In an action by a firm where one of the partners died during the pendency of the suit, and the practice under the Revised Statutes was adopted by making a sugges tion of the fact on the record. Held, that section 121 did not conflict with the provisions of the Revised Statutes in that respect, and that the latter were still in force.

The provisions of the Code apply rather to the cases mentioned in the 2d and 3d sections of the same chapter in the Revised Statutes, and substitute a motion for the remedy therein provided by scire facias. Taylor and o'rs, v. Church.

PROMISSORY NOTE.

156.

A judgment by an endorsee against maker and endorser, which is paid by the latter, who takes back the note, does not merge the right of action of the endorser against the maker upon it; nor is the judgment res judicata between the two latter. made a note payable to R or order, R endorsed to E and H, who obtained a judgment on it against the maker and endorser. The latter paid the judgment, took back the note and transferred it to the defendant, who set it up against a demand of

C

Held, That the only material issues in the case under consideration were, 1st. Whether the intended railroad in Broadway will be a public nuisance; and 2d, Whether the grant of the privilege of constructing this railroad was a fraudulent breach of trust

Held, That as the plaintiffs had failed to prove to the satisfaction of the Court the affirmative of these issues, they must be determined in favor of the defendants. An ordinance of the Common Council, securing to certain persons the privilege of laying down a railroad, and of transporting passengers thereon, in a public street, is not a law, but a grant, which, when accepted, becomes a contract.

A municipal corporation cannot make a contract abridging its legislation or discretionary powers, as defined by its charter. The contract, when such would be its effect, if construed according to its terms, is not valid, until revoked or repealed; but from the original defect of power, and a violation of the Charter, is void in its origin. A municipal corporation has no power to create a monopoly; and every grant of an exclusive privilege, from the use of which a profit is to be derived, creates a monopoly.

A municipal corporation can neither create powers in a joint stock association, nor exempt it from the ordinary rules by which partnerships are governed.

The Common Conncil, under the amended Charter, cannot make an absolute contract for work to be done; but can only authorize such a contract to be made by the head of the proper departmeut.

The mayor of the city has an absolute discretion in the choice of the persons to whom licenses may be granted, as owners of carriages for hire; and this discretion cannot be taken from him by any act of the Common Council.

Held, That the ordinance of the Common Council, which granted to Jacob Sharp and others the exclusive privilege of laying down and establishing a railroad in Broadway, violated on its face all the

principles above stated, and was, therefore, null and void. Judgment, without costs, in favor of plaintiffs and a perpetual injunction. The Attorney General of the State of New York and or's, against The Mayor, &c., of New York and or's, (the Broadway Railroad grantees.) 17

TRADE MARKS.

The plaintiff was a manufacturer of steel pens which were put up for sale in boxes. The boxes containing pens of the first quality were labelled No. 303. Those containing pens of a greatly inferior quality were numbered 35. The complaint charged that the defendant was in the practice of removing the labels from the boxes last mentioned, and putting thereon the labels numbered 303.

Held, that this practice of the defendant was a fraud upon the public and upon the plaintiff, and as such was properly restrained by an injunction. Gillott, resp., agt. Kettle, appel.

VENDOR AND PURCHASER.

314

Where the vendor of real estate who cove nanted to sell the fee had only a life estate, as tenant by the courtsey, the title in fee being in his infant children, subject to such life estate. Held, that a complete performance of the contract could not be directed.

It appearing that the state of the title was known to the purchaser and his legal adviser when the contract was made, and that they did not stipulate for a partial performance of the contract. Held, that the court would not decree a partial performance by directing a eonveyance by the adult defendant of his real estate. Held also, that inasmuch as a conveyance by their father of his interest would injuriously affect the interests of the infant defendants, such conveyance would not be ordered.

The infant defendants were not proper or necessary parties; and, as to them, the complaint was dismissed with costs. The purchaser has an equitable lien in the vendor's interest for the portion of the purchase money already paid, and may proceed in the action for its recovery and for damages. Bage agt. Millard and another.

57

execution against him on the property during the term of credit and sells it out and out, is liable to the vendor for its value, if the purchaser fails to pay within the term of credit given by the contract, when he sells with notice of the facts. A surety in an indemnity bond executed to the sheriff, to protect him against the conveyances of such a levy and sale, and to induce him to sell notwithstanding the claim, is also liable, without evidence of any other interference in respect to the levy or sale. Herring agt. Hoppock. 167 On a complaint for specific performance of a contract for sale by auction of real estate, it appeared by the evidence, that the clerk of the auctioneer, who was not present at the sale, signed a receipt for the deposit of ten per cent., required by the terms of sale, in the absence of the auctioneer. There being no other memorandum duly subscribed, it was held that the statute was not complied with, and the complaint was dismissed, but without costs, and the deposit ordered to be returned to the purchaser. McQuade agt. Warrin. 250

WAIVER.

What is the nature of that which is called in law a waiver?

A waiver is not a contract, nor is it analogous to a contract. It requires no consideration to support it.

It bears a strong analogy to a gift. Like a gift it can only operate in presenti. An executory waiver is void, and may be retracted at any time before it takes effect.

A waiver also bears some analogy to a release. Both, when effectual, operate to extinguish a right; and both are void unless the right released or waived is in esse at the time. A bare possibility, or right depending upon a contingency, can neither be released or waived.

An agreement to waive a future right, if founded upon a sufficient consideration, is valid as a contract only, and has no effect upon the right itself.

It cannot operate by way of estoppel so as to prevent the party from asserting the right.

An estoppel in pais is a rule of evidence, and not a mode of enforcing contracts. The following clause, therefore. added to a promissory note, to wit, "hereby waiving the benefit of all and every exemption of property from sale on execution under the laws of this State," has no effect as a waiver, because the right upon which it was to operate was not in esse at the time; nor does it estop the party from claiming the

Where the testator purchased real estate, a deed was taken in the name of his wife, and a bond given by the testator and wife with a mortgage made by the wife upon the premises to secure a part of the purchase money, and the testator died leaving the bond unpaid, and having made a will by which he appointed his widow executrix, and she paid off the bond with the funds of the estate, and claimed to be credited for the same in her account as executrix.

Held, that she was not entitled to such credit.

Parol evidence is not admissible to show that at the time of making the bond and mortgage and subsequently thereto the testator declared it to be his intention to pay off the bond, cancel the mortgage and give the real estate to his wife free from encumbrances.

Where the testator gave directions to his executor to sell and convert his real and personal estate into cash, and out of the proceeds to invest $15,000, the interest of which was to be paid to his wife during her life, and in like manner to set apart $5000 for an adopted daughter, the interest of which was to be paid to her for life, and also to pay out of said proceeds a large number of pecuniary legacies, and no provision was made in the will that the $15,000 for the use of the widow was to be in lieu of dower.

Held, that the legacies for life to the widow and adopted child were general legacies and subject to abatement with the other general legacies in the will.

Held also, that no time being stated for the payment of the interest to the widow and adopted daughter, the widow was not entitled to interest until one year from the date of letters testamentary, there being no express or implied direction in the will that the provision for her was in lieu of dower, and the widow having also a special legacy under the will and a right of dower in real estate of which the testator died seized; but that the adopted daugh ter was entitled to interest from the death of the testator, he standing in loco parentis, and there being no other provision for her maintenance. In the matter of accounting Williams, executrix, and Williams, execu tor, &c., of Williams.

179