Volume 11 — Barbour's New York Supreme Court Reports

The plaintiff in error brought his action under the “ Act for the better security of mechanics and others erecting buildings in the city of New-York,” passed April 20th, 1830, commonly called the mechanic’s-lien-law.

Barnum & Co. sued Russel Childs in the superior court, in covenant, on an agreement signed and sealed by R. Childs, and of which the following is a copy : “New-York, May 13, 1845. In consideration of one dollar, to me in hand paid, I hereby guarantee to Barnum, Morris So McKnight, the payment of one hundred and seventy-eight -fh dollars in one year from this date, being the balance of William Smith’s account, as appears on their ledger. Witness, Samuel H. Jordan.

This cause was tried at the New-York circuit. On 1st Feb. 1838, one Hastings executed his bond to the defendant in the penalty of $584, conditioned for the payment to the defendant, or his assigns, of the sum of $292, on 1st February, 1843, with interest at 6 per cent per annum, payable half yearly. Two payments, viz., of $34,32 and $88, were made on 28th January, 1840, and indorsed on the bond.

In Equity. This was an appeal by the plaintiff, from a decree made at special term dismissing the bill of complaint. The bill was exhibited, in the late court of chancery, to enforce the reimbursement out óf the proceeds of the real estate of the defendants, of money advanced by the complainant, for improvements on such real estate, while he was their guardian of person and estate.

This was a case submitted to the court, by the parties, for its decision, without action, under section 372 of the code, upon the following statement of facts : In 1819 the canal commissioners, under and by virtue of, and in conformity with, an act of the legislature, passed on the 7th of April, 1819, entitled “ An act concerning the great western and northern canals,” in, behalf of the state entered upon and took possession of a certain piece of land now in the village of…

This was an action of ejectment, tried before Hon. S. Barculo, late circuit judge, at the Sullivan circuit, in May, 1847. The farm in question was occupied by the defendant, and contained 100 acres of land. It had been leased by the plaintiff to the defendant in 1828, by a perpetual lease; the rent reserved being eighteen pence an acre, payable the 1st of June of every year, with a clause of re-entry if the rent should remain unpaid for four months.

This action was commenced on the 16th of November, 1842, in the justices’ court of the city of Troy. It was an action of assumpsit for goods sold and delivered, and was tried under the plea of the general issue, and notice, and the plaintiff obtained judgment.

This was an action of trover for a horse. The conversion was stated to have been on the 14th of August, 1849, and the action was commenced before a justice of the peace, the week following. The plaintiff gave evidence tending to show that he was the owner of the horse, and that it was sold by an auctioneer, by order of the defendants on the 14th of August, 1849, and bid off by a stranger.

In Equity. The hill in this cause was filed in December, 1847, and prayed that the copartnership of Wm. Mowry & Co. might be declared dissolved; an account taken of the assets thereof; the respective rights of the parties to the suit be ascertained and settled; and that the property might be divided or sold, the proper persons joining in the conveyance, and the proceeds divided according to their respective interests. In 1806, Wm. Mowry and Wm.

In Equity. This case came before the court on exceptions taken by the plaintiffs to the report of a referee to whom it was referred to take and state the account between the parties, &c. The bill was filed for an account, and to compel the payment of whatever balance should be found due to the plaintiffs from the defendants. The defendants, in their answer, set up the defense of usury in the agreement under which the plaintiffs claimed to recover.

This was an appeal by tbe plaintiff from a judgment of non-suit entered at the circuit. The action was brought by the plaintiff, late sheriff of the county of Oswego, upon the bond given to him by the defendant Luce, his deputy, and the other defendants as sureties.

This was an appeal by the defendant from a judgment rendered by the Oneida county court, affirming the judgment of a justice of the peace in favor of the plaintiff.

<p>Although in pleading a bankrupt’s discharge hy a district court of the United States, the facts on which jurisdiction depends must be averred, yet when the discharge is offered in evidence, jurisdiction will he presumed, until the contrary appears.</p> <p>The circuit and district courts of the United States, are courts of limited hut not of inferior jurisdiction. If jurisdiction he not alledged in the proceedings, their judgments and decrees may he reversed for that cause, on a writ of error, or appeal; hut until reversed they are not nullities, and can not he disregarded.</p> <p>Although the bankrupt act makes the certificate of discharge evidence only when the discharge has been “ duly granted,” yet it need not first be shown that the requirements of the act have been complied with. The law will presume that the discharge was duly granted, until the contrary appears.</p> <p>The rule by which jurisdiction in fact is presumed, from its exercise, does not attach by reason of the situation or character of the parties to the litigation, but by reason of the character of the court by which the decree was gianted. And it is that character that gives efficacy to the decree, without proof of the preliminary proceedings to show the jurisdiction. Hence, whenever the decree is rightfully given in evidence due effect must he given to it, until it is shown that the court had not jurisdiction in the premises.</p> <p>A bankrupt, after his discharge, is a competent witness for the plaintiffs in an action brought by his sureties to avoid a note given by them and the bankrupt, on the ground of usury.</p> <p>To exclude the bankrupt as a witness, in such a case, it must he shown that at least there may he a surplus of his estate, to which he will he entitled. A surplus, and a consequent interest in the witness, will not he presumed.</p> <p>Where interrogatories for the examination of a witness were not settled by an officer of the court under the statute, hut were agreed upon by stipulation between the parties, and it was stipulated that the settlement of the interrogatories should he without prejudice to any valid objection to the competency of the witness; also to the admissibility in evidence of any entries in the hooks of the witness; also without prejudice to any valid objection on account of the immateriality of the first two cross-interrogatories; and with these reservations the interrogatories direct and cross were by such stipulation settled and were to he annexed to the commission; Held that by this stipulation the parties waived all objections to the form of the interrogatoies ; and that neither party could he allowed to make a mere formal objection, on the trial of the cause.</p> <p>The section of the revised statutes which reserves to the parties every objection to the competency or relevancy of any question put to, or answer given by, a witness examined upon commission, is not applicable to a case in which the parties have expressly stipulated and agreed upon the objections which are reserved, thus by implication waiving every other.</p> <p>Where a witness stated that at the time a particular transaction occurred he kept a cash book, in which he regularly entered all his cash transactions, and that the same was then before him, and produced to the commissioner, and in which the amount of money received by him from one of the parties was entered by him, and gave an extract from the book, containing that entry, and one immediately preceding and another succeeding it; Held that it was competent for the witness to refresh his memory by referring to, and examining such entry; and that it was competent for the party to prove by him how and by what means he refreshed his memory, with a view of ascertaining the reliance to be placed upon it; but that the testimony was not evidence of the truth of the matter contained in the entry, or upon the question of fact in issue.</p> <p>In an action brought to avoid a promissory note on the ground of usury, and to restrain a suit at law commenced thereon, the usurious contract must be substantially set forth in the complaint and must be proved as laid.</p> <p>Where a defendant in a suit at law has a defense of usury, which he can establish, by a competent witness, without a discovery from the alledged usurer, but is so situated that he can not avail himself of the testimony of that witness, in the suit at law, he may resort to a court of equity for relief, in order that he may examine such witness. He is not bound to rely upon the testimony of the alledged usurer, even though the latter has no legal interest in the event of the suit at law.</p>

This action was brought to recover pay for three,cows killed by the trains of cars on the defendants’ rail road while the trains were going west down the grade which carries the railway over the canal west of Canastota, as the plaintiff alledged, through the defendants’ negligence. The first cow was killed in September, 1845.

This was an appeal by the plaintiff from a judgment entered upon a report of referees. The action was brought to recover the value of provisions furnished to the predecessors of the defendants, as superintendents of the poor of the county of Jefierson, for the poor-house of said county. The referee denied a motion for a nonsuit, hut he finally reported in favor of the defendants.

The plaintiffs were warehousemen residing at the village of Ithaca. The defendants were merchants residing at the same place. In May, 1848, the latter purchased goods in thee city of New-York, and agreed with one Downer to ship them to Ithaca for the defendants, and delivered them to the said Downer for that purpose, in good order.

This was an appeal from the decision of the county judge of Tioga county, establishing the validity of a paper propounded as the last will and testament of Benjamin Smith, deceased. The facts will .be found sufficiently stated in the opinion of the court. The cause was argued by

This cause was tried by the court without a jury. Orville H. Mott, the plaintiff’s intestate, and Walter Mott, the defendant, were partners in the practice of medicine.

Demurrer to declaration. The declaration alledged that on the first day of December, 1847, the defendant was postmaster at the city of Rochester, and as such it became and was his duty, by force of the statute in such case made and provided, to advertise letters uncalled for at his office in the newspaper published at Rochester having the largest circulation; that there was at that time in said office a large number of letters uncalled for, which it was the duty of the…

<p>This was an action brought by the plaintiff to recover of the defendant a balance claimed to be due from the defendant for goods purchased by the defendant from the firm of Smith &. Lefferts, while the defendant was a member of that firm. The complaint alledged that the defendant was .indebted to the plaintiff on the 30th day of December, 1848, for goods, wares and merchandise, before then sold and delivered to the defendant, and interest thereon, in the sum of $488,05. For that on the 13th day of February, 1840, the defendant was an equal partner with one Andy L. Smith, in selling goods, &c. at Hornellsville, in the county of Steuben, under the firm and name of Smith & Lefferts, and on the said 13th day of February, the defendant, for a valuable consideration, sold, assigned and transferred all his interest in and to the property, goods, wares and merchandise and debts belonging to the said firm, to Philander Hartshorn ; and that at the time of such sale and assignment, the defendant was indebted to the firm of Smith & Leiferts for goods, wares and merchandise sold to the defendant by said firm, in the sum of $301. That said sum was then justly due from the defendant to said firm; and that one equal half thereof was, by such assignment, sold and transferred to said Philander Hartshorn, the other half belonging to said Andy L. Smith; and that on the 21st day of September, 1847, said Andy L. Smith, for a valuable consideration sold, assigned and transferred to said Philander Hartshorn all his interest in and to said sum of money and debt against the defendant, and on the 20th day of April, 1848, said Philander Hartshorn, for a valuable consideration, sold, assigned and transferred the said debt and claim to the plaintiff, who thereby became the sole owner thereof.</p> <p>An answer was put in, to which the plaintiff replied, and the cause was referred to a sole referee ; who reported in favor of the plaintiff for the amount of his claim, including interest; and judgment being entered for the plaintiff, at the special term, the defendant appealed.</p>

This was an action upon the guaranty of a promissory note. The note and guaranty were as follows: “ §140,00. By the first day of November next, I promise to pay to the order of John Thompson, at the Rochester City Bank, one hundred and forty dollars — value rece’d. with use. Geo. Silence. Rochester, April 18, 1848.” “ I hereby guarantee the payment of the above note. F. Silence.” The cause was tried at the Monroe circuit in October, 1849, before the Hon. Thomas A. Johnson.

This was an action Brought to recover the balance due on a promissory note, bearing date December 8, 1848, made by the defendants, payable to John Ooe, executor of Luther Carter deceased, or bearer, for $1033,88, with interest, upon which it was admitted the sum of $940,04 had been paid; and $155,94 was still claimed by the plaintiff, to whom the note had been assigned, as remaining due on the note.

This was an action of ejectment for dower. The plaintiff was the widow of George Lewis, deceased, and claimed her dower in certain lands of which said Lewis died seised, in the town of Reading, in the county of Stéuben, in the possession of the defendant, claiming to be owner.

The plaintiff moved for a new trial, upon a Mil of exceptions taken on the third trial of the cause. For reports of the case upon the former trials see 3 Denio, 157, and 4 Barb. S. C. Rep. 346.

This was an action to recover the possession of real estate. The complaint alledged that the plaintiff was the owner in fee of a part of lot No. 55 in Brutus, Cayuga county; and that while the plaintiff was the owner thereof the defendant entered into the possession of the premises and ejected the plaintiff therefrom.

<p>This action was brought by the plaintiffs, who are the widow and heirs at law of Andreas King deceased, for the redemption of mortgaged premises. On the 20th of September, 1841, Andreas King, together with his wife, executed a mortgage for $100 to one Silvernail, upon a piece of land which he then owned in Taghkanic, in the county of Columbia. He subsequently died,- and, after his death the mortgage was assigned to the defendant Christina. R. Duntz. After she became the owner of the mortgage, the premises were sold under a statute foreclosure, and she became the purchaser. Ho copy of the notice of sale was served on the widow, nor upon any of the heirs at law of Andreas King. These facts were admitted upon the trial. The cause was tried at the Columbia circuit in January, 1851, without a jury.</p>

In Equity. This was a motion to dissolve an injunction. On the 28th day of March, 1844, John Tifft 2d purchased of William P. Van Rensselaer several parcels of land in Stephen-town, in the county of Rensselaer. He received a conveyance of the land and executed a mortgage for nine hundred and fifty dollars, to secure a part of the purchase money. Upon this mortgage there was due, at the time this action was commenced, $650 besides interest.

This action was brought to set aside an assignment executed by the defendant, William Krows, to the defendants Frederick Krows, Peter P. Post and Charles H. Hommel. The assignment was executed on the 24th of October, 1848, and conveyed all the property of the assignor, both real and personal, not exempt from execution, in trust for the payment of debts.

Demurrer to complaint. The action was for a libel. The complaint stated that the defendants, being the editors and publishers of a newspaper called the Day Book, published of and concerning the plaintiff a libel in the following words: “ Corruption in Albany. The following extract is from a letter written from New-York to the Syracuse Star.

This case came up on a writ of error to the superior court of the city of New-York.

This was an action brought by the plaintiffs against the defendants on their guaranty, in writing, of certain inland bills of exchange, therein specified, amounting to $19,012,69, with all damages and costs that might arise or accrue by reason of the non-payment by the acceptors, or drawers, or indorsers, and waiving notice of demand and protest on any or all of said bills.

This was an action commenced May term, 1846, by the filing of a declaration pursuant to the statute, on a note to the plaintiff for $89 with interest, executed by the defendant Daniel M. Anderson as principal, and the defendant John Anderson as surety, payable eight months after date, and dated 20th April, 1842. The defendants severed in their defense, and each pleaded the general issue only, without any notice of special matter.

Writ of error to the New-York common pleas. This was an action brought by J. F. Cropsey against William H. Sharp, for board, lodging, &c. The defendant, by his guardian, pleaded infancy; the plaintiff replied, that the .board, &c., were necessaries suitable to the estate and condition of the defendant; the defendant rejoined, that they were not necessaries, &c. The case was referred to three referees, two of whom found in favor of the plaintiff for §330, the other referee…

This case came before the supreme court, on a writ of error to the superior court of the city of Hew-York. The defendant in error, John Brouwer, the receiver duly appointed-of the property &c. of the Croton Insurance Company in the city of New-York, brought an action of assumpsit in the superior court, against Cruikshank, the plaintiff in error, on a promissory note made by the latter to the Croton Insurance Company, for $5000. The defendant pleaded the general issue.

This was an action of replevin brought by the plaintiff against the defendants, for a quantity of pine boards and plank, sawed, which he alledged they wrongfully took and unjustly detained from him. The defendants pleaded separately. Harlow pleaded non cepit, and gave notice, that he would give in evidence, on the trial of the cause 1. Property in himself, and not in the plaintiff; 2. Property in the defendants, Harlow and Pier-son, and not in the plaintiff; 3.

This was an appeal by the defendant, Frederick W. Walker, from an order made at a special term, denying a motion to dissolve an injunction granted by a judge at chambers, to restrain the defendant Walker, and his co-defendants Orlando Fish, Benjamin P. Middleton and Luke A. White, from proceeding to dispose of the property of the defendants, Fish, Middleton and White, or either of them, under color of an assignment made by them to the defendant Walker.

This was a writ of error to the court of common pleas for the city and county of New-York, tested in July term, 1846, and returnable at the October term, then next. Catharine Lyon, executrix, and Epenetus C. Gray and John Wright, executors of the, estate of Moses Lyon, plaintiffs, brought an action against Mathew Marshall, defendant, upon promises, for $300.

This was an action of trespass brought by Starkins, the defendant in error, against Brinckerhoff, the plaintiff in error, in a justice’s court, for taking a quantity of oysters from Le Boy Bay, Long Island Sound.

This case came up on a writ of error to the superior court of the city of New-York, returnable at the May term, 1847, of this court.

This was an action of replevin, brought in the superior court of the city of New-York, by the plaintiffs against the defendant, who was sheriff of the city and county of New-York, for the taking and detaining twenty barrels of Zante currants. The defendant pleaded non cepit; and the issue thus joined was brought to trial in the month of October, 1847, before Oakley, chief justice, and a jury.

In Equity. This was an appeal by the defendants from a decree made by Justice Hurlburt, at a special term held in the' city of New-York, 13th March, 1848. The case at special term is reported in 2d Barbour’s Supreme Court Reports, 493.

Demurrer to replication in an action of debt on bond. The declaration alledged that the defendants, on the 18th December, 1844, executed a bond, by which they “ acknowledged themselves to be held and firmly bound unto the said plaintiff, the official or general assignee in bankruptcy, appointed and designated by the district court of the United States for the southern district of the state of New-York, under the rules and regulations of the said court, in the sum of one…

This was a motion, made upon a case, to set aside the report of a referee. The action was assumpsit, brought by the plaintiffs against the defendants, Dingman, Bodine and Martino, as composing the firm of Dingman &.

In Equity. This was an appeal from an order, made at a special term, overruling the demurrers put in by the defendant Charles H. Carroll, to the amended bill of complaint of the complainant Daniel J. Carroll.

This was an action brought by the plaintiff, an infant, by his next friend, against the defendant, for breach of covenant, for not having taught the plaintiff, who had been bound an apprentice to him, the trade of a cabinet maker. The facts of the case are sufficiently stated in the opinion of the court.

This was an appeal brought by the plaintiff, upon an order made at a special term, granting a stay of proceedings, on the motion of the defendants, who were sued in this court, as bail for a party who was arrested in an action on contract, brought in the New-York common pleas, for money only. The arrest was ordered, on affidavits showing that the defendant, in the original action, had been guilty of a fraud in contracting the debt on which the suit was brought.

This was a writ of error to review the judgment of the superior court of the city of New-York, on certiorari to the marine court of that city.

This was an appeal, by the plaintiffs, from a judgment rendered in favor of the defendants, Charles J. Richards, James A. Fleury and Henry B. Richards, on the report of a referee.

<p>This was an appeal by the defendant, William Kent, from the whole of the judgment entered on the report of the referee appointed in this case. The plaintiff, Eliza Hone, wife of Isaac S. Hone, by her next friend, Frederick Anthon, filed her complaint against William Kent, executor of the last will and testament of James Kent, deceased, praying that the executor might come to an account with her, of the one equal fourth part of the net proceeds of the sixth edition of the testator’s work, entitled “ Commentaries on American Law,” to which she claimed to be entitled, according to the sixth item of said will. All others interested in the will were made parties defendants, and put in their respective answers. The bill set out the will in extenso, but all the portions of it material in the decision of the questions involved in this action are sufficiently stated in the opinion of the court. The death of the testator on the 12th of December, 1847, after having made his will, and leaving the same in full force, uncanceled and unrevoked, was stated in the bill. The answer of the defendant, William Kent, the executor, admitted the making of the' will, and the death of the testator afterwards, leaving the will uncanceled and unrevoked, as stated in the bill; but claimed, that the surplus proceeds of the said sixth edition of said Commentaries, were, as he was advised, to be disposed of according to the provisions of the eighth, instead of the sixth clause of said will. The cause was, by consent of parties, referred to a sole referee, who reported that the plaintiff was entitled to an immediate payment of one-fourth of the net proceeds of the sales of the sixth edition of Kent’s Commentaries, according to the provisions of the will set forth in the complaint in the cause,, and that the defendant, William Kent, should account for and pay over to the' plaintiff, such her one-fourth part of said proceeds, viz. the sum of $767,19; and the one-fourth part of all such profits as should thereafter accrue from the said sixth edition. And that the defendant, Mary Kent Stone, was entitled to recover in like manner. And that none of the parties to the action were entitled to costs, as against any other party thereto.</p>

<p>This was an action for the recovery of real estate. The facts appear in the opinion of the court.</p>

Motion by the defendant, for an extra allowance for costs, after a demurrer to the complaint had been allowed. The facts are detailed in the opinion of the court.

This cause originated in a justice’s court in Delaware county, where the plaintiff recovered. It was taken by appeal to the county court, but. the county judge being related to one of the parties, it was transferred to this court. The defendant was a constable, and having in his hands an execution against the property of one Murphy, he levied on a horse, and advertised it for sale.

This case was heard upon exceptions to the report of a referee to whom it had been referred, to ascertain the priorities of the several claims to the surplus moneys arising from the sale of the mortgaged premises in this cahse, and who were entitled to such surplus moneys. The surplus moneys amounted to $315,61.

On the 20th of-'March, 1851, an order was made appointing Gilbert L. Wilson, Esq., a referee in this matter, with directions to inquire and report in relation to certain matters, and, among other things, to take and pass the accounts of Albert D. Robinson, as master and receiver of the estate of the late James Gibbons, deceased, the husband, in his lifetime, of Esther Gibbons.

This was an appeal by the plaintiff from a judgment entered at a special term, by a justice of this court, upon a special verdict. The action was brought against the defendant, as executor of Tobias Stoutenburgh, to recover the amount of a promissory note made by the testator, for $275,61, payable to one Schultz, or bearer, and of which the plaintiff had become the owner.

This was an action on the case for damages to the plaintiffs’ mill and other property, situated on the Chittenango creek, in the county of Madison, and was tried at a circuit court held in that. county in December, 1849, before Mason, justice. The plaintiffs were the owners of a saw mill on the west side of the Chittenango canal, which was used as a feeder to the Brie canal' at Chittenango. The mill was supplied with water from the Chittenango creek.

This was an action of replevin, in the detinet, to recover a quantity of clover seed. The action was brought by and in the name of Rial Wright, but upon his death, after the trial of the cause, the present plaintiff, who claimed as assignee, was by order of the court, substituted as plaintiff on the record. The cause was tried before Hon. Hiram Gray, at the Onondaga circuit in October, 1848.

This was an action of trespass, for damages to the plaintiffs’ mill, situated on the Chittenango creek, in the county of Madison, and was tried before Mason, justice, at the Madison circuit in December, 1849.

This action was commenced in September, 1849, before a justice of the peace of Montgomery county.

This action was brought in a justice’s court, in March, 1849, by summons. The plaintiff declared, for that he was in possession of the premises bounded* by streets on two sides, and that he was in the constructive possession to the centre of each street, subject only to a public easement; that the defendant wrongfully came upon the side walk of the plaintiff, and there remained, using offensive, vulgar and vile language towards the plaintiff, and refusing to depart.

This was an action to recover the undivided half of about thirty-five acres of land, situate in the town of Johnstown, in the county of Fulton. The plaintiff’s title was derived by descent from his mother Catherine Reid. It was proved that in 1885 the said Catherine Reid was found a lunatic, by inquisition, and Thomas Reid was duly appointed by the court of chancery, committee of her person and estate.

In October, 1848, Hewitt sued Watkins in a justice’s court, for the amount found by the fence-viewers of the town of Charlton, in the county of Saratoga, to be due to him. The complaint stated that for several years past the plaintiff and defendant had been and still were the owners of land adjoining to each other, in Charlton; that the defendant suffered his land to lie open, and the plaintiff, in 1840, at his own costs and expenses erected the division fence between them.

This was an action of ejectment, commenced on the 25th February, 1848, to recover possession of two several parcels of land in the town of Whitehall, in the county of Washington. The declaration contained several counts, and the plea was the general issue ; and no question arose upon the pleadings. The cause was tried before Willard, justice, at the December circuit, 1849, in Washington county.

This suit was originally commenced before a justice of the peace, and dismissed by him on a plea of title, &c. The action was commenced in this court, May 25th, 1849, and tried before Mr. Justice Cady, at the Saratoga circuit in February, 1850, when a verdict was given for the defendant.

This was an appeal from a judgment entered on a report by a referee.. The suit was brought by the plaintiffs, assignees of A. & B. Leonard, for the balance of an account claimed to be due from the defendant to A. & B. Leonard, which had been assigned to the plaintiffs. It appeared on the hearing that the assignment to the plaintiffs was for the benefit, generally, of the creditors of the Leonards.

Motion by Ross to set off two judgments against each other, originally recovered in a justice’s court. Ross had a judgment against Hicks, on which a horse had been sold. Hicks sued Ross for the horse and recovered, on the ground that it was exempt from levy and sale. The following is the substance of the affidavits. On the part of Ross, two of the jurors in Hicks v. Ross swore they gave a verdict for the value of the horse.

This was an appeal by the defendant from a judgment of the county court of Lewis county, affirming the judgment of a justice of the peace in- favor of the plaintiff.

The complaint alledged that in the year 1846, the plaintiff, Catharine Lounsbury, wife of Henry Lounsbury, being in the possession of some-money which had been received by her from the estate of her deceased father and grandfather, and in the expectation of further receipts from the same source, she was induced to invest the same in the purchase of a house and lot, consisting of three acres of land, situate at Ossening, in the county of Westchester.

This was an action of ejectment, tried at the Rensselaer circuit in October, 1849, before Justice Wright. The plaintiff claimed to recover by virtue of a title obtained at sheriff’s sale under an execution issued on a judgment recovered on the 29th of December, 1841, in the supreme court, in favor of Sylvester Van Valkenburgh, against Morgan Harris and Orry G. Harris.

This was an action of replevin for the wrongful detention by the defendant of a quantity of corn. The defendant pleaded non-detinet, and a special plea of property in himself, and gave notice that he had a lien, as a common carrier, upon the property in question, for the carriage and transportation thereof. The cause was referred to Amos Dean, Esq. sole referee.

This was a motion to set aside a report of referees, on the ground that on the trial, one of the referees was sworn and examined as a witness by one of the parties, the other party objecting.

• Demurrer. The plaintiffs stated in their complaint, that the action was brought as well on their own account as on account of the other legatees of Mary McKay, deceased.

The action was trespass, for taking &c. four mules and the harness for the same, one wagon, four halters, one pair of bark sleds, two bags and six bushels of feed. It was tried before Mr. Justice Watson, at the Ulster circuit, in December, 1848. Upon the trial, the plaintiff proved that the defendant, who was a constable of the town of Wawarsing, took the property on the 11th of February, 1848, out of the possession of his agent, and afterwards sold it.

This was an action to recover damages for unlawfully entering upon the plaintiff’s land and cutting and carrying away timber. It was tried at the Sullivan circuit, in September, 1850, before Mr. Justice Watson.

This was an action of trespass for taking and carrying away a span of horses, sleigh and harness. It was tried at the Greene circuit in June, 1850, before Mr. Justice Wright. The property in question, with other property, was taken by the sheriff of Greene in January, 1847, by virtue of a writ of replevin issued by the plaintiff in this suit against the defendant Gray and two others.

Demurrer. The plaintiffs alledged that James Jenkins, late of Hew Paltz, in the county of Ulster, died in January, 1845, having previously made and published his last will and testament, wherein he appointed the plaintiffs and the defendant executors ; that the will was proved, and all the executors took upon themselves the burden of its execution; that an inventory was filed on the 12th of June, 1845; that the defendant was indebted to the testator, at the time of his…

<p>This was an action brought by the plaintiff to recover of the defendant the sum of $136,40, being the surplus moneys upon a mortgage sale, received by the defendant’s attorney, and which the plaintiff- claimed as belonging to him. The defendant, by his answer, claimed a right to retain the surplus moneys by virtue of another mortgage for $86,23, upon the same premises, executed by the plaintiff, and which was due and unpaid. The cause was tried before Mr. Justice Mason at the Chenango circuit on the 8th April, 1851. On the 4th December, 1846, the plaintiff executed two mortgages on the same .premises, one to William G-. Sands for $221,56, which was assigned to the defendant on the 25th June, 1849, payable in nine equal annual installments, with interest annually on all sums unpaid, first installment to become due 4th December, 1847. The other mortgage was payable to the defendant for $86,23, with interest annually from date, to be paid in three equal annual installments, the first installment to become due 4th December, 1856. The mortgage given to Sands was foreclosed by statute foreclosure, and the premises were struck off to Ira B. Merrill by the auctioneer, on Saturday the 5th January, 1850, at three or four o’clock P. M., for $431,50.</p> <p>The plaintiff claimed the surplus moneys after paying the Sands mortgage and the costs of foreclosure, while the defendant claimed that they should be applied on the mortgage for $86,23, payable to himself, which he presented to the auctioneer for the purpose. On the trial the defendant asked the judge to charge the jury that he was entitled to have the surplus moneys applied upon his mortgage, but the judge charged that the defendant was not entitled to have the surplus so applied ; to which charge the defendant excepted.</p> <p>The two mortgages were not only given at the same time but were both given for the purchase money. The mortgage of smaller amount given to the defendant, contained a clause giving a prior lien to the Sands mortgage, in consideration that Sands had held a judgment which was a lien on the land before the mortgages were given and which judgment was cancelled upon the giving of said mortgages. The jury found a verdict for the plaintiff for $137,21, and judgment was entered for that sum.</p>

This cause was tried at the Chenango circuit, in September, 1850. The suit was commenced March 23d, 1850, on a promissory note given to the plaintiffs January 12,1839, for $133,24, and signed by the defendant’s intestate, Marshal Downing. The defense was the statute of limitations. The facts relied upon to take the case out of the operation of the statute were, that the maker died March 6, 1840.

The questions in this case arose upon a demurrer to the complaint.

The question in this case arose upon a demurrer to the complaint. The action was upon a promissory note bearing date the 16th of January, 1850, payable six months after date. The only cause of demurrer relied upon was that it was not averred and did not appear in and by the complaint that the note had become due at the time of the commencement of the action.

Demurrer to complaint. The complaint alledged that in June, 1845, the plaintiff intermarried with Mary Ann Patterson, who was seised in fee of certain lands described in the complaint, situate in Erie county. The defendant used and occupied the land, with the permission of the plaintiff and his wife, during the coverture. The wife died in May, 1847.

Demurrer to answers. The action was ejectment, to recover dower in certain premises described in the complaint as land situate in the city of Buffalo, bounded easterly by Washington-street 263 feet, southerly by Swan-street 200 feet, westerly by Main-street 263 feet, and northerly by South Division-street 200 feet.

This was an action of assumpsit, tried before the late Hon. Seth B. Sill, at the Brie circuit, in September, 1850. The declaration was for refusing to transfer, or permit the transfer, of certain shares of the defendant’s stock to the plaintiff, on its books. The defendant pleaded the general issue. The certificates of stock were in the following form : “Ho 314. Commercial Bank of Buffalo.

This action was originally commenced before a justice of the peace, upon a subscription by the defendant for $50 of the capital stock of the Alleghany and Erie Telegraph Company, upon which he had paid $5. Judgment was rendered in favor of the plaintiffs, for $45. From this judgment the defendant appealed to the county court, which reversed the judgment of the justice. The plaintiffs then appealed to this court.

In May, 1847, an agreement was made between one Perry and the defendant, by which Perry was to sell a farm then in Porter’s possession to Porter, for $1000, and Porter was to purchase the farm, provided a certain mortgage upon it should be paid.

Demurrer to complaint. The complaint alledged that the plaintiff was the owner in fee of a farm of 110 acres; that the fee, title, and inheritance were, have been and are in the plaintiff. subject to the life estate of Ebenezer Rodgers; to whom, in September, 1845, he leased and demised the premises for and .during the natural life of E. Rodgers; that E. Rodgers had been from that time and still was in possession under the lease.

This cause was tried before Mr. Justice Hoyt at the Niagara circuit, in February, 1850, and a verdict was rendered for the plaintiffs for $2082,TO. The defendants tendered a bill of exceptions, and now moved for a new trial' thereon.

The commissioners of highways of the town of Gaines in the county of Orleans, on previous notice to the appellant, made application to the county court of said county, on the first Monday of January, 1851, for an order to alter or change the location of the toll-gate of said appellant, in pursuance of section 37 of the act of 1847 for the incorporation of plank road and turnpike road companies.

The plaintiff declared on a promissory note of which the following is a copy: “ For value received I promise to pay to the order of F. U. Fenno one hundred and fifty dollars with interest, by the first day of December next. Dated May 9, 1845.” The complaint alledged that F. U. Fenno sold and delivered said note to the plaintiff before it was due, for a full and valuable consideration.

Johnson sued the defendant, a railroad company, in a justice’s court, in the county of Tioga, by long summons.

This action was brought on a policy of insurance, dated the 8th day of June, 1848, by which the defendants insured the plaintiff for five years, against loss or damage by fire, to the amount of $2000, on “ her grist mill in the town of Madison, and shed adjoining, and tools and machinery therein.” On the 19th day of July, 1850, the property was destroyed by fire.

This was an action brought to recover the amount of a promissory note given by the defendant, of which the following is a copy : “ §40. For value received, I promise to pay Margaret Horton or bearer, forty dollars, one year from date, with use. Dated South Bainbridge, May 14,1845. (Signed) John Van Orsdale.” The action was tried before Robert 0. Reynolds, Esq. the referee, and a report made therein finding due to the plaintiff $58,25, on the 6th day of January, 1852.

This was a motion to set aside a nonsuit, granted at the Chemung circuit, in June, 1849; and the only question to be determined was whether the evidence given by the plaintiff was sufficient to connect the defendant with the taking or detaining the goods of the plaintiff, for which the action was brought. The facts were these.

This action was brought upon two promissory notes, made by Loucks & Gray, payable three months after date, to the order of Peter G. Loucks, and indorsed by him and the defendant, Seymour E. Marsh; the one note payable at the Bank of the State of New-York, in the city of New-York, for $1000 ; the other payable at the Montgomery County Bank for $800. The notes were dated May 2,1848.

This cause was originally commenced in a justice’s court, where the plaintiff complained that on or about the 26th of November, 1849, he was the owner of, and had in his possession, a certain bay or sorrel mare, of the value of $30, which after-wards came into the defendant’s possession without the consent of the plaintiff, and that the defendant refused to deliver the said horse to the plaintiff; wherefore he demanded judgment for $30.

This was an appeal from a judgment rendered by the county court of Seneca county, upon an appeal from a judgment of a justice of the peace. It appeared- by the return of the justice, that the summons, by which the suit was commenced, was as follows : “ Seneca county, ss. To any constable in the said county, greeting.

This case came before the court by appeal from a decree or order of the surrogate of the county of Cayuga, admitting to record and probate, an instrument propounded as the will of Israel Mead, deceased.