DISMISSAL OF COMPLAINT.

2. An inspection of books and papers will be granted, if facts and circumstances are shown which warrant a presumption that the book or document sought contains evidence which will prove, or tend to prove, some fact which the party applying has to establish. [Rule 15; 13 How. Pr., 341, 425; 1 Duer, 652; 3 E. D. Smith, 539.] The applicant is not required to prove positively that the documentary evidence exists, as the right given is one of discovery; but he must show sufficient to satisfy the court that there is good reason to suppose that the opposite party has documentary evidence in his possession, material to the matter in issue, and the presumption that he has becomes a very strong one if, with the means of knowledge in his power, he does not deny the fact. But applications which contemplate a general investigation of the books of a party in business, are looked upon with great disfavor, and almost uniformly denied; for the case must be an exceedingly strong one, the facts and circumstances adduced in support of it of the most conclusive kind, to justify a court's compelling a man who is in business to expose all his books and papers, for the discovery of evidence supposed to be contained in them. N. Y. Com. Pl., 1862, Lefferts a. Brampton, 24 How. Pr., 257.

3. If there is reason to believe upon the case, as laid before the court, that the evidence in reality exists, and is material to the matter in controversy, if the other party admits the possession of the book or document alleged to contain it, if he also impliedly admits the probability of its existence, by not denying it, and no great practical inconvenience will follow from allowing the other party to inspect it, the privilege ought to be granted. Ib.

4. A petition on an application for an inspection of books or papers, alleging only the applicant's belief that such books contain entries material to his case, is insufficient to warrant an order for inspection. It must state facts, showing a reasonable ground for such belief. Supreme Ct., 1863, Husson a. Fox, Ante, 464.

DISMISSAL OF COMPLAINT.

1. In an action for specific performance of a contract, where there has been mistake in the contract on the part of the defendant, or, for other equitable reasons, the court refuses to compel him to perform specifically, although they may allow the plaintiff to correct the mistake and enter judgment accordingly, yet if he refuses to do so, the action must be dismissed, without prejudice to an action for damages for non-performance of the agreement. Supreme Ct., Sp. T., 1862, Lynch a. Bischoff, Ante, 357, note.

2. If, after issue of fact has been joined, the plaintiff neglects to bring the

DIVORCE.

case to trial, the defendant may, by Rule 27, move for an order dismissing the complaint; although such motion may be denied if plaintiff stipulates and pays costs, or excuses his neglect. Supreme Ct., Sp. T., 1860, Champion a. Webster, Ante, 4.

3. Such motion ought not to be granted where the defendant might have brought on the cause, but, instead of doing so, allowed many opportunities of moving for a dismissal to pass before making the motion. Ib.

4. In an action of an equitable nature, where the questions on which the allowance of costs would depend are undetermined, a motion for a dismissal of the complaint for plaintiff's failure to prosecute, should be denied, leaving the case to be passed on at the circuit. Ib.

5. The Code has not altered the rule of the former practice in suits in equity, that where the plaintiff does not use due diligence, a defendant who has perfected his answer, may move to dismiss the suit. Supreme Ct., Sp. T., 1862, Salters a. Pruyn, Ante, 224.

DISTRICT COURTS.

1. All summary proceedings to recover possession of lands, under 2 Rev. Stat., 512, in a district court in the city of New York, must be had before the justice of the district court of the district in which the premises are; the process must be made returnable by [to?] its clerk, and the affidavit inade before him or his deputy, and filed. Laws of 1863, 328, ch. 189.

2. The district courts have jurisdiction of actions, though both parties reside without the city. N. Y. Com. Pl., 1863, Evans a. Wood, Ante, 416.

DIVORCE.

1. Although the provision of 3 Rev. Stat., 5 ed., 227,-that "if any person whose husband or wife shall have absented himself or herself for the space of five successive years, without being known to such person to be living during that time, shall marry during the lifetime of such absent husband or wife, the marriage shall be void only from the time that its nullity shall be pronounced by a court of competent authority," -should be deemed as placing the first marriage only in abeyance, and only temporarily suspending the rights of the first husband, unless by his own neglect or acquiescence he should waive or abandon them, yet he must pursue his remedy by an action, to annul the voidable marriage; and if the parties thereto continue to cohabit together, after a decree of nullity has been pronounced, the rightful husband or wife may then file a bill for a divorce on the ground of that adultery. [6 Paige, 207.] This is the obvious and the only practicable course. If he omits or neglects to resort to it, the second marriage continues in force,

and after his death cannot be atives or any other person. How. Pr., 213.

ERROR.

disputed or invalidated by his representSupreme Ct., 1862, Griffin a. Banks, 24

2. Facts on which the court, on refusing to grant a limited divorce for

cruel treatment, because of condonation, made an order for the maintenance of the wife out of the husband's property, under the provisions of the statute of divorces. Supreme Ct., Sp. T., 1862, Pa. P—, 24 How. Pr., 197.

ALIMONY.

DOMICIL.

Enlistment in the volunteer army of the United States, and absence from the State in such service, do not render a debtor a non-resident within the meaning of section 229 of the Code. Supreme Ct., Sp. T., 1862, Tibbitts a. Townsend, Ante, 221.

EJECTMENT.

Ejectment lies by the owner of the fee in land, subject to a public easement, against a party appropriating it to private occupation. The laying down in a street by a railroad corporation of its track and rails, is such an exclusive occupation as to give an action to the owner of the fee, although the track has not been used, nor connected with other portions of the railroad which were in use. Ct. of Appeals, 1861, Carpenter a. Oswego & Syracuse R. R. Co., 24 N. Y., 655.

ELECTION OF REMEDIES.

PLEADING.

ERROR.

1. On a writ of error to review a criminal conviction, where the evidence is not returned, the court will presume that the evidence verified the indictment, but not that it verified facts or circumstances entering into the definition of the crime not alleged in the indictment. Supreme Ct., 1862, Vincent a. People, Ante, 234.

2. Where a wrong judgment given against a prisoner is reversed on error, the court of reversal can neither give a new judgment against the prisoner nor send the case back to the court below for the proper judgment. Supreme Ct., 1862, Fellinger a. People, Ante, 128. 3. On error in a criminal case, whether there is a bill of exceptions or not, where the judgment, if reversed, must be reversed on the record alone, and upon the ground alone that a wrong judgment was given

EXECUTION.

upon a lawful and regular verdict, the court should not order a new trial if the prisoner could plead his former regular trial and conviction in bar of another trial. The circumstance that the counsel of the prisoner, on moving in arrest of judgment, also asked for a new trial, is of no consequence. The provision that "No person shall be subject to be twice put in jeopardy for the same offence," may be considered as addressed to courts; and if the prisoner is within its protection he ought to be discharged, though his counsel did personally ask for a new trial. Ct. of Appeals, 1862, Shepherd a. People, 24 How. Pr., 388.

66

4. The provision of 2 Rev. Stat., 741, § 24,-which regulates the judgment on writs of error in criminal cases,-amended by adding, Provided, however, that the appellate court shall have power upon any writ of error, when it shall appear that the conviction has been legal and regular, to remit the record to the court in which such conviction was had, to pass such sentence thereon as the said appellate court shall direct." Laws of 1863, 406, ch. 226.

ESCAPE.

1. The Code has not apolished the remedy by action against the sheriff for an escape. N. Y. Com. Pl., 1862, Daguerre a. Orser, Ante, 113. 2. Where the action is against the sheriff for an escape, and not against him as bail, the measure of damages is the actual loss or injury sustained by the plaintiff. Ib.

EVIDENCE.

1. Under the act of 1850 (Laws of 1850, 143, ch. 94),-which provided that "the exemplification of any record of any last will and testament, proved before the surrogate of any county in the State, before the first day of January, 1820, certified under the seal of the officer having such record, shall be received in evidence with the like effect as if the original will had been produced,-the exemplification of the record of a will, in order to be evidence, must contain the proofs taken before the surrogate. A mere exemplification of the will, recorded as having been proved, is insufficient. Ct. of Appeals, 1861, Hills a. Crockford, 24 N. Y., 128.

2. The attestation of a judgment of a State court, in order to make it evidence in another State, under the act of Congress, must be signed by the clerk; the attestation of a deputy clerk is insufficient. Such a defect is not cured by the certificate of the presiding magistrate of the State court, that the attestation is in due form, and authorized by the State law. It is immaterial that the attestation conforms to the

EXECUTION.

law of the State; it must conform to the act of Congress. In order to make the record of a judgment evidence, it must be signed by the officer authorized by law, and must have been filed in the proper office. Where the record itself fails to show these essentials to its validity, it seems that it is inadmissible to sustain process founded thereon, even though attested in the manner required by the act of Congress to authenticate a judgment. Ct. of Appeals, 1862, Morris a. Patchin, 24 N. Y., 394.

3. Under an indictment for bigamy, strict proof of marriage is necessary. It cannot be established by inference, nor by cohabitation or admissions only. Supreme Ct., 1862, Hayes a. People, Ante, 163.

4. Proof that each of two persons indicted for jointly receiving stolen goods, received them in the absence of the other, is not conclusive evidence that they were not jointly engaged in the crime. Supreme Ct., 1861, Chatterton a. People, Ante, 147.

5. It is not competent, on the question of the value of a chattel bought in mass with a number of others, to prove the value of the others in order to determine the cost of the first by deducting the value of the others from such purchase-price. Supreme Ct., 1862, Wells a. Kelsey, Ante, 53.

6. Proof of an oral declaration by a landlord, that on payment of rent to a particular date he would release the tenant from further liability, accompanied by proof of payment of such rent, is not sufficient evidence of the surrender of premises held under a written lease. N. Y. Superior Ct., 1862, Goelet a. Ross, Ante, 251.

7. What is the proper evidence of the appointment of a deputy, in an action against his principal for the deputy's acts. Supreme Ct., 1862, Curtis a. Fay, 37 Barb., 64.

8. That a party by successfully objecting to the hearsay evidence, is concluded from opposing his adversary's objection to the admission of similar evidence from the same witness. Supreme Ct., 1862, Fields a. Moul, Ante, 6.

AFFIDAVIT; NOTARIES; OATH.

EXCEPTION.

A single exception to a request to charge several propositions, some of which, only, are erroneous, is nugatory [11 N. Y., 416; 6 Ib., 233; 7 Ib., 266]; so a single objection to evidence which is in part proper. Ct. of Appeals, 1861, Keller a. N. Y. Central R. R. Co., 24 How. Pr 172. Supreme Ct., Sp. T., 1861, McCarty a. Edwards, Ib., 236.