Volume 1 — New York Reports

Original and Cross Bill. The North American Trust and Banking Company, organized in July, 1838, under the general banking act, passed in April of that year. Held: in pledge for the balance which they claimed to be due to them, some portion of the million and first half million trust bonds, and they were entitled to share in the trust funds, if the trusts were valid, and if their debt was lawful and just.

This was a writ of error to the Supreme Court; and the judgment was affirmed by the unanimous opinion of the Judges. After the cause had been argued, and while the Judges were in consultation upon it, Bronson J. expressed an opinion upon his right and duty to take part in the decision, which opinion he afterwards committed to writing. The case involved no other questions which seemed of sufficient importance to be reported.

Error from the Supreme Court. Stief brought replevin for a quantity of caps and muffs, which the defendant as Sheriff of the city and county of Hew York, had levied upon and taken possession of under an execution against the property of Ezra Willmarth, Jr. Issue being joined, the cause was tried at the Hew York Circuit in April, 1843.' On the trial it was shewn that when the Sheriff took the goods, they were in possession of the plaintiff as a pledge for the payment of a…

<p>An appeal "will not lie from a decision of the Court of Chancery upon a question of practice addressed to the discretion of that Court.</p> <p>Where a'defendant in the Court of Chancery suffered the bill to be regularly taken as confessed by him, and then, upon affidavits and papers excusing his default, and shewing, as his counsel claimed, a good defence on the merits, moved that Court to set aside the default and for leave to answer, and the Chancellor denied the motion; held, that no appeal would lie in such a case, and the appeal brought by the defendant from such a decision, was accordingly dismissed on motion.</p>

Demurrer to plea. Corning and Horner sued McCullough in -assumpsit under the provisions of the act incorporating the Rossie Galena Company. ' (Stat. of 1837, p. 445.) The 9th section of that act provides, that the stockholders of the corporation shall be jointly and severally personally liable for the payment of all debts and demands contracted by the-corporation, and that any person having any demand against such corporation, may sue any stockholder or director in any Court…

The question was mainly one of boundary between the premises owned by the plaintiff and Weiant respectively; and on the trial it became material to the plaintiff’s case to introduce in evidence a deed of the premises in question, or of adjoining lands, executed in 1836, and acknowledged before a Commissioner of Deeds for the County of Orange. The Judge rejected the evidence because there was no certificate of the Clerk of Orange County pursuant to 1 R. S. 759, § 18.

On error from the Supreme Court. Doughty brought ejectment against Hope to recover possession of a house and lot, situated in the 12th ward of the city of New York. The cause was first tried before Edmonds, Circuit Judge in May, 1845, when a verdict was had for the defendant. The Supreme Court, on bill of exceptions, set aside the verdict and granted a new trial.

On error from the Supreme Court. The Bank of Salina sued Henry and Pierce in the Court below upon a promissory note signed by Pierce as principal, and Henry as surety, payable to the bank and not negotiable. Henry pleaded the general issue and gave notice of the defence of usury, verifying the notice according to the usury act of 1837.

On error from the Supreme Court. Smith sued Jencks before a Justice of the Peace.of the County of Madison, and declared in trespass for taking a quantity of hay. The defendant pleaded the general issue, and gave notice that he would prove the. hay belonged to him by virtue of a chattel mortgage, executed upon the same by one Philip Arnold.

Error from the Supreme Court. Carhart sued French for overflowing his land, situated upon a creek, called the Eormanskill in Guilderland, Albany County, by means of a dam erected upon the stream below the premises overflowed.

The case was this; Shapley and Billings' were partners in business at Earlville, Madison county, and the plaintiff resided and did business in the city of New York.

This was an appeal by the complainants from a decree of the Chancellor, reversing that of the Vice Chancellor of the third Circuit, and directing the complainants bill to be dismissed with costs. The facts are sufficiently stated in the opinion of Chief Justice Jewett.- (See also, 1 Barbour, Ch. Hep. 380.)

moved to dismiss the appeal. The Mohawk Bank filed a bill against Schermerhorn and others to set aside certain assignments as being a fraud upon creditors. After the bill had been taken as confessed, the defendant, Schermerhorn, moved to open the default, and for leave to defend. The Chancellor denied the motion; and from that order the defendant has appealed.

On error from the Supreme Court. Banks sued Quackenbush in the .Common Pleas of Onondaga County, in replevin for taking a horse and harness. The case was this: In January, 1837, one Fitch recovered judgment against Banks m the Supreme Court, in an action upon contract, for $83 85.

This case was brought to hearing, before the Chancellor, upon the bill filed by the appellants, and the joint and several answers of the respondents. The material facts were these: The appellants, on the 2d November, 1846, recovered judgment in the Supreme Court against Charles Wardell and Charles E. Wardell, two of the defendants, for $1,376,97 upon contract.

<p>After a Sheriff had levied upon property which belonged to the defendant in the execution, another person brought replevin, and had the same property deliv. .ered to him upon the writ, and died pending the action; held, that the Sheriff might retake the property and sell it to satisfy the execution.</p> <p>On the death of a plaintiff in replevin the action abates and cannot be revived by scire facids.</p> <p>In such a case the defendant has no remedy upon the replevin bond.</p> <p>Where the original Execution upon which a levy had been made was lost, and the Supreme Court from which it issued, ordered, on motion, that a new one like the original be issued as a substitute therefor, that the Sheriff’s certificate of the levy be endorsed thereon, and that such substituted execution and certificate have the same force and effect as the original would have; and a new execution was issued and endorsed accordingly; held, that the same was admissible as primary evidence to prove and justify the levy without showing the loss of the original.</p>

Error from the Supreme Court. Adams and one Seymour were indicted in the New York General Sessions for obtaining money, by false pretences, of Suydam, Sage & Co., Commission Merchants in the city of New York.

Charles and McIntyre were indicted at the New York General Sessions for publishing an account of an illegal lottery. The indictment charged that the defendants on, &c., at the fourth ward of that city, in a newspaper called the “ Wall Street Reporter,” published an account of a certain illegal lottery, stating when the same was to be drawn, and where tickets were to be had, together with the prizes therein.

On error from the Supreme Court. Davis, Brooks & Co. sued Samuel Coddington in the Superior Court of the city of New York as the endorser of a promissory note for $10,000, made hy Thomas B. Coddington, which bore date Dec. 31, 1839, and became due Feb. 2, 1840. On the trial it was proved that on the 28th of January, 1840, the defendant wrote to the plaintiffs as follows: “Messrs.

Joseph L. Dias and Job Furman, filed their bill in Chancery before the Vice Chancellor of the First Circuit, in which the case was stated in substance as follows:—Castro and Henifiques, partners in trade in the city of Hew York, on the 13th day of May, 1823, made an assignment to Louis A. Brunei of a large amount of property in trust, firstly, to pay a debt which they owed Brunei; secondly, to pay two notes made by them and endorsed by him, and certain Custom House bonds…

Ahraham Stagg died in 1835, having first made his last will and testament whereby he devised and bequeathed to his executors all his estate, real and personal, in trust, to sell such estate, or any part of it, whenever they should see fit, with authority also to lease the same for a life or lives or for years, and to invest the monies arising from the sale or the leasing, in bonds and mortgages, or in stocks, and to change the investment as often as they should see fit.

The case was this: John McCosker, the elder, died on the 26th of March, 1839, seized of certain real estate in the city of New York, leaving his s'ons, John and Thomas,, his only children and heirs.

Harris commenced an action against Cornes in the Supreme Court by writ of nuisance in the form prescribed by 2 B. S. 332, § 3. The declaration afterwards put in commenced thus: “ Oneida County, ss.

The appellant, Gracie, who was complainant in the Supreme Court, appealed to this Court from an order in an equity cause, made by one of the Justices of the Supreme Court while holding a special t^rm. FTo re-hearing of the matter had been had or applied for at a general term of the Supreme Court. moved to dismiss the appeal on the ground, among others, that an appeal to this Court would only lie from a decree or order made by the Supreme Court at a general term.

Double costs. The defendant in error was sued in the Supreme Court for an act done by him as a public officer. The judgment in that Court was in his favor, and was affirmed by this Court in January last. The usual entry of the judgment was made' by the Clerk, giving only single costs, and without any request for that purpose the Clerk also made out a remittitur and sent it by mail to.the. Attorney for the defendant in error.

Error from the Supreme Court. Elizabeth Kingman brought ejectment in the Common Pleas of Erie County, against Erastus Sparrow to recover an undivided sixth part of certain premises as the widow of George G. Kingman, deceased. After issue joined, the cause was removed by certiorari into the Supreme Court, and was tried at the Erie Circuit, before Dayton, Circuit Judge, in January, .1846. On the trial, the marriage of the plaintiff, and the death of her husband, were admitted.

On error from the Supreme Court. Houston sued Shindler in the Justices’ Court, of the city of Troy, in assumpsit, for the price of a quantity of lumber.

<p>Appeal from Chancery. The appellants, complainants in the Court below, filed their bill in the Court of Chancery against the respondents, in which the case was stated in substance as follows: In April, 1839, Harvey Church borrowed of the defendant, Jones, $200 for six months, and was to pay for the use thereof at the rate of ten per cent, per annum. Church and the complainants, as his sureties, thereupon gave their joint and several note to Jones, at six months, for $210, being the sum loaned and the interest added thereto, including three per cent, for the usurious premium. At the end of the six months it was agreed, between Church and Jones, that the debt should be forborne for six months longer at the same rate of interest, which was then paid in advance by Church. One or more other agreements to extend the time of payment were made at the same usurious rate of interest, which was also paid in advance. The bill insisted that the note was void for usury, also that the complainants, as sureties, were discharged from liability by reason of the time of payment being extended to Church, the principal in the manner above stated. In April, 1842, a suit at law was commenced on the note against Church and the complainants, in the name of the defendant, Pierey, as endorsee of the note. The complainants pleaded to the suit the general issue, and gave notice of their defences above mentioned; but it did not appear that the notice was verified by affidavit. The suit was brought to trial, in May, 1842, and the complainants procured said Jones to attend as a witness, expecting, as the bill averred, to prove the facts above stated by him. But Jones, on being sworn as a witness, stated on his voire dire, that he was the owner of the note, and that the suit was brought for his benefit, and he thereupon objected to testifying in the cause. The Court sustained his objection. ' 'Previous to the trial of the cause, Jones had been applied to by the counsel of the complainants, to learn who was the .owner of the note, and Jones stated that he had sold the note to Pierey, and that Pierey was the owner. The bill however did not shew that this false information was the reason why the complainants did not verify the notice annexed to their plea, so as to enable them to call Jones as a witness to prove the usury, under the act of 1837, or that they had been in any wise misled thereby.</p> <p>The bill also alleged, that the facts on which the defence in the suit at law rested, were known only to Church and to Jones; that Church, being a co-defendant in the suit, and Jones, being excused from testifying as above stated, the complainants were unable to establish their defence, and a verdict was taken against them for §167,34, the amount claimed to be due on the note, for which amount and costs of suit, judgment was perfected against them and Church ;■ that Church suffered judgment by default, and that he also refused to join in the bill of complaint; that said Church had instituted nroceedings to be discharged as a bankrupt' under the act of Congress, passed August 19, 1841; that he was duly declared a bankrupt on the 16th of May, 1842, and (as the complainants were informed and believed) that he would be entitled to his discharge, and would receive the same before an order to take proofs could be entered in this cause, so that the complainants could have- the benefit of his testimony to establish the matters of defence- above set forth. The bill algo alledged .that the complainants had released Church from all liability over to them, in consequence of their signing the note as his sureties. The prayer of the bill was for relief against the judgment by injunction to restrain execution and all other proceedings for the collection of the same from the complainants, for answer without oath, &c.</p> <p>The respondents severally demurred to the bill for want of equity. The cause was referred for hearing to the Assistant Vice Chancellor of the First Circuit, who allowed the demurrers, and dismissed the bill. The Chancellor on appeal affirmed the order.</p> <p>The complainants are entitled to relief on the ground of usury. They are to be deemed borrowers within the equity of the act of 1837, so far as regards the remedy given by that act. (Laws of 1837, p. 487; Perine et. al. vs. Striker, 7 Paige 598.) This defence was not available in the suit at law. Church, being a co-defendant in that suit, could not be examined as a. witness. Jones, the payee of the note, the only other person to" whom the facts were known, declined to testify, and his objection was sustained by the Court. (Cook vs. Spaulding, 1 Hill 586.) This presents a case upon which a Court of Equity will relieve after judgment. (Norton vs. Woods, 5 Paige 249; Morse vs. Hovey, 1 Barbour Ch. Rep. 404.)</p> <p>Church was not a necessary party to the bill. After suffering judgment at law, by default he could- have no claim to relief in equity •; nor could any decree to be pronounced in this cause affect Mm in any Way. (Story Eq. Pl. §§ 231. 443, 445.)</p> <p>The extension of the time of payment given by Jones, the creditor, to Church the principal debtor, without the consent of the complainants, who were mere sureties, discharged them. This defence is personal to themselves, and entitles them to the relief prayed by the bill. (Rathbone vs. Warren, 10 Johns. 587; King vs. Baldwin, 17 do. 384; Miller vs. MeCan, 7 Paige 451; Burge on Suretyship, 197, 211.)</p> <p>I. The appellants having suffered judgment- at law to pass against them on a trial upon matters which, if proved, constituted a defence at law, and of which they were fully cognizant before the trial, cannot be relieved from such judgment in equity. (Simpson vs. Hart, 4 Johns. Ch. R. 91; Gelston & Schenck vs. Hoyt, 1 Johns. Ch. R. 543; Barker vs. Elkins & Simpson, 1 Johns. Ch. R. 465; Norton vs. Woods, & Paige 249; Bates vs. Bagley, 1 Breese’s R. 60; Cown vs. Price, 1 Bibb’s R. 173; Penny vs. Martin, 4 Johns. Ch. R. 566; Northrup and al. vs. Survivor of Lane and al. 3d Dessausure’s Repts. 324; Bateman vs. Wilson, 1 Sch. and Lefroy R. 201-4; Williams vs. Lee, 3d Atkins’ R. 223 ; Green vs. Dodge and al. 6 Hammond R. 80 ; Thompson vs. Berry, and al. 3d J. Ch. R. 395; Thompson vs. Berry, 17 J. R. 446, on appeal; Duncan vs. Lyon, 3 J. Ch. R. 351; Campbell vs. Morrison, 7 Paige R. 157 ; Mc Vicker vs. Woolcott, 4 J. R. 510; Cowen and Hill’s Hotes, 949, 950.)</p> <p>II. The appellants coming into this Court to set up a defence which they might have interposed at law, must do equity before ashing it, and as the verdict was for no more than the original loan with the lawful interest on it, after deducting the payments, equity will not relieve them therefrom on the ground of usury.</p> <p>TTT- If the Court erred in excusing Jones from testifying, the remedy was by a bill of exceptions, and not by a bill in equity's (Henry and Pierce vs. The Bank of Salina, 5 Hill 523 ; Stevens vs. White, 5 Hill 548.)</p>

On error from the Supreme Court,- where an action was brought by Conover against the Mutual Insurance Company of the city and county of Albany, upon a policy of insurance. On the trial, Conover had a verdict for the amount of the loss in question, on which the Supreme Court rendered judgment in his favor. For the facts, so far as material, see the report of the case in the Supreme Court, (3 Denio 254,) and- the opinion of Johnson, J.

<p>On. error from the Supreme Court. Mattison sued Baucus in trover in a Justice’s Court, in the county of Rensselaer, and recovered judgment. The defendant appealed to the ' Common Pleas of that county, where the cause was tried in 1844, and the plaintiff again recovered judgment for the value of the property in question. A hill of exceptions was taken by the defendant on that trial, and a writ of error brought by him into the Supreme Court, where the judgment of the Common Pleas was reversed, and a venire de novo awarded. A judgment record of such reversal being made up, Mattison now brings error to this Court. The facts, so far as material to the decision of the Court, are stated in the opinion of Gardiner, J.</p>

The respondent, the Village of Corning, prosecuted the appellant before the police justice of that village, and recovered a judgment against him for two penalties of $2-5 each, for selling ardent spirits to be drank on his premises, being a grocery or provision store, contrary to a by-law of the village. On the trial the defendant refused to appear, except to take exceptions to the'jurisdiction, and the judgment was recovered upon an ex parte trial.

The appellant .filed her hill before the Vice Chancellor of the Fourth Circuit, against the respondents and John B. Borst, in which the case was stated in substance as follows: John I. Becker, of Middleburgh, Schoharie county, died in or about the year 1804, having first made his last will and testament, by which, after devising twenty acres of land to his daughter Caty, the wife of Michael Borst, he gave all the residue of his estate, real and personal, to his wife Cornelia…

Whitney sued Allaire in covenant for rent, in the superior court of the city of New-York. On the first trial, the charge of the court upon the question raised was favorable to the plaintiff, and a verdict was had and judgment rendered for the amount of rent claimed. That judgment was reversed by the supreme court, on error brought, and a new trial ordered. (See 1 Sill, 484.) On another trial, the verdict and judgment of the superior court were in favor of the defendant.

<p>A power is special where a class of persons to whom the disposition of lands under the power is to be°made is designated contingently, upon the happening of a certain event, as well as if a class or,person is designated absolutely.</p> <p>A power is not beneficial when any person other than the grantee has, by the lerms of its creation, an interest in its execution upon a certain contingency.</p> <p>The eightieth section of the article in relation to powers, (1 S. S., 732), providing that “a general and beneficial power may be given to a married woman to dispose, during marriage and without the concurrence of her bus-band, of land conveyed or devised to her in fee,” is an enabling and not a restrictive statute. It was designed to enable the grantor to give the fee to a married woman, with an absolute power of disposition during coverture. Section one hundred and ten of the article aforesaid (1 B. S., 735), completely takes away the disability of coverture in respect to the execution of powers. A married woman may, without the concurrence of her husband, execute any power which may lawfully be conferred on any person unless its execution during coverture be expressly or impliedly prohibited by the terms of the power.</p> <p>A power general or special, beneficial, or in trust, may be reserved to a married woman by a marriage settlement, by which the entire legal estate is vested in trustees.</p>

The action in the Supreme Court was brought July 24th, 1852, to recover damages against the defendant for having, as.one of the assessors of the town of Oxford, in Chenango county, illegally assessed the plaintiff for personal property, he being, as alleged, at the time of the assessment a resident of the county of Oswego, and not taxable in the county of Chenango, by means of which illegal assessment the plaintiff’s property was sold by the collector of the town of Oxford.

<p>On error from the supreme court. Sherman sued the mayor aldermen and commonalty of the city of New-York, in the superior court of that city. The cause was heard before referees appointed by that court, and the case was this : On the 17th of November, 1.842, a written contract, under seal, was entered into between the plaintiff and defendants, whereby the plaintiff agreed “ to furnish all the materials and labor necessary to complete the excavation, backfilling, ramming, and re-pavitig” of a trench for water pipes in 14th street, from Union square to avenue A. The trench was to be six feet wide at the bottom, and eight and a half feet deep. The back filling and ramming was defined by the contract to be the filling up of the trench in a certain specified manner, after the pipes should be laid. The compensation for the work was provided for in the same agreement in these words: “And the parties of the second part agree to pay the party of the first part in full compensation for the excavation, back filling, ramming and repaving aforesaid:</p> <p>“ For executing the digging, back filling, and ramming of the said trench, at the rate of seven cents per cubic yard. For re-paving,” <fcc.</p> <p>It was also provided in the contract, that the engineer of the corporation “ should, upon request of the contractor, make estimates of the work actually completed, and not included in any previous estimate; and that payments should be made upon such estimates, at the succeeding pay day as by law established ; ten per cent being retained until thirty days after the completion of the whole work, when a final estimate was to be made of all moneys due to the contractor, the same to be pain at the next succeeding pay day.” The work was “ to be subject to the inspection of the defendants by their engineer aforesaid, and was to be done at such times and- in such order as the said engineer should direct.” There were also other provisions in the contract upon which no question arose.</p> <p>On the hearing before the referees, the plaintiff offered evidence as to the amount and value of the work done under the contract. The defendants objected to any other evidence of such amount and value than the estimates of the engineer under the contract. The referees admitted the evidence, and the defendants excepted. It was then proved that the amount of excavation, independent of hard pan and rock, was 5416 cubic yards. The plaintiff then offered evidence of the amount and value of the hard pan and rock excavation, insisting that the seven cents per cubic yard for “ executing the digging,” &c. as provided for in the contract, did not cover this species of excavation. The defendants objected to the evidence on'the ground that the written contract controlled the price, and did not admit of any other rate of compensation than the seven cents per cubic yard. The referees admitted the evidence, and the defendants excepted. It was then proved, that the amount of hard pan. excavation was 5146 cubic yards and 12 feet, and of rock excavation 491 cubic yards and 21 feet; that the hard pan excavation was worth 75 cents per yard, and the rock $1,00 per yard. It was also shown that seven cents per yard was the lowest price,for common earth excavation. There was some evidence tending to show that when the plaintiff entered into the contract, he might, with ordinary attention and diligence, have ascertained the character of the ground to be excavated ; and there was also evidence tending to a contrary result.</p> <p>“ The referees reported in favor of the plaintiff the sum of $4743,43, which included the above quantities of hard pan and rock excavation at the prices proved. The defendants moved, in the superior court, to set aside the report, which motion was denied, and judgment rendered for the amount reported and costs. The defendants then removed the cause by writ of error into the supreme court, where the judgment of the superior court was reversed, and a new trial ordered in that court. The plaintiff brings error to this court.</p> <p>The price for “ executing the digging,” which means, according to the popular sense, the loose excavation which may be done with a spade or shovel, was seven cents per cubic yard, and was not intended, nor did it in fact include “ rock” or “ hard pan,” the first worth $1,00, and the latter 75 cents, per cubic yard.</p> <p>The position taken by the defendants, that “ the engineer’s estimate of the amount and value of the work should be taken instead of other proof,” cannot be sustained, inasmuch as no provision to that effect wg,s contained in the contract; and estimates were never made satisfactory to the plaintiff, or founded upon a knowledge of the work by the engineers.</p> <p>The objection that no proof of the value of hard pan or rock excavation could be given with a view tó compensation, on the ground that the contract did not admit of any extra compensation therefor, was not well taken.</p> <p>■ The words, in the instrument, executing the digging,” shows the sense of the parties, and refers to the lowest grade, or common earth excavation, which only could be done for seven cents per yard.</p> <p>It was competent to show by parol proof, that.neither rock nor hard pan were included in the terms “ executing the digging,” by showing the usage in relation to the allowance for either when found, and by showing the value of the lowest grade, or earth excavation, from which the meaning of the parties could not be mistaken.</p> <p>Evidence of usage, or course of trade, where the contract is to be carried into effect, is admissible to explain the meaning, and remove the doubt.</p> <p>Ambiguous terms may be explained by proving the facts and circumstances tending to show the sense in which the terms were used. (Doe v. Burt, 1 T. R. 701; Coit v. Com. Ins. Co. 7 John. 385 ; Powell on Cont. 378; 3 Kent’s Com. 556; Story on Conf. of Laws, 225, 233.)</p> <p>(1.) The testimony as to the amount and value of the work done under the contract was improperly admitted, as that was to be paid for on the estimate of the engineer; and he having made a final estimate, the same is conclusive. (2.) The evidence as to the value of the hard pan and rock excavation, was improperly-admitted.</p> <p>The terms of the written contract include excavation of every kind, and the price of seven cents per cubic yard is stipulated to be “ in full compensation” therefor.</p> <p>There is nothing in the contract to indicate that the word “ excavation” is used in any special sense. The written contract must therefore govern as to the rate of compensation for that labor. (Robertson v. French, 4 East, 135; Delaware & Hudson Canal Co. v. Dubois, 15 Wend. 89, 95.)</p> <p>(3.) It was the duty of the contractor to have ascertained the nature-of the soil before entering into the contract. Ordinary diligence would have enabled him to do so.</p>

On error from the supreme court. Adam W. Spies sued Robert Gilmore, John Jewett and George W. Jewett, in the superior court of the city of New-York, upon a bond given in a proceeding by attachment instituted by Spies against Gilmore as a non-resident debtor. The bond bore date October 20th, 1841, and was executed by Gilmore as principal, and by the other defendants as his sureties.

. This action was brought in the Supreme Court to settle construction of the will of Samuel Q-. Johnson, deceased. By the will the testator directed his executors to sell and convert into money all his estate, real and personal, and out of the proceeds to pay his debts.

The action was commenced in the Superior Court of Buffalo, to recover one year’s rent of certain premises in that city, under a demise in writing, from the plaintiff to the defendant, for the term of two years from May 1, 1855, to May 1, 1857.

On error from the supreme court. Halliday sued Noble, Livingston and Lamberson, in the superior court of the city of New-York, for an assault and battery and false imprisonment. On the 20th of July, 1841, Noble, one of the defendants, was appointed by the court of chancery receiver of the property and effects of The New-York Northern Fire Insurance Company.

Appeal, by the plaintiff, from a judgment of the Supreme Court. The action was brought to recover the possession of fifty acres of land, lying in Dryden, Tompkins county, which was in the possession of the defendant. Joseph Moseley, the father of the plaintiff and of the defendant, was admitted to have been formerly the owner of the land.

The complaint set forth that the defendant was a corporation, under the general railroad act, and that the plaintiffs were partners engaged in the construction of portions of the defendants’ road, “ and that heretofore, to wit, on the 10th day of May, 1855, the said defendants were indebted to said plaintiff in the sum of $300, for work done by said plaintiffs for said defendant, on section number eighteen of defendants’ railroad; and the defendants, by its president, John…

Ejectment, brought by Andrew 0. Morris against Robert L. Taylor, in the New-Yorlc common pleas, for an undivided fourteenth of a lot of land in that city.

The plaintiffs, as overseers of the poor of the town of Norwich, sued the defendant, as overseer of the town of Pharsalia, to recover about $100, which the plaintiff had expended in the support of certain poor persons whose legal settlement was in Pharsalia, on the promise, as it was alleged, of the defendant, in his official character of overseer of the last named town, that if the overseers of Norwich would provide such support, the defendant would pay them the amount…

The action was by husband and wife, to recover a farm claimed by the plaintiffs, in the right of the wife, as only child and heir-at-law of one Charles Harris. The cause was tried by jury, before Mr. Justice Shankland, at the Chenango circuit. A verdict was rendered for the defendant, and the judgment thereupon affirmed by the Supreme Court at general term.

<p>The defendant, Brown, was the owner of fifty acres of land in Hannibal, Oswego county, which, on the 4th of April, 1851, he sold and conveyed to one Jackson Earl, taking back from Earl a mortgage for $800 of the purchase money, but omitting at that time to put his mortgage upon record.</p> <p>On the 29th of October, 1851, Earl conveyed the land to the plaintiff by deed, which was duly recorded on the same day; and on the 28th of January, 1852, the mortgage from Earl to the defendant was put upon record. In May following the defendant commenced proceedings for the foreclosure of the mortgage by advertisement. This suit was commenced to restrain the defendant from proceeding with this foreclosure, on the ground that the plaintiff was protected by the recording act against the defendant’s prior but unrecorded mortgage.</p> <p>The cause was tried before a referee, who reported that he found as matter of fact “ that the plaintiff did not at the time he purchased the premises have actual notice of the existence of the mortgage mentioned in the pleadings, given by Jackson Earl to the defendant,” but also found that he had “ sufficient information, or belief of the existence of said mortgage to put him upon inquiry, before he purchased and received his conveyance of the premises in question; and that he pursued such inquiry to the extent of his information and belief, as to the existence of the said mortgage, and did not find that such mortgage existed, or had been given.”</p> <p>Upon these facts the referee held that the plaintiff was chargeable with notice of' the mortgage, and dismissed the complaint, and the plaintiff excepted to the decision. Judgment was entered for the defendant upon the referee’s report which, upon appeal to the general term of the fifth district, was affirmed.</p>

Moore filed his bill before the vice chancellor of the first circuit against Des Arts, stating the case m substance as follows : In February, 1844, the defendant im ported into the city of New-York 56,540 pounds of spelter, (a species of zinc,) on which the collector at the port of New-York exacted, and was paid by the importer, the sum of $585,40, for the duties, being twenty per cent ad valorem.

On error from the supreme court. Kinney brought assumpsit against Andrew Winter in the supreme court, and declared for money had and received to his use. The defendant pleaded the general issue, and the cause was tried at the New-York circuit, before Edmonds, circuit judge, in May, 1845.

Havens, late of Sag Harbor, in Suffolk county, died on the 25th June, 1839, and the parties to the submission are his son and daughters, the only children who survived him. In January, 1839, he executed Ms last will and testament, making various provisions, by way of legacy and otherwise, for the above named children and other persons. On the 7th April, 1839, Gabriel Havens, a brother of the testator, John T. Havens, died, leaving a last will and testament.

<p>Where the charter of a mutual insurance company authorized such company, " for the better security of its dealers,” to receive premium notes in advance, of persons intending to take policies, and to negotiate such notes for the purpose of paying claims or otherwise, in the course of its business, and to pay to the makers of such notes a compensation not exceeding five per cent, per annum, on so much of the notes as exceeded the premiums on policies actually taken; held, that a note taken by the company in pursuance of its charter for premiums in advance, was valid and effectual for the whole face thereof, although the premiums on insurances actually received by the maker, amounted to only a part of such note.</p> <p>It seems, that a note so given, is valid by force of the statute authorizing it to be taken, and therefore that a partial failure of consideration cannot be set up to defeat a recovery of the full amount.</p> <p>But if a consideration is necessary, the concurrence of others in giving similar notes for the purpose of giving a credit to the company in pursuance of an agreement entered into by all the makers, the contemplated advantages of insurance in such company, and the compensation authorized to be paid to the makers on such an amount as the notes should exceed the premiums on insurances actually taken, constitute a sufficient consideration to uphold such a note.</p>

This action was brought to recover for the use and occupation of a store, in Buffalo, by the defendant, from May 1st, 1851, to August 1st, 1851, which the complaint averred to be worth $375. It also averred that the defendant on May 1st, 1851, agreed to pay for such use and occupation $1500 per annum, payable quarterly.

On error from the supreme court. Morse sued Bogert in a justice’s court for money lent.

The defendant was convicted in the court of general sessions of the city and county of New-York, under the second section of the act to prevent the procurement of abortion, passed in 1845, and sentenced to imprisonment in the county jail. The judgment of the court of sessions was affirmed on a writ of error, by the supreme court, (see 2 Barb. Sup. Court Rep. 216,) which last decision the defendant removed by writ of error into this court.

<p>The plaintiff’s cart was struck by the car of the defendants, as the plaintiff was turning off from the track to the left. Held, that this of itself did not put Him in the wrong; the statute requiring carriages, when meeting in the highway, to turn to the right, has no application to the meeting of railroad cars with common vehicles in the streets of a city.</p>

<p>The prisoner was arrested by a constable, without warrant, on suspicion of being the murderer of his wife. The constable took him before the coroneq who was holding an inquest on the body of the murdered woman, by whom he was sworn and examined as a witness. Held, that his evidence thus given before the coroner, was not admissible on the prisoner’s trial for the murder.</p> <p>It seems that the sworn statements of a prisoner are admitted or excluded as evidence against him, not upon the ground of immunity or privilege, nor upon the consideration whether the rule forbidding a committing magistral' to examine, upon oath, the person charged with a crime has been violated but whether the circumstances of the prisoner, when examined, were sue) as to render his testimony reliable. A judicial oath administered when th mind is agitated and disturbed by a criminal charge, may prevent free an '1 voluntary mental action, and this is the reason for excluding evidence ths > given. '</p> <p>The meaning of the term voluntary, in reference to ccii'essions discussed, pt' Selden, J.</p>

Barron was indicted in the New-York general sessions for grand larceny, committed in that city. The indictment was removed into the New-York oyer and terminer, and tried there.. On the trial the district attorney offered to read in evidence against the defendant the deposition of James Whaley Bennett, purporting to have been taken de bene esse on the 27th of April, 1847, before the recorder of the city, pursuant to Stat. 1844, p. 476, § 11.

Error from the supreme court, where the action was debt, brought by Ruckman against Pitcher,' for money had and received contrary to the provisions of the statute against betting and gaming. The defendant pleaded nil debet, and the cause was tried at the New-York circuit held by Kent, circuit judge, in October, 1844.

This action was commenced by the plaintiff as the receiver of the St. Lawrence Bank, and was tried at the St. Lawrence circuit, before Mr. Justice Hand and a jury, in February, 1854, On the trial the following facts appeared..

Action by the sheriff of Delaware against Hubbell, as principal and the other defendants, as his sureties in a bond, conditioned that Hubbell should “ well and faithfully, in all things, perform and execute the duties of deputy sheriff without fraud, deceit or oppression.” The breach alleged was that Hubbell, the deputy,levied an execution upon property of one Rowley, sufficient to pay the same, and that he.subsequently permitted Rowley to use and convert the property, by…

The plaintiff brought an action against the defendant for wrongfully taking and converting an iron safe.

Error from the supreme court, where the action was assumpsit, tried at the Cayuga circuit before Maynard, J. in January, 1848. The plaintiffs claimed to recover the amount of a promissory note made by S. Warden and endorsed by the defendants, in these words: “ $600. Ninety days after date I promise to pay to the order of F. L. Griswold and E. A. Warden six hundred dollars for value received, at the Cayuga County Bank. Auburn, N. Y. January 30, 1848. S. Warden.

<p>Appeal from a judgment of the Supreme Court. The action was brought to recover damages for injuries sustained by the plaintiff while a passenger in a car upon the defendant’s railroad, at Chemung, in the county of Chemung, on the 4th day of July, 1853. The trial took place in February, 1854, before Mason, J. The plaintiff was in the hindermosc car of the regular train; and while that train was making the usual stoppage at Chemung, a special train of the defendant, running in the same direction, came upon and ran into the car in which the plaintiff was seated, breaking it up and injuring the plaintiff very severely. He was rendered senseless, was partially paralyzed, deprived of sensation in his limbs and received several internal injuries. At the time of the trial, seven or eight months after the injury, he was still unable to stand alone; and the opinion of several physicians, who were examined as witnesses, was, that he would never wholly recover, though they thought he might so far. improve as to be able to go upon crutches. No question was made as to the defendant’s liability, but only as to the rule and measure of damages. Upon that subject the judge charged the jury that the case was not one in which the law allowed vindictive damagesthat the plaintiff was entitled to recover the necessary expenses he had incurred for nursing and medical aid, tor the bodily pain and' suffering resulting from the injuries, and for being deprived of the use of limbs, whether total or partial, as the case might be; that they might take into consideration, in addition to the expenses, and the pain and losses already incurred and suffered, such as would naturally and probabl thereafter result to the plaintiff, as the direct consequence - of the injury. The defendant’s counsel excepted to the part of the charge in which the judge stated that the jun might award damages to the plaintiff for his bodily pain and suffering, resulting from the injuries he had received. The jury found á verdict for the plaintiff for $14,000, upon which a judgment was entered, which was affirmed at a general term. The defendant appealed. •</p>

Oisr error from the supreme court. John Chretien, on the 11th day of March, 1846, instituted proceedings before a supreme court commissioner, under the statute authorizing summary proceedings to recover the possession of demised premises.

<p>moved to dismiss two appeals. On the 1st of April, 1848, a decree in favor of Schermerhorn and others against the corporation was made by the supreme court in special term. The corporation applied to the court in general term for a rehearing; the motion was denied, and notice of the order denying the motion was served on the 19th of May. The corporation appealed from both orders to this court on the 24th of July.</p>

The complaint alleges that on the 4th day of July, 1851, the defendant made his contract in writing, and gives a copy, which is as follows: “For value received, I promise to pay to Henry Caruthers, or his wife Elizabeth, annually, on the first day of April, during the life of the longest liver of them, the sum of two hundred dollars, if called for or needed. “William Caruthers.” The complaint avers, that the contract is, and was prior to the first day of April, 1854, the…

moved to dismiss the appeal. The chancellor, on the 23d of June last, denied the appellant’s motion to vacate a decree which had been entered against him by default, and a further motion (if the first should be granted) to open the order closing the proofs. Notice of the order denying the motions was served on the 29th of June, and the appeal was taken on the 11th of July.

Appeal by the plaintiffs, under the fifth section of the j'udinary act of December, 1847, [Stat. 1847, p. 639,) from a derision of the supreme court granting a new trial to the defendant upon a bill of exceptions. The appeal was taken prior to me first dsy of July last, when the code of procedure took effect. Stat. 1848, p. 497.) said the court could not hear the appeal, as the provisions of the judiciary act on this subject were' repealed by the 388th section of the code.

On the 1st of April, 1848, a decree was made by the supreme court at special term, dismissing the bill of complaint. An application was made to the general term for a rehearing, which was denied by order pronounced on the 8th of May, but not entered and served until the 5th of July, 1848. On the 14th of July this appeal was taken, and was intended to conform to the provisions of the code of procedure, regulating the manner of bringing appeals.

This action was brought by the administrator of James Kerns, a minor of the age of twelve years, for the negligence of the defendants, who were druggists in Buffalo, in there cl erkes sellingand delivering to the mother of the boy morphine instead of quinine, for which she asked, and which was administered to the boy and caused his death. The trial was had at the Erie circuit, before Mr. Justice Bowen.

The bill in this cause was filed against Samuel Jones, John L. Graham, and The Fanners’ Loan and Trust Company, to foreclose a mortgage bearing date the 4th day of April, 1835, executed by Jones and Graham to John Walworth, as clerk in chancery for the first circuit. The Farmers’ Loan and Trust Company defended the bill, and the case, upon pleadings and proofs, was in substance as follows.

<p>Tins plaintiff brought his action in the Superior Court of New-York city; stating, by his complaint, that the defendants, in August, 1852, in consideration of $2586, assigned to him a judgment recovered by one Archibald Brown against Justus Wyman, at the Circuit Court in Montgomery county, Alabama, on the 5th March, 1838, for $6574.70, and which had before then been assigned and transferred to the defen dants. The terms of the assignment to the plaintiff were set forth in the complaint; and it was stated that," prior to the transfer of the judgment by Brown to the defendants, sums amounting to about $1000 had been paid thereon to Brown, which sums, with interest thereon from the time of payment, the plaintiff claimed to recover. At the trial, the plaintiff produced and proved a written instrument signed by the defendants, in which, after reciting the recovery and assignment to them of the judgment above described, and that the same was in the hands of George Goldthwaite, attorney, for collection, the defendants did thereby “ assign and transfer unto T. A. F. (the plaintiff), the said judgment and all sums collected thereon, and all securities for the same held as collateral by us, or said Goldthwaite, or any one else, for our benefit, and in case said judgment be now or in any manner discharged or transferred to any one else, we assign the proceeds or price of such settlement or sale.” The instrument further stated, that it was “ the intention of the assignors herein to substitute in their place the assignee herein mentioned, and to transfer to him all their rights to and growing out of said judgment, as fully, as they are now held and enjoyed by them; and the assignors warrant their title and power to convey the same only to the extent of the- consideration jtaid by the said T. A. F., assignee herein named.” The plaintiff then proved that prior to April 9, 1839, payments to the amount of $988.85 had been made by Wyman and received by Brown, the original parties to the judgment. This sum, with interest from April 9,1839, he claimed to recover, and rested. The defendants’ counsel moved to dismiss the complaint, on the ground that it did not state facts sufficient to constitute a cause, being the same facts as proved; and also that it wa* incumbent on the plaintiff to prove that the amounts sought, to be recovered in this action would have been collectable of Wyman after the assignment to the plaintiff, if they had then remained due on the judgment, on which subject no proof had been offered. He also claimed that the plaintiff was entitled to recover, if at all, only such a proportion of the sums paid on the judgment as the price paid for the assignment bore to the amount of the judgment, which would make about $362.14, with interest thereon. The jury, by consent of parties, found a verdict for the plaintiff for $2500, subject to the opinion of the court at general term, with liberty to the court to enter a nonsuit or judgment for defendants. Upon the hearing at general term, the court set aside the verdict, dismissed the complaint, and rendered judgment for the defendants, for costs. The plaintiff appealed to this court.</p>

<p>Where a railroad corporation voluntarily undertakes to convey a passenger upon its road, whether with or without compensation, if such passenger be injured by the culpable negligence or want of skill of the agents of the company, the latter is liable, in the absence of an express agreement exempting it.</p> <p>Where a passenger is carried gratuitously, the liability of the carrier, for an injury caused by gross negligence, arises not from any implied contract, but from the violation of a duty imposed by the circumstances. Per Selden, J.</p>

<p>The powev granted to the city authorities by the charter of Buffalo {Ch. 132 of 1843.133, title 5, § 4), to assess all taxable property, includes not only such as was then taxable by the general law of the state, but whatever should be made subject to taxation by any general statute afterwards to be passed. It therefore, includes rents reserved by leases in fee, or for a life or lives, or for more than twenty-one years.</p> <p>The statute (ch. 327 of 1846), making rents reserved by such leases taxable as personal estate, makes no discrimination between agricultural or city lands, nor in the taxation of city rents thus reserved is any made between taxes for county and state, and those for city purposes.</p> <p>Such rents are taxable, although less than twenty-one years of the original term remains unexpired at the time of the assessment.</p> <p>The cases of Livingston v. Hdllenbech (4 Barb., 9), and Le Couteulx v. Supervisors of Brie county (7 id., 249), approved, per Comstock, J.</p>

Joel Mallory and John Hunter filed their bill in the court of chancery against Levinus Vanderheyden and Lenchy his wife, stating the case in substance as follows : Between the 30th day of April, 1835, and the 6t,h day of December, 1837, the said Lenchy being during that period the widow of John J. Bradt and a feme sole, became indebted to the complainants in the sum of $2022,95, for goods sold and moneys advanced at different times.

The complaint in this action charged that the defendant, upon payment ofthe fare charged by it, received the plaintiff as a passenger upon its cars at Hornellsville, and undertook safely to convey him to Scio, in Allegany county; that it refused to do so, but on the contrary, by its agents and servants, with great force, and cruelty, ejected him from the cars, by means whereof his feelings and person were outraged and injured, his health endangered and his journey delayed.

<p>The defendants were partners, and as such contracted to receive and sell, on commission, a quantity of lumber to he forwarded to them by the plaintiff. Before it was all sold Briggs retired from the firm, and the business was continued by Vose on his own account. Held, That Briggs was jointly responsible with Vose to the plaintiffs for the proceeds of their lumber received by Vose after the dissolution.</p>

<p>Appeal from chancery. The bill in this cause was filed before the vice chancellor of the first .circuit, by Mary Marlin against her husband Norris L. Martin, and Samuel Richards, her trustee. The assistant vice chancellor of that circuit, before whom the cause was heard on pleadings and proofs, made a decree which was modified by the chancellor on appeal to him. By one of the provisions of the decree as so modified, the husband was declared to have a lien upon the real estate which was the subject of the controversy, to the'amount of §5000 and interest thereon, which had been paid in two sums of §2000 and §3000, upon a mortgage encumbering the premises. Mrs Martin appealed to this court. The material ."acts are stated in the opinion of the court as delivered by Wright, J.</p>

<p>Whore a grant for a valuable consideration is made to one person, and the consideration therefor is paid by another, no interest, legal or equitable, vests in the person paying the consideration, to which a judgment and execution can attach, but the statute imposes upon the legal estate in the hands of the grantee in the conveyance, a pure trust in favor of the creditors at the time of the person paying the consideration, which can be enforced in equity only.</p> <p>A husband paid the consideration for land, and the conveyance was taken to his wife. The. land was sold under an execution upon a judgment recovered against the husband, and the purchaser, having obtained the sheriff’s deed, brought ejectment. Meld, that the action was not maintainable.</p> <p>The case of Wait v. Day (4 Denio, 439), so far as it holds to the contrary, overruled, and Brewster v. Power (10 Paige, 562) approved.</p>

Ejectment, brought in the supreme court by Anna Olmsted against Asa Harvey, to recover an undivided fourth of fifty acres of land known as the mountain lot, situated in , the town of Austerlitz, county of Columbia.

The action was for the purchase money of land sold by the plaintiff to the defendant. The trial was had at the Tompkins circuit, before Mr. Justice Shaneland and a jury. One of the defendant’s witnesses had testified upon a former trial of the action, and the plaintiff gave evidence tending to show that the testimony of the witness on the former trial, in regard to the defendant’s ability to read writing, was inconsistent with that given by him on the present trial.

The cause was tried before a referee, who found that Oren Sage and Edwin Pancost, recovered against the defendant two judgments, amounting together to about $670, for the price of goods sold by Sage & Pancost to the defendant; and that the goods were sold upon the faith of representations made by the defendant that he was worth from $2500 to $3000, over and above the debts which he owed; that a house and lot owned by him, situate in Pembroke, Genesee county, was…

On error from the supreme court, where the action was ejectment, and the verdict and judgment were in favor of the lefendant. For a full statement of the case, together with the arguments of the counsel and the opinion of the supreme court, see the report of the case in that court, 2 Denlo, 9.

The action was on a policy of insurance against fire. On the trial the defendant proved a written application by the plaintiff for insurance upon his distillery, describing it as provided with a force-pump, to force water to tubs in the upper story, holding two hundred and twenty-five barrels.

This was an action of trover brought in the supreme court oy Butler and Vosburgh against Miller, for a number of horses, cattle and hogs, and a quantity of farming utensils, and other property. The cause was first tried before Cushman, late circuit judge, at the Columbia circuit, in September, 1843, when a verdict was had for the plaintiffs, which was set aside by the supreme court and a new trial ordered.

The action was commenced June 34, 1852, and was brought to foreclose a mortgage executed by the defendant Dunn to the plaintiff.

The action was brought to recover a penalty imposed by an ordinance of the common council of New-York, which requires the owner or occupant of every store or other building in which there is a hoistway to cause the hoistway on each story to be inclosed by a good and sufficient railing around the opening thereof, and to provide for the closing of such opening by a trap-door, and to cause such railing to be securely fastened up, and the trap-door to be closed, on the…

Error from the supreme court, where Cowell sued Ruck-man in trespass de bonis, &c. The cause was tried at the Albany circuit in October, 1844, before Parker, circuit judge, and a verdict had for the plaintiff. The defendant moved in the supreme court for a new trial on a bill of exceptions, which motion was denied by that court and judgment rendered-for the plaintiff. The facts are sufficiently stated in the opinion of Bronson, J.

Olí the tenth of August, 1837, the plaintiff and the defendant Samuel Newkirk, as executors of the last will and testament of James Halliday, deceased, conveyed to the defendant, David P. Corey, a piece of land in Montgomery county for $1,600, subject, however, to a mortgage thereon for about $635, and this action was commenced August 5th, 1817, in the Supreme Court, on the equity side, to obtain a sale of the premises, by virtue of the equitable lien, for the purchase price.

Henry Weidenvax and James Sutherland filed their bill in chancery, before the vice chancellor of the third circuit, against Anson Bingham, administrator of the estate of Jacob S. Van Burén, deceased, stating the case in substance as follows: On the 15th day of January, 1838, the said Jacob S. Van Burén applied to the President, Directors and Company of the Hillsdale and Chatham Turnpike Road, a body politic and corporate, to purchase certain real estate of which that…

<p>Under the charter of 1843 ( Chap, 132 of 1843), the common council of Buf- - falo were required to cause the damages sustained hy the owners of land adjoining a street, in consequence of a change of the ^rade thereof, to he assessed hy the same assessors, and in the same proceeding, as the expenses of working the grade and paving the street. Such expenses having been assessed and collected; Held, That the order of the common council for a subsequent and separate assessment of the consequential damages of the wners of lands upon the street, was absolutely void.</p> <p>An officer of the corporation, having levied and collected from the plaintiffs the sum imposed upon them by a void assessment, made for a purpose within the general powers of tho corporation, and for which the common council had authority to have levied an assessment in a regular way; Hddt that the corporation was liable to the plaintiffs in action of tort. Denlo, C. J., contra; Comstock and Bowen, Js., concurring.</p> <p>The provisions of the amended charter of Buffalo (Zímcs of 1853, 472), making it a bar to any action for the collection of any demand or claim that it has never been presented to the council for audit or allowance; or, if on contract, that it was presented without affidavit verifying the claim; Held, Not to extend to a demand arising out of tort. Denlo, C. J.,dissenting.</p>

Van Leuven sued Lyke and Dumond in a justice’s court and recovered judgment, which was affirmed by the common pleas on certiorari, and reversed by the supreme court on error. (See 4 Denio, 127.) The plaintiff brought error to this court. The case is sufficiently stated in the opinion of the court, as delivered by Jewett, ú. J.

On error from the supreme court. Richard W. Parmelee sued William H. Worrall, in July, 1846, before a justice of the peace, and declared in trespass for entering his close and cutting down and carrying away a field of rye. The defendant pleaded not guilty, and gave notice that he would show a license to enter from the grantor of the plaintiff, and that the rye was his property.

Covell sued Hill and Sapford in the supreme court, in trover, for 52,900 feet of pine lumber. The cause was tried at the Chemung circuit in May, 1844, when the jury found a special verdict, assessing the plaintiff’s damages contingently at $500, . on which the supreme court gave judgment for the plaintiff For a statement of the case and the opinion of the supreme court, see 4 Denio, 323. The defendants bring error to this court.

<p>In an action to recover from a stakeholder money deposited with him, by the plaintiff, upon a bet on a cock-fight, the evidence was that within fifteen minutes after the termination of the fight, the plaintiff told the defendant to “give up the money to Courtney (the other party to the wager); it was Courtney’s money;” Held, Error in the judge to submit to the jury, upon this evidence, the question whether the plaintiff directed the money to he paid over as money won upon the event of the cock-fight, or,whether, without regard to any wager, and as a voluntary gift or gratuity. He should have instructed them, as a matter of law, to find a verdict for the plaintiff.</p> <p>The submission by the Judge to the jury of an hypothesis wholly unwarranted by the evidence, is error for which a new trial will be awarded.</p>

On error from the supreme court, where Wilder recovered judgment against Pitts in an action on the case. The facts are stated in the opinion of Jewett, O. J.

Mandamus upon the relation of Sally Chase to the sheriff of Allegany county, requiring him to execute to her a deed of certain real estate, which he had sold upon execution, and to which she claimed… Held: under exception, that the relator had failed to maintain her action. The judgment entered against her was affirmed by the Supreme Court at general term, in the eighth district, and she appealed to this court.

This was an action .on the case brought in the supreme court by Gardner against Heart for an injury to three lots of land which the plaintiff claimed to own in the city of Troy. The defendant was the owner of a hill called Mount Ida in the vicinity of the lots, and the injury complained of was occasioned, as alleged, by the defendant carelessly and negligently undermining the hill, so as to cause a slide precipitating the earth upon the plaintiff’s lots.

Writ of error by Lyme to remove a judgment against him in favor of Ward and Goadby, in the New-York C. P. The writ of error was returned and filed with the clerk of this court on the 30th of June last.

The relator was mayor of the city of New-York. The complaint charged the defendants with usurping the offices and power of police commissioners, and heads of the police department of the city of New-York, and of head of police department in Brooklyn, with the usual averments and prayer for ouster, as in quo warranto.

On a bill filed by Van Dewater, a temporary injunction was issued, restraining the defendant from selling the property in controversy pending the litigation. In December last, after the defendant had answered the bill, the supreme court made an order dissolving the injunction; from which order the complainant appealed to this fcourt. moved to dismiss the appeal, on the ground that an appeal would not lie in such a case.

On a bill filed, a temporary injunction was granted restraining the sale of the property in controversy pending the litigation; Pending the suit, in September, 1847, the supreme court in special term made an order dissolving the injunction; which order was confirmed by the supreme court on a re-hearing in general term, in September last. From the order made at the general term the complainant appealed to this court.

The defendants made a motion before the supreme court in special term, for an order to compel one of the complainants to appear and submit to an examination before a master to whom the cause had been referred. The motion was denied. The defendants then applied to the supreme court in general term for a rehearing, which was denied in May last. From the order denying the rehearing the defendants appealed to this court.

moved to dismiss the appeal. Before and on the first day of July last a writ of error was pending in the supreme court, on a judgment of the common pleas affirming a judgment rendered by a justice of the peace, in an action commenced before him. On the 20th of July last, the supreme court, after argument, affirmed the judgment of the justice; and Grover appealed to this court from that determination.

<p>On error from the supreme court. Mary C. Felton, by her next friend Citarles T. Hicks, sued William W. Teall in a justice’s court, and declared in trover for converting one newspaper called the Michigan Expositor, of the value of six cents, and one newspaper wrapper of the value of six cents. The defendant pleaded the general issue, and the cause was tried by a jury. On the trial it appeared that the defendant was postmaster at the city of Syracuse; that the newspaper mentioned in the declaration came to that post office and was put into the box of Mr. Hicks, who demanded it of the postmaster in behalf of the plaintiff, and. tendered the newspaper postage thereon, being one and a half cents. There was an initial upon the wrapper, and for that reason the defendant refused to deliver it until letter postage, fifteen cents, should be paid. The letter postage was marked at the Syracuse post office. One of the clerks in the post office testified that it was the general custom to charge, letter postage on newspapers having on' them a single initial. The defendant in the course of the trial objected to the jurisdiction of the. court, which objection was overruled. After the plaintiff had rested, the defendant introduced in evidence a circular from the post office department as follows:</p> <p>“ To Postmasters. I am directed by the postmaster general to call your special attention to the multiplied and increasing attempts to violate the law and defraud the revenue by writing on the wrappers, margin or other portion of newspapers, pamphlets and magazines sent by mail. The cheap postage system has removed every reasonable excuse for violating or evading the law, and too much vigilance cannot be exercised by postmasters to detect and punish the offenders; and public sentiment, when well informed, will not fail to sustain you in the faithful discharge of this duty, which is as imperative upon you as any other. That frauds of this,kind may be detected and tracéd to their origin, you are particularly instructed to stamp or mark in writing any transient (by which is meant all not regularly sent to subscribers) newspapers, pamphlets or magazines, with the name of the office and amount of postage. The wrappers of all such newspapers, pamphlets or magazines, when they have reached their destination, should be carefully removed, and if. upon inspection, found to contain any manuscript or memorandum of any kind, either written or stamped, or by marks or signs made in any way, either upon any newspaper, printed circular, price- current, pamphlet or magazine, or the wrapper in which it is enclosed, by which information shall be asked for or communicated, except the name and address of the person to whom it is directed, such newspaper, printed circular, price current, pamphlet or magazine, with the wrapper in which it is enclosed, shall be charged with letter postage by weight. If the person to whom the newspaper, printed circular, price current, pamphlet or magazine is directed, refuses to pay such letter postage thereon, the postmaster will immediately transmit the same to the office from whence it was forwarded, and request the postmaster thereof to prosecute the same for the penalty of five dollars as prescribed by the 30th section of the act of 1825. Suits may be brought either in district courts or before state magistrates having civil jurisdiction in actions of debt for this amount • under the respective state laws. The name of the sender written or stamped either upon the newspaper, printed circular, price current, pamphlet or magazine, or the wnappev in which it is enclosed, communicates such information as subjects it to letter postage, and the consequential penalties, if such postage is not paid at the place of its destination.</p> <p>* The diminution of the revenue of the department under the iheap postage system, and the great and increasing demand for additional mail, facilities throughout the-country, whose territory now extends to the Pacific, render it absolutely necessary not only that every cent of lawful revenue be collected and accounted for, but that the utmost vigilance should be exercised for the prevention of fraud, and the sure and speedy infliction of the proper penalty upon the offender.</p> <p>This can only be accomplished by the strictest attention of postmasters, who are the sworn agents of the department, and bound to see the laws faithfully administered.</p> <p>Post Office Department, Dec. 4, 1846.</p> <p>W. J. Brown, 2d Assistant Postmaster General.”</p> <p>The jury gave their verdict for the plaintiff for six cents damages, on wdiich the justice rendered judgment. The common pleas of Onondaga county, on certiorari brought by the defendant, affirmed the judgment. The defendant then brought error into the supreme court, and that court sitting in the fifth district affirmed the decision of the common pleas. The opinion of the supreme court was delivered by Gridley, J. as follows •.</p> <p>• Gridley, J. We have no doubt that this action was properly brought in a state court. If a letter enclosing $1000 in oank notes, had been sent by mail to the post office in Syracuse, directed to the plaintiff, and had been withheld by the postmaster, unlawfully, after a tender of the postage chargeable bn the package, it is difficult to see why an action would notdie against the postmaster for a conversion of the money, in a state court. The injury is one for which the common law gives redress, and the party injured may seek his redress by the usual common law remedy, in any appropriate common law tribunal. The case is not one where the remedy is given by an act of congress, and is to be sought in the courts of the. United States. . So'too, we are of the opinion that the conversion .of a newspaper belonging to a citizen, authorizes an action of trover in the appropriate state tribunal, notwithstanding the party guilty of the conversion should be a postmaster. To justify such an action, however, the conversion should be clearly proved. The withholding of the paper should be shown to be without color of right, and the plaintiff should establish his title to it by unquestionable proof. This view of' the case brings us to the consideration of the. question whether there is any error apparent in the record for which we are authorized to reverse the judgment. This will depend upon the facts proved on the trial of the cause, or rather upon what we are bound to adjudge to be the facts of the case after the verdict of the jury.</p> <p>By the act of 1845, (Acts of 2d. Session of 28th Congress, p. 24, § 1,) the defendant was bound to charge with letter postage, not only letters in manuscript., but also “ a paper of any kind by or upon which information shall be asked for or communicated in writing, or by marks and signs,” <fcc. Now it is quite clear that an initial may be so placed upon a paper as to convey information, and precisely such information as was intended to be prohibited by the act. For instance, a friend whose initial is known to his correspondent who may be trav elling to a certain place, in Michigan, may thus communicate t. a distant person, the fact of his arrival. So also a distant, correspondent may, by a paper which in itself contains nothing of importance, on which is inscribed his initial, communicate the fact of his friendly remembrance and-recognition, and of h is own good health. There are cases, therefore, in which a postmaster may only be doing his duty under the act, in charging such a paper with letter postage. And chap. 58, § 426, of the regulations'for the government of the post office department, shows that' it is immaterial whether the writing, or sign, or mark is on the paper or the wrapper. We have no doubt that the above is a sound though a severe interpretation of the act, when we consider the object'for which it was passed, and the change in the phraseology from that employed in the act of 1825. But it is equally clear that an alphabetical character which would be an initial of some word or name, may often be found inscribed on .the wrapper of a newspaper made carelessly and with no definite intent, or which may have been upon the paper used as a wrapper before it was employed for that purpose. In such a case the initial .would be no evidence at all, that it was a mark or sign by which information was asked or communicated. Now we have no evidence in this return of the justice that this single letter was a capital letter; whether it appeared to be written by the same hand, or with the same ink and pen with the address on the wrapper, nor as to what, position it occupied on the wrapper. Nor have we any evidence, whatever, to show by circumstances or otherwise, whether it was probably written by the person who sent the paper, to communicate information, or not, For aught we know, it was written with a different ink and pen and hand, and was placed in such a position on the wrapper, as to indicate that it was there by. accident and not by intent. It is true that the evidence does not show that it was so, nor does it show to the contrary; and that is precisely the case where the law declares that every intendment and presumption is to be made in favor of and to uphold the verdict of the jury. If the facts are such as to indicate an intentional making of the letter by the same hand which wrote the address, that should have appeared on the return of the justice. (See 18 Wend. 141; 3 John. 435, 439; 2 id. 378.) The jury saw the witness and may have had opportunities to arrive at the truth, which we have not. Hence the difficulty of setting aside a verdict when there is room for controversy about the facts.</p> <p>We must hold, therefore, inasmuch as it may have been clearly an accidental mark, that the jury have found that it was so. This we feel bound to adjudge, while we can readily imagine that by means of a careless mode of trying the cause, or of an imperfect return, injustice may have been done to the defendant below.</p> <p>I. The act, on account of which this suit was brought, was done by the plaintiff in error as postmaster, and in the regular exercise of his duties under the laws of the United States and the regulations of the post office department. For any, even an erroneous, exercise of his duties as such postmaster he was not amenable to the tribunals of the state of New-York. The state courts had no jurisdiction over the subject matter of the suit. (Const. of U. S. art. 1, § 8; Post Office Laws of 1825 and 1827; Commonwealth v. Feely, 1 Va. Cas. 321; Sergeants Const. Law, 279; United States v. Lathrop, 17 John. 8, 9, 10; Story on the Const. §s 1124, 1632 ; McCullough v. The State of Maryland, 4 Wheat. 416; United States v. Cornell, 2 Mason's Rep. 60; Osborn v. Bank of U. S. 9 Wheat. 738 ; Slocum v. Mayberry, 2 id. 1; Federalist, No. 80.)</p> <p>II. In the absence of fraud or malice, which are not pretended or alleged in this case, officers required by the law to exercise their judgment are not answerable for mistakes of law or errors of judgment. (Drew v. Colton, 1 East, 563 and note; Seaman v. Patten, 2 Caines, 312; Jenkins v. Waldron, 11 John. 114; Vanderheyden v. Young, id. 160; Cunningham v. Bucklin, 8 Cowen, 185; Weaver v. Deavendorf, 3 Denio, 117.) The act complained of was in its nature judicial, and the cases cited show that the plaintiff in error was not liable therefor.</p> <p>III. The evidence on the trial clearly showed.that there was an initial on the wrapper of the newspaper when it came to the Syracuse post office; and it should have been decided as mater of law that the plaintiff in error, in imposing letter postage, lid no more than follow out the instructions from the post office department, and therefore that he was not liable.</p> <p>to sustain the jurisdiction of the state courts, cited Bruen v. Ogden, (6 Halst. 370, 377, 379, 381;) Wilson v. McKenzie, (7 Hill, 95 ;) Story on Agency, s§ 319, 319 a, 319 b, 320, 321, 322; Comp. 754; 1 Kent's Com. 386. On the merits he insisted that the question was one of fact purely, as to which the verdict was conclusive. (18 Wend. 141; 1 Hill, 61; 3 John. 435, 439 ; 2 id. 378.)</p>

This was an action of debt instituted in the supreme court by Jabez H. Gilbert against Stephen Luce, Gideon H. Wood-ruff Truman Wiman… Held: on a bond to save, defend and keep harmless the overseers of the poor and inhabitants of a town, of, from and against all costs, charges, rates, assessments, damages or expenses, by reason of the birth, education and maintenance of a bastard child, to be born, and of and from all actions, suits, troubles, damages and demands touching…

Palmer brought an action of covenant against Mott in the common pleas of Columbia county, in which court the cause was tried in October, 1846.

<p>Appeal from the Supreme Court. The defendant was sued, as the endorser of two promissory notes, signed Waller & Burr, for the payment of $150 each, to the order of the defendant. The action was tried before a referee, who found, as facts, that Waller & Burr were two married women, viz., Rachel M. Waller and Henrietta Burr, doing business as a mercantile firm in the city of New-York. That the promissory notes were signed by said Henrietta Burr, in the name of Waller & Burr, and were endorsed by the defendant, for the benefit and accommodation of Waller & Burr., and for the business carried on by them ; that said notes were transferred to the plaintiff before maturity, for a full and valuable consideration, but with the knowledge that the names of Waller & Burr, signed to the notes, were those of two married women. He further found that when the notes became payable, the presentation was made at the place of business of the said firm of Waller & Burr, to Mrs. Burr, and payment thereof refused, but in the absence of Mrs. Waller; and notice of non-payment was duly served on the defendant. The referee reported that the plaintiff was entitled to judgment, and the Supreme Court, at general term in the first district, affirmed the judgment rendered on his report. The defendant then appealed to this court.</p>

This action was brought in the former Recorder’s Court of Buffalo, against the defendant, as one of the firm of Smith & Warren, the other partner having been discharged under the bankrupt law of 1841. Upon the trial the following facts were proved.

<p>The endowment of a literary institution is not a sufficient consideration to uphold a subscription to a fund designed for that object.</p> <p>And although there is annexed to the subscription a condition that the subscribers are not to be bound unless a given amount shall be raised, no request can be implied therefrom against the subscribers that the institution shall perform the services and incur the expenses necessary to fill up the subscription.</p> <p>Accordingly, where the defendant subscribed ¡¡800 to a fund for the payment of the salaries of the officers of Hamilton College, and a condition was annexed that the subscribers were not to be bound unless the aggregate amount of subscriptions and contributions should be $50,000; held,, that there was no consideration for the undertaking and that no action would lie upon it, although there was evidence tending to show that the whole amount had been subscribed or contributed according to the terms of the condition.</p>

The action was tried before a referee, who found the following facts: The plaintiff was duly incorporated under the act of May 7th, 1847, providing for the incorporation of turnpike and plank road companies, its articles of association having been filed January 13th, 1850.

The appellants filed their bill in the court of chancery against the respondent, stating in substance as follows'.:. Charles Wilkes died in 1833, possessed of personal estate of the value of about $280,000, and also of a very large real estate, a part of which consisted of the house and lot Ho. 28 Laightstreet in the city of Hew-York.

Motion by the defendants to dismiss an appeal taken by the plaintiff, on the ground that the parties had, intermediate the judgment of the special term and the hearing of an appeal at the general term, stipulated that no appeal should be taken to this court.

<p>An appeal to the Supreme Court, at general term, from a decision of a judge upon a trial had before him, without a jury, must be upon a case containing distinct statements of the facts, as found by the judge, of the conclusions of law propounded by him, and of the several exceptions to his Sndings of fact and conclusions of law respectively, together with so much of the evidence as is necessary to a proper understanding of the question intended to be raised upon the appeal. It is not sufficient to refer to the decision of the judge, as contained in the judgment roll, for the conclusions of fact and of law, nor to any paper separate from, and not constituting a part of the case for the exceptions thereto.</p> <p>When an order, which the Court of Appeals has no jurisdiction to review, and the papers on which such order was granted by the court below, are incorporated in the appeal book, they will be stricken out upon motion.</p>

Motion by the plaintiff to dismiss an appeal. The action was brought in the Superior Court of Buffalo, to foreclose a mortgage executed by the present appellants and another person, to secure an indebtedness then existing, and also future advances to be, made by the plaintiff to the mortgagors ; and his complaint averred that a certain amount specified had become due and payable from the mortgagors to the plaintiff, according to the condition of the mortgage.

Abraham Aikin filed his bill in the court of chancery before the vice chancellor of the seventh circuit, against John Mathews and Oliver Orcutt, who appeared and defended, and against Edward Aikin, Avho suffered the bill to be taken as confessed.

Isr the first of these cases the plaintiffs had recovered a verdict, which, on appeal to the general term, was set aside, and a new trial was ordered in May, 1856. The cause had not been tried again, but was depending and ready to be so tried at the passage of the act of the last session, amending the Code in several particulars, and among others authorizing an appeal to this court, upon certain conditions, from an order granting a new trial.

The action was brought in the Superior Court of New-York, by the appellant and one Glould as plaintiffs, to recover damages against the defendants for taking down the division wall between the store owned by defendants on lot No. 20 Courtland-street, New^York, and the store on lot No. 18 on the same street, which adjoined the defendants’ store on the east, and was occupied by the plaintiffs under a lease from the owner.

On the 27th of September last Langley and Langley, as plaintiffs, recovered a judgment against Warner in the superior court of the city of New-York for $185.19. On the 2oth of October following, Warner gave notice of an appeal, and an undertaking was executed in pursuance of the 281th section of the code of procedure ; but there was no such undertaking as is required by the 283d section: and on that ground,

A. B. Ketcham, for the respondent, moved to dismiss the appeal. Floyd sued Bice before a justice of the peace, in August, 1847, and judgment was rendered for the defendant. On certiorari, the common pleas reversed the judgment. Bice then brought a writ of error, and the supreme court in May last affirmed the judgment of the C. P. Bice appealed to this court in November last, in the form and manner prescribed by the code.

Phillips sued Tilley in the supreme court, and was non-suited on the trial in November, 1846. The plaintiff took a bill of exceptions, upon the argument of which the supreme court granted a new trial in November last. From that decision the defendant, Tilley, appealed to this court, by giving notice of the appeal and executing an undertaking pursuant to the code of procedure. (§§ 275, 284.) The undertaking was not in the form of a bond.

moved to dismiss an appeal. Judgment for the plaintiff, Lawrence Clickman, was entered on the 22d of July last; and on the 19th of August following, the defendant gave notice of an appeal. The appellant had not caused the return to be filed; nor had he furnished copies of the case. objected that the affidavit on. which the motion was founded, and the notice of motion, both mentioned the wrong court. They began thus: “Supreme court.

Appeal by Herman Aldrich from an order of the Supreme Court, compelling him to complete the purchase of certain real estate at a public sale under the judgment in the above action. The action was commenced for the partition of real estate situate in the city of New-York, including that bid off by Aldrich, and the judgment in the action directed the real estate, sought to be partitioned, to be sold.