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Digest.

on

duties, irrespective of the ques- HABEAS CORPUS. tion whether or not the corporation has property within the state, 1. In a contest between husband and or whether the cause of action

wife for the custody of their two arose therein. (Pope agt. Terre

children, aged five and six years, Haute Car Manufacturing Co., where there is no objection to the ante, 419.)

mother personally, it is for the welfare of the children, considering their tender years, that they

be left with her. An inquiry as to GENERAL TERM.

the father's ill-treatment of his

wife is pertinent as bearing upon 1. This appeal was taken from a the father's right to take the

judgment dismissing the com- children from their mother. (In plaint in this action, which was the Matter of Pray, ante, 194.) brought to have certain railroad bonds, issued by the town of 2. One Lampert, while returning Greenwood, canceled the home, after attending at the maground that an act (ch. 638 of rine court, in a proceeding to 1874), which undertook to cure which he was a party, was arrestcertain irregularities in the peti- ed upon an execution against his tion for their issue, was invalid. person, issued upon a judgment Upon the hearing of the appeal, it recovered against him in that appeared that the validity of the

court, by one Faendler. After bonds, and of the act in question, he had given bail for the limits, had already been passed upon by and been discharged from custody, the general term of the fourth de- a writ of habeas corpus was issued partment, upon an appeal from an to the sheriff commanding bim to order, made in this action, con- bring Lampert before one of the tinuing a temporary injunction justices of the supreme court, to granted therein, and that the judg. which the sheriff made a return ment below conformed to this that he was unable to obey the decision:

writ, for the reason that Lampert Held, that the former decision was not in his actual custody. of the general term should be

Upon the hearing, at which accepted as final and conclusive.

Lampert voluntarily appeared, an (Rogers agt Rochester, &c., R. R. order was made directing that Co., 21 Hun, 44.)

Lampert be released from the

execution, and discharged from 2. Under the Code of Civil Proced

all imprisonment in pursuance ure (sec. 1338), where an order of

thereof: general term, reversing a judg

Held, that Lampert was not at ment entered upon the report of

the time of the issuing of the writ, a referee, does not state that it

imprisoned by the sheriff, nor was

his bond for the limits such a rewas made on questions of fact, it will be deemed to have been made

straint by that officer as authorized on questions of law only. (Weyer

a resort to the writ of habeas agt. Beach, 79 N. Y., 409.)

corpus.

That the writ could not be

issued to inquire into a mere mat3. A general term of the supreme ter of temporary privilege by

court has power to amend its rec- which the applicant was exempted ord, after an appeal to this court, from arrest, but that his remedy by inserting in an order of reversal for a violation of such privilege that its decision was made upon was by an ex parte application to questions of fact. (Guernsey agt. the court, before which he was Miller, 80 N. Y., 181.)

attending, or to the court out of

Digest.

which the process had issued. wholly, or in part, upon evidence (Matter of Lampert, 21 Hun, 154.) clearly incompetent and illegal it

will be quashed and the defendant

remanded, that his case may be HUSBAND AND WIFE. passed upon by another grand

jury upon competent and proper 1. Under section 2 of chapter 782

evidence. (Id.) of the Laws of 1876 a wife is not a competent witness against her 6. The objection that an indictment husband, and cannot be called has no caption, or that it does not against him by the people without show in what court it was prehis consent. (The People agt. sented or found, cannot be raised Briggs, ante, 17.)

after a conviction by a motion in

arrest of judgment. (Gray agt. 2. In a contest between husband People, 21 Hun, 140.)

and wife for the custody of their two children, aged five and six 6. An indictment for 'stealing a years, where there is no objection satchel containing trade dollars, to the mother personally, it is for describing them as “sixty silver the welfare of the children, con- coins (of the kind usually known sidering their tender years, that as dollars) of the value of one they be left with her. An inquiry dollar each" is sufficient. (Miller as to the father's ill-treatment of agt. People, 21 Hun, 443.) his wife is pertinent as bearing upon the father's right to take the 7. The supreme court may, upon children from their mother. (In application of the prosecution, isthe Matter of Pray, ante, 194.) sue a writ of certiorari to remove

an indictment into that court from

the oyer and terminer. (Jones agt. INDICTMENT.

I he People, 79 N. Y., 45.) 1. Where the defendant in an indict. 8. As to whether a certiorari may ment moves to quash the indict

be brought for that purpose with ment for irregularity, a grand juror

out the assent and in spite of the may be examined and testify to

authority of the supreme court, facts showing the irregularity, if quære. (Id.) it do not arise out of misconduct by the grand jury. (The People 9. It is not necessary to give notice agt. Briggs, ante, 17.)

of application for the writ. (Id.) 2. If an indictment be improperly 10. It is discretionary with the su

and irregularly found the defend- preme court after having obtained ant may, before plea, move upon

jurisdiction of the case either to affidavit to quash it for such irreg

quash the writ upon cause shown, ularity. (Id.)

to remand the case to the oyer

and terminer, or to proceed to its 3. The moving affidavit may allege

disposition as in other cases pend. the facts constituting the alleged

ing before it. (Id.) irregularity upon information and belief, if they should be within the 11. An indicment charged perjury knowledge of the district attorney; in evidence given by the accused and if so alleged they may be suth- on the trial of a civil action before cient to call upon him to dispute a referee; the indictment did not them if not correctly set forth in allege, in terms, the commencethe moving affidavit. (Id.)

ment and pendency of the civil

action; it charged that a referee 4 If an indictment be found or based was duly appointed in an action

VOL. LX 75

Digest.

then pending in the supreme court actuary's report upon the conof this state, naming the parties: dition of such company, it is ob

Held, that this was a sufficient jected that the act of 1869, under averment to show that the court which the order appointing the had jurisdiction of the parties. receiver was made is no longer in (Eighmy agt. People, 79 N.Y., 547.) force, but was repealed or sus

pended by chapter 161 of the 12. The indictment charged that the Laws of 1879:

referee was “duly and legally ap- Held, that the act of 1869, which pointed in the action" by a us- provides for the deposit of securitice of said court, “ by an order ties with the superintendent of duly made * in said action insurance for the benefit of regisat the chambers of said justice;' tered policies and for their overalso, that the referee was duly sight and supervision is in no wisc authorized and qualified to per: changed, altered or affected by the form the duties of that office." It act of 1879. (The People agt. Globe was objected that the indictment Mutual Life Insurance Company, was defective, as it did not state ante; 57.) that the order of reference was made by the court, but set up an 2. It is further objected that the Ex parte chamber order: Held, untenable; that it was to

order appointing the receiver was be presumed the justice acted in

unauthorized, because preliminaccordance with law, and as he

ary to the action being taken by had a right to hold special term

the attorney-general, there was no at his chambers, and as the ap

report to that officer by the super

intendent of insurance that the pointment was alleged to have

defendant was “in such a conbeen lawfully made, the legiti

dition as to render the issuing of mate inference was that the order was made at special term. (Id.)

additional policies and annuity

bonds by said company, injurious 13. It is not necessary, in an indict

to the public interests:

Held, that the manner of the ment charging perjury committed before a court of general jurisdic

making of such a report, whether

it should be oral or written, is not tion, to set out all the facts showing jurisdiction; an averment that

prescribed, nor is it made necesthe court had sufficient and com

sary by the act, that the fact that

such a report had been made petent authority to administer the

should be stated to the court. oath will suffice. (Id.)

There would seem to be no good 14. Also, held, that proof of the en

reason to require it to be so stated,

for after the proceeding is brought try of the order of reference was not required, the granting of the

the court must satisfy itself " by order gave the referee jurisdic

the allegations and proofs of the tion. (Id.)

respective parties

that the assets and funds of said com

pany are not sufficient to justify INJUNCTION.

the further continuance of the

business of insuring lives, grantSee TRADES UNION.

ing annuities and incurring new Johnston Harvester Company agt.

obligations, as authorized by its Meinhardt, ante, 168.

charter," before it can “issue an

order enjoining and restraining INSURANCE COMPANY (LIFE). the said company from further

prosecution of its business, and 1. Where on a motion on the part

appoint a receiver of of the receiver of an insolvent all the assets and credits of said insurance company to confirm the company."

Digest.

Held, second, that conceding the “it is clearly impossible for the necessity of a report from the company to resume business." superintendent of insurance, the With such a result before him statute was in substance complied and the court, any detailed calwith. The only possible object culations of future premiums beof this provision in regard to the came unnecessary to enable either action by the superintendent of to decide that the company's assets insurance was that the judgment could not meet its obligations as of that officer should concur in the they matured. need of the proceeding, and if Held, second, that prior to the he does so concur, there would amendment of the act of 1869, by seem to be no good reason to the act of May 5, 1880, all the require it in advance of action by special term could then do was the attorney-general, and that, to send the report back to the therefore, the report made before actuary for correction; the statute the order appointing a receiver gave the court no power to reject was sufficient.

it. While it is true that the act of Held, third, that this and every 1869, as amended by that of May other objection should have been 5, 1880, now requires the actumade upon the application, or at ary's report to be confirmed by least to the order when it was the court, whether the same is resettled and re-entered. Instead favorable or unfavorable as to of objecting the defendant ex- the solvency of the company, yet pressly consented and affirma- the propriety of rejscting the tively asked that the order which actuary's report and thus pracwas made should be made, and tically keeping the company in upon its resettlement all its pro- life through a receiver must be visions were made to conform to considered. the criticisms and wishes of the Held, also, that the opinion of defendant. Under such circum- the general term in People agt. stances it cannot now object to Atlantic Mutual Life Insurance the validity of the order, for both Company (15 Hun, 84), and of statute and constitutional rights the court of appeals in same case may be waived by a party and by (77 N. Y., 336), are directly apa corporation, when it is a party, plicable, and that the report of as well as by a natural person. the actuary should be confirmed (Id.)

and an order entered directing the conversion of the defendant's

assets into money pursuant to sec3. It is also objected that the actu

tion 8 of chapter 902 of the Laws ary's report should be sent back because such actuary has not taken

of 1869, as amended by section 1 into account in making his report

of the act of May 5, 1880. (Id.) the future premiums to be received by the company upon its policies, | 4. A life insurance corporation as required by section 8 of the act which is bound by law to hold its of 1869:

property and funds for the beneHeld, first, that while the report fit of the insured, when it, by the does not show a detailed valu- deliberate and fraudulent action ation of such future premiums, of its officers and trustees, has it does not appear that they were wasted and misappropriated its not considered in reaching the entire capital, and several thouconclusion of insolvency, for such sand dollars in addition of moneys report does most clearly exhibit received from policyholders, it all the resources of the defend- has, then, offended against not ant and all its liabilities, and only some, but against all “the states that the latter are in excess provisions of the act or acts of the former $559,271, and that creating

* such corpora

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Digest.

tion.” (The People agt. Globe moned before a tribunal having, Mutual Life Insurance Company, by the law of the land, jurisante, 82.)

diction of the subject-matter of

the relief asked, and which by 0. Section 430 of the Code of Pro- the service of process has also

cedure expressly declares it to be obtained jurisdiction of its perthe duty of the attorney-general, son, must object at the proper time “on leave granted by the supreme or be foreclosed from making any. court or a judge thereof,” to bring (Id.) an action“ for the purpose of vacating the charter, or anpulling 8. The objections made to the conthe existence of a corporation, stitutionality of the act of 1869 other than a municipal," which considered and held to be unten. has thus conducted itself. (Id.) able:

Held, also, that the order ap6. The power conferred, and duty

pointing the receiver is valid un. imposed, upon the attorney-gene

der the act of 1869. (Id.) ral by this section of the Code of Procedure has not been in any 9. The order entered having been wise impaired or affected by the held to be valid is irrevocable by act of 1853, or any other statute. consent of the attorneys for the (Id.)

parties. When individuals have

voluntarily placed their property 7. Where, in pursuance of the pro

in the hands of a receiver mado visions of this section, the attor

by the court, by no consent of ney-general commenced this ac

their's can he be removed and the tion in the supreme court by the

trust abrogated. The court has service of a summons and com

assumed a duty which is beyond plaint upon the defendant, for the

their control. This doctrine is purpose of enjoining further busi

especially applicable to a proceedness by it as a life insurance com

ing against a life insurance corpany and to distribute its assets,

poration, because the course of and upon an order to show cause,

procedure is all defined by statute. the defendant appearing by its

(Id.) counsel, an application for the appointment of a receiver was heard;

INTEREST. the court hearing the allegations and proofs of the respective par. 1. Upon a contract for the payment ties, and the result of the applica- of a sum certain on which intertion being an order made by the est at seven per cent was lawfully court appointing a receiver of the payable prior to January 1, 1850, defendant. The counsel for the by the terms of the contract, the defendant not only took no objec- rate agreed upon continues as tion to the form or manner of part of the unimpairable obligaprocedure, but formally united tion of the contract until judg. with the attorney-general in the ap- ment, notwithstanding the change plication and strenuously argued in the statute and though the and urged the need of prompt contract matured before such action by the court, as asked for change. (Association for the Relief by that state official:

of Aged and Indigent Females agt. Held, that this appearance in the Eagleson, ante, 9.) action and consent to the order waived all irregularities, if any 2. In an action for work and labor existed, and foreclose the defend- done and materials furnished ant from all objections, constitu- where the facts as proved were tional or otherwise. An artificial that no time was fixed under the being, as a natural one, when sum- agreement with plaintiff when the

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