ings in a district court incident to the application for the granting and the execution of the warrant of attachment, and the duties of the justice and the clerk with respect to those proceedings, are now the same as are prescribed by the district court act; but if we wish to ascertain when and for what causes an attachment may be granted, for what reason it may be dissolved, and what effect upon the action will be produced by the vacating of the attachment, we must look to article 4 of the Code of Civil Procedure.

By section 2917 of the Code of Civil Procedure the attachment is now only a provisional remedy, and an error of the justice in regard to such a remedy will not cause the reversal of the judg ment if the action were properly decided upon its merits.

At present there is no remedy for a party aggrieved if a district court errs in upholding or in vacating a provisional remedy. The decision of the justice cannot be reviewed on appeal (This is adverse to Lang agt. Marks, 65 How., 127). (Rosenthal agt. Grouse, ante, 447.)

(See Brown agt. Cassidy, 34 Hun, 55.)

140. Sections 3096, 3108-In proceedings under chapter 19, title 10 of the Code of Civil Procedure, relating to an animal straying upon the highway, where the person to whom the precept was directed by name is personally served or appears and answers, the theory of the statute is to give him damages, where he succeeds upon the trial of the issue only when the seizure is found to be malicious and without probable cause, and only then in the special proceeding where the issue is decided in his favor. All the issues are to be determined in one special proceeding, and not a part tried in a special proceeding and a part in an action.

Where, as in this case, the precept was directed to the plaintiff in this action by his name and he was personally served, and he appeared and answered, unless the justice found that the seizure was malicious and without probable cause, he was not entitled to recover any damages under the statute, as section 3108 expressly excludes him from maintaining such an action. (Millard agt. Severance, ante, 521.)

141. Sections 3210, 3211 - The pro

visions of these sections of the Code of Civil Procedure in relation to provisional remedies in the district civil courts, are in conflict. (Rosenthal agt. Grouse, ante, 447.)

142. Section 3234- Where plaintiff had a verdict for forty-four dollars and nine cents, and judg ment was entered for that sum, the defendant being entitled to costs, another judgment was entered for seventy-four dollars and ninety-four cents costs in his favor. The judgment in favor of the plaintiff, after its entry, and before the judgment was entered in favor of the defendant, was, by the plaintiff assigned to his attor

neys in the action in consideration of their services as such attorneys:

Held, that there were two judgments entered in this action, where properly there could be only one, and that based upon the verdict, and in such case the lesser amount should be set-off as against the larger of the sums to which the respective parties are entitled, and the judgment be effectual for the difference in favor of the party entitled to it. This right is one of the incidents of the action, and is superior to the lien of the attorneys or to the effect of an assignment. (Warden agt. Frost, ante, 364.)

143. Sections 3239, 3251-Upon a motion for a new trial, made at special term upon a case, the appellant is entitled to costs, twenty dollars before argument, and forty dollars for argument where an appeal is taken from an order denying said motion, as well as from the judgment entered in the action under subdivision 3 of section 3251 of the Code of Civil Procedure. Subdivision 2 of section 3239 does not prevent the allowance of such costs. (Pilgrim agt. Donnelly, ante, 281.)

trial is actually had. (See Studwell agt. Baxter, 33 Hun, 331.)

147. Sections 3268-3271-Where an official assignee of a debtor su s upon a cause of action arising "before the assignment," he may be required by the defendant as of right to give security for costs. (Welch agt. Gaffney, ante, 146.)

148. Sections 3268, 3278- Mere presence in the state during business hours does not constitute residence, so as to relieve an attorney from his liability for costs, under section 3278 of the Code of Civil Procedure.

It is no answer under this section that the attorney commenced the action in good faith and in the belief that the plaintiff and his family were domiciled in New York.

Nor does the omission of the defendant to demand security for costs during the pendency of the action affect the attorney's liability. (Krom agt. Kursheedt, ante, 38.)

149. Section 3307, sub. 2—Fees of sheriff on attaching property — when the judge cannot compel the party liable therefor to pay them. (See Hall agt. U. S. Reflector Co., 34 Hun, 467.)

150. Chapter 17, title 11-Voluntary

dissolution of a corporation—a receiver cannot be appointed until the entry of the final order of dissolution Code of Civil Procedure, section 2426-the report of the referee must contain the statement required by it. (See Matter of E. M. Boynton Sawo and File Co., 34 Hun, 369.)

CODE OF CRIMINAL PROCEDURE.

1. Sections 23, 962- The provi sion of the Code of Civil Procedure (sec. 23, as amended by chap.

360, Laws of 1882), directing the holding of courts of oyer and terminer "by a justice of the supreme court without an associate" is not affected by the provision (sec. 962) declaring that all "actions and proceedings theretofore commenced must be conducted in the same manner as if this Code had not been passed." This last provision simply preserves the existing rules of procedure in pending cases; it does not continue the then existing organization of criminal courts.

The legislature had power to authorize judgment by a court constituted as prescribed by said provision, to be pronounced upon a conviction had in a court of oyer and terminer before the amendment of said provision in 1882, as the amendment simply changes the organization without affecting the essential character of the court.

The organization of said court, with the exception that a justice of the supreme court must preside, is within the control of the legislature.

The provision of the act of 1863 (chap. 226, Laws of 1863), providing "that the appellate court shall have power upon any writ of error,' upon reversal of judgment, where it appears that the conviction was legal and regular, "to remit the record to the court in which such conviction was had, to pass such sentence as the appellate court shall direct," was not repealed by the Code of Civil Procedure, so far as actions then pending are concerned, but is continued in force as a rule of procedure in respect to such actions (sec. 962), and is applicable, although the case be brought up by appeal as authorized by said Code, instead of by writ of error. (The People agt. Bork, 96 N. Y., 189.)

2. Sections 238, 239-Under the Code of Criminal Procedure a defendant, held to answer a criminal

charge, may not, on the return of the grand jury list and before indictment, take the objection that the law under which the grand jury was selected is unconstitutional. The court may, in its discretion, discharge the panel for causes specified (sec. 238), and a defendant may interpose a challenge to an individual grand juror (see. 239), but his right to challenge the body of the grand jury because irregularly or defectively constituted no longer exists._(The People agt. Hoogherk, 96 N. Y., 149.)

Sections 273, 275, 276, 284, 321, 323It was not intended by the provision of the Code of Criminal Procedure (sec. 273), abolishing existing forms of pleading in criminal actions, to set aside the judicial construction theretofore given to the language usually employed in such pleadings; its true office is to abrogate the technical rules formerly governing such pleadings, and to substitute simpler forms and a more liberal interpretation.

In an indictment under said Code for murder in the first degree it is not necessary that the particular intent with which the homicide was committed shall be set forth; it is sufficient to allege that it was done feloniously, with malice aforethought, and contrary to the form of the statute (Secs 275, 284.)

The objection that an indictment does not conform to the requirements of the Code of Criminal Procedure (secs. 275, 276) may only be taken by demurrer (Secs. 321, 323). (The People agt. Conroy, 97 N. Y., 62.)

duty to do whatever is necessary and proper to be done to enable the assigned counsel to discharge the trust which the court has devolved upon him.

Where a prisoner is entirely unable to furnish the money to defray the cost of transcribing the stenographer's notes, and counsel who have been assigned for his defenses deposes that a proper discharge of the duties devolved upon him by the court requires a presentation of the case to the appellate tribunal, the court should provide the means necessary to enable him to do that which the court has enjoined.

And in a proper case the court will upon motion in behalf of the prisoner direct that a copy of the stenographer's notes of the trial be furnished his counsel at the expense of the county. (The People agt. Willett, ante, 196.)

5. Section 376-Under this section of the Code of Criminal Procedure a person who has formed or expressed an opinion or impression in reference to the guilt or innocence of the defendant is still, as formerly, disqualified to sit as a juror on the trial of a criminal action, unless he declares on oath, substantially, that he believes such opinion or impression will not influence his verdict, and that he can render an impartial verdict according to the evidence. It is not sufficient for him to declare that he supposes he can determine the case according to the evidence, or that his opinion ought not to influence his verdict. (The People agt. Casey, 96 N. Y., 115.)

8.

9

ing a conviction in a criminal trial on the testimony of an accomplice, "unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the crime," does not require that the whole case shall be proved outside of the testimony of the accomplice, but simply requires evidence, from an independent source, of some material fact tending to show not only that the crime has been committed, but that the defendant was implicated in it. (The People agt. Hooghkerk, 96 N. Y., 149.)

Section 399- The proof as to what occurred when the plan was suggested, and also after defendant returned with the check, in reference to the alteration thereof, was the uncorroborated testimony of an accomplice : Held that there was other testimony tending "to connect the defendant with the commission of the crime," sufficient to meet the requirements of this section of the Code of Criminal Procedure, prohibiting a conviction on the uncorroborated testimony of an accomplice. (People agt. Ryland, 97 N. Y. 126.)

Section 515- Abandonment of a wife by her husband - the decision of a police justice may be reviewed upon a certiorari the justice does not act as a court of special sessions. (See People ex rel. Scherer agt. Walsh, 33 Hun, 345.)

10. Section 527 - Failure to arraign a prisoner and to require him to plead when it does not afford a ground for the reversal of his conviction. (See People agt. Osterhout, 34 Hun, 260.)

11. Sections 719, 720-Appeal

none lies to a court of sessions from a judgment of the special sessions charging a prosecutor with costs Code of Criminal Procedure, sec. 749 Code of Civil Procedure, secs. 3044, 3045.

justice before whom the examination took place filed a memoran dum that he was not qualified, and that defendant in that action must produce another surety. Meantime, intermediate the filing of the memorandum and the entry of an order thereon, the defendant executed the undertakings upon which this action was brought, which were approved:

Held, that by the memorandum and order referred to, the justice approved of A. as one of the sureties upon the undertakings; that it was not necessary that A. should join in the execution of the undertakings with defendant, and even if A. is not liable upon his undertaking, for want of a formal indorsement of approval upon it, the defendant should not be relieved from liability on his undertakings, which stayed plaintiff's proceedings. (Hooker agt. Townsend, ante, 107.)