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governed and controlled by the decision of the Court of Appeals in Nash v. White's Bank of Buffalo (4 W. Dig., 196).

Action for the recovery of a penalty or forfeiture claimed to have been incurred by the defendant by reason of a violation of §§ 5197 and 5198 of the Revised Statutes of the United

man, on a trial before him without a jury, at the Ulster Circuit, in favor of the plaintiff, against the defendant for $115 damages, and $143.06 costs. This action was brought to recover damages for injuries sustained by the plaintiff by reason of the filling up and obstruction of his ferry and slip at Rondout Creek by means of sand States, regulating the amount of interest which may be taken by Nationand dirt discharged into the stream al Banks. The referee found that through a sewer built by the defendthe penalty had been incurred by the This obstruction at times pre-defendant, and that the plaintiff was vented plaintiff from entering the slip with his ferry boat to receive and discharge freight and passengers. S. L. Stebbins, for applt. M. Schoonmaker, for respt. Held, That the Corporation was liable to the plaintiff for the damages he had sustained by reason of the

ant.

sewer.

entitled to recover twice the amount
of the excess of interest received by
it. And judgment being entered up-
on the report, in favor of the plain-
tiff, the defendant appealed.

H. S. Parkhurst, for applt.
C. M. Parke, for respt.

case of Nash v. White's Bank of Buffalo, 4 W. Dig., 196; that until that decision should be reversed or overruled by the Supreme Court of the United States, this Court was bound by it.

Held, That the disposition of the case was controlled by the recent deIt is the duty of a municipal cor-cision of the Court of Appeals in the poration to construct its sewers in such a manner that they shall not become nuisances. If the effect of a sewer, constructed by a municipal corporation, is such as to create a nuisance to the property or rights of an individual, the liability of the corporation for the damages so occasioned is the same as that of a private person. Judgment affirmed.

Judgment affirmed."
Opinion by Bockes, J.

Opinion by Bockes, J.; Board- WITNESSES. man, J., not acting.

NATIONAL BANKS. PENALTY

FOR TAKING USURY.

N. Y. SUPREME COURT. GENERAL

TERM. THIRD DEPT.

James H. Johnson, respt., v. The National Bank of Gloversville, applt.

Decided Sept., 1877.

Actions brought against National Banks under

SS 5197 and 5198 of the Revised Statutes, to recover penalties for taking usury, are

PARTNERSHIP

SETTLEMENT.

GENERAL

N. Y. SUPREME COURT.

TERM. FOURTH DEPT. Sylvester Dering, applt., v. William Metcalf, respt.

Decided June, 1877.

The sworn self-contradiction of a witness is a strong circumstance tending to discredit him; but, nevertheless, the amount of credit due to his testimony, on points as to which he is uncontradicted, is a question for a referee or jury.

Where, on the dissolution of a firm the prop

erty of the firm is inventoried and disposed of by the partners bidding against each

other, and thereupon said property is con

veyed to the partner bidding the highest sum therefor, an allowance cannot be made against the latter, in an action for an ac

that he is so far contradicted, not only by other witnesses, but by his own writings, that he is unworthy of belief.

Beardsley, Cookingham & Bur

counting, for any of the property contained dick, for applts.

in such inventory.

Appeal from a judgment entered on the report of a referee.

W. & J. D. Kernan, for respt. Held, The defendant appears to have been contradicted in several particulars, but it does not follow that he testified corruptly. Whether he testified with a corrupt intent was peculiarly a question for the referee, whose decision thereon, he having had the witness before him, should not be reversed, unless it is very clearly against the weight of evidence.

The sworn self-contradiction of a

witness is a strong circumstance tending to discredit him; but, nevertheless, the amount of credit due to his testimony, on points in respect to which he is not contradicted, is a question for a referee or jury.

The action was for an accounting between co-partners. The plaintiff and the defendant were partners in the business of carrying on a general lumber-yard and planing-mill in the city of Utica. By the copartnership agreement the firm commenced May 1, 1866, and was to end May 1, 1871. It was continued till May 27, 1871, when the partners agreed to dispose of their joint stock and property, with certain specified exceptions, by bidding against each other for the same, and the plaintiff having purchased the same on such bidding, for the sum of fifty thousand dollars, they entered into an agreement, dated June 3, 1871, reciting the fact of the expiration of the term of partner-« For the purpose of disposing of the ship, the dissolution of the firm, and the purchase by the plaintiff of the firm property, with the exceptions above referred to, by which last mentioned agreement the defendant conveyed the property so purchased to the plaintiff, and acknowledged the receipt of the purchase price.

The referee took an account of the unsettled partnership matters, and reported as due from the plaintiff to the defendant the sum of $1,465.40, with costs.

The appellant's counsel contends that certain of the referee's findings rest upon the uncorroborated testimony of the defendant alone, andĺ

The agreement of May 27 contained, among others, these words:

joint stock of the firm of Metcalf &
Dering, as detailed in the inventory
thereof completed on the 22d or 23d,
of the present month, we hereby
agree to bid upon all the machinery
leases, lumber,"
***"and every
other kind of property jointly owned
by the parties hereto, except," &c.

The referee held that the plaintiff
was not entitled to be allowed for the
lumber embraced in the inventory
made on 22d May, and sold between
that date and the 27th May.
Held, no error.
Judgment affirmed.
Opinion by Smith, J.

SHERIFF.

N. Y. SUPREME COURT. GENERAL

TERM. THIRD Dept.

DAMAGE. CHAT- in the full amount of the executions. TEL MORTGAGE. The amount of the executions is, prima facie, the measure of damages. But the Sheriff may show, in mitigation of damages, that the full amount of the executions could not have been collected, and that therefore the judg ment creditor has suffered no injury by his neglect.

William Dolson v. Silas Saxton, Sheriff of the County of Ulster.

Decided Sept., 1877.

Where a Sheriff neglects to return executions
issued and delivered to him, he is liable,
prima facie, in the full amount of such exe-
cutions. The amount of the executions is,
prima facie, the measure of damages.
But the Sheriff may show, in mitigation of
damages, that the full amount of the execu-
tions could not have been collected, and that
therefore the judgment creditor has suffered
no injury by his neglect.
An agreement between a mortgagor and a
mortgagee of chattels that the former may
retain possession of the property, and sell

it, and pay over the proceeds to apply on

the mortgage debt, will not render the mortgage fraudulent per se. Under such an agreement, the bona fides of the transaction becomes a question of fact for the jury.

A Sheriff is not bound to proceed, although

indemnified, provided he acts in good faith; but may protect himself by proving a want of property in the defendant, from which to satisfy the execution.

Action against the defendant, as Sheriff, for neglecting to return two executions issued and delivered to him.

The defence was that the defend ants in the executions had no proper ty out of which the money could be made.

The action was tried at the Ulster Circuit in October, 1876. A verdict in favor of the plaintiff, for the sum of $574.67, was directed; and the exceptions were ordered to be heard, in the first instance, at General Term.

William Lounsbery, for plaintiff. C. A. Fowler, for defendant. Held, That where a Sheriff neglects to return execntions issued and delivered to him, he is, prima facie, liable

If there be only a small sum which might have been made upon the executions, the Court is not authorized to direct a verdict against the Sheriff for the full amount of the executions. A verdict can be directed for such sum as the evidence incontrovertibly shows to be the damages sustained. If there is a question on the proof, as to the amount, the question is for the jury.

The defence was that the judgment debtor had no property except what was covered by chattel mortgages. The proof tended to show an agreement between the mortgagor and mortgagee that the former might sell the property and pay over the proceeds to apply on the mortgage debt. The Judge held these instruments fraudulent and void as to plaintiff.

Held, Error; that the case was one for the jury on the bona fides of the mortgages. Such an agreement will not render the mortgage fraudulent per se.

Also held, That a Sheriff is not bound to proceed, although indemnified, provided he acts in good faith; but may protect himself by proving a want of property in defendant from which to satisfy the execution. Judgment reversed and new trial granted.

Opinion by Bockes, J.

N. Y. COURT OF APPEALS.

Peyser, applt., v. The Mayor, &c., of N. Y., respt.

Decided Sept. 25, 1877.

Where an assessment has been vacated and
set aside, the amount of such assessment
paid under protest may be recovered back;
but, in order to recover, plaintiff must
show that the payment made was involun-
tary, either in fact or by law.
Where the proceedings of assessors of taxes
or assessments are regular on their face,
they have the force of a judgment, and

PAYMENT UNDER PROTEST. proceedings at law to recover them will not answer the pressing purpose, 5 Hill, 154; 26 N. Y., 9; 18 Họw., U. S., 242, 256; 12 N. Y., 99; that coercion by law is where a court hav- ! ing jurisdiction has rendered a judg ment collectable in due course; or where the proceedings of assessors of taxes or assessments are regular on their face, and on presentation make out a right to have and demand the amount levied, and to collect it in due course of law by sale of goods or municipal lease of real estate; unless void on their face, they have the force of a judgment, and until reversed the assessment remains a prima facie valid lien upon real estate, 43 N. Y., 84; 12 Id., 308; 2 Sandf., 475; 59 N. Y., 280; 63 Id., 32; that in this case there was a coercion by law, as it appeared that the proceedings were prima facie reg ular, and that the rights and positions of the parties had been changed since the payment by the setting aside of the assessment.

amount to a coercion by law. Reversing S. C., 3 W. Dig., 345.

This action was brought to recover back the amount of an assessment paid by plaintiff to defendant. It appeared that plaintiff, having been notified that the assessment must be paid on a certain day, saw the collector and told him that the matter was in litigation, and that if he paid, it would be under protest; the collector told him he could do as he liked, and plaintiff paid the assessment. The assessment was subsequently vacated, and set aside as illegal and void, upon a petition filed by plaintiff and others. The assessment proceedings were prima facie regular.

A. R. Dyett, for applt.
D. J. Dean, for respt.

Judgment of General Term, affirming judgment at Circuit dismissing complaint, reversed.

Opinion by Folger, J. All concur.

REMOVAL OF CAUSE TO U. S.
CIRCUIT COURT.
Y. SUPREME COURT. GENERAL

TERM. FIRST DEPT.

American Nat. Life and Trust Co.,
Alice Chamberlin, applt., v. The

Held, That the reversal of the assessment and the setting it aside as N. illegal and void is conclusive that the money obtained upon it from plaintiff was got without primary right; that plaintiff, in order to recover, must show that the payment made by him was involuntary, either in fact or by law; that coercion, in fact, is where the present liberty of person or immediate possession of goods is so needful or desirable as that an action or

respt.

Decided July 6, 1877.

Although not in terms required by the act, the adverse party is regularly entitled to notice of application for removal of cause to United States Circuit Court, under the act of Congress of March 3d, 1875.

Yet where the Court below upon a proper petition showing the jurisdictional facts, and

upon proper security, approves the bond, and grants the order of removal, the Court below is divested of all jurisdiction of the

case,

Appeal from an order denying motion to vacate an ex-parte order removing a cause to the Circuit Court of the United States. Upon petition of the defendant in due form, setting forth all the requirements of the Act of Congress, approved March 3d, 1875, entitled "An act to determine the jurisdiction of the Circuit Court of the United States, and to regulate the removal of causes from the State Courts, and for other purposes," and upon a bond in the penal sum of $200, executed by one surety and duly acknowledged, a Special Term of this court, on the 14th of April, 1877, made an order which recited the material portions of the petition, and that the petitioner had offered good and sufficient security, pursuant to the directions of, and as required by the said statute, and which order directed that the said cause be removed for trial into the Circuit Court of the United States, to be held in the Southern district of the State of N. Y., and that the said petitioner file the process, pleadings, and proceedings, in the said cause, in the office of the clerk of said Circuit Court within twenty days from the date of filing the petition, pursuant to the said statute; and that this court do proceed no further in this cause, and that all proceedings in this court therein be, and the same are hereby stayed. This order was made on the ex-parte application of the respondents, without notice to the appellant. Afterwards, and on the 16th of April, the justice

holding Special Term made an order that the respondent show cause, on the 19th of April following, why the order granted on April 14th, removing the cause to the Circuit Court of the United States, should not be vacated as having been improvidently and inadvertently granted. On the hearing of that motion it was denied by the Court below, on the ground that a motion in the Circuit Court to remand a case was the only way in which the order could be discharged.

Field & Deyo, for applt.
Lewis & Beecher, for respt.

Held, That the order of removal could not have been improvidently and inadvertently granted if the case was one within the provisions of the Act of Congress under which the petition was presented, and the jurisdictional facts were shown and the security given, because in such case the Court below would have no power to exercise any discretion. The only question which we have any power upon this appeal to consider, is whether the petition did set forth the jurisdictional facts required by the act of Congress, and the security offered was such as to call for the approval from the Court below.

If the Court below had jurisdiction to make the order upon the facts presented and found and upon the bond or security given, its order was completely effectual to transfer jurisdiction to the Circuit Court of the United States, and divest this Court of all jurisdiction in the case.

Held further, That however it may have been under the Judiciary Act of 1789, notice of the application for removal to the adverse party is clear

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