Volume 11 — New York Reports

ordered at circuit. (Reported below, on first trial, 6 Lansing, 430.) This action was brought to recover damages for the death of plaintiff’s testator, John Dougan, alleged to have been occasioned by defendant’s negligence. The facts appear sufficiently in the opinion. The evidence authorized a finding that defendant’s negligence caused the accident. (Simpson v. Lond. G. O. Co., L. R. [8 C. P.], 390 ; Gee v. Met. Railway, L. R. [8 Q. B.], 161 [Ex.

<p>The fact that an adequate consideration was paid by the vendee upon a sale of goods, unaccompanied by immediate delivery and actual and continued change of possession, is not conclusive evidence that the sale was made in good faith and without an intent to defraud the creditors of the vendor.</p> <p>Plaintiff claimed title to a stock of goods under an alleged sale to him by Gr.; evidence was given tending to show, that there was a merely colorable, not an actual change of possession; that the vendor was at the time of the sale insolvent, and that his creditors were pressing for payment; also, that the sale was not in the usual course of business, but was of the vendor’s whole stock, to one engaged in other business and unacquainted with the value of the goods or the business pur chased, who bought at the solicitation of a relative of the vendor; ■ that it did not appear there were any prior negotiations or inventory made, or that the vendee took any means to ascertain the value. The alleged consideration was $1,000. Evidence was given tending to show that the whole value of the property did not exceed $500. Held, that the question of the bona fides of the transaction was one of fact for the jury, and that a direction to them to find a verdict for the plaintiff was error.</p>

The complaint was upon a policy of insurance dated May 1, 1848, by which the defendants insured one Alexander Kelsey for whom it might concern, for ten thousand dollars upon the steam propeller Ontario, valued at twenty thousand dollars, for one year from the 20th April, 1848; to run upon the lakes and the river St. Lawrence.

<p>Appeal from the Supreme Court. This was a controversy touching the validity of two alleged codicils to the will of Henry Parish, deceased, propounded by Joseph Delafield, an executor, before the surrogate of New York, and rejected. Susan M. Parish, the decedent’s widow, the principal beneficiary in the contested papers, appealed pro interesse suo. Joseph Delafield, the executor, also-appealed.</p> <p>The will is dated September 20, 1842. The first alleged codicil is dated August 29, 1849 ; and it was re-executed December 17, 1849. There was no legal question before this court as to either of these papers. The surrogate allowed them both.</p> <p>The, respondents, James and Daniel Parish, the brothers of the testator and residuary devisees and legatees in the will, supported that instrument before the surrogate, and contested all the alleged codicils. But, as the first alleged codicil affected real estate only, there was no appeal on their part. ^</p> <p>The second alleged codicil is dated September 15, 1853. The third alleged codicil is dated June 15, 1854. The surrogate rejected both of these papers.</p> <p>The testator died March 2, 1856. Joseph Delafield, as one of the executors, propounded the whole four instruments, March 6, 1856. The surrogate’s decision was entered December 17, 1857.</p> <p>Joseph Delafield, the executor and proponent, and Mrs. Parish, the widow, appealed to .the Supreme Court from the rejection of the last two codicils, February 27, 1858.</p> <p>The Supreme Court, at a general term held in New York, December 31, 1858, before Davies, Ingraham and Suther. LAND, Js., affirmed the decision of the surrogate,- so far as it was appealed from by Joseph Delafield or Susan M. Parish.</p> <p>Susan M. Parish and Joseph Delafield then took separate appeals to this court, June 30, .1859. The appeals were heard in this court in January, 1861.</p> <p>A re-argumént was ordered at the summer term. James Parish, one of the brothers and residuary legatees, died in April, 1861. Susan M. Parish, the widow, died in June, 1861. Due proceedings were had in this court, by which Mrs. Parish’s appeal was revived on behalf of her sole acting executor and her devisees; and both appeals were revived against the executors and heirs of James Parish, deceased.</p> <p>Henry Parish, the testator, was a wealthy and respectable New York merchant, of competent education and high intelligence. In September, 1842, he made his will, arranging its details in numerous private consultations with Charles Gr. Havens, Esq., one of the law firm usually employed by him.</p> <p>He was then aged fifty-four - years: his wife was aged thirty-seven. They had then been married thirteen years. There never was any issue of the marriage. His estate was then about $730,000. His next of kin were his brother, James Parish, then having six children, his brother Daniel Parish, then having seven children, his sister Ann Parish, unmarried, then aged fifty-two years, and his sister Mrs. A. M. Sherman, then having one child.</p> <p>The dispositions of the will are as follows: he gave to his wife,</p> <p>His leasehold family dwelling house, 49 Barclay</p> <p>street, H. Y., valued at..............;...... $18,000</p> <p>His leasehold house, 88 Chambers street, H. Y.,</p> <p>valued at................................... 5,000</p> <p>His store, 54 Pine street, N. Y., valued at....... 30,000</p> <p>His store, 160 Pearl street, N. Y., valued at____ 20,000</p> <p>His 4 vacant lots in Hew Orleans, valued at..... ' 40,000</p> <p>His furniture and household stuff, wines, silver, &c.,</p> <p>valued at........................i........ 10,000</p> <p>The income of this sum with power of disposal by</p> <p>will, valued at............................ 200,000</p> <p>$331,000</p> <p>To his nephew and namesake Henry Parish, the son of his.brother Daniel, real estate in Hew</p> <p>York, valued at........................... 35,000</p> <p>To his cousin and namesake Henry Parish Kernochan, the son of his friend, Joseph Kernochan,</p> <p>real estate in Hew York, valued at........... 20,000</p> <p>To his namesake Henry Parish Oonrey, of Hew</p> <p>Orleans, the son of a former partner, valued at. 5,000</p> <p>To his two sisters, Miss Ann Parish, an elderly maiden lady, and Mrs. Allen M. Sherman, $20,-</p> <p>000 each,..........................i...... 40,000</p> <p>To Mrs. Payne, his wife’s aunt, an annuity of</p> <p>$1,000 per annum, valued at................ 5,000</p> <p>To each of his five executors, as a personal gift,</p> <p>$10,000,.................................. 50,000</p> <p>$486,000</p> <p>If his estate should prove sufficient, he further gave a legacy of $10,000 to' each of the following persons:</p> <p>7 children of his brother Daniel Parish,</p> <p>6 children of his brother James Parish,</p> <p>His cousin Mrs. Joseph Kernochan,</p> <p>His cousin Mrs. Abeel,</p> <p>His brothers-in-law Dr. Edward Delafield and Major Richard Delafield,</p> <p>One sister and three sisters-in-law of his wife,.... $210,000 Total,............................. $69.6,000</p> <p>The residue he gave equally to his brothers James and Daniel Parish, or the survivor of them, and the issue of the other.</p> <p>Immediately after the residuary clause, the will proceeds as follows:</p> <p>“ It is my intention that all the property, real and personal, that I may own or possess at the time of my decease, shall pass, under this will, whether the same be now owned or possessed by me or may be hereafter acquired by purchase, descent, distribution or otherwise.”</p> <p>He named, as executors, Daniel Parish, Joseph Kernochan, Joseph Delafield, Henry Delafield and William Delafield.</p> <p>-This will was made immediately prior to a visit to Europe for the purpose of recruiting his health, and for pleasure or recreation. At this time, the testator had finally retired from general business as a merchant ; but he was continually engaged in the improvement and increase of his estate by making investments with a view to profit. He survived the date' of the will about fourteen years: For the first seven of these years, his usual - pursuits were not interrupted.</p> <p>On July 19th, 1849, at mid-day, whilst transacting business in Wall street, N. Y., the testator was suddenly stricken down by an apoplectic stroke. This produced, what was called by medical witnesses, hemiplegia of the .right side — a permanent disability.</p> <p>According to the respondents’ view of the evidence, this seizure affected the brain so seriously that the testator was immediately reduced to a state of idiotic dementia, from which mental condition he never recovered in any degree whatever.</p> <p>He survived the event more than six years. His general bodily health was restored-; his appetite for food returned in its full vigor; he had the full use of" one eye and the use of the left arm and hand. The respondents argued from, the evidence that, during all this time, he never was able to write, to read, to distinguish one figure or one letter of the alphabet from another, to utter one word or to give one single reliable indication of intelligence or intention higher in grade. than those exhibited by animals.. On the other hand, the appellants argued, from the evidence, that he preserved unimpaired intelligence; manifested the liveliest interest in his business affairs; dictated investments and changes of investment from time to time; supervised and corrected his checkbook and other accounts daily; listened understanding^ to the newspapers which he required .to be read to him every day, and especially to the parts relating to commerce and finance; interrogated his visitors on such subjects by means of the few sounds and signs he used; in short, that the physical inability to make himself understood caused all the doubt that covered his understanding. They relied much on the evidence of several gentlemen (some of whom are mentioned in the dissenting opinion of Judge Seeded) of unimpeached integrity, of the highest intelligence and social standing, who frequently saw and transacted business with Mr. Parish, and testified confidently to his mental capacity. . The testimony taken before the surrogate filled-three printed volumes of eight hundred pages each, the size of these Reports. It is impracticable to present a summary or abstract of it within any reasonable compass. That the evidence did not distinctly preponderate to either side, is sufficiently shown by the fact that this court, after the first argument,- was equally divided upon the question of fact—the testamentary capacity of Mr. Parish. Sufficient appears in the following opinions to indicate the general character of the evidence.</p> <p>All the codicils were made during the period of contested testamentary capacity. The' first, executed August 29, 1849, . forty days after the attack of paralysis, was attested, among others, by Mr. Daniel Lord, who prepared it, and at his suggestion it was republished December 17, 1849. This codicil gave to Mrs. Parish, in fee simple, lands on Broadway, fronting Union Square, purchased by him subsequent to the making of the will, and on which he had erected a spacious dwelling-house, conservatory, &c., at a cost of $112,000, in which he resided. It also gave Mrs. Parish a valuable lot and - building on Wall street, purchased subsequent to the making of the will, which he valued in his semi-annual balance-sheet made July 1, 1849, at $76,000, and which he usually rented for offices. Between the date of the will and this first codicil he had sold for $18,000 his former dwelling-house in Barclay street and some leasehold property in'Chambers street, which, by the terms of the will, were to have gone to Mrs. Parish. During the same interval he erected improvements, at a cost of $21,-500, upon real estate in Hew Orleans devised to her; and he had increased to a large amount the furniture, paintings, silver, &c., bequeathed to her. The increase of his estate, according to his semi-annual balance-sheets made next preceding the will and the first codicil respectively, was $165,857.</p> <p>The second codicil was executed September 15,1853. This reiterated the devise to Mrs. Parish of the real estate mentioned in the first codicil. It also gave to her stocks, bonds and securities, amounting to $350,000, with the direction, “ if any of the stocks or bonds above given should be sold or paid off in my lifetime, the same shall be made good to her by an equivalent of other stocks held by me, or, if my estate have no stocks for that purpose, in money.” The codicil gave $10,000 each to the American Bible Society, the Hew York Orphan Asylum Society, and St. Luke’s Hospital, and $20,000 to the Hew York Bye Infirmary. It revoked the appointment of his brother, Daniel Parish, as executor, and the gift of $10,000 to him as executor, but it did not revoke that part of his will which made Daniel and James Parish the residuary devisees and legatees of his estate. •</p> <p>The third and last codicil, executed June 15, 1854, devised to Mrs. Parish the residue of the estate, after the provisions of the will and previous codicils should be satisfied, “andin case she shall survive me, I revoke the thirteenth article of my above-written will,” which was the residuary clause in favor of his brothers.</p> <p>There was another appeal, by Ann Parish and Mrs. Martha Sherman, sisters of the testators. They maintained that the testator had testamentary capacity to revoke the codicils, but that, owing to the physical difficulties he labored under in communicating his ideas, it could only be certainly ascertained that he did not intend to leave the will of 1842 as the sole declaration of his testamentary purposes. On this ground, as well as by reason of changes, by birth and death, among the. testator’s relatives, they contended that an express or implied revocation of the will had taken place, and that Mr. Parish must be deemed to have died intestate.</p>

<p>Where bank bills are received in payment, and at the time of such payment the bank which issued the bills has in fact stopped payment, although the failure is not -at the time known at the place of payment, the loss falls upon the party paying, and not upon the party receiving the bills.</p>

<p>Appeal from judgment of the General Term of the Court of Common Pleas of the city and county of Hew York, reversing a judgment in favor of plaintiffs, entered upon the decision of the Court at Special Term.</p> <p>This action was brought to enforce a contract between the parties, by which in substance plaintiffs agreed to sell to defendant certain premises situate in the city of Hew York, on Thompson street, for the price of $125,000, payable as follows: $20,000 by defendant’s assuming two mortgages thereon, $64,500 by a deed from defendant and wife to plaintiffs, Mayer and Simon Sternberger, of certain premises at Mott Haven, and the balance $40,500 (subject to alteration in the exact amount by the allowance of interests on the mortgages on both sides), by defendant executing a mortgage on the premises to said plaintiffs, payable April 1st, 1875. Defendant upon his part agreed to sell and convey to said plaintiffs certain premises in Mott Haven for $82,500, $18,000 to be paid by said plaintiffs assuming a mortgage thereon to that amount, and the balance by the deed of the Thompson street property. The deeds to be duly executed by the parties and their wives and to be exchanged on the 1st day of April, 1872, at noon, at a place specified. Plaintiffs asked for the appointment of a receiver, that the Thompson street property be sold and the net proceeds paid to plaintiffs upon the amount due for the purchase-money, and for a judgment against defendant for $105,000 with interest, or for such other relief, etc..</p> <p>It appeared upon the trial that, at the time and place specified, plaintiffs attended with a deed duly executed of the Thompson street property, which they presented also with a deed and mortgage properly made out for defendant to execute in accordance with his contract; defendant did not appear for the reason that his wife refused to join with him in a deed of the Mott Haven property. This fact was known 'to plaintiffs prior to the commencement of this action.</p> <p>Hpon these facts the court at Special Term found, as conclusions of law, as follows:</p> <p>“ First. That the respective stipulations of the parties to accept conveyances of the said lands to and from the other at certain valuations, was in effect to receive such conveyances for an amount of money equal to such valuations.</p> <p>“ Second. That as to the premises, the plaintiffs agreed to .convey to the defendant, for the consideration of $125,000, they were entitled to a specific performance of said agreement, and that defendant should accept the said conveyance thereof so tendered, and pay the consideration-money of $125,000 therefor, in the manner specified in said agreement, and interest thereon from said 10th day of April, 1872, after crediting'any rents, issues or profits the plaintiffs may have collected and received therefrom over and above any just allowance and expenses.</p> <p>“ That the plaintiffs have a lien on said premises for the payment of the amount of such balance, and that such premises should be decreed to be sold to pay the same, and the costs and expenses of sale of this action, and also that the plaintiffs have judgment against the defendant for the payment of any deficiency.”</p> <p>Judgment was entered accordingly.</p> <p>The General Term reversed this judgment and dismissed the complaint, “ without prejudice to any other action which the plaintiffs may be advised to commence.”</p> <p>Defendant’s contract to accept a deed of the property, followed by plaintiffs’ election to insist on such acceptance by bringing an action for the price, is equivalent to an actual acceptance. (Richards v. Edick, 17 Barb., 260; Franchot v. Leach, 5 Cow., 506; Johnson v. Wygandt, 11 Wend., 48; Shannon v. Comstock, 21 id., 461; Parker v. Parmelee, 20 J. R., 130; Alna v. Plummer, 4 Greenl., 258; Champion v. Brown, 6 J. Ch., 398; Havens§ v. Patterson, 43 N. Y., 218, 221.) Plaintiffs could recover the price fixed by the contract. (Thomas v. Dickinson, 12 N. Y., 364; S. C., 23 Barb., 431; Johnson v. Hathorn, 3 Keyes, 126; S. C., 2 id., 476; Smith v. Smith, 2 J. R., 243 ; Van Rensselaer’s Exrs. v. Jewett, 3 Comst., 135; S. C., 5 Den., 135; 3 Pars. Con., 653, note V, and cases cited.) Defendant’s inability to get his wife to join in the conveyance did not excuse him. (Phelps v. Pumpelly, 40 N. Y., 59; Chitty on Con., 740; McNeil v. Reid, 5 Bing., 68; Worsley v. Wood, 6 T. R., 710 ; School Dist. v. Dauchy, 25 Conn., 530; Tompkins v. Dudley, 25 N. Y., 272.) Where a vendor retains possession of a thing sold, he has a lien upon it for the unpaid purchase-money. (2 Story Eq., §§ 1216, 1226; Benj. on Sales, 657; Sug. V. & P., ch. 19, §§ 13,15, pp. 675, 676 [14th Eng. ed.]; Winter v. Ld. Anson, 3 Russ., 488; Garson v. Green, 1 J. Ch., 308; Manly v. Slason, 21 Vt., 271.)</p> <p>Want of mutuality in the subject of a contract is a ground for refusing specific performance. (Will. Eq. Jur., 267, and cases cited; Ogden v. Fossick, 9 Jur. [N. S.], 288; Peto v. Brighton R. R. Co., 1 H. & M. 468, 480-483; Story’s Eq. Jur., § 736.) Where specific performance would be refused the contract price is not recoverable or enforceable by way of lien or otherwise. (Clark v. Hall, 7 Paige, 385; Cong. B. E. v. Presb. Ch., 10 Abb. [N. S.], 484.) An equitable lien only exists where possession has been delivered, but the money remains unpaid. (2 Sug. on Vend., chap. XIX, 8th Am. ed., 671 [marg. page]). Plaintiff’s agreement to take in payment for that property a conveyance of other premises and a purchase-money mortgage waived the security of their lien as vendors. (Hoyt v. Van Alstyne, 15 Barb., 568; 11 N. Y. Leg. Obs., 258; McKellop v. McKellop, 8 Barb., 552, 558; Coit v. Fougera, 36 id., 195; Hare v. Van Deusen, 32 id., 95; Fish v. How-land, 1 Paige, 20, 30; Arlin v. Brown, 44 N. H., 102; Chapman v. Beardsley, 31 Conn., 115; Selby v. Stanley, 4 Min., 65; Baum v. Grigsby, 21 Cal., 172; Camden v. Vail, 23 id., 633; Mattix v. Wells, 18 Ind., 151.)</p>

<p>In an indictment under the statute for obtaining by false pretences the signature of a person to a written instrument, it is not necessary to charge loss or prejudice to have been sustained by the prose-tor ; the offence is complete when the signature is obtained by false pretences, with intent to cheat or defraud; and it is not essential that actual loss or injury should be sustained.</p> <p>A party charged with having obtained the signature of a person to a.note by false pretences, is not at liberty to introduce his own books of account to show the state of accounts between him and the prosecutor, 'unless accompanied by proof aliunde óf the real situation of the accounts.</p> <p>"Evidence that the prosecutor of a criminal charge had offered to leave court and not appear as-a witness against the party charged, in case he would settle with him the subject matter of the charge, is not admissible.</p> <p>It is no objection to the charge of a judge that in commenting upon the testimony, he points out discrepencies in the relation given by witnesses at different times of the facts of a case.</p>

Breach of covenant. On the 10th day of April, 1830, the defendant, by an instrument under seal, agreed to demise a farm to the plaintiff for the term of one year from that day; and further, that the plaintiff should have the farm from year to year as long as it was to be let, upon paying to the defendant $145 yearly, and every year, in advance, or securing him for the rent.

(Reported below, 59 Barb., 331.) This action was brought originally by Jonathan L. Booth and Charles L. Flint, composing the firm of J. L. Booth & Co., against John Craig; Flint and Craig having died, it was continued in the name of Booth as survivor, against the executors of said Craig.

The action was covenant, commenced in 1847, upon a contract executed by the parties under seal and dated the 28th of February, 1846, in which it was recited that Oakley, the plaintiff, had bought a farm in Marathon, Courtland county, and was to take possession of the same the ensuing spring, and by which he agreed “ that he would keep twenty cows or more during the [then] coming season for the dairying business, and that he would sell the butter made from said dairy of cows…

This was an action on the case, tried at the Onondaga circuit in March, 1832, before the Hon. Daniel Moseley, one of the circuit judges.

Demurrer to plea. The plaintiff declared as the endorsee of a promissory ' note against his immediate endorser. The defendant pleaded, that before the commencement of the suit, *to wit, on, <fcc at, &c. the plaintiff endorsed the note to J. Stilwell and two other persons, and delivered the note to them, who from that time, were the true and lawful owners and, possessors of the note. To this plea the plaintiff demurred.

Demurrer. The declaration is in debt on a penal bond, hearing date 1st January, 1829.

This was an action for false imprisonment, tried at the New-York circuit in December, 1831, before the Hon. Ogden Edwards, one of the circuit judges. Dyett obtained an assignment of a judgment which had been rendered in this court against Chapman, and procured the substitution of an attorney in the place of the attorney who had obtained the judgment.

Error from the J efferson common pleas. Kimball sued Keyes in a justices’ court for calicoes and flannels, and merchandize of that discription, sold and delivered to adaughter ofHhe defendant who resided with her mother, the parents living separate and apart, and obtained judgmentfor $2484. The defendant removed the proceedings into the Jefferson common pleas by certiorari. The goods were furnished in January, 1831, when the daughter came of age.

This action was upon a promissory note against defendant, as indorser. The note, when indorsed by defendant, was as follows: “ $175. Whitehall, N. Y., Nov. 27, 1868. “- after date I promise to pay Wm.

The plaintiffs brought an action in the nature of trover for a barge in an unfinished state, which they alleged the defendants had converted to their own use. The defendants denied the allegations in the complaint, and set up title to the barge in themselves. The cause was tried before the Hon. M. Watson, a justice of the supreme court, in April, 1850, without a jury. The following facts appeared on the trial.

Error from the Onondaga common pleas. Dygert sued Matthews in trespass quare clausum fregit. The defendant pleaded liberum tenementum.

Error from the Yates common pleas. Sherwood sued Chace for slander, and stated in his declaration that he was of good fame, and not suspected of the crime of perjury until, &c.; that before the speaking of the words complained of, a certain action had been depending before W. Bassett, Esq., a justice of the peace in and for the county of Yates, wherein one James L. Sherwood was plaintiff, and Richard P. Brown was defendant, which had been tried, and on such trial the…

(Reported below, 7 Lans., 181.) This action was for fraud. The complaint alleged in substance that plaintiff, induced by fraudulent representations on the part of Edward J. Powers, husband of defendant, entered into a contract with him by which plaintiff agreed to sell and convey to said Powers a farm, receiving in part payment therefor a bond and mortgage for $5,000.

<p>Error from the Seneca common pleas. Chapman sued Hatt, Sanford and Curtiss in a justices’ court, and declared on a justice’s judgment obtained in his favor against the defendants. Hatt alone was brought into court, and pleaded nil debet. The plaintiff proved the judgment declared on, which was rendered on a joint and several promissory note made by the defendants, only one of whom it seemed had been brought into court in that action, and also proved the making of the note by all the defendants. Hatt then proved, in pursuance of a notice attached to his plea, that an execution had been issued on the judgment declared on, and that on the 31st *October, 1831, Sanford, one of the defendants, was arrested thereon and committed to the jail of the county of Seneca, where, on the 2d day of November, 1831, (the day of the trial of the suit on the judgment,) he remained in custody. On this evidence, the justice rendered a judgment against all the defendants. The proceedings were removed by certiorari into the Seneca common pleas, which court reversed the judgment rendered by the justice ; whereupon the plaintiff below sued out a writ of error.</p>

Error from the Madison common pleas. Penney sued Hall in a justices’ court, in trespass, for taking a quantity of domestic fulled cloth. The defen dant justified the taking as a constable, under a justice’s execution against the plaintiff.

■ This was an action to recover for injuries alleged to have been occasioned by defendant’s negligence. On the 17th September, 1869, plaintiff was a passenger on a train upon defendant’s road. A switchman at Lyons station left the switch open on to a side track, but gave the signal indicating that all was right; in consequence the train was run off upon the side track and collided with another train standing there. Plaintiff was seriously injured.

Error from the Madison common pleas. Richardson sued M’Dougall in a justices’ court for the expense of making a division fence, th'e lands of the parties joining each other, and recovered judgment.

Demurrer to declaration. The plaintiff declared in covenant.

The action was upon a promissory note, of which Wheeler was indorser, against makers and indorser. The defendants joined in one answer. Ho separate defence was set up. The order of the Special Term was properly affirmed by the court below. (Code, § 304; 18 How., 108; 20 id., 511; 4 Seld., 29; 5 id., 549; 12 Abb., 209; 2 Sandf., 705; 3 Bos., 632; 7 id., 599.)

Error from the Onondaga common pleas. The common pleas of Onondaga reversed a justice’s judgment, because the justice did not enter a judgment of nonsuit against the plaintiffs in a cause depending before him, for their omission to appear within one hour after the process by which the suit was commenced was returnable. The plaintiffs below sued out a writ of error.

In December, 1847, Joseph R. Hyatt, the intestate, and Columbus W. Seeley, the appellant, entered into a contract for the sale by the… Held: that Seeley was concluded by the order of the 6th of June, but that that order was defective in not prescribing the form and nature of the deed to be given by the heirs ; that Seeley was entitled to a deed with full covenants, and that upon a tender to him of such a deed, if he still refused to pay, he would be liable to be attached…

for a new trial and affirming the decision of the court at Special Term, dismissing plaintiff’s complaint. This was an action brought by plaintiff, as sheriff of the city and county of Hew York, to collect the amount of a policy of insurance alleged to be due and owing by defendant, to one E. S. Candler, Jr., which plaintiff claimed to have levied upon by virtue of various warrants .of attachment against said Candler.

Arrest of judgment. The suit was commenced by declaration on the 15th September, 1832, on a promissory note due on the first, of that month. The declaration, instead of being specially entitled was entitled generally of July term, 1832. The defendant appeared and pleaded the general issue; the cause was tried and the plaintiff had a verdict.

This was an action of trover, tried at the Clinton circuit, in June, 1831, before the Hon. Esek Cowen, one of the circuit judges. The suit was for a span of horses. The plaintiff proved that about the first day of February, 1831, he had possession of the horses, which he left in the custody of a Mr. Ransom, and that on the tioelfth day of the same month the horses were in the possession of the defendant. Upon this he rested.

This was an action of trespass, tried at the Oneida circuit in October, 1830, before the Hon. Nathan Williams, one of the circuit judges. About the first day of August, 1827, a deputy of the defendant, who at the time was sheriff of Oneida, proceeded to the store of the plaintiff, a fancy dry-good merchant in Utica, to execute two plaints in replevin.

Appeal by petitioners from order of the General Term of the Supreme Court in the first judicial department, affirming order of Special Term denying a petition to vacate an assessment for paving Avenue B with Belgian or trap-block pavement from Houston street to Fourteenth street, in the city of New York. The assessment was for repaving. A prior assessment for paving had been imposed upon the same lots and paid.

The plaintiff brought this action in the city court of Brooklyn, for the recovery of certain real estate within that city. Upon the trial he gave evidence of title in himself, and that the defendants were in possession of the premises claimed, at the time of the commencement of the action.

<p>This was an action of assumpsit on a guaranty. On the 18th December, 1829, the defendant addressed a letter to S. M’Fadden, introducing A. G. Dickinson, who (he stated) wished to purchase a hill of groceries; that he had a little money, but not enough for what he wanted, and if M’Fadden would recommend him to a wholesale grocery merchant in Waterford, he (the defendant) would be accountable for the goods. He further added that A. G. D. would sell the goods for cash, and would send down money from time to time and that the*goods or money would always be in readiness to pay the debt. To this letter there was a P. S. in these words: “ He wants to get to the amount of a hundred or a hundred and fifty dollars worth of goods.” The letter was delivered to the plaintiff, a wholesale grocery merchant, who, on the strength of it, sold to A. G. D., on the 22d December, groceries to the amount of $263,55 and received $25 in part payment. Subsequently further groceries, to the amount of $8,88, were furnished by the plaintiff. On the 26th April, 1838, A. G. D. had made sundry payments to the plaintiff, which, including the above $25, amounted in the whole to $70, 50, and on that day he confessed a judgment in favor of the plaintiff for $202,17, on which an execution was issued, and the goods remaining in possession of A. G. D. sold, which brought the sum of $83,63. The plaintiff credited such proceeds, after deducting $10, the costs of entering the judgment, and now claimed the balance of his demand from the guarantor, the defendant in this cause. A case was made, subject to the opinion of the court.</p>

This was an action of assumpsit, tried at the Allegany circuit in September, 1831, before the Hon. Addison Gardiner, one of the circuit judges. The suit was brought to recover money collected by Joseph Wilson, a deputy of the defendant, who, in 1820, was sheriff of Allegany, on an execution in favor of the plaintiff against Moses Van Campen.

This action was brought upon an official bond given by-defendant, Charles J. Dolson, upon his appointment as deputy collector of internal revenue. William Hasten, plaintiff’s intestate, was collector; proposing to appoint said Dolson as his deputy, he required of him a bond, in substance conditioned that he would pay over and account for all moneys collected by him as such.

Demurrer to declaration. An instrument in writing under seal was entered into by the plaintiffs and defendants on the 10th May, 1825, by which Williams, in consideration of the sum of $3500, to be paid by Dakin and Bacon, sold, transferred *and conveyed to Dakin and Bacon a newspaper establishment, from which was issued the paper called the Utica Sentinel, and all his right, title and interest in and to the subscriptions, good will and patronage of the paper, together with…

<p>Appeal from order of the General Term of the Supreme Court in the first judicial department, affirming an order of Special Term setting aside a judgment in favor of defendants, entered upon the report of a referee, for alleged misconduct upon his part. (Reported below, 44 How. Pr. R., 357.)</p> <p>The order of the General Term is appealable to this court. (Code, § 11; Forrest v. Forrest, 25 N. Y., 501; Gregory v. Cryder, 10 Abb. Pr. [H. S.], 289; Beaker v. Gardner, 8 N. Y., 29; McGregor v. Comstock, 19 id., 581; Belknap v. Waters, 11 id., 477; Betts v. Gan, 26 id., 383; Tracy v. Welsh, 46 id., 598 ; Leland v. Hathorne, 42 id., 547; King v. Platt, 3 Abb. Pr. [N. S.], 174; Adams v. Bush, 2 id., 104; Townsend v. Hendricks, 40 How. Pr., 143.)</p> <p>Plaintiffs’ only-remedy for the irregularities complained, of and for the referee’s misconduct was by motion. (Broadway Widening, 49 N. Y., 150; Ford v. Ford, 53 Barb., 525 ; Union Bk. v. Mott, 18 How. Pr., 508; Billings v. Baker, 6 Abb. Pr., 213.)</p>

Error, from the Onondaga common pleas. Smith sued Ford in a justices’ court by summons; on the return whereof, the constable who had served the process appeared for the plaintiff and put in a declaration, to which the defendant pleaded, and issue being joined, the cause was adjourned. On the adjourned day, the constable again appeared for the plaintiff; the defendant did not appear.

Error from the Yates common pleas. Brown sued Whitaker and Norcott before a justice and obtained judgment. Whitaker, who alone appeared, appealed to the Yates common pleas, and on the trial in that court, the following facts appeared: The suit was on a promissory note for $26,25, given by Norcott in the name of “ Norcott & Co.,” a firm of which Norcott & Whitaker were the partners, and who carried on the grocery business.

This action was brought to recover moneys received by plaintiff as bounty moneys and as wages while in the military service of the United States, and alleged to have been deposited by him with defendant. Defendant claimed to be entitled to the moneys as earned by plaintiff while duly apprenticed to him. The facts sufficiently appear in the opinion. The jury rendered a verdict in favor of plaintiff for $349.20.

This was an action of trover, tried at the Essex circuit in June, 1831, before the Hon. Esek Cowen, one of the circuit judges. The suit was brought for a quantity of boards and plank purchased by the plaintiffs of one Sewall Cutting, in July, 1827, at the price of $600,36, the lumber being at the time at Whitehall, part on shore and part in a canal boat; the whole in charge of one B. Myricfc.

This was an action of trover, tried at the New-York circuit in October, 1831, before the Hon. Ogden Edwards, one of the circuit judges. About the first of November, 1829, the master of a tow-boat took by mistake 4 barrels of pot-ashes from the warehouse of the plaintiffs, who, and the owners of the tow-boat, occupied the same building in Albany.

<p>Where rent is payable in wheat, fowls and services on a day named in each year during the term, “ at the North river within the county of Columbia, or within lot No. three (situated in said county) as the lessor shall from time to time direct,” the lessor can sustain an action on the lease for the value of the rent, without averring or proving that he directed the lessee where to deliver the articles or perform the service.</p> <p>In such a case interest is recoverable on the value of the rent from the time it became payable.</p>

Error from the Yates common pleas. Cary sued Benham in trover for a wagon. Benham justified the taking as sheriff of Yates, under an execution in favor of one Phelps, against one Blakesley, in whose possession the wagon was found. The levy was made under the execution on the 16th November, 1831.

This action was for fraud. The complaint alleged that “said defendants fraudulently stated in substance to said plaintiff that the stock of the Congress and Empire Spring Company was worth at least eighty per cent upon the par value thereof, which statement said plaintiff then and there believed to be true; and relying thereupon purchased from the said defendants $25,000 of said stock, and paid therefor $20,000 in cash, or its equivalent; whereas, in truth and in fact, the…

This was an action of assumpsit, tried at the Oneida circuit in October, 1831, before the Hon. Nathan Williams, one of the circuit judges. The plaintiff declared for work, labor and services. It appeared that the work declared for had been performed, and that the plaintiff had agreed to do it and to receive payment in goods out of the defendant’s store, and in a promissory note made by Loring Delano, the plaintiff's brother.

This was an action of assumpsit, tried at the New-York circuit in June, 1829, before the Hon. Ogden Edwards, one of the circuit judges. The defendants were members of a joint stock company for the building of the Bowery Theatre. Matthew Reed, one of their number, was their treasurer, and made deposits in the Tradesmen’s Bank, in his character of treasurer, to the amount of $34,303T3/T, and from time to time drew checks on the bank, which were accepted and paid.

This action was brought to recover for services alleged to have been rendered by plaintiff, as attorney and counsel for defendant. The services were rendered between December, 1864, and December, 1869. On the 31st of December, 1868, plaintiff filed his petition in bankruptcy and was discharged as a bankrupt. The further facts appear sufficiently in the opinion. Defendant is entitled to a review in this court.

Error from the Onondaga common pleas. Calendar sued Easton and two others, trustees of a school district, in tresspass, they having issued a warrant by virtue of which was sold a cow belonging to him., The defendants justified under a vote of a district meeting to raise by tax the sum of $188,75 to repair, the district school house.

<p>This court will not interfere with an adjudication of the Commission of Appeals, upon the same points, between the same parties, in the same case.</p> <p>The omission of this court, when sanctioning a former decision, to notice and discuss in the opinion supposed distinctions, is not sufficient to warrant a supposition that they have escaped observation.</p> <p>In an action brought by the receiver of a judgment debtor to have the transfer of a promissory note, alleged to have been made by such debtor in fraud of his creditors, adjudged to be void, and to enforce the note as the -property of the debtor, the maker of the note defended, denying plaintifE’s title and alleging payment. Plaintiff failed to show the fraud, or title to the note. Held, that the fact of payment to another claimant was immaterial and unnecessary to sustain the defence.</p>

E. Fulton and the other relators, in February, 1847, made a complaint before the first judge of the county courts, against William B. Fulton and eleven other persons, under the provisions of the revised statutes relating to forcible entries and detainers.

(Chap. 181, Laws of 1872.) Said order also granted a new trial. (¡Reported below, 2 S. C. E. [T. & 0.]., 212.) The indictment contained three counts; the first two charged the defendant in error with advising and procuring one Clara Penry to submit to the use of an instrument by one Crandall with intent to procure a miscarriage, causing the death of the mother and child.

This was an action of assumpsit, tried at the Albany circuit in September, 1831, before the Hon. James Vanderpoel, one of the circuit judges. The suit was against Lyman Rathbone, Moses Rathbone and Samuel Rath bone ; the declaration was for goods sold and delivered, and also contained the money counts. The plaintiff claimed to recover for goods sold in September. 1825, and July, 1826.

This was an action brought to recover of the defendants, Maginnis & Reynolds, the amount of a bill of goods sold by the firm of James H. Beers & Son, composed of the plaintiff and George W. Beers, on the 23d of April, 1848, and delivered to Maginnis. The defendant Reynolds appeared and answered, and the cause was tried at the Niagara circuit before Justice Mullett.

Action of covenant. The plaintiff, in his first count, declares that on the 17th August, 1800, the defendant executed a deed poll,… Held: that where a party undertakes to pay the debt of a third person if it cannot he collected from him, it is necessary to issue not only á f. fa., but a ca. sa., against the original debtor, before recourse can be had to the surety; and that it was no answer to say that the original debtor was insolvent, and that there was, no reason to…

The action was brought to recover a balance due on a subscription by the defendant for one hundred shares of plaintiff’s capital stock, and was tried at the Schenectady circuit before Justice Willard, without a jury.

<p>Appeal from judgment of the General Term of the Court of Common Pleas for the city and county of Hew York, in favor of plaintiff, rendered upon a case submitted under section 372 of the Code.</p> <p>The question submitted was as to the extent of the liability of defendant upon a policy of re-insurance issued by it to the North American Fire Insurance Company, of which company plaintiff was receiver.</p> <p>The facts submitted were, in substance, these:</p> <p>On the 5th August, 1871, the North American Fire Insurance Company issued a policy to D. W. & A. Keith & Co., for $5,000, upon a stock of goods. On the same day defendant re-insured said company for $2,500 on said risk. The policy of re-insurance contained this clause : ■ “ Loss, if any, payable pro rata, and at the same time with the re-insured.”</p> <p>On the 9th October, 187Í, the property insured was destroyed by fire; the loss was adjusted at $4,407.62. The North American Fire Insurance Company became insolvent, and by an order of the Supreme Court plaintiff was appointed its receiver. He declared dividends in all of forty-four per cent on all claims against the company, and that per cent is all that has or will be paid to the original assured upon their policy.</p> <p>Plaintiff claimed to be entitled to recover of defendant one-half the amount of the loss. Defendant claimed that it was only liable to pay one-half of" the amount actually paid to D. W. & A. Keith & Co.</p> <p>A policy of re-insurance is a contract of indemnity. (1 Phil, on Ins., 194, § 374, 3, § 4; N. Y. Bowery Ins. Co. v. N. Y. F. Ins. Co., 17 Wend., 363 ; Hone v. Mut. S. Ins. Co., 1 Sandf., 137; Eagle Ins. Co. v. La Fayette Ins. Co., 9 Ind., 443.) The words “loss or damage” in the-policy refer to actual loss or damage as distinguished from mere liability; and the measure of such" loss or damage is the amount actually paid. (Gilbert v. Wyman, 1 Coms., 550; Aberdeen v. Blackmar, 6 Hill, 324; Scott v. Tyler, 14 Barb., 202; Campbell v. Jones, 4 Wend., 306 ; Wright v. Whiting, 40 Barb., 235 ; Crippins v. Thompson, 6 id., 532; Sedg. on Dam., 348-352, 355, 356, marg. pages, 310-313.)</p> <p>A contract of re-insurance is a contract of indemnity; and such indemnity is the whole amount of the loss incurred by the original insurer. (Emerigon Tom., 1, 247-250; 1 Boulay Paty. Tr. des Ass. Ch. [8th ed.], 1857; 1 Aluzet Tr. gen. des Ass., No. 152, p. 276; 2 Park on Ins., 595, 596; 1 Marshall on Ins., 143; 2 Phil. Ins., 749 ; 1 Arn. Ins. 288; 3 Kent Com. [5th ed.], 279; Flanders on Ins., 32.) In a contract of re-insurance the re-insured alone has a claim against the re-insurer. (Carrington v. Com. F. and M. Ins. Co., 1 Bosw., 182; Herckemath v. Am. Mut. Ins. Co., 3 Barb. Ch., 63 ; Hastie v. De Peyster, 3 Caines, 190; N. Y. State Ins. Co. v. Prot. Ins. Co., 1 Story, 458.) The amount paid by the original insurer has nothing to do with the claim against the re-insurer. (Eagle Ins. Co. v. La Fayette Ins. Co., 9 Ind., 443 ; Hone v. Mut. S. Ins. Co., 1 Sandf., 137; affirmed, 2 Corns., 235.) The loss or damage referred to in the policy of re-insurance is the injury to the original property insured. (Prov. Ins. Co. v. Ætna Ins. Co., 16 U. C. [Q. B.], 135.)</p>

Demurrer to pleas. The plaintiff declared in covenant in two counts on a sealed note for $140, bearing date 10th November, 1829, payable 1st January, 1831. The defendant pleaded, 1.

This was an action for partition of certain premises in the city of Brooklyn, of which plaintiffs claimed the undivided one-eleventh part. The lot of land described in the complaint is part of a piece ■ of land in the city of Brooklyn, formerly known as the hay-scale farm, which, on the 15th day of February, 1832, belonged to Samuel Jackson.

Error from the superior court of the city of New-York. In December, 1 828, Richard Yarick commenced an action of ejectment in the name of James Jackson, as nominal plaintiff, according to the former practice of the court, against Rachel Eden, for the recovery of a house and lot of ground situated in *the city of New-York. On the trial of the cause in July, 1829, the plaintiff obtained a verdict, on which judgment was rendered in December then following.

(Reported below, 7 Bans., 151.) This was an action to restrain defendants from interfering with plaintiffs’ business by threats, circulars or suits or injunctions, etc. The facts found were in substance these: In 1848, Hdolpho Wolfe, commenced the sale in the city of Hew York, of an article of Holland gin, under the name of “Wolfe’s Aromatic Schiedam Schnapps,” which words were intended and used by him as a trade mark. .The gin was put up in square bottles, with labels…

This suit was commenced in the late court of chancery, and was transferred to the supreme court, and thence to the superior court of the city of New-York.

Action for treble damages for cutting down and carrying off trees. It appeared, on the trial, that the plaintiff’s testator and the defendant occupied adjoining farms. At the place where the trees were cut down, the plaintiff’s (the action was tried in the testator’s lifetime) lands were woods; the defendant’s were cleared and fenced by him to the line.

Action upon a note executed by the defendant to the plaintiff. The defendant in his answer alleged, that in 1844, Lyman Bishop executed to one Blackman, a mortgage upon his farm, and subsequently planted upon it a hop-yard, in which the hop poles thereinafter mentioned were used. That in 1849, Lyman Bishop died owning the farm, hop yard and poles, and while the latter were used in the yard for growing hops.

(Eeported below, 1 S. C. E. [T. & C.], 452.) This action was brought by plaintiff, as administrator of Edwin J. Coughtry, deceased, to recover damages for his death, alleged to have been occasioned by defendant’s negligence. Osborn & Martin contracted to put up a new iron cornice upon defendant’s mill at Utica. By the contract, if scaffolding or stagings were required in putting up the cornices, they were to be furnished without expense to the contractors.

Error from, the Onondaga common pleas. Haskin sued Mickles and Gumaer in a justices’ court on a judgment which he had previously obtained against them. The defendants pleaded nil debent, and gave notice of the issuing of an execution on the original judgment, and a levy upon property of Mickles to an amount sufficient to satisfy it.

<p>This was an action of slander, tried at the Monroe circuit in April, 1831, before the Hon. Addison Gardiner, one of the circuit judges.</p> <p>The plaintiff complained that the defendant had charged him with swearing false, in an affidavit made ■ by him to found a certiorari to remove into this court a cause between certain parties, tried before the defendant as a justice of the peace. The plaintiff produced the affidavit, made before a proper officer, and also proved the speaking of the words. The judge nonsuited the plaintiff, because no affidavit was necessary to obtain the allowance of a writ of certiorari to remove the cause into this court, the trial before the defendant having been had under the fifty dollar act of 1824 ; and being the unnecessary, it was extra-judicial, and consequently peijury could not be assigned upon it. The plaintiff moved for a new trial.</p>

The plaintiff brought the action against Zachariah Finch and five others, to recover damages for an assault and battery alleged to have been committed by them upon him. The defendants put in separate answers, denying severally the complaint. The cause was tried in August, 1851, at the Delaware circuit, before Justice Mason and a jury.

Action by the executor for a construction of the will of Alfred H. P. Edwards, deceased. The will was made Dec. 27,1856, and took effect by the death of the testator, January 4, 1857. It gave the entire estate, real and personal, of the intestate, in trust to his executors, directing, 1.

The prisoner was indicted for grand larceny, being charged with having stolen money in the town of Gates, in the county of Monroe in this state, at the general sessions in which county he was tried. On the trial, it appeared that the money in question was stolen by the prisoner at York in Upper Canada, from which place he came to the town of Gates, where a part of the stolen money was found in hi’s possession.

(Reported below, 65 Barb., 344.) This action was brought to recover damages sustained by plaintiff in the loss of his horse. Plaintiff was a drayman, and, in the ordinary course of his business, drove his horse upon pier Ho. 34, Horth river, a rotton plank gave way and the horse fell through and was killed. Defendant leased from the “Rhinelander estate” the south side of said pier, including the place where the accident happened.

<p>The register of the city and county of New-York, when elected, takes the office for three years, whether the vacancy which he is elected to fill be occasioned by the death, removal, or expiration of the term of office of his predecessor ; and a re-election of the incumbent to the same office, during the term, of three years, does hot justify him in holding the office longer than three years in the whole ; such re-election during the term for which he was entitled to hold under his first election, being void.</p>

This was an action of replevin, tried at the Albany circuit in September, 1831, before the Hon. James Vanderpoel, one of the circuit judges. On the 21st August, 1829, a contract was entered into by which the defendant agreed to build a house for the plaintiff, finding the materials for the wood work and doing the work, and engaging to complete the job by the 1st May, 1830.

(Reported below, 44 How. Pr. R., 364.) This action was upon a promissory note of $270, signed by defendant, payable to E. A. Miller or bearer. Defendant entered into a contract with Miller to act as agent for the sale of a patent hay fork and pulley. A contract was filled out by Miller and signed by both; also an order, which was signed by defendant, for one of the hay forks and two pulleys, for which, by the order, defendant agreed to pay nine dollars.

The testator died in July, 1836, leaving a will, by which he gave all his real and personal estate, after the payment of debts, to his widow, Mira Thomas. The will was admitted to probate, and letters testamentary issued to Harris, the respondent here, in August, 1836.

<p>Demurrer to declaration. The action is slander. The plaintiff, in the first count, stated by way of inducement that one Silas Butler, an inhabitant of Hadley, having a family, being indebted to him in a sum of money, and he, the plaintiff, being in danger of losing the same, and having a good cause of action against Butler, did make and subscribe an affidavit or oath before S. Gray, Esq., a justice of the peace of Hadley, who had lawful authority and full power to administer an oath in the premises, and did administer the same to the plaintiff on the said affidavit, to wit, on the 17th January, 1831, at Hadley, as authorized by the 4th sub. § 17, art. 2, tit. 4, part 3, of the revised statutes, in which the plaintiff swore, among other things, that he had good cause of action against Butler, and thereupon, the justice issued a warrant in favor of the plaintiff against Butler, according to sub. 4, § 17, aforesaid; and such proceedings were thereupon had before the said justice, that a judgment was rendered by him against Butler. Yet the defendant, knowing the premises, but intending to injure the plaintiff in his good name, &c., afterwards, to wit, on &c. at, &c. in a certain discourse which he had with the plaintiff, and of and con-cerning the plaintiff and of *and concerning the said affidavit, spoke these words : “ You swore false about that judgment you got against Butler ; you swore out a warrant against Butler, in a concern you had got your pay on before, for the purpose of cheating me out pf what I had against Butler.” The second count lays the words as spoken in the second person, he swore false, fyc. The third count contains the same matter of inducement as the first; it sets forth the affidavit, made by the plaintiff, in these words : “ Sara-toga county, ss. Orange Dayton of Hadley, in said county, being duly sworn, says, he has a good cause of action against Silas Butler, against whom he now makes application for process by warrant, and the ground of such application is, that he cannot safely proceed by summonsand then charges the speaking of the words as in the first count. The fourth count is like the third, referring to the affidavit, and laying the words as spoken in the third person. To each count the defendant put in a general demurrer.</p> <p>insisted that the affidavit, concerning which the words were spoken, not being such an affidavit as would justify the issuing of a warrant, was not an oath or affirmation necessary for the prosecution of a private right, and therefore purjury could not be assigned upon it.</p>

Action upon a certificate of deposit for five thousand dollars issued by the defendant. Held: as matter of law, that the teller of the Bank of the Interior had authority to certify checks and notes, and that such notes became obligations of the bank, and that the note and check in controversy were obligations of the Bank of the Interior, and that therefore nothing was due the plaintiff, but the plaintiff, a receiver, was…

This was an action to recover the penalty given by statute for assisting a tenant in concealing goods, removed from demised premises, for the purpose of avoiding the payment of rent, tried at the Otsego circuit in September, 1831, before the Hon. Robert Monell, one of the circuit judges. Jasper Sherwood was the tenant of the plaintiff of certain premises, at an an nual rent of $ 100, under a lease for four years from the 31st March, 1828.

These were cross appeals from an order of the General Term of the Supreme Court in the third judicial department, reversing an order of Special Term, denying a motion on the part of the board of commissioners of the Washington Park, of the city of Albany, for leave to discontinue proceedings for the condemnation of certain land for park purposes.

<p>The corporation of New-York have not power to take more of the lands of individuals than is actually required for a street, and that portion of the act relating to the city of N. Y. which authorizes the commissioners of estimate and assessment to include in their assessment the whole of a lot, when part only is required for the use of a street, by means whereof the fee becomes vested in the corporation upon confirmation of the report of the commissioners, is unconstitutional and void, when such lands are taken without the consent of the owner.</p> <p>Where a street is laid through a cemetery, the same value must be assessed upon the part left fronting upon the street by way of benefit, as upon the part taken for the street by way of damage; the latter cannot be valued in reference to its worth as building lots, and the former as a cemetery not convertible to such use ; the whole must be valued in reference to the qualified rights of enjoyment of the property by the church to which the cemetery belongs.</p> <p>When the court are satisfied that property adjacent to a street proposed to be opened assessed for benefit, cannot be benfitted to the extent of the amount assessed upon it, the report will be sent back for review until property can be found sufficiently benefitted to defray the expense of the improvement, or until the proceeding shall be discontinued.</p> <p>The question of the necessity or propriety of opening a street in the city of N. Y. cannot be agitated upon a motion to confirm the report of commissioners of estate and assessment. Whether the determination of the corporation of N. Y. in respect to streets is directly the subject of review, quere.</p>

Action to recover of the defendant the amount of a debt due from the Moravia Cotton Mill, a manufacturing corporation, on the ground… Held: and on which a large balance remained unpaid; that Dibble had from time to time received the dividends on said stock and applied the same in payment of the interest on the note held by Brown & Co.; that they had never made sale of the stock pursuant to the contract; and that on the 27th of April, 1848, Dibble assigned to the firm of…

Action to compel a specific performance of a contract by which, as the plaintiff alleged, the defendant Weeks agreed to sell to him certain lots of land in that city. On the 11th March, 1857, Weeks demised the premises in controversy to the plaintiff for one year from the 1st day of April ensuing, at a rent of six hundred and fifty dollars, payable as to the first quarter, in advance, and afterwards monthly in advance.

<p>Proceedings under the laws relative to the city of New-York, in respect to laying out, and opening and extending streets, may be discontinued by order of this court, subsequent to the report of the commissioners of estimate and assessment, and previous to confirmation.</p> <p>This court have jurisdiction over the proceedings as a court, and not quasi commissioners, except in reviewing the proceedings of the commissioners of estimate and assessment: when once the report is confirmed by this court the order of the court cannot be opened and reviewed.</p>

In July, 1846, the surrogate of Broome county, made an order refusing to admit to probate, the will of Joshua Whitney, late of Binghamton, in said county, who died in April, 1845. The respondents, Waterman and others, appealed from the order of the surrogate to the circuit judge of the sixth circuit; who in 1847 reversed the order, and directed feigned issues to' be made and tried at the next circuit court, to be held in the county of Broome.

(Reported below, 1 S. C. R. [T. & 0.], 36.) This was an action of ejectment brought by the plaintiff to recover possession of a store and basement in the city of Syracuse. The plaintiff, on the 30th of December, 1863, leased the store Ro. 49, in the Collins block in the city of Syracuse, to Leopold Schwartz, Leopold Bronner and Bern-hard Bronner, for the term of ten years, from the 1st of April, 1864, at an annual rent specified in the lease.

<p>The defendant was proceeded against under the statute oí forcible entry and detainer. An inquisition was found against the defendant, and the proceedings having been removed into this court by certiorari, a motion is now made on behalf of the defendant to quash them on two grounds : 1. That the complaint made to the officer for process in the case, is defective in not setting forth the title of the relator, and showing a subsisting title in him to the premises in question; and 2. That the judge, before whom the proceedings were had, erred in refusing to permit the defendant to cross-examine the relator's witnesses, to introduce witnesses on his part, and to sum up the evidence to the jury who found the inquisition. In the affidavit accompanying the complaint in this case, it is stated, that on and previous to the 4th July, 1833, the complainant was lawfully and peaceably possessed of the premises in question, as tenant thereof, under the executors of J. M’Inroy, deceased, who in his lifetime was the owner of the same.</p>

Order to stay waste. On the 13th August, 1832, one Z. Pratt, on an affidavit that at the previous July term of this court, he had commenced an action of ejectment against F. Alberty and F. Alberty, jun. for the recovery of a certain lot of land, the value of which consisted almost exclusively in hemlock timber growing thereon ; that at the time of the making of the affidavit, the defendants, with others assisting them, were actually employed in cutting hemlock timber for the…

Upon the trial by the court at circuit, a jury having been waived, these facts appeared: The plaintiff was a banking association under the general banking law, located at* Buffalo, and the defendant an individual banker doing business at the same place, under the name of the Exchange Bank of Buffalo, and held himself out as authorized to receive and redeem Canada bank bills.

Prochein ami. F. W. Baker, by S. H. Hitchcock, his next friend, commenced a suit in the New-York common pleas against I. W. Dunstan by scire facias, sued out by Hitchcock in proper person. On the 19th September, 1833, the attorneys of the defendant were served with a notice of a rule to plead, signed “ S. H. Hitchcock, in pro. per.,” and on the 7th *October, they served him with two pleas in the above cause.

<p>Taxation of costs. The plaintiffs, commissioners of highways, sued the defendant, an overseer of highways, to recover a penalty for neglect of duty. The suit was commenced before a justice in March, 1829, and the plaintiffs obtained judgment. The defendant appealed to the Tioga common pleas, and the justice made his return in April, 1829. The cause was tried in the common pleas in May, 1830, and the plaintiff, being nonsuited, brought a writ of error. This court reversed the judgment of the common pleas, and awarded a venire de novo, directing the costs of the writ of error to abide the final event of the suit in the common pleas. In May, 1833, the cause was again tried and the plaintiffs recovered, who had their costs taxed. On the taxation, the defendant insisted that no more than seven dollars, besides disbursements, were taxable for the costs of the common pleas ; and that, as *the costs of the writ of error were directed to abide the event of the suit in the common pleas, and no more than seven dollars were taxable in that court, no costs were recoverable for the writ of error. These objections were overruled by the taxing officer, who taxed full costs, both in the common pleas and this court. The defendant appealed.</p>

(Reported below, 46 How. Pr. R., 297.) This action was brought to recover for the loss of a package of watches and watch-keys delivered by plaintiffs to the Adams Express Company to he forwarded to J. E. Merriinan & Co., at Memphis, Tenn.

Taxation of costs. In 1829, the plaintiffs attorneys of this court, upon the retainer of the defendant, commenced a joint action of ejectment against eleven individuals, in favor of the defendant. In June, 1830, the defendants applied to the court for leave to enter into separate consent rules and to plead separately, which application was opposed by the plaintiff, but granted by the court ; and the defendants availed themselves of the permission granted.

<p>The plaintiff, to show that his property had been applied to the defendant’s use, in payment of a note made by the defendant and indorsed by the plaintiff, proved that the defendant pointed out the property to" the sheriff and declared that it was the plaintiff’s: Held, that the defendant was entitled to prove his statement in the same conversation that the note was the plaintiff’s debt and he was to pay it.</p> <p>The rule of evidence, in respect to parts of the same conversation, laid down in- The Quern’s case (2 Brod. & Bing., 297), disapproved, and that in Prince v. Samo (7 Ad. & Ell., 627), approved: Per Sutherland, J".</p>

<p>Appeal from the judgment of the supreme court sitting in the third district. The action was tried before referees. On the trial it appeared that the plaintiffs, who were tanners in Ulster county, and the defendants, being leather merchants doing business in Sew-York, entered into a contract in March, 1844, by which the plaintiffs agreed to receive from the defendants, tides, and return them tanned into leather, at a specified price per pound, to be paid by defendants; among other things, the plaintiffs agreed that the hides should “be tanned in a good and workmanlike manner, and made to gain in weight as muck as good tanners make from the same description of hides that the plaintiffs received hides and returned the leather under the contract, down to January, 1847; that defendants on the first of February, in each year, were accustomed to make up the accounts between the parties, and transmit the same to the plaintiffs, and that on or about the first of February, 1847, they made up an account between them and the plaintiffs, of the transactions of 1846, and sent a copy to the latter by mail. In this account the plaintiffs were charged, for deficiency in gain of weight in tanning” sundry hides a certain number of pounds, at a price per pound specified, the sum of $880,48, as one item; the account contained a large number of debits and credits, and showed a balance due the plaintiffs of $5623,41. After receiving this account, and on the 17th of February, 1847, the plaintiffs made their draft on the defendants, payable at sight to the order of Jos. S. Evans, cashier, for the sum of $5623.41, being the same as the balance shown by said account, which draft was paid by the defendants. The plaintiffs made no objection to the account, or any item of it, at or prior to drawing the draft, or at any time prior to commencing the suit. The draft did not refer to the account in terms, and by it the defendants were requested to charge the amount thereof to the account of the plaintiffs. In November, 1847, this suit was commenced: the declaration contained counts upon the contract, and also the common counts for work and labor. The only matter in dispute upon the trial was, whether the plaintiffs were properly chargeable under the contract, with the said sum of $880.48, for deficiency in weight. Bach party gave a good deal of evidence on this point.</p> <p>The defendants also insisted that the plaintiffs could not recover, on the ground that the account, including the item in question, had been stated and settled between the parties, and that it could not be opened without proof of fraud or mistake. The referees made a report in favor of the plaintiffs for the amount of said sum of $880.48, with interest. The supreme court, on a case made by the defendants, denied a motion to set it aside, and gave judgment for the plaintiffs. A statement of facts found by the court was incorporated with the case, in the judgment roll, and the defendants appealed to this court.</p>

<p>Where a certiorari is sued out to remove a justice’s judgment into the common pleas, and the instrument intended as a bond, in compliance with the statute, is without seals, the common pleas, on an offer to amend by affixing seals, should permit the amendment to be made.</p> <p>One of two defendants cannot alone sue out a certiorari, and the writ will be quashed, unless the party prosecuting it shows that his co-defendant is incapable of consenting to join, or is absent from the state, or takes measures to compel him to join, or be precluded from bringing error.</p>

This action was brought to determine the claim of defendant Mallady to certain moneys in the hands of plaintiff, and to restrain defendant Haws from further proceedings upon a verdict obtained by him in an action brought against plaintiff for the conversion of said moneys. The defendant Haws, a passenger in one of the plaintiff’s cars, found a package in the car, containing $1,045 in money.

The action in the court below was by Shoemaker against Thomas A. Paine, Thomas Paine and Chester Paine. Chester Paine only answered. He set up the statute of limitations. The action was upon a promissory note in the following words: “ By the first day of February next, we or either of us promise to pay James Norton, or bearer, three hundred and twenty-two dollars and sixty-six cents, with use, for value received. Paine’s Hollow, March 30,1838.

The declaration was served in this case, on the eighth day of August, 1833. On the sixteenth, the defendant obtained an order for a bill of particulars, or that the plaintiff show cause on the twenty-fourth- of August, and that in the mean time all proceedings stay. On the day appointed, the plaintiff’s attorney appeared before the judge to show cause ; no one appeared for the defendant, and no peremptory order for a bill of particulars was granted.

Action against the indorser of a promissory note, who defended on the ground that there had been no sufficient presentment or demand of payment. The facts are stated sufficiently in the following opinion. Judgment for the plaintiff having been ordered by a referee and affirmed at general term in the fourth district, the defendant appealed to this court.

This suit was commenced by the filing and service of a declaration. The notice endorsed on the declaration served, required the defendant to take notice of a rule to plead within days. The defendant did not put in a plea, and the plaintiff entered his default, which was now moved to be set aside as irregularly entered.

The defendant demurred to the plaintiff’s declaration, and within twenty days thereafter entered a rule to amend as of course, and served a plea, which the plaintiff moved to set aside.

Mandamus. A fugitive slave was brought before the recorder of New-York on a habeas corpus. The fugitive sued out a writ of homine replegiando, upon which an issue was joined and tried in the New-York circuit, and a verdict found that the fugitive owed service to the person claiming the same.

The plaintiff brought his action in a Justices’ Court, to recover rent claimed to be due to him as assignee of a lease in fee from Stephen Tan Eensselaer to one Snyder, of a lot of land in the county of Eensselaer, reserving a wheat rent. The recovery was sought against the defendant for rent accrued up to 1856, upon the part of the premises which he occupied. It was alleged that the rent for thirteen years, ending with the year 1855, had become due and was unpaid.

<p>At a special term of this court held in February last, judgment as in case of nonsuit, for not bringing this cause to trial, was rendered. The defendants had their costs taxed, made up a judgment roll, and had it signed and filed, and issued an execution tested as of the last January term, returnable in May next. The plaintiffs moved to set aside the judgment and execution for irregularity, insisting that a judgment roll could not be made up as of a special term; and if it could, that it was incongruous to issue an execution tested as of the preceding general term. They also insisted that an execution could not be awarded against them ; that the remedy of the defendants was to apply to the supervisors to collect their judgment by tax upon the country. 2 R. S. 474, § 102, 103, 107. In answer to which it was said that the statute authorizing this court to hear and dispose of non-enumerated business in vacation, expressly declared that all rules and orders made and entered in relation to such business should be as valid and effectual as if entered in term time, Laws of 1830, p. 208, § 3 ; and if so, the record might be made up as of the true time when the judgment was rendered. As to the teste of the execution, it could not be otherwise than as of the preceding term, as no provision had been made on the subject, and of course the party was bound to conform to the general statute regulating the teste and return of process. It was, however, conceded that the execution against the plaintiffs individually, was erroneous, and must be set aside ; but without costs, as the plaintiffs had asked far more than they were entitled to.</p>

At the last January term judgment, was entered for the plaintiff upon a cognovit.

<p>Error to the General Term of the Supreme Court, in the first judicial department, to review judgment affirming proceedings before Hon. John E. Brady, one of the justices of the Supreme Court of the State of Hew York, upon writ of habeas corpus; which proceedings were brought up for review by writ of certiorari, and dismissing said writ of certiorari.</p> <p>On the 8th day of December, 1873, the relator was arrested by the sheriff of the city and county of Hew York, under and by virtue of a warrant of the governor of this State, issued on the sixth of December, directing such arrest and his delivery into the custody of an agent of the State of Michigan, pursuant to a requisition from the governor of that State. On the following day a writ of habeas corpus was issued out of the Supreme Court of the State of New York in behalf of the relator; to that writ the sheriff made return before the Court of Oyer and Terminer that the relator was held under and by virtue of the warrant aforesaid. Upon demurrer to this return judgment was had against the relator and the writ dismissed. Thereafter, on the 5th of January, 1874, another writ of habeas corpus, in behalf of the relator, was issued out of the Circuit Court of the United States for the southern district of New York; to this writ the sheriff made return, that he held the relator under and by virtue of the aforesaid warrant, and, also, set forth the proceedings aforesaid before the Court of Oyer and Terminer; to this return a traverse was interposed on behalf of the relator ; to this traverse the sheriff demurred; and judgment was rendered sustaining the demurrer, dismissing the writ, and remanding the relator. Thereafter, on the 16th day of January, 1874, upon a petition alleging the insufficieney of the requisition papers, upon which the warrant to the governor aforesaid was issued, another writ of habeas corpus was allowed. :by Mr. Justice Lawbeitoe, and the sheriff made return thereto before Mr. Justice Bbadt that he held the relator under and by virtue of the warrant to the governor aforesaid; and in ■his warrant he also set forth all the proceedings hereinbefore mentioned before the Court of Oyer and Terminer for the ■county of New York, and before the Circuit Court of the United States. The relator traversed this warrant, setting forth in his answer the affidavits which accompanied the requisition; and alleging, among other things, that the affidavits were defective in not showing the nature, facts and circumstances of the transaction therein alleged, and not disclosing the grounds upon which are based the allegations of illegality. The allegations in the affidavits are set forth in the opinion. To this traverse the sheriff demurred, and judgment was had thereon sustaining the demurrer, dismissing the writ and remanding the relator to the custody of the sheriff.</p> <p>It was error to dismiss the writ of habeas corpus herein on account of the alleged facts pleaded in the return thereto by way of prior adjudication. (Mercein, v. People, 25 Wend., 64; 3 Hill, 399 ; In re Da Costa, 1 Park. Cr., 129 ; People v. Burtnell, 13 Abb., 8; In re Reynolds, 6 Park. Cr., 276; State v. Brearly, 2 South., 561; In re Kaine, 3 Blatch., 1.) The requisition papers should have been certified as authentic by the governor of Michigan. (1 U. S. Stat. at Large, 302.) The court could alone regard the facts set forth in the affidavits as having any legal existence. (In re Hayward, 1 Sandf., 708.) The offence with which the relator is charged is not a crime. (2 Compiled Laws of Mich., 2087, 2152; Lambert v. People, 9 Cow., 593; Lohman v. People, 1 N. Y., 384; 1 Manning [Mich.], 216.) The governor of this State had no authority to issue the warrant under which the relator is in custody. (Taylor v. Taintor, 16 Wall., 371.)</p> <p>The proceedings in the Supreme Court and the United States Circuit Court cannot be reviewed here by certiorari. (R.S., part 3, chap. 9, fol. 1, art. 2, § 69 ; People v. City of Rochester, 21 Barb., 656-670.) An indictment was not necessary to support the requisition. (1 U. S. Stat. at Large, 302.) The papers were properly certified. (In re Manchester, 5 Cal. [Morris], 237.) It was not necessary that the affidavits should set out all the facts; a charge of the crime was sufficient. (In re Clark, 9 Wend., 219, 220; Com. of Ky. v. Dennison, 24 How. [U. S.], 100, 104, 106, 107.) The crime charged is recognized, and punishable by the laws of Michigan. (People v. Richards, 1 Mich., 216; People v. Clark, 10 id., 310.) The writ should be quashed. (People v. Suprs.of Allegany, 15 Wend., 198, 203.)</p>

The defendant put in a demurrer to the plaintiff’s declaration, without the signature of counsel. The plaintiff treated the demurrer as a nullity, and entered the defendant’s default as for not pleading, which the defendant moved to set aside.

The defendant, after issue joined, on the usual affidavit moved to change the venue. The plaintiff objected that if the motion was granted, he would lose a trial. It did not appear when the issue was joined.

This was a bill filed by the respondent, a creditor, to set aside as fraudulent a voluntary assignment made by Grover and Gunn, his debtors, of all their estate, for the purpose of having the same disposed of, and the proceeds applied in the payment of their debts in the manner designated by the deed of assignment; the trustees to whom the property wras as-signed to account for the surplus, if any, to the ^'assignors.

Action on a note for six hundred dollars, made by the defendants and one John I. McPherson, since deceased, dated October 1, 1855, payable one year after date, with interest semi-annually, to one George E. B. Covil or bearer.

(Reported below, 2 S. 0. R. [T.&C.], 501.) This was an action for limited divorce and alimony. It came on for trial at Special Term and was tried and submitted. Subsequently the court, of its own motion, made an order directing that certain specific questions of fact stated in said order be tried by a jury. After the trial before the judge had commenced, it was too late for either party to apply for issues.

Action to compel the conveyance of the exclusive privilege of using, burning and carrying away stone from quarries on the defendant’s farm in pursuance of, a contract made January 9,1838, by which the defendant agreed to sell to one Lawrence “ the exclusive privilege of using, burning and carrying away stone from all the quarries situated on the farm of the said Tilson with three acres of land lying on the canal and extending back to said quarries, for the sum of one…

This action was brought to recover freight on 513 bundles of iron, shipped from London to New York, on board plaintiff’s steamship “ Celia.” Defendants, who were the consignees and owners, set up as a counter-claim, damages to the iron alleged to have been occasioned by plaintiff’s negligence. The material clauses in the bill of lading are set forth in the opinion.

Action to recover the possession of real estate situate in the city of Syracuse. The cause was tried before a referee. The plaintiff claimed title under and by virtue of a sale and purchase of the premises, upon the foreclosure by advertisement pursuant to the statute of a mortgage upon the same executed by John B. Kline. The defendants were grantees from Kline, the mortgagor, subsequent to the mortgage and before its foreclosure, of the premises.

Babcock and others sued Beman. as indorser of a promissory note made by Adam Smith &, Co. and payable -to Beman. The complaint set forth the facts necessary to charge the defendant as indorser, taking no notice of the addition annexed to his name in the body of the note and in the indorsement, as hereafter mentioned.

This was an action to recover damages for injuries alleged to have been caused by defendant’s negligence in building a mill dam in an unsafe and improper manner and in failing to keep the same in good repair, in consequence of which it gave way and plaintiff’s dam below, upon the stream, was swept away by the accumulated waters.

Assumpsit to recover the amount of a bill of exchange drawn at Wilmington, in the state of Delaware, by one Hutton on Thomas E. Warren of Troy, if. Y. for §11,421.55, dated Nov. 15th, 1847, payable at sight to the order of Betts, Harlan and Hollingsworth, and indorsed by them.

The action was brought by Dwight, the plaintiff in .two judgments entered upon confession without action under § 382 of the Code of Procedure. Held: as matter of law, that the plaintiff was not entitled to have the confessions of judgment or either of them amended or any part of the relief prayed for in the complaint, and that the defendant was entitled to have the judgments canceled of record.

On the 22d May, 1873, the plaintiff in error, then a convict confined in the Auburn State prison, stabbed Elihu Moore, a fellow-convict, with a shoe knife, inflicting a mortal wound, of which he died.

Action to recover unpaid calls to the amount of six hundred dollars, upon the defendant’s subscription for one thousand dollars of the capital stock of the plaintiff.

<p>It is a mistrial where the judge, there being a question of fact controverted, orders a verdict against a party who has taken exceptions subject to the opinion of the court at general term.</p> <p>The party taking exceptions has a right to have them heard upon an application for a new trial, if the verdict be against him and the facts are not conceded.</p> <p>The court at general term cannot find the facts on which to base a final judgment. They must either be conceded on the trial or have been found by a jury.</p>

Action by a receiver appointed under the act of April 16, 1852, “ to facilitate the dissolution of manufacturing corporations in the county of Herkimer, and to secure the payment of their debts without preference.” On the trial before a referee, these facts appeared: Articles of association, under the general manufacturing act of 1811, were made and filed on the 24th of March, 1842, incorporating the Wool Growers’ Manufacturing Company, with a nominal capital of one hundred…

These are appeals from orders of the General Term of the Supreme Court in the fourth judicial department, reversing judgments in favor of plaintiff in the action first above entitled, and in favor of defendant in the second, and granting new trials.

The action was brought by Thomas Vermilya in that court to recover for the use and occupation of a dwelling house and three lots of ground from the 1st of May, 1847, to the 1st of May, 1848. The cause was tried before Judge Woodruff, without a jury.

This was an action to obtain a construction of the last will and testament of Alexander G. Cadier, deceased. The following are the main provisions of the will: “ Second.

<p>Appeal from the judgment of the supreme court of the second district.</p> <p>In ¡November, 1850, an instrument' dated February 2d, 1849, was propounded to .the surrogate of the county of Kings, as the last will and testament of Thomas Lewis. It purported to devise and bequeath all his real and personal estate to his wife, Clarissa C. Lewis. Joseph B. Lewis and others, the heirs of the deceased, opposed the probate.</p> <p>The name of the deceased was signed to the alleged will in his proper handwriting; it purported to have been witnessed by two subscribing witnesses; ttached to the will and above the signatures of the witnesses was an attestation clause as follows, “the above written instrument was subscribed by the said Thomas Lewis in our presence, and acknowledged by him to each of us, and he at the same time declared the above instrument so subscribed to be his last will and testament, and we at his request have signed our names as witnesses hereto.”</p> <p>Ferris Tripp, one of the subscribing witnesses, testified in substance that he was a clerk in the store of the deceased at the date of the will, and that Wing, the other subscribing witness, was also a clerk: that he, the witness, signed his name at the end of the attestation clause, at the request of the testator; that on the occasion when he did so Wing and he were called by the deceased into his private office, where he had a paper of which he turned up so much as would allow them to write their names, requesting them to sign the same and add their residences to their respective names ; that he also then said, “ I declare the within to he my free will and deed.” That this was all that was said, according to his recollection, and that he and Wing then signed their names to the instrument where the same appear : that he did not then know to a certainty what the instrument was, but thought it was a will from the fact that the deceased had that morning sent out and procured a blank will. On a cross-examination this witness testified that a"t the time he signed his name to the instrument it was so folded or placed upon the desk that he saw no part of the contents, and that neither the same or any part of it was read to him ; that he did not see the testator sign it, nor did he see his signature to it when he signed as a witness. W. B. Wing, the other subscribing witness, testified in substance, that he signed his name to the alleged will in the oflBce of "the deceased; that he was unable to say what occurred on that occasion, but that according to his recollection he signed it at the request of the deceased; that he had no recollection that the deceased said any thing else to him at the time he requested him to sign it, unless it was “ to see him sign the "documentthat he did not recollect that the deceased signed the instrument in his presence; that he had no recollection that Tripp, the other witness, was present when he signed, and could not state any thing further which occurred or was said or done by the deceased on the occasion. On his cross-examination he further testified that according to his recollection he did not read, nor was any part of the instrument read to him when he signed it, and that he had no recollection that he then knew what the paper was.</p> <p>The alleged will was a printed form, and it was proved that it was filled up in the handwriting of the deceased; that it was either handed by him to his wife or placed in a drawer in his house not sealed up, accompanied by a letter written by him and addressed to her, dated February 2d, 1849, in which he stated that he had made his will giving her all his property, and advising her in reference to the estate.</p> <p>The surrogate adjudged and decreed that the instrument was not executed and attested as a will in the manner prescribed by law. The widow appealed to the supreme court, which at general term affirmed the decree. (13 Barb. 17.) She appealed to this court.</p>

<p>Appeal from judgment of the General Term of the Supreme Court, in the second judicial department, affirming a judgment of the court, Special Term. (Reported below, 7 Lans., 193.)</p> <p>This was an action for partition. The complaint alleged, in substance, that William Hurtin died on the 4th day of ¡November, 1858, seized of the premises in question, having previously made his last will and testament, dated June 21, 1854, which was admitted to probate by the surrogate of Orange county, ¡NT. Y., June 8, 1859, as a will of real and personal estate. The premises in question were devised by William Hurtin, as follows: “And first I give and bequeath to my son, Alfred D. Hurtin, the farm on which I now live, during his natural life, and also the piece or parcel of land which I took from William D. Hurtin’s farm, adjoining the Widow Hill, as above mentioned; at his death, I give and bequeath to his two sons, George Walter Hurtin and William Mills Hurtin, for them and their heirs forever, and the piece of ground adjoining the Widow Hill, as above mentioned; but if one dies without leaving any child or children the surviving brother to have the whole of all the land above mentioned, for himself and his heirs forever.” Upon the death of William Hnrtin, his son, Alfred D., went into possession under said will.</p> <p>The defendant Edwin Mills is purchaser of the life estate of A. D. Hnrtin. The defendant William Mills Hnrtin, one of the devisees, is an infant. He appeared by George W-. Greene, his guardian, ad litem.</p> <p>Judgment directing the sale was rendered at a Special Term January 2*8,1867. Ho exceptions appear in the case, save “ to the judgment and decree.” Exceptions filed May 13,1872.</p> <p>The action was brought by George W. Hnrtin, one of the devisees above named.</p> <p>An appeal was taken from the judgment to the General Term of said court; pending the appeal, and before argument, an order was made by said court at Special Term substituting the present plaintiff, on his own motion, in the place and stead of George W. Hurtin, upon the ground that Howell had succeeded to said G. W. Hurtin’s interest in the subject-matter of the action.</p> <p>To entitle a person to bring an action of partition he must hold, and be in possession as a joint-tenant or a tenant in. common. (Litt., §§ 288, 292; 2 Bl. Com., 191-194, 190, 200; 2 R. S., 326, § 1; 1 R. L., 507; Clapp v. Bromagham, 9 Cow., 567; Brownell r. Brownell, 19 Wend., 367; Burhans v. Burhans, 2 Barb. Ch., 304; Fleet v. Dorland, 11 How. Pr., 489 ; Florence v. Hopkins, 46 N. Y., 182.) Plaintiff could not maintain such an action. (Blakely v. Calder, 15 N. Y., 617.) His estate in the premises is future and contingent. (2 R. S., 723, §§ 4, 13; 5 Den., 35; 2 id., 336; Campbell v. Rowden, 18 N. Y., 412, 420; Woodruff v. Cook, 47 Barb., 304; Moore v. Littel, 41 N. Y., 66, 79, 80; 2 Blk. Com., 173, marg.)</p> <p>Defendant Mills not having answered or appeared, and the infant defendant not having put in issue any of the material allegations of the complaint, they will not be allowed to review this judgment on appeal. (Henry v. Cuyler, 17 J. R., 469; Colder v. Knickerbocker, 2 Cow., 31; Campbell v. Stokes, 2 Wend., 137; Wood v. Young, 5 id., 620; Kane v. Whitlock, 8 id., 219; Van Wormer v. Mayor of Albany, 18 id., 169; Dorr v. Birge, 8 Barb., 351; Adams v. 20 J. R., 282; Jones v. Kip, N. Y. Leg. Ob., 91; 1 Code R., 119; 3 Kern., 343, 344; Pope v. Dinsmore, 8 Abb. Pr., 429 and note; O' Dougherty v. Aldrich, 5 Den., 385.) Defendants having failed to object when the referee’s report came in that the proof did not establish plaintiff’s title, the court will not entertain that objection now. (Goulard v. Castillon, 12 Barb., 126; Ehlen v. Rut. F. Ins. Co., 6 Abb. Pr., 68; 2 Bosw., 282.) The appeal only brings under review such tilings on the trial as are duly excepted to. (Keyes v. Devlin, 3 E. D. S.) No point can be raised in the appellate court not raised and argued in the court below. (Gelson v. Hoyt, 13 J. R., 561; Coon v. Syr. and U. R. R. Co., 5 N. Y., 492; Dorr v. Birge, 8 Barb., 351; 5 How. Pr., 323; Ingraham v. Baldwin, 12 Barb., 9; Hunt v. Hoboken L. Co., 1 Hilt., 161; Meakings v. Cromwell, 5 N. Y., 136; Tucker v. Tucker, 1 id., 408; 12 J. R., 493; 17 id., 469; 2 Cow., 31; 2 Wend., 146 ; 4 id., 179; 5 id., 620; Post v. Ketcham, 1 N. Y. Leg. Ob., 261; Clarke v. Sawyer, 2 N. Y., 498; Bidwell v. Astor Mut. Ins. Co., 16 id., 263; Bumsted v. Mut. Ins. Co., 12 id., 81; Church v. Pickett, 19 id., 482; 3 Comst., 511; 5 Barb., 586; Daldwin v. McArthur, 17 id., 414; Bates v. James, 3 Duer, 45; Duffy v. Thompson, 4 E. D. S., 178; 12 Wend., 399.) Plaintiff could bring and maintain his action of partition. (2 Laws 1847, 587 [chap. 430]; 13 How., 476; 15 N. Y., 617; 2 Fearne on Remainders, 66; 17 N. Y., 217; Code of Procedure, § 448 ; 4 Stat. at Large, 614, § 5.)</p>

The respondents filed a bill in chancery to annul a will of real and personal estate, made by Joseph Idley, on the 3d May, 1825, and to establish a previous will made by him on the 3d April, 1825, which had been destroyed. Joseph Idley, the testator, had two children, viz : Ann Eliza, the wife of George Bowen, and Mary Ann, the infant, who, at the time of the death of her father, it seems, was only six years old.

Ejectment, commenced in May, 1848, by Eliza Ann Ridgway to recover the undivided third of premises situate in the city of New-York, as her dower as widow of James Ridgway, deceased. The cause was tried in the superior court, before Chief Justice Oakley and a jury.

This action was brought to recover damages for the alleged breach of a contract for the sale of $40,000 of gold coin.

This action originated in a court of a justice of the peace of Columbia county, where the plaintiff sued the defendant in trespass, for driving certain cows and cattle of the plaintiff into his (defendant’s) yard, and keeping them there for a certain length of time.

The action was commenced in 1851 by Bate, a judgment creditor of one Whorry, deceased, against Graham, the administrator of his estate, and Jordan, to set aside an assignment made by Whorry in his lifetime, to Jordan, of a verdict in his favor, against one Miller, on the ground that the assignment was fraudulent, and void as against creditors.

This action was brought by plaintiff, a real estate broker, to recover commissions alleged to be due under a contract with defendant for procuring a purchaser for certain premises owned by defendant, situate in the city of Buffalo. The facts sufficiently appear in the opinion. The contract of sale being a parol contract was void, and plaintiff could not when this action was commenced claim commissions.

On the trial before a referee these facts appeared: In the year 1853, the defendants, composed the firm of John Steward, Jr., & Co., in the city of New York. The plaintiff was also a merchant, doing business in the same city. The firm of Strippieman & Boyce, of Columbus, in Texas, had dealings with the defendants and was also indebted to the plaintiff.

The appellant, a creditor of Thomas Freeborn, holding four judgments against him, obtained in July, 1830, to the amount of about $1500, on four promissory notes, bearing date in January preceding, payable from three to five months after date, filed a bill in chancery on the 20th August, 1830, to set aside a voluntary assignment, #made by his debtor to his son George Freeborn, on the 25th March, 1830, charging the same to have been fraudulently executed, with the intent to…

This was an action of ejectment brought to recover possession of an undivided one-twentieth part of a piece containing about fifteen acres of land, of which one Francis Yandervoort died seized and possessed in 1831. He left four children and five grandchildren, of whom plaintiff Cornelia Underhill was one.

In 1785 a religious society was formed in the town of Cambridge, Washington county, under the name of the Associate Congregation of Cambridge. This society, upon its organization, connected itself with and became subordinate to the Presbytery of Pennsylvania.

The complaint alleged that, on a day named, the defendant “ in consideration that the plaintiff would buy of him a farm of land, situate in the town of Chatham, in the county of Columbia, and pay unto him the sum of nine thousand dollars, by transfer of other real estate and other securities for the same, falsely and fraudulently represented and alleged that said farm contained ninety acres of land.” It is then alleged that the plaintiff, relying on this representation,…

<p>Appeal from order of the General Term of the Superior Court of the city of Uew York, affirming an order of Special Term denying a motion to set aside an execution herein.</p> <p>The motion was based upon the ground that more than five years had elapsed, after entry of judgment, before issuing of execution. An appeal was taken from the judgment by defendant. The General Term reversed the judgment and granted a new trial. On appeal to this court, the order of General Term was reversed, and the original judgment was affirmed. Reckoning the time between the orders ot reversal and affirmance, more than five years had elapsed before the issuing of execution; omitting this period, the five years had not expired.</p>

On the 2d December, 1873, an order for alternative writ was granted at Special Term, on the application of the above named relator; and thereupon the writ issued, tested on that day, directed to the board of supervisors of Sullivan county and to each member thereof, which writ recited that such board neglected and refused to designate two newspapers published in said county of opposite politics, and which fairly represented the two political parties into which the people of…

Action to recover for alleged waste. The complaint stated that at the time of the commission of the waste, the plaintiff was the owner in fee of the premises, which were an island in the Niagara river called Tonawanda island, and that the defendant held and enjoyed said premises as the tenant of the plaintiff.

Felix street, in said city, from Be Kalb- avenue to Hanson place, with ¡Nicholson pavement. The- street had ■ been previously paved with cobble-stone pavement.

<p>Where the gift of a legacy is absolute, and the time of payment only postponed, as where the sum oí $1000 is given to A. to be paid when he shall attain the age of 21, the time not being of the substance of the gift, postpones the payment, but not the vesting of the legacy ; and if the legatee die before the period specified, his representatives are entitled to the money. But where the legacy is given when the legatee shall attain, or provided he does attain the age of 21, time is of the substance of the gift, and the legacy does not vest until the contingency happens.</p> <p>But even where the legacy is given when the legatee attains the age of 21, if the devisor directs the interest of the legacy to be applied in the mean time for the benefit of the legatee, there being an absolute gift of the interest, the principal will be deemed to have vested.</p> <p>So the legacy will be deemed vested, if it be left to the discretion of a trustee to pay the legacy sooner than the time specified in the will; and it seems that the more appointment of a trustee for the legatee during the minority will have the same effect.</p> <p>Where the words of a limitation over of personal property are such as would create an estate-tail in the legatee first named was real estate the subject of the limitation, the gift to the first legatee is absolute, by operation of law, notwithstanding the manifest intent of the devisor to the contrary: such intent being in contravention of the settled rules of law, must yield to the law.</p> <p>The rule is the same, whether the estate tail is created by express words, or by implication.</p> <p>Chattels or money may be limited over after a life estate, but not after a gift of the absolute property. Previous to the revised statutes of this state, the terms failure of issue, or dying without issue7 meant an indefinite failure of issue. The terms are legal *and technical, growing out of the statute de donis ; one object of which was to secure to the donor of lands, who had granted the same to the donee and the heirs of his body, the reversion of the land on the failure of issue, and the uniform construction of which statute was, that there could be no reversion, so long as the issue of the grantee had issue ; or, in other words, that to entitle the reversioner to the land, there must be an indefinite failure of issue.</p> <p>Consequently an executory devise, limited upon a general failure of issue is void, because limited upon an event which may not happen within the compass of a life or lives in being, and 21 years and 9 months afterwards, a period beyond which an executory devise cannot extend ; and as the event may exceed the prescribed limits, it is void at its commencement, let the fact turn out as it may.</p> <p>The words dying without leaving issue have no other or different import than the words dying without issue ; in either case they mean an indefinite failure of issue.</p> <p>If, however, there be any additional clause, word, or circumstance, which clearly and plainly denotes an intention to restrict the dying without issue to the death of the first taker, the technical sense will not be adhered to, but the intention will prevail—as where the limitation over is to the survivor, to children, to executors, or where the words are, dying without issue in the lifetime of the brother of the first taker, in whose favor the limitation is created.</p> <p>A testator directed that, immediately after his decease, the sum of $20,000 should be placed at interest in the name of his infant daughter E. E., either on public or private securities, and that the interest or income thereof should be received by his executors as the guardians of the estate of his daughter during her minority—$500 of the interest to be paid annually to his wife, to be appropriated to the education and maintenance of the daughter during her minority, unless she should marry before she arrived at full age, in which case the whole of the interest or income to be paid to her. He also directed that the residue of the interest of the sum invested, over and above the $500, appropriated for education, &c. should also be invested, and then that the whole of the principal sum, together with the accumulation of the interest thereof, should be at the free and absolute disposal of Ms daughter after she should attain the age o/21. He also directed, that if his daughter should die during her minority leaving lawful issue, such issue should be entitled to that portion- of his estate by his will intended to be given to her provided she should attain the age of 21; if one, the whole, and if more than one, share and share alike ; but if she died before she arrived at that age, and without leaving lawful issue, then he directed the $20,000, with the additions to be made by the accumulation of interest, to be distributed as directed respecting the residue of his estate. On appeal from a decree of chancery, it was held that the legacy of $30,000, with the interest thereof, was a vested legacy, and that the limitation over in favor of the residuary legatees was void as repugnant to the former provisions of the will; and it was-.further held, that if the terms of the will could be considered as conferring only a life interest in E. E., the subsequent limitation over being -upon an indefinite failure of issue was too remote, and therefore void as an executory devise.</p>

Felix street, in the city of Brooklyn, from De Kalb avenue to Hanson place. The facts sufficiently appear in the opinion. All proceedings to levy the assessment were absolutely void, because of want of jurisdiction in the water board.

From the complaint these facts appear: In 1835, divers persons claiming to own about 1,200,000 acres of land in Florida formed an association by the name of the Appalachicola Land Company, for the sale and management of said land, dividing the capital of the Company into 2,400 shares, each share represent ing 5,000 acres of land.

This action was brought to restrain defendants from filling up a portion of a canal in the city of Buffalo, known as Prime slip. The facts, as found by the court, were substantially as follows: In 1826, the owners of a tract of land lying between the Erie canal and the Buffalo river, laid out and excavated through that tract a canal known as Prime slip, of the same depth and width as the Erie canal, and connecting its waters with those of Buffalo harbor.

<p>One who has agreed to build a house on the land of another, and has substantially performed his contract, but has not completely finished the house nor delivered it, when it is destroyed-by fire, is liable to an action for money advanced upon the cpntract and damages for its non-performance.</p>

This was an action to recover damages for the alleged conversion of a mare alleged to have been purchased by plaintiff of one Isaac J. Craig. Defendants justified under a judgment and execution in favor of defendant Atkins; which execution was placed in the hands of defendant Terwilliger, as constable, who, by virtue thereof, levied on the mare then in the actual possession of Craig.

Motion to dismiss an appeal. The judgment of the supreme court in this cause, upon a report of referees, was entered on the 9th day of April, 1853, in the clerk’s office of Monroe county. It was in favor of the defendant for §1679.19, damages and costs.

On the application of the respondent under the general railroad act of 1850, commissioners were appointed to appraise the lands in question, who made their report, by which they were appraised at $11,500, and the report was duly confirmed at a special term‘of the supreme court.

Action for the wrongful detention of 450 bags of barley malt, alleged to be the property of the plaintiffs. The trial was before a referee, who reported in favor of the plaintiffs, and assessed their damages at $1,413.33, the value of the property.

This action was brought to recover plaintiff’s fees upon an execution issued to him as sheriff of the county of Monroe, by defendant as attorney for the plaintiff in said execution. The facts are sufficiently stated in the opinion. The sheriff having levied is entitled to his poundage on the amount of the execution issued to him, and is not affected by any arrangement between the parties or any action of the court affecting the amount to be linally collected on the execution.

The action was trover, for a span of horses, and was commenced in 1845. The defendants pleaded not guilty. The cause was tried before Mr. Justice Mullett, without a jury, in November, 1849. The facts were as follows: On the 13th of December. 1842, the defendants recovered a judgment against the plaintiff, before a justice of the peace, for $44.48. The recovery was on a promissory note, executed by the plaintiff to the defendants on the 28th of November, 1841.

verdict. This action was brought for an accounting and to recover a balance alleged to be in the hands of defendant, the avails of a sale by him as agent of certain property which belonged to plaintiffs’ testator. • The facts sufficiently appear in the opinion. The rule that an agent cannot bind his principal in matters touching his agency where he has an adverse interest in himself does not apply to this case. (Claflin v. F. & C. Bk., 24 How. Pr., 1; N. Y. Cent. Ins.

Action to recover back money as paid under mistake. Upon the trial before Mr. Justice Emott, and a jury, these facts appeared: On the 28th of February, 1856, the defendant, who was the superintendent of the poor of the county of Dutchess, was notified that one Louisa Hehr was pregnant of a child, likely to be born a bastard, and he thereupon applied to a justice of the peace to make examination.

plaintiff, entered upon the report of a referee. This action was brought to recover back moneys alleged to have been extorted by defendants from plaintiffs, by duress of the goods of the latter.

Action to recover upon three checks drawn upon the bank and certified as good by its president. Two of the checks, one for $5,500, dated February 4, 1854, and one for $10,000, dated February 25, 1854, were drawn by the President, ,G. W. Houghton, to the order of C. A. Cleveland; and the other for $5,000, dated December 81, 1858, was drawn by Thomas Green, payable to the order of said Cleveland.

The action was brought against William L. James and Eliza Eaglesum. The complaint alleged that the defendants, under and by their copartnership name of Eaglesum & Co., made two promissory notes, particularly described in the complaint, and thereby promised to pay to the plaintiff or order the sums mentioned in them respectively. The notes were dated Toronto, Canada, August first, 1846. The defendant Eliza did not appear or answer.

The nature of the action and the material facts are stated in the opinion. Plaintiff having voluntarily parted with his ticket was bound to pay his fare to the conductor of the second train. (Hamilton v. N. Y. C. R. R. Co., 51 N. Y., 100.) It was error for the court to refuse to charge that the case was not one for punitive or exemplary damages.

Action against the late sheriff of Chemung and his sureties, on his official bond, the condition of which was that he should well and faithfully perform and execute the duties of the office of sheriff. The relators had recovered a judgment for $897.18 against Benjamin C. West and others, and the execution had been delivered to the sheriff to execute.

The complaint alleged that in February, 1851, at Denmark, Lewis bounty, the defendants unlawfully took and converted goods, wares and merchandise belonging to the plaintiffs, of the value of $700.

This action was brought to recover damages for injuries sustained by plaintiff while leaving a car on defendant’s road at Niagara Falls. Plaintiff was twelve years of age and was in the company and care of her parents. They were passengers on defendant’s cars from Buffalo to Niagara Falls. Before the train reached the latter station the conductor called out the name of the station.

Action upon a promissory note against the indorser only. Defence, that the indorsement was for the accommodation of the maker; that the note was one of several given for oak timber sold to the maker by the plaintiffs; that the timber was a raft in the Hudson river, opposite the city of New York, and that, on making the sale, the plaintiffs produced certificates of inspection showing that there were 29,441 feet of first quality oak, for which Yan Pelt, the maker of the notes,…

The action was to recover the possession of a small parcel of land situate in Clifton Park, Saratoga county. The plaintiffs, by the complaint, claimed title as the widow and heirs of Eleazer Rexford the younger. The defendant, by his answer, denied that the’plaintiffs had title, and alleged that he was in the lawful possession of the premises.

This action was brought by plaintiff to recover commissions for his services as a broker, in procuring a loan for defendant. The facts found by the referee were substantially as follows : Defendant employed the plaintiff to go to a farm belonging to him, and situated some miles from the city of New York, to examine the same and to estimate the value thereof, and also to procure a loan to be secured by a mortgage on the said farm.

The action was brought against the board of supervisors and the collector, to enjoin the collection of a tax of $490, assessed against the plaintiff, for personal property, by the board of supervisors of the county of Broome, at their annual session in November, 1855.

In January, 1827, Susan U. Niemcewicz filed a bill in chancery, to foreclose a mortgage executed to her bv Henry Gahn and Jane his wife, on the 22d July, 1818, to secure the payment of $7000, with the interest thereof, within one year from the date ; making certain creditors of Henry Gahn, who had obtained judgments against him subsequent to the execution of the mortgage, parties to the suit.

Eeplevin for a quantity of merchandise. The answer was a general denial merely. On the.trial, the plaintiff made title to the goods under a bill of-sale, executed in the name of the mercantile firm of Wagner & Graser by Valentine Graser, one of the members, August 25, 1858, of all the personal property of the firm.

Plaintiff in error was convicted of having stolen about $250 in bank bills of one Moon. The evidence against him was purely circumstantial. Some of the bills found upon the accused when arrested were identified by Moon as among those stolen. For the defence, evidence of prisoner’s good character was given. The questions discussed arose upon exceptions to the charge. The facts in reference thereto are stated sufficiently in the opinion.

<p>To authorize several instruments executed at the same time to be construed together as constituting one contract or conveyance, they should be between the same parties. Per Selden, J.</p> <p>Conditions in grants are not favored by the law,, and. hence must be clearly expressed.</p> <p>No particular words are requisite to create a condition, but they must clearly import, that the vesting or continuance of the estate is to depend upon the supposed contingency.</p> <p>A reservation is never of a part of the thing granted, but of something issuing or created out of it</p> <p>An exception must be of a portion of that which is included by the general desbription in the grant.</p> <p>A prohibition of the use .of property granted inconsistent with the title conveyed, is void.</p> <p>A valid restriction of the use of property conveyed may be imposed by a condition upon covenant of the grantee. Per Selden, J.</p> <p>M., being the owner of premises situate on both sides of the Walkill, with mills situate thereon propelled by its waters, by separate deeds executed at the same time, conveyed to his son G., in fee, land with a grist mill, &c. thereon, situate on the east side of the stream, and to his son W., in fee, land on the west side, with a fulling mill, &c. thereon: the deed to G. contained a clause excepting and prohibiting the right of carrying on upon the premises granted to him, the business of fulling or dressing cloth, &c., and also the right of using the water of the stream for any purpose other than grinding grain, when the same should be necessary or useful to W., his heirs, &c., for the fulling, &c. of cloth upon the premises conveyed to him by M., by deed of even date; the deed to W. contained a clause excepting cmd prohibiting the right of using the waters of the Walkill for tu/rmng am/y wheel not used or useful in fulling, dyeing or dressing cloth. Simultaneously with the execution of these deeds, G. and W. executed each to the other his bond, conditioned for the observance of the exceptions and prohibitions contained in his respective deed. Subsequently W. conveyed his premises by deed, containing no restrictions as to the use of the water, and his grantee converted the fulling mill into a grist mill, and used the water of the stream to propel it. On bill, filed by the heirs of G. to restrain him from so using the water, Held, 1. That as against the defendant the deeds and bonds were not to be construed together as forming one instrument. 2. That the clause in the deed to W. restricting the use of the water, did not create a condition, exception or' reservation. 3. That it could not be construed as a covenant, limiting the use of the property conveyed. 4. That this clause -was a mere prohibition of the use of the thing granted, and as,such, void.,</p>

Action to foreclose a mortgage upon a farm in Berne, Albany county, made by Catharine D. Ryan and Peter D. Ryan to Horace Wyman and John D. Livingston, November 27, 1852, for $1,850, payable in five years, with interest annually, part of the purchase money of the mortgaged premises conveyed the same day by the mortgagees to Catharine D. Ryan, who was the wife of Peter D. Ryan.

(Beported below, 2 N. Y. S. C. B. [T. & 0.], 216.) Plaintiff in error was indicted for selling strong and spirituous liquors and wines in quantities less than five gallon’s without a license and without authority of law.

The complaint alleged that in June, 1848, at the city of New-York, the defendants wrongfully seized the plaintiff, and carried and conveyed him to the jail in the county of Orange, and there imprisoned him during a considerable space of time, and until he was discharged by an order of the supreme court. The defendants, Duryea, Booth and Welling, answered jointly, .and the defendant Mead separately.

This case came before the Supreme Court upon the submission of a controversy, pursuant to § 372 of the Code of Procedure. The plaintiff claimed to recover $2,600, and interest, being the consideration of a conveyance, executed by the defendant to him the 19th February, 1855, of fifty-two acres of land. The conveyance was by deed, containing a covenant of seisin and of warranty.

<p>The eighth section of the act relative to the interest of money, (dispensing with the payment or offer to pay interest, on the filing of a bill in chancery for a discovery of the money, &c. received in violation of the provisions of the act,) does not abrogate the established principle of a court of equity, that on filing a bill of discovery on an allegation of usury, the complainant must pay or offer to pay the principal or the sum actually lent; and a bill of discovery not containing such offer is bad on its face, and may be demurred to.</p> <p>The provision in the same section, forbidding a court of equity to require or compel the payment or deposit of the principal sum as a condition of granting relief, applies only to cases where the complainant, although he can prove the usury without resort to the oath of the lender, has no opportunity of setting up the defence, in consequence of the nature of the securities executed by him: as, for instance, a judgment entered on bond and warrant, or a mortgage with power to foreclose under the statute.</p> <p>A surety, it seems, is a borrower within the meaning of this statute, and is entitled to avail himself of its provisions.</p>

The action, which was commenced in 1848, was brought to recover the value of certain personal .property, being a stock of goods in a store, which it was averred the defendant had converted to his own use. The cause was tried in 1849, at the Montgomery county circuit, before Mr. Justice Parker and a jury.

Plaintiff’s complaint contained five counts. The first set forth a lease by plaintiff of defendant of certain apartments in the city of New York, with a covenant of quiet enjoyment, and alleged a breach of the covenant.

Action against the defendant for injury done to the plaintiff’s building, standing on lot Ho. 95, on the Albany pier, through the alleged negligence of the defendant. On the trial, these facts appeared: The plaintiffs were the lessees^iqr the term of ten years, commencing on the 1st of April, 1848,\of lots Nos. 95 and 96, on the pier, and had erected thereon certain buildings, or warehouses, for the use of themselves, their dqstomers, and to rent to others.

<p>Appeal from judgment of the General Term of the Supreme Court in the third judicial department, modifying a judgment in favor of plaintiff entered upon the report of a referee and affirming it as modified. (Reported below, 7 Lans., 381.)</p> <p>This action was brought to recover the amount of an account for goods alleged to have been sold and delivered by plaintiff, at defendant’s request, to his son.</p> <p>The evidence showed that the account in question was charged against defendant’s son. ■ Plaintiff claimed that this was done by defendant’s direction, that the account was, in fact, against him, and that he had treated it as his own. This was denied by defendant. Upon the trial evidence, on the part of plaintiff, was received by the referee, under objection, that defendant’s son had no property and was entirely irresponsible. Evidence was also received, under objection, that defendant had paid his son’s debts to other tradesmen.</p> <p>The referee erred in admitting evidence that defendant, in some cases, had paid his son’s debts to other tradesmen. (Townsend Co. v. Foster, 51 Barb., 346; S. C., 41 N. Y., 620, n; Schofield v. Fernandez, 47 id., 313; Starbird v. Barrons, 43 id., 200, 204; Belden v. Nicolay, 4 E. D. S., 14; Hubbell v. Alden, 4 Lans., 214, 229; Ainsley v. Mead, 3 id., 116; Holcombe v. Hewson, 2 Camp., 391; Tennant v. Hamilton, 7 Cl. & F., 122; Phill. on Ev., 748 [4th Am. ed., by Edwards].) It was error to admit evidence of defendant’s son’s poverty. (Daby v. Erickson, 45 N. Y., 786, 791; 33 id., 656.) The facts in the case do not show a sale on defendant’s sole credit. (Brady v. Sackrider, 1 Sandf. [Sup. C. R.], 514, 515; Anderson v. Hayman, 1 H. Bl, 120; Cahill v. Bigelow, 18 Pick., 369,372; Matson v. Wharam, 2 T. R., 80; Hill v. Raymond, 3 Al, 540 ; Browne on St. of Frauds; Swift v. Pierce, 13 Al, 136 ; Dixon v. Frazee, 1 E. D. S., 32, 34.)</p> <p>Upon the facts in the case defendant is liable for the goods had by his son, without any express promise on his part. (1 Blackstone, 490, note, and cases cited.) The delivery of the goods and receiving credit therefor was an act within the power of defendant’s son, and was binding on defendant without proof of express authority. (Warren v. Sweeney, 4 Nev., 701; Norton v. Laus, 30 Cal., 126; Penniman v. Rotch, 3 Metc., 216; Kimball v. Brown, 7 Wend., 322.)</p>

<p>Where a lease contains a covenant on the part of the lessee not to assign, with a forfeiture of the lease in case of breach, acceptance of rent by the lessor, accruing after an assignment, with knowledge thereof, is a waiver of tire forfeiture, and the condition once dispensed with, is dispensed with forever, so that the assignee can thereafter assign, and can transfer a good title to the lease.</p> <p>The fact that parol proof of the facts constituting a waiver of the forfeiture is necessary to show a valid title in the assignee does not render his title so doubtful as to authorize one who has contracted to purchase, to refuse to accept an assignment, and to maintain an action to recover back a payment of purchase-money. To defend such an action the defendant need make no other or higher proof than would be required if the original lessor, or his successors in interest had sought to dispossess him on the ground of the forfeiture of the lease.</p> <p>It seems that the title of the assignee of the lessee in such case is sufficient to sustain an action by him for specific performance against one who has contracted to purchase the lease.</p> <p>An assignee of such lease when .the forfeiture had been waived as aforesaid, after the execution of a written contract for the sale and purchase of the lease, agreed with the purchaser to obtain from the original lessors, or them successors, if possible so to do, a written assent to the assignment; such assent could not be obtained because one of the original lessors had died leaving infant heirs. Held, that as the agreement was conditional and the event upon which it was conditioned did not and could not come to pass, the agreement was not enforceable, and that the agreement of sale and purchase remained in force.</p> <p>A negotiation for a variation of an agreement will not amount to a waiver of it, unless the circumstances show an intention of the party that there should be an absolute abandonment and dissolution of the contract.</p>

W. B. Hart filed a bill in chancery, stating that on the 20th May, 1826, he borrowed $5000 of J. Jackson, for which he gave him his note, payable in Hhirty days, and hypothecated 130 shares of the stock of the Jefferson Fire Insurance Company, which he alleged to be worth $45 per share, as securety for the payment of the money loaned; that he in fact received only $4700 of the loan, the remaining $300 being retained by Jackson as interest.

The action was to recover damages for the seduction of the plaintiff’s daughter by the defendant.

Action for slander, commenced in June, 1849. The complaint alleged that the defendant charged the plaintiff with keeping a house of ill fame.

This action was brought upon a promissory note made by defendants, Merriam and Herrick, and indorsed by Poucher, Martha J. and Thomas J. Petty, and received and discounted by plaintiff. The court found the making and discount of the note as alleged, that the same was not paid at maturity, was duly protested and notice thereof duly given. He also found the further facts stated in the opinion.

Action to obtain the delivery of personal property, and damages for detention, against the sheriff of New York. Upon the trial there was a verdict for the plaintiff, and the jury furnished some elements for the assessment of damages. The exceptions taken by the defendant were ordered to be heard in the first instance at general term, where a new trial was denied, and a reference was ordered to complete the inchoate assessment of damages made by the jury.

<p>Appeal from judgment of the General Term of the Supreme Court in the fourth judicial department, affirming a judgment in favor of plaintiff entered upon the report of a referee.</p> <p>This action was brought upon a policy of fire insurance issued by defendant to plaintiff. The facts pertinent to the points discussed appear sufficiently .in the opinion.</p> <p>Plaintiff had no insurable interest in the property mentioned in the policy. (Laws of 1860, chap. 90, § 1; Knapp v. Smith, 27 N. Y., 277; Gage v. Dauchey, 34 id., 293; Fowler v. Ins. Co., 26 id., 422; Reese v. Ins. Co., 23 id., 516; In re Winne, 2 Lans., 21, 26; 2 R. S. [5th ed.], 924.) The release executed by plaintiff to defendant is a complete defence to this action. (Willard’s Eq. Jur., 286; Eggleston v. Knickerbocker, 6 Barb., 458; Bush v. Tilley, 49 id., 599 ; Buckley v. Bentley, 48 id., 283 ; Peck v. Armstrong, 38 id., 215; Coon v. Knap, 5 N. Y., 402; Halliday v. Hart, 30 id., 474; Bonesteel v. Flack, 27 How., 310, 324; Durgin, v. Ireland, 14 N. Y., 322, 326; Jacobs v. Morange, 47 id., 57; Nevins v. Dunlap, 33 id., 676.) Plaintiff is estopped from asserting title to the property. (Pickard v. Sears, 6 Ad. & El., 475; 18 id., 394.) The referee erred in directing judgment for the full amount insured. (Niblo v. N. Am. Ins. Co., 1 Sandf., 551.)</p> <p>So far as the defendant is concerned the agreement for the life estate will be regarded as executed at the time of issuing the policy. (4 Den., 51; 12 J. R., 451; 12 N. Y., 266 ; 36 id., 327; 44 Barb., 200.) Parol proof of the consideration of the conveyance of the fee by plaintiff was not error. (McCrae v. Peermont, 16 Wend., 460; Adams v. Hall, 1 Den., 306 ; 8 Brad., 13 ; 3 Hill, 171; 3 Edwd., 92; 35 Barb., 151; 1 Duer, 412.) The agreement between plaintiff and his wife was good, and vested a life estate in the former. (26 Barb., 419; 31 id., 371; 4 id., 546; 17 J. R., 548; 7 J. Ch., 57; 22 Wend., 526.) The parol contract was not void by the statute of limitations. (22 Barb., 255 ; 41 id., 619; 44 id., 200; 3 Barb. Ch., 407.) The agreement to satisfy and cancel the policy was without consideration, and is void. (Ryan v. Ward, 48 N. Y., 204; 46 id., 11; 2 J. R., 448; 17 id., 169; 6 Robt., 53; 3 Barb. Ch., 621; 1 Cow., 121-126.)</p>

(Reported below, 1 S. C. R. [T. & C.], 647; 46 How. Pr. R., 205.) This was an action of partition.

.In December, 1828, the appellant was cited to account before the surrogate of Columbia, as the administrator of the estate of his father, who died about the first of January, 1823. He appeared and accounted. The only matter in controversy related to two sealed notes given to the decedent by one A. Feltz, a son-in-law of the decedent, for *which the administrator contended he was not liable to account.

The action was upon a note for $1,000, made by Meeker and Maidhof, dated June 18, 1857, payable to the order of William Bock, three months after date. Bock indorsed the note, and the plaintiff claimed to be the owner and holder.

<p>Ebeob to the General Term of the Supreme Court in the third judicial department, to review judgment reversing judgment of the Court of Sessions, in and for the county of Delaware, entered upon a verdict convicting defendant in error of the crime of forgery in the second degree.</p> <p>■ The defendant in error was indicted for forgery in signing the name of one Talmy Yan Amhurgh, as indorser upon a promissory note. It was conceded upon the trial that the name of Yan Amburgh was signed by the prisoner, but it was claimed that he was authorized by Yan Amburgh so to do.</p> <p>The facts pertinent to the questions discussed appear sufficiently in the opinion.</p> <p>The prisoner’s letters admitting the commission of other forgeries were admissible, and could be considered by the jury in determining the question of criminal intent. (2 Whart. Cr. L., 1435 ; 1 id., 631, 634, 649, 650; Helm’s case, City Hall Rec., 46; Smith’s case, 1 id., 49 ; Jarvis’ case, id., 105; Weaver’s case, 2 id., 57, 73; Stout v. People, 4 Park., 71, 115, 132; People v. Robinson, 2 id., 236; Regina v. Cotton, 5 Eng. R., 479; Dunbar’s case, 2 Leach, 285; Reg. v. Oddy, 6 Brit. Cr. Ca., 264, 266, cited in Hall v. People, 6 Park., 674; Tuttle v. People, 36 N. Y., 431; Hall v. Naylor, 18 id., 588; reversing, 6 Duer, 71; Hubbard v. Briggs, 31 N. Y., 518; Booth v. Bruce, 33 id., 139; 11 Wend., 83; 12 id., 299; Van Kleek v. Leroy, 4 Abb. [N. S.], 431; 40 Barb., 158; 31 How. Pr., 456.)</p> <p>It was error to admit in evidence the prisoner’s letters admitting the commission of other forgeries. (1 Phil. Ev., 166, 170, 171; Roscoe’s Cr. Ev., 57; Hall v. People, 6 Park., 673.)</p>

The trial was before a referee, who found, these facts: The plaintiffs were the owners of twenty-seven rolls of rough leather, and in the latter part of June, 1851, they caused it to be shipped at Detroit, on board the steamship Hudson, bound for Buffalo, to be transported east, accompanied by a document in the form of a bill of lading.

<p>Equity will not enforce the specific performance of an agreement contained in a lease, upon the part of the lessor, to repair damages caused by fire.</p> <p>English cases on the subject of specific performance collated and discussed.</p> <p>In an action to enforce specific performance of such an agreement the rights of the plaintiffs under the agreement were stated, and the failure of defendant to perform. Upon the trial some evidence showing the value of plaintiffs' interest, in case of prompt repair, was given. The trial court found the facts not to be such as to authorize the granting of the relief asked, but gave judgment that the lease should be canceled, and that plaintiffs recover the value of their interest upon the basis of the repairs having been completed in a reasonable time. Held, that when the court below found that plaintiffs were not entitled to the equitable relief demanded, the case, as an action in equity, terminated, that adjudging a cancellation of the lease was immaterial, as this was a necessary result of a recovery by plaintiffs of their damages; but that, as under the Code (sub. 1, § 167), plaintiffs could unite causes of action, legal and equitable, arising out of the same transaction; and although, while the complaint set forth the agreement to repair and. the neglect to perform, it failed to state other facts essential to the right of plaintiffs to recover damages, and so the complaint might have been properly regarded as setting out an equitable cause of action only, and upon failure to establish it might have been properly dismissed; yet, as it was in the power of the court to allow an amendment of the pleading so that a legal remedy might be had, and as the statute of limitations might bar another action, it was proper that an opportunity should be given plaintiffs to obtain a legal remedy in this action by appropriate amendments, giving to defendant, also, a right of trial by jury. Judgment therefore reversed and new trial granted.</p>

The action was commenced in 1851, to recover the amount of a promissory note of which the defendant was the maker. It was dated February 24th, 1851, and was for the payment of $819.68, in five months from date, to the defendant’s own order, and was indorsed by him. The complaint after describing the note averred that the plaintiff was the lawful holder and owner of it, and that the defendant was justly indebted to him in its amount.

The plaintiff in error, Hadden, was convicted, in the Court of General Sessions of the Peace of the city of New York, in November, 1855, upon an indictment charging that he did, ■ on the 28th day of September, 1855, in the first ward of that city, “with force and arms, and without lawful authority, willfully, unlawfully and feloniously, kidnap one Eobert Wallace, then and there being, with intent to cause the said Eobert Wallace to be sent out of the State of Hew York,…

Error, from the Supreme Court. Allen sued Addington in the supreme court in a special action on the case , to recover the value of a quantity of merchandize sold to one Baker on credit, lost to the plaintiff by the insolvency of Baker; the plaintiff charging the goods to have been sold upon fraudulent representations made, and caused to be made by the defendant, that Baker was worthy of credit.

<p>Under provision of the State Constitution (§7, art. 1), providing that when private property shall be taken for public use the compensation to be made therefor, when not made by the State, shall be ascertained by a jury, or by not less than three commissioners appointed by a court of record, where a law provides for ascertaining the compensation by commissioners, their appointment must not only, in form, be made by the court, but its action must be left independent and untrammeled.</p> <p>Accordingly held, that the provisions of the act of 1870, in relation to the city of Albany (§1, tit. 7, chap. 77, Laws of 1870), prescribing that, for the purpose of ascertaining the compensation to be paid by said city to the owners of lands taken for streets, etc., the common council shall nominate twelve freeholders whose names, on separate ballots, are to be placed in a box, from whence are to be drawn three, who shall be appointed commissioners, etc., is unconstitutional, and proceedings taken thereunder void.</p> <p>Commissioners so selected cannot be regarded as a jury, as the legislature determined in this case that the compensation should be ascertained by commissioners, and a jury, therefore, has nothing to do with the question.</p>

In November, 1848, the defendant, a planlc road company, organized under the general plank road act, applied to the board of supervisors of the county of Otsego, for leave to lay out and construct its road, and to take the real estate necessary for the purpose; which leave was granted, and commissioners were appointed to lay out the road.

This action was brought to recover the amount of three policies of life insurance, upon the life of one Joseph F. Hall, issued by the Craftsmen’s Life Assurance Company, each for the sum of $5,000, payable in case of death, within four years from date, to plaintiffs. The said policies were issued November 11, 1870.

The plaintiff in error was convicted, in the Mew York General Sessions, of the crime of forgery, and that conviction was affirmed at the general term of the Supreme Court.

<p>Commissioners of highways, in laying out highways, act under a special and statutory authority; and it must appear, upon the face of their proceedings or by proof aliunde, that they acquired jurisdiction.</p> <p>A record, purporting to be the record of a highway laid out by them, which fails to show affirmatively that jurisdiction was acquired, cannot be helped out by intendment or presumption, where the record is set up to justify an entry upon the land of another which, in the absence of the existence of a public right of passage, would be a clear trespass.</p> <p>Two of the commissioners of highways of the town of B., Suffolk county, made a record of an alteration of a road and laying out a new road for part of the distance across premises now owned by plaintiff; the record recited that the commissioners gave the old road in exchange, reserving the privilege to certain parties named, their heirs and assigns, of “ carting up hay subjecting to shutting gates.” The commissioners, in laying out the road, intended to exercise the authority given by the provisions of the act of 1789 (chap. 14, Laws of 1789), relating to the “ clearing, regulating and laying out of public highways in Suffolk, Bungs and Queens counties,” which provides, that, when a road has been laid out through any person’s land, the commissioners, or a majority of them, may agree with the owner to exchange said road for another road to be laid out through said lands,” etc. There was no recital in said record of any agreement with or assent of the owners to the alteration, or to take the old road in exchange for the new. Plaintiff’s land, at the time, was owned by infants. In an action for trespass, wherein the loom in quo was the new road described in said record, held, that the record failed to show the essential fact to give the commissioners jurisdiction, i. e., that the owners of the land had agreed to the alteration, and did not establish a legal highway.</p> <p>Also, held,, that the subsequent action of commissioners in making a survey and description of said alleged highway was void, the record being void; and that the omission to take an appeal therefrom did not preclude the plaintiff from contesting, in this action, the existence of a legal highway-</p>

Defendants were appointed commissioners of excise of the city of Schenectady within ten days after the passage and under the provisions of the act of 1870 “ regulating the sale of intoxicating liquors.” (Chap. 175, Laws of 1870.) On the 1st day of April, 1873, plaintiffs Dorn, McOlyman and Palmer were appointed commissioners by the mayor alone. Defendants claimed that such appointments were invalid, and on that account claimed to hold over.

The plaintiff in error was tried and convicted, in the Hew York Court of General Sessions, of bigamy; and, on error to the Supreme Court, the judgment was affirmed. On the trial it was proved that, on the 13th February, 1845, the prisoner was married to one Sarah E. Blair, who was still living. A witness, Jane White, was then called to prove a second marriage on the 13th September, 1860.

The action was commenced by Lorillard in the supreme court against the town of Monroe, in the county of Orange, to recover about §485, alleged to have 'been erroneously assessed as taxes upon lands owned by him, by the assessors of the town, and collected from him by its collector of taxes.

Upon the 25th day of September, 1874, William Rose, the prosecutor, stepped into a drinking saloon in New York, and going up to the bar, asked the plaintiff in error, Diedrich Hildebrand, who was bar-keeper, for a glass of soda water, which was furnished, after which, Rose handed him a fifty dollar greenback to take out the price which was ten cents, Hildebrand took the bill, threw a few coppers upon the counter, and upon the change being demanded of him, he came from behind…

Anson Cary died on the 3d of May, 1842, leaving a last will and testament, by which he devised certain lands to Albert G. Cary, during his life and to his heirs, with a power to the said Albert Gr. Cary to sell the same, by and with the consent of his mother, Hannah Cary, and his brother, George A. Cary, the defendant. Hannah Cary died on the 9th of July, 1842, and before the execution of the power.

The action was brought by plaintiff to recover damages for injuries done to her by the explosion of a kitchen boiler in the house Ho. 588 Washington avenue, Brooklyn. The defendant was the builder and owner of the said house and had leased the same to one Tan Duzer. Plaintiff is the wife of Alfred S. Jaffe who had hired a portion of the premises from Tan Duzer, and the Jaffe family were occupying the same as their dwelling-house.

Peter Dawson, the plaintiff in error, was indicted and convicted in the Court of Sessions Of the county of Kings, and sentenced to nine years and six months imprisonment in the State Prison at Sing Sing, upon a charge set forth in the indictment as follows: “ State of New York, county of Kings, ss: Be it remembered, that, at a Court of Sessions, holden at the City Hall in the city of Brooklyn, in the county of Kings, on the day of November, in the year one thousand eight…

This action was brought to recover an account for goods sold and delivered. The complaint alleged that plaintiffs were copartners, doing business under the firm name of hi. Millerd & Co., and that “ said plaintiffs sold and delivered to the defendants,” who were copartners, the goods and merchandise described. Defendant Thorn alone appeared and answered. He denied any information as to the partnership of plaintiffs and therefore denied the same.

Action in the superior court of the city of New-York to recover the sum of $716.92, deposited by the plaintiff in the defendant’s bank prior to April 29, 1852. The answer alleged that the defendant paid the moneys in the complaint mentioned to the order of the plaintiff.

Action on a' bond, dated the 9th of July, 1832, executed by Thomas H. White to Elizabeth Bulmer. They were both dead, and the plaintiffs were the executors of the obligee, and the defendants of the obligor in the bond.

James Shepherd was indicted in the New York General Sessions, in October, 1857, for arson in the first degree, charged to have been committed on the 9th day of June, 1857, and was tried before the Recorder of the city of New York, in February, 1861. The jury found him guilty of the offence.

The plaintiff in this action alleged in his complaint, in substance, “that one Jesse Buel died October 1, 1839, seized and possessed of a large quantity of real estate,' leaving a last will and testament, which, on the 21st day of October, 1839, was admitted to probate by the surrogate of Albany county. That among other children, the said Jesse left him surviving a daughter J ulia, who afterward married one Henry 0.

Prior to October, 1847, one Absalom Calkins commenced a suit in the court of chancery against Asa M. Calkins and others, to enforce an alleged right of redemption; Gray, the present defendant, being solicitor for the complainant.

The action in the court below was for negligence in the driving of a stage or omnibus alleged to belong to the defendants, and to* be driven by their servant, on one of the avenues of the city, by means of which the plaintiff, who was a passenger, was injured, the stage having been overturned.

The complaint herein, alleged in substance, that one Benjamin Rhead died, leaving a last will and testament, whereby he devised and bequeathed to plaintiff a large interest in his real and personal estate; that among the assets was a bond and mortgage, executed by defendant, for $3,000; that defendant, who was an attorney at law, agreed, in consideration that plaintiff would procure -the satisfaction of said mortgage, he would act as her attorney and counsel in and about the…

Ejectment, commenced in 1843, to recover possession of about seven acres of land situate in Canajoharie, Montgomery county. The action was tried in 1845, before Willard, circuit judge, when the defendant recovered a verdict. This verdict was set aside and a new trial ordered. (See 5 Denio, 296.) The action was again tried, when the plaintiff recovered. This verdict was also set aside.

This action was brought to recover a balance of rent alleged to be due upon the lease of premises for a livery stable. (Reported below, 1 N. T. S. C. R. [T. & 0.], 116.) The answer set up by way of counter-claim an agreement in the lease, on the part of plaintiff, to put and keep the premises in good repair, a breach of the covenant, and damages on account thereof. The lease was by parol.

The contest related, so far as is material here, solely to the publication of the will. It appeared that the testator was eighty-five years of age when the will was executed; and there was evidence that his hearing was very defective. He had executed at least two wills previous to the one in question — one of them only a few days before.

Error from the supreme court. Webb brought an action of ejectment in the name of James Jackson, as nominal plaintiff, against Roberts, for the recovery of about four acres of land called the mill lot, and produced a deed of the premises claimed, from one Joshua Clark to J. Ketchum and H. A. Ten Broeck, bearing date the 5th September, 1820.

The action was for goods sold and delivered. The defence was that the goods, which consisted of what is known as prize •candy packages with some articles of silverware, were intended to be used as a lottery, of which plaintiff had notice, and that he prepared the goods for that purpose.

This was an action to recover the value of a quantity of goods delivered to defendant’s station agent at Oriskany, 1ST. Y., marked J. Palmer, Dennison, Iowa. Plaintiff’s evidence tended to show that he gave oral directions to have the goods forwarded by railroad. The goods arrived safely at Buffalo, and were forwarded by steamboat and were destroyed by the burning of the boat.

This action was originally commenced by the plaintiff, as judgment creditor of Robert Waller, against the debtor and his assignee, Thomas Waller, to set aside an assignment made by Robert to Thomas for the benefit of the creditors of the former, and subject the assigned property to the payment of the plaintiff’s judgment.

<p>The corporation of the city of New-York, which had ordered a street to be graded and contracted with a person to do the grading, is not liable for damages caused by the negligence of the workemen employed by the contractor in performing the work.</p> <p>The rule' is not otherwise, although th contract provides that the work sbaE be done under the direction and to the satisfaction of certain officers of the corporation.</p>

<p>Appeal from judgment of the General Term of the Supreme Court in the second judicial department, affirming a judgment in favor of plaintiff entered upon the report of a referee.</p> <p>This action was brought to recover damages for the seduction of plaintiff’s daughter by defendant.</p> <p>At the time of the seduction the daughter was eighteen years old and was in the employ of defendant’s father; her father was dead. The agreement under which she was working was made between plaintiff and the employer. Under the agreement the wages were to. he and were paid to the daughter. The daughter became pregnant. She returned to plaintiff’s house, who cared and provided for her during confinement.</p> <p>To enable plaintiff to maintain this action the relation of master and servant must exist between her and her daughter. (Gr. Ev., 573; Dunn v. Wikoff., 3 Seld., 194; Mulvehall v. Millward, 11 N. Y., 343; Gray v. Durland, 50 id., 424, and cases cited.) Such relation must exist at the time of the alleged seduction. (Gray v. Durland, 50 id., 424, and cases cited; Reeve’s Dom. Rel. [Park, ed.], 428, note to p. 426.) Such relation must be actual or constructive. (11 N. Y., 343.; At common law the mother had no constructive right to the services of her daughter. (1 Blk. Com., 452,453; 2 Kent., 191,193; Gray v. Durland, 50 N. Y., 424; Simpson v. Buck, 5 Lans., 337; Davis v. Williams, 10 Ad. & El., 725, 727; South v. Denniston, 2 Watts, 474, 477; Pray v. Gorham, 31 Me., 241; Comm. v. Murray, 4 Bir., 488; People v. Mercein, 3 Hull, 400; Morris v. Lane, 4 S. & P. [Ala.], 123; Roberts v. Connoly, 14 Ala., 235; Wood’s Inst., 64; 1 Woodes, 461; Reeve’s Dom. Rel. [Park, ed.], 417, note 1 to p. 416; id., 424, note 2 to p. 422; id., 427, note to p. 426; id., 428, note to p. 426; Bartlett v. Richtmyer, 4 Coms., 46; E. B. v. E. C. B., 38 Barb., 300; Frets v. Brown, 4 Mass., 675; Reeve’s Dom. Rel., 431, note 1; 324, marg. pag., 465; 1 R. S., 718; 2 Kent, 229.)</p> <p>As to the relation of master and servant, plaintiff was only required to prove that, at the time of the seduction, she was entitled to the services of her daughter. (Mullvehall v. Millward, 11 N. Y., 343.) This action is maintainable, when the father is dead, by any one who stands in loco parentis. (Reeve’s Dom. Rel. [Gould’s ed., 1862], 420; 2 Kent Com., 190, 191, 193, 217; 1 Blk. Com., 448, 452; People v. Wilcox, 22 Barb., 184; 1 R. S., 614; Jackson v. Waltz, 7 J. R., 157; Beecher v. Crounse, 19 Wend., 306; Sylvester v. Ralston, 31 Barb., 289; Elliot v. Gibbons, 30 id., 500; Williams v. Hutchinson, 5 id,, 158; In re Ryder, 11 Paige, 158; Campbell v. Campbell, 3 Stockt. [N. J.], 268; Jemress v. Emerson, 15 N. H., 486; Graham v. Kinder, 11 B. Mon., 60; Osborne v. Allen, 2 Dutch. [N. J.], 388; Jones v. Tevis, 4 Litt., 25; Dedham v. Natick, 16 Mass., 135, 140 ; Nightengale v. Withington, 15 id., 272, 274; Cook v. Bybee, 24 Tex., 278; Kelly v. Dormelly, 5 Md., 211.) This action can be maintained by the mother. (Sargent v. Dennison, 5 Cow., 106; Bartley v. Ricktmeyer, 2 Barb., 188; Clark v. Fitch, 2 Wend., 464; Miller v. Thompson, 1 id., 450; Ingersoll v. Jones, 5 Barb., 661, 665; 9 J. R., 387; Gray v. Durland, 50 Barb., 100; Andrews v. Askey, 8 C. & P., 7; Kelly v. Donnelly, 5 Md., 211; Villepegue v. Shular, 3 Strobh., 462; Simpson v. Buck, 5 Lans., 337; Damon v. Moore, id., 454; Corn v. Moffit, 2 Penn., 583; Feckner v. Scarlet, 29 Ind., 154; Meik v. Parker, 3 Sneed [Tenn.], 30-38; approved, 5 id., 149; Vessel v. Cole, 10 Miss., 634; Henrichs v. Kerchner, 35 Mo., 378.) The slightest loss of service is sufficient to uphold the action. (Ingerson v. Miller, 47 Barb., 47; Mulvehall v. Millward, 11 N. Y., 343</p>

The complaint alleged that the defendants were contractors and managers in certain lotteries authorized by the laws of the state of Maryland, and that by such laws they were authorized to sell tickets in such lotteries, to be drawn at Baltimore; that they sold tickets in the lotteries to divers persons to the plaintiff unknown, in schemes set out and stated in the.complaint: that afterwards there was a drawing of the lotteries in pursuance of the schemes at Baltimore in the…

Action to recover damages for the broach of an alleged contract to deliver ten thousand bushels of barley.

The plaintiff sued as administratrix for the negligent killing of her husband while a passenger on the defendant’s railroad.

Error from the supreme court. Hendricks commenced an action of ejectment against Parks, for the recovery of tiuo thirds of certain premises situate in the county of Ontario.

The complaint alleged in substance, that: By chapter 492 of the Laws of 1870 (the supply bill), it is, among other things, enacted as follows: “For the insurance department, for compensation of clerks, furniture,’ books, printing, stationery and other incidental expenditures, §30,000, and $7,000 for expenses of moving offices and fitting same up, and to provide necessary office accommodation for the department in Sew York.

<p>Appeal from judgment of the General ■ Term of the Supreme Court in the second judicial department, affirming a judgment in favor of plaintiff, entered upon a verdict.</p> <p>This was an action for false imprisonment and malicious prosecution.</p> <p>It appeared, upon the trial, that some articles of wearing apparel had been stolen from one Mrs. Kinsella. They were taken in pawn by defendant, who kept a pawn office, and were found in his possession by an officer detailed for the case. Defendant gave the officer a description of the person who pawned them. The officer subsequently went to defendant’s office with plaintiff. Both the officer and plaintiff asked defendant if plaintiff was the one who pawned the goods. Defendant stated that she had a different dress on but the same shawl, and that she was the woman who pledged the goods. The officer then took plaintiff to the police office, where she was detained until the next day. Mr. Kinsella then made a complaint against her and she was committed for the larceny, but upon subsequent examination was discharged. Defendant was subpoenaed and sworn as a witness on the examination; he testified that he could not positively identify plaintiff as the one who pawned the goods.</p> <p>Defendant’s counsel, among other things, asked the court to charge, that “ if they think that defendant did accuse her upon the moment, yet if it was from the fact of her being in custody of the officer and brought there under such circumstances, and in good faith, the plaintiff should not recover.” In answer the court said: “ If the intention in the use of that phrase good faith ’ is that it was with probable grounds, and that he had reasonable cause to believe that she was guilty, why I should charge the proposition. But I should not charge that if, upon the spur of the moment, he assumed to act in that manner, it necessarily freed him from all responsibility, because the act was so instantaneous. He might still incur the responsibility, no matter how speedily it was done or how speedily decided upon.” Defendant’s counsel excepted.</p> <p>Further facts appear in the opinion.</p> <p>Plaintiff failed to prove a cause of action and should have been nonsuited. (Bulkeley v. Keteltas, 6 N. Y., 384; Miller v. Mulligan, 48 Barb., 38, 39; Swain v. Stafford, 3 Ire. [N. C.], 289; Musgrove v. Newell, 1 M. & W., 582; Lewis v. Rose, 6 Lans., 206; Besson v. Southard, 10 N. Y., 239.)</p>

Assumpsit, commenced in 1846. The declaration contains five counts upon an instrument signed by the defendant in the following words: “ For value received, I agree at the expiration of one year from this date, to purchase thirty shares of the capital stock of the Southern Life Insurance and Trust Company, of Ralph Lester of the city of Rochester, for the sum of three thousand dollars. Dated September 6th, 1839.

This action was brought to recover back the sum of $277,221.14 of plaintiff’s moneys alleged to have been fraudulently procured and withheld and appropriated by defendant, who was the treasurer and a director of the plaintiff. The papers showed substantially that plaintiff was a corporation incorporated under the laws of Illinois to construct and operate a railroad in that State.

<p>Section 224 of the act of 1813 reducing the laws relating to the city of New-York into one act, (2 R. L. 433,) is not applicable to the construction of a pier, where the corporation owns the lots opposite the place where it is to be built.</p> <p>In such a case the corporation has authority to construct the pier at the expense of the city, and take the emoluments arising from it for its benefit.</p> <p>Where the corporation granted to an individual a water lot on the East river, and he covenanted to construct in front of it, on the river, a street which should he and remain a public street of the city, and did so, and the corporation covenanted that the grantee should enjoy the wharfage arising fiom the bulk head created by the street which for a time he received; and subsequently the corporation acquired title to the granted premises pursuant to §§ 177 and 178 of the act of 1813 for the purposes of a street; and afterwards the corporation directed to be constructed opposite these premises a pier which thenceforth formed the side of a public slip, which pier was built at the joint expense of the corporation and the proprietors of lots adjacent to said granted premises, and the emoluments therefrom were shared between them and the city in certain proportions: subsequently the corporation directed this pier to be extended into the river, and invited the said proprietors to unite in constructing the extension, the expense and emoluments thereof to be borne and shared in the same proportion as were those of the original pier which they refused to do, and the corporation at the expense of the city extended the pier; Reid, that the corporation had authority to do so, and that the wharfage arising from this new portion of the pier belonged to the corporation.</p>

, This was an action upon a promissory note, of which the following is a copy. “ Mew York, November 15, 1871. “ Four months after date I promise to pay to the order of myself, six hundred and sixteen 37-100 dollars, at 319 East Fourth street, Mew York, value received, which is hereby made a charge upon my separate estate; the consideration hereof having been for the benefit of said estate. “MARTHA RHCK” Said Martha Ruck was a married woman, the wife of John.

The plaintiff claimed to recover of the defendant $344.40, with interest from February 1, 1860, for rent, due upon a lease made by him. The defendant claimed that the lease had become inoperative, and that the term thereby created had ceased, by virtue of the foreclosure ■ and sale of the demised premises. The lease bore date February 10, 1853, and was executed by Henry T. Meech and his wife to the defendant. The demised premises were stores in the city of Buffalo.

<p>Appeal from order of the General Term of the Court of Common Pleas for the city and county of New York, affirming an order of Special Term awarding to the relator a peremptory mandamus directing the defendant to draw his warrant to the order of the relator for the amount of an account for services rendered by the relator.</p> <p>The account was a county charge and was, on the 28th April, 1873, duly audited and allowed by the board of supervisors at the sum of $11,887.50. A certified copy of the ordinance or resolution of the board auditing and allowing the claim attached to the original bill of the relator was, upon the 29th day of April, 1873, delivered to and left with the comptroller. There was then money in the treasury of the county, duly appropriated, sufficient to meet said claim. The comptroller refused to draw his warrant for payment of said claim or to take any action, or do anything whatever in relation thereto.</p> <p>The only cause shown on the part of the comptroller was by the affidavit of Mr. Earle, auditor of accounts in the finance department, that the claim of the relator had never been audited and allowed by him, or any of his predecessors in office, and that the work, labor and services performed by the relator were not reasonably worth any more than one-half of the sum claimed and demanded by him.</p> <p>Further facts appear in the opinion.</p> <p>In the city of Hew York the board of supervisors is subordinate to the finance department in the examination, settlement and allowance of accounts against the county. (1 R. S., 367, § 4, sub. 2; 2 S. L., 1857, 286, § 6; 1 id., 1870, 374, §§ 33, 34, 37, 39; 482, §§ 6, 7; id., 1857, 879, chap. 446, § 22.) The comptroller could not be compelled by mandamus to pay the relator’s claim until it had been allowed and examined by the auditor and approved by the comptroller. (People exrel. Smith v. Flagg, 17 N. Y., 585; People ex rel. Ellis v. Flagg, 15 How., 553; People ex rel. Comrs. of Docks v. Green, 65 Barb., 507; People ex rel. Brown v Board of Apportionment, 52 N. Y., 227; People v. Wood, 13 Abb. Pr., 381, 382; 5 Ops. Attys.-Genl. of U. S., 651, 652; 7 id., 726.) An allegation of an examination and allowance of the claim and vouchers by the auditor was an essential statutory pre-requisite to the duty of action by the comptroller. (Tapping on Mandamus, 314; People v. Haws, 37 Barb., 440,457; People v. Tremain, 29 id., 96-99; People v. Com. Council, 3 Abb. [Ct. Apps. Dec.], 502, §05.)</p> <p>The relator’s claim having been audited and allowed by the board of supervisors, the peremptory writ allowed by the court below ought to issue. (1 R. S. [Edm, ed.], 339-358 ; Huff v. Knapp, 5 N. Y.., 67; Suprs. of Onondaga v. Briggs, 2 Den., 39 ; People v. Suprs. of Livingston, 26 Barb., 120; Brady v. Suprs. of New York, 2 Sandf., 460; affirmed, 10 N. Y., 260; 1 Hoff. Laws, 204, 205; Revised Ordinances, 1845, 24, 27, 32, 33; Laws 1849, 280; Laws 1853, 412; Laws 1857, chap. 446, § 22; Laws 1870, chap. 137, §§ 34, 37, 39; Laws 1873, chap. 335, §§ 21, 29, 35, p. 493; Laws 1870, chap. 190, §§ 6, 7; People ex rel. Hasbrouck v. Suprs. of New York, 21 How. Pr,, 322; affirmed, 22 id., 71; People ex rel. Hall v. Suprs. of New York, 32 N. Y., 473.)</p>

Error, from the supreme court. Brown sued Littlefield, sheriff of Erie, in debt for the escape of O. R. Hopkins, arrested on a capias ad satisfaciendum at the suit of Brown, sued out of the common pleas of Erie county, tested in August, and returnable in November, 1823, charging a voluntary escape on the 12th June, 1824. The defendant pleaded nil debet, and gave notice that he would prove that Hopkins left the limits of the jail with the assent of the plaintiff.

Action against the maker and indorsers of a promissory note. The complaint alleged that the defendants, The Forest and Agricultural Steam Engine Company, at the city of Brooklyn, made their certain promissory note in writing, bearing date on the 4th of August, 1858, wherein and whereby they promised to pay, three months after its date, to the order of the defendants, Henry FT.

Error from the supreme court. M’Kinster sued the Bank of Utica, in an action on the case, for a breach of duty in neglecting to demand payment of a promissory note, alleged in the declaration to have been left by the plaintiff, with the bank, to be collected for the benefit of the plaintiff, and in neglecting to give notice of non-payment to the endorsers of the note, whereby the plaintiff lost his debt. The defendants pleaded non. cul.

<p>. Appeal from a judgment of the Supreme Court at general term in the first district, affirming the validity of a mortgage executed by husband and wife, and the trustee of the latter, of land held in trust for her separate use. The facts are sufficiently stated in the following opinion:</p>

These were appeals from orders of the General Term of the Supreme Court in the first judicial department, affirming orders of Special Term denying motions, on behalf of the relator, for writs of mandamus to compel defendant to issue his warrant for the- payment of certain accounts against the county of New York. The accounts had been audited and allowed by the board of supervisors.

Motion to dismiss appeal. On the 28th of June, 1852, a judgment for $2373.52 was entered in the supreme court in favor of Belknap against Waters, upon confession, without action. One Carpenter, who had a chattel mortgage upon personal property of Waters, and also a judgment against him in the supreme court, moved that court to set aside the judgment of Belknap, upon the ground of insufficiency in the statement on which the judgment was entered.

Error from the supreme court. Heath sued Feeter to recover the balance of a demand, for the quarrying and transportation of a large quantity of stone, and for other work done. Feeter was the sub-agent of Edward Ellice, of England, the proprietor of an estate at Little Falls, on the Mohawk river, and B. and J. R. Bleecker, of Albany, were the principal agents or attorneys in fact of Mr. Ellice. When the Erie canal was about to be constructed, the Messrs.

This was an action to recover the amount of two certified checks, one of $30,000 and one of $10,000, drawn and loaned by plaintiffs to William E. Gray & Co., and deposited by that firm with and collected by defendant. The facts are set forth sufficiently in the opinion. Plaintiffs were entitled to recover from defendant the money it collected on the checks.

Action to foreclose a mortgage, dated May 28th, 1856, executed by Townsend, and his wife Jane, to Oliver Lee & Company’s Bank at Buffalo,… Held: or owned by the party of the second part (the bank), upon which the said Daniel J. Townsend, or the said the Buffalo Car Company, should be in any manner liable, either directly or contingently, either as drawer, maker, indorser, acceptor or otherwise, whenever the same, or any renewals thereof, or any part thereof, should fall due…

<p>Motion on behalf of respondent to dismiss the appeal, on the ground that the record did not contain a bill of exceptions, or exceptions separated from the case; that it contained merely exceptions stated in a casé.</p>

The defendants demurred to the plaintiff’s complaint, upon an undertaking given under the 335th section of the Code, on appeal by one of the stockholders of the bank, to the general term of the Supreme Court, from an order of the special term, confirming the report of a referee apportioning the debts of the bank among the stockholders, and rendering judgment against the appellant for his share of such debts.

This action was brought to restrain defendant from constructing or erecting upon certain premises, in the city of Buffalo, its railroad and trestle work, or from, in any manner, entering upon said premises or interfering with plaintiff’s use and enjoyment thereof. Defendant’s answer denied the principal allegations of the complaint, asserted its own right to the premises and asked for affirmative relief that plaintiff be restrained from interfering with the premises.

<p>Where there is no special contract as to the liability of a common carrier of property, he is responsible for all loss or damage except that which is caused by the act of God or the public enemy.</p> <p>He cannot limit this liability by notice, even if it be brought to the knowledge of the owner.</p> <p>But common carriers may limit their liability by an express agreement with the owner.</p>

Error from the Supreme Court. This was a writ of error, brought to reverse the confirmation by the supreme court of the report of commissioners of estimate and. assessment in the opening of Fifth street from Broadway to Mercer street, in the city of New-York.

<p>Appeal from the Supreme Court. Action brought by leave of the court against the defendant as receiver, to reach a fund in his hands, which arose from the assets of a special partnership, composed of William B. Treadwell, John G-. Treadwell, John S. Perry and Edward Norton, general partners, and of John E. Rathbone, special partner. The firm, and all the general partners, on or before the 15th of May, 1860, became and were insolvent, and on that day the Artisans’ Bank of New York, recovered a judgment against the general partners for the sum of $17,273.94, for which an execution was that day issued and delivered to the plaintiff, who was the sheriff of Albany, who on the same day levied upon all the personal property of the copartnership. The judgment was duly recovered by default, and a transcript filed, but the record of judgment was not signed by the clerk. On the same day a suit in equity was commenced by one of the partners to dissolve and close up the partnership and distribute its assets among the creditors, in which action an injunction was obtained, and the defendant, Cook, duly appointed receiver. The cause was tried before Judge Hogeboom, without a jury. The judge found that the levy under the plaintiff’s execution was duly made at 5 o’clock, p. it., on the 15th of May, and that the receiver took possession the next day at 2 p. m. ; that the property was sold by the receiver, and the fund in his hands arose from such property, and was in deposit to the credit of the receiver in one of the Albany banks.</p> <p>The judge also found that the plaintiff demanded payment of the execution from the receiver before the commencement of this suit, and that for six months before the defendant’s appointment as receiver and down to that time, the firm of W. & J. Treadwell, Perry & Norton, was deeply insolvent and wholly unable to pay its debts. The judge found, as a conclusion of law, that the plaintiff was entitled to judgment for an amount sufficient to satisfy the execution so levied by him, with sheriff’s fees and costs, and judgment was rendered accordingly. The defendant duly excepted to the decision of the judge, and the judgment so rendered was affirmed at the general term of the third district. The defendant appealed to this court.</p>

Demurrer to complaint. The action was brought against the defendants as executors of William Aikin, deceased.

This action was brought by plaintiff, as surety, having paid the debt of his principal, to be subrogated to the rights of the creditor in, and to obtain the benefit of, certain collateral securities given by the original debtor. Previous to August, 1865, defendant Clinton was indebted to the Bank of Cooperstown above $80,000.

This action was brought to recover the amount of five instruments in the form of single bonds, purporting to have been issued pursuant to a resolution of the defendant’s board of directors, and which were executed under its corporate seal, and signed by its president and treasurer, for the payment of one thousand dollars each.

In November, 1850, Mrs. Forrest brought her action against the defendant for a divorce on the ground of adultery. In the defendant’s answer he charged the plaintiff with having had' adulterous intercourse with several persons named therein. At a special term, on the 24th December, 1850, specific issues of fact were made up and ordered to be tried by a jury.

Action commenced in the superior court of the city of Hew-York, in May, 1851, to recover damages alleged to have been Sustained by the plaintiff, by the seizure and sale by Carnley, as sheriff, on an execution in favor of Colton against one Michelin, of certain personal property mortgaged by the latter to the plaintiff; On the trial, before the Hon. Thos.

This action was brought to compel defendants, railroad commissioners of the town of'Westford, Otsego county, to account for and pay over moneys received by them as… Held: as conclusions of law', that defendants were trustees of the stock for the benefit of the town, and it was entitled to all that defendants received, and that plaintiff was entitled to recover the amount retained, with interest. Plaintiff was not authorized to maintain this action -in his name of office.

Error from the supreme court. Rockwell sued Driggs in the supreme court, and declared against him in two counts, 1. As the holder of a promissory note made by Driggs on the 26th May, 1828, for $342, payable to Virgil Draper or bearer on demand, transferred by Draper to the plaintiff; and 2. For goods sold and delivered, and fo'r moneys lent, paid, laid out and expended, and had and received.

This was an action of ejectment. Both parties claim through Francis Price. It was admitted that he was seized in fee of the lands in question, and in possession thereof on March 9, 1846. On that day a judgment for $4,395.48, was duly recovered in the Supreme Court and docketed against him by Cornelius and Henry Brinckerhoff.

Error from the supreme court. An information in the nature of a quo warranto was filed by the attorney general to oust Coutant from the office of register of the city and county of New-York. The principal question in the case was, whether a register, elected on the happening of the death of an incumbent, is entitled to hold his office for three years, or only for the unexpired term of his predecessor.

The action was upon a policy of insurance issued by the defendants to the plaintiffs.

Action by the assignee of Lewis Elmore, to recover the price paid for a quantity of lumber, purchased by Elmore of the defendant, at his lumber yard in Troy, which the defendant agreed, but failed, to deliver at the railroad in Troy. The defendant denied his liability, on the ground that the title to the property vested in Elmore at the time of the sale, and that the property was destroyed by fire immediately after the sale, without fault on his part.

This was an action to revive a judgment of foreclosure and sale, and for leave to enforce the same. The original action was against Joseph Dean and wife, mortgagors. The judgment contained no provision for any deficiency. The original defendants died intestate. The defendants in this action are their children and heirs at law. The complaint fails to set forth a cause of action and should have been dismissed.

Quashing writ of error. Samuel Youngs, junior, an overseer of highways, prosecuted Arnold Fleet in a justices’ court for obstructing a road, and recovered judgment for the penalty prescribed by statpte. Fleet sued out a certiorari removing the proceedings into the supreme court, where the judgment of the justice was affirmed, the rule for the affirance being entered on the 20th May, 1831.

This was an action upon a bond given by defendant to plaintiffs. One F. H. Fanning had, by a written instrument, been appointed general agent and attorney for plaintiffs in selling a sewing machine, known as the Utica Sewing Machine, manufactured by plaintiffs. Plaintiffs were to deliver the machines in good order, ready for sale when called for. Fanning was to make monthly returns and to pay over the proceeds, less his commission.

This was an action of ejectment. The premises in question were a strip of land covered by a shed erected by defendants. The shed was built over a stream known as Mill brook. The west side of the shed extended west of the water’s edge on the west side of the stream. Both parties claimed under Daniel D. Campbell. In 1820 he deeded to the Mohawk and Hudson Railroad Company the land on the west side of the creek.

The complaint was that the defendant had entered upon and unlawfully withheld the possession of a street in the city of Troy which was part of land owned by the plaintiffs, subject only to the public easement; that the defendant had, by artificial embankments, &c., impaired the use of the street and claimed the exclusive / right to use the same or a considerable portion thereof, for a railway.

Boyd and Suydam appealed from a decree of the chancellor, adjudging them liable to the one half of the loss sustained upon a quantity of cotton purchased by Herndon and Brisban in Alabama, and transmitted by them to Boyd and Suydam in New-York, on the ground that the purchase had been made on the joint account of the two firms.

This was an action of ejectment for the recovery of a store and lot in Plattsburgh, tried at the Clinton circuit in June, 1831. #The lessors of the plaintiff claimed the premises as purchasers at a sheriff’s sale, under an execution against one A. Parsons, issued on a judgment docketed 11th May 1827. The sale took place on the 31st December, 1827, and the deed from the sheriff to the purchasers was executed 4th April, 1829.

Action brought in the Hew-York superior court upon a policy of insurance against damage by fire. On the trial, before Mr. Justice- Oakley, the following facts appeared.

<p>Under the act of 1818 (Laws of 1818, chap. 210), in reference to opening and enlarging streets in the city of New York, the city corporation, upon confirmation of the report of the commissioners of estimate and assessment, acquires the fee of land taken for a street improvement, subject to the right of possession in the owner, up to the time that the corporation by some affirmative act indicates an intention to proceed with the improvement; such right however, not to continue longer than fifteen months.</p> <p>If no action is taken by the city,at the expiration of fifteen months from the confirmation the right to possession in the owner terminates and vests in the city.</p> <p>If the corporation makes no attempt to exercise any dominion over the property taken, the proceedings are, by virtue of the act, suspended until the expiration of the fifteen "months, which will he deemed the time appointed by the corporation for proceeding.</p> <p>The award of damages for the land taken does not become payable until four months after the time appointed for proceeding, and until the expiration of that time no liability for interest upon the award is imposed upon the city.</p> <p>U seem, that an act authorizing the taking of private property for public purposes which defers the payment of the compensation awarded for a time sufficient to enable the State or a municipality to collect, by process of taxation provided in the act, the money required for its payment, is not unconstitutional, although, meanwhile, no interest is allowed and the public assumes possession.</p>

This action was brought to recover damages for injuries to plaintiff’s property and himself, alleged to have been occasioned by defendant’s negligence.

Error from the general sessions of Albany. The mayor, aldermen, and commonalty of the city of Albany were indicted for neglecting to remove a nuisance ; they being charged with permitting and suffering the basin in the Hudson river, at the termination of the Erie canal, to be foul, filled and choked up with mud, rubbish, and dead carcases of animals ; whereby the citizens were not only deprived of the benefit and advantage of using the water for the convenience of themselves…

Action- on a bill of exchange for $4,565, drawn by one Lowber on the defendants, and accepted by them. The answer averred that it was an accommodation draft, “drawn and accepted for the joint benefit of the drawer and acceptors,” and placed in Lowber’s hands to be indorsed and negotiated: that Lowber procured it to be discounted at a usurious rate by one Hotchkiss.

In 1835, certain real estate situate in the county of Onondaga, owned by Charles W. Forman, an infant, and which descended to him from his father, was sold by the direction and order of the court of chancery upon proceedings for that purpose duly instituted and conducted. Laban Haskins was the special guardian of the infant in this proceeding, and Richard Adams was the purchaser of the real estate.

Action to recover damages for the negligent burning of the plaintiff’s house, barns and outbuildings, and a quantity of hay, &c., by the alleged improper management of a steam-dredge, with which, it was charged, the defendants were at work on the Erie canal, in November, 1856.

<p>Where a consignee is in default in not receiving goods, and in consequence the right is conferred upon the carrier to warehouse them, if the latter deposits them with a store-keeper, subject to his lien for freight, he does not thereby forfeit his lien. In such case the keeper acts under the authority of the carrier and the possession of the former may be regarded as that of the latter for the purpose of preserving his lien.</p> <p>The effect is the same if the carrier, instead of depositing the goods for the owner, subject to his lien, deposits them in his own name.</p> <p>Plaintiff received a cargo of oats for transportation, giving a bill of lading which provided that the consignee should have three week days, after arrival and notice, to discharge cargo, and for every day’s demur-rage beyond the three should pay a specified percentage on freight. Held, that the consignee had a right to detain the boat, if he deemed it necessary, a reasonable time after the expiration of the three days to complete the delivery; that the right so to detain could be terminated only by a notice given by the carrier, to the effect that if the goods should not be received within some reasonable time therein specified they would be stored elsewhere, and that a deposit of the oats by plaintiff, at the expiration of the three days, in defendant’s warehouse, without such notice, was in violation of the rights of the owner and put an end to plaintiff’s lien for freight.</p> <p>Also, held, that defendant, having surrendered the oats upon demand to the true owner, could avail himself of these facts, as a defence in an action by plaintiff for conversion thereof.</p> <p>The rule that a bailee cannot set up title in a third person as. against his bailor is not applicable to such a case. That applies wher.e the bailee seeks to avail himself of the title of a third person for the purpose of keeping the property himself, or where he has not yielded to a paramount title. But where the owner is entitled to and demands possession it is the duty of the possessor to deliver it, and the performance of this duty will not be adjudged tortious as against a bailor having no title. Defendant delivered to plaintiff a weigher’s return of the oats received. Held, that this was not such a receipt as is contemplated by the “ factor’s act ” (chap 326, Laws of 1858), and that the provisions of the act had no application to the case.</p>

Error from the Rensselaer common pleas. Wickware sued Bryan in a justice’s court, and declared against him in two counts : First, that Bryan as a justice of the peace, rendered a judgment against him, and wishing to appeal from the judgment, wrote to him for the exact amount of the judgment; that Bryan negligently and carelessly wrote to him that the amount of the judgment was $27,95, and that he accordingly prepared his appeal bond ; that the appeal was quashed for a…

This was an action of replevin, tried at the Onondaga circuit in March, 1832, before the Hon. Daniel Moseley, one of the circuit judges.

<p>The neglect of a creditor, when requested by a surety, to prosecute the principal debtor, discharges the surety, irrespective of knowledge or notice to the creditor of any facts suggesting the probability that delay could prove injurious to the surety.</p> <p>A surety who, by arrangement between himself and the principal debtor, takes the primary liability upon himself, may, by subsequent arrangements with third parties, re-establish himself in the position and with the rights of a surety without the consent of the creditor.</p>

This action was brought to recover a dividend received by defendant upon certain stock of the Albany Dental Plate Company.

Action upon a policy of insurance dated the 10th of June, 1848, by which the defendant insured the plaintiffs against loss and damage by fire to the amount of $1500 on their flouring mill and machinery, and $500 on their carding machine and machinery, situate in the town of Seward, Schoharie county. The cause was tried in October, 1850, at the Schoharie county circuit, before Mr. Justice Wright and a jury. The policy of insurance above mentioned was read in evidence.

Error from the Washington common pleas. Ensign sued Harrington and wife in a justices’ court, and declared against them on a promissory note made by the wife dum sola. The defendants pleaded the general issue, and gave notice of a set-off for goods, wares, and merchandize, and for money had arid received, and asked for an adjournment.

Indictment under the statute for obtaining goods by false pretences. Haynes was indicted at the general sessions of New-York, for obtaining a quantity of merchandize by false pretences from Messrs. Cochran, Addoms & Co., a mercantile ‘firm in the city of New-York, on the 9th November, 1833, The representations alleged to have been made by Mm, by means whereof he obtained the goods, were, 1. That he had then no note protested for non-payment; 2.

<p>The object of the provision of the act of 1848 for the formation of corporations (§ 13, chap. 40, Laws of 1848), making the trustees of any corporation organized thereunder liable for its debts, in case they declare and pay a dividend when the company is insolvent, or which will render it insolvent, or will diminish the amount of its capital stock, was to prevent the dissipation of the fund designed for the benefit of creditors; and although, it being penal, a clear case must be established, yet the substance of the provision, not the mere form, must be the test of liability.</p> <p>Defendants were trustees of the B. F. G-. Co., a corporation organized under said act. They entered into an agreement with H., for the sale to him of all the property of the company, with the exception of debts due the company and some articles of personal property, the sale to be consummated by a transfer of the stock. The agreement was carried out, the stock transferred, and the consideration received paid over to the stockholders in proportion to the amount of stock held by each. The property reserved was afterward transferred to the secretary to be converted into money to pay debts and liabilities, the residue to be distributed among the stockholders who assented to the agreement with H. In an action under said section 13, to recover a debt of the company, it appeared that the capital of the company was impaired, and plaintiffs’ evidence tended to show that this property reserved was disposed of, and a portion of the proceeds divided among the stockholders. Held, that the legal effect of the contract with H. was a sale of the stock by the stockholders consenting, H. thereby becoming the principal stockholder, the company\still remaining in existence and retaining its property, and that this transaction therefore did not make defendants individually liable under said section; but that the subsequent transfer, sale and division of a portion of the proceeds was in substance and effect the declaring and paying a dividend which took from the assets of the company the amount so distributed, and to that extent diminished its capital, and that this transaction rendered defendants liable.</p> <p>The trustees are not liable under said section for the costs in a judgment against the company perfected after they have ceased to be trustees.</p>

Action for damages resulting from a collision of two of the defendant’s trains. On the trial it appeared that the plaintiff was in the employ of the defendant as brakeman, and in the night of the 6th of June, 1850, was injured by a collision of the trains at Pekin, eight and a half miles east of the Suspension Bridge, on the road to Rochester.

In November, 1848, an alternative mandamus was issued out of the supreme court, on the relation of William Mygatt, directed to the supervisors of the county of Chenango.

This was an action upon a policy of insurance, issued by defendant upon plaintiff’s dwelling-house, farm buildings, furniture, stock, etc. In the application, the cash value of the dwelling-house and wood-house attached, was stated to be $1,500, and the value of the land and buildings $14,000, and that the premises were unincumbered to the amount of $8,000. The referee found that the value of the land and buildings was not less than $10,000, nor more than $12,000.

Error from Monroe common pleas. Sutherland was arrested on a warrant issued by a justice of the peace of the county of Monroe, at the suit of Elijah Linnell and Alvin Foot, on an affidavit made by one James Linnell, that Elijah Linnell had a debt against Ebenezer Sutherland, and that Elijah Linnell was a non-resident of the county of Monroe.

This was an action on the case, tried at the Oneida circuit in October, 1831, before the Hon. Nathan Williams, one of the circuit judges,… Held: notwithstanding the private agreement between ^themselves, that they were jointly responsible to third persons for the negligence of their drivers throughout the whole distance ; and that an averment that the injury was occasioned by the negligence of the driver of Elkins, against whom alone the action was brought, was supported by…

Action upon a promissory note against makers and indorser. The answer set up usury, and it denied .that the plaintiff was a corporation. The trial was before a referee, .on whose report judgment was rendered for the plaintiff, which having, been affirmed at general term, the defendants appealed to this court. The facts are sufficiently stated in the following opinion.

This action was brought to recover money alleged to have been fraudulently obtained by the defendant from plaintiff, for the pretended purpose of paying for lands purchased by defendant, as agent for plaintiff.

The action was brought in the superior court of the city of New-York, to recover damages for the non-delivery of stock in the New-York and Erie Railroad Company, contracted Sept. 27, 1851, by the defendant, to be sold and delivered to the plaintiff.

This action was commenced in the Supreme Court for the purpose of compelling the defendants to interplead as to their claims upon moneys in the American Exchange Bank, to the credit of the Commercial Bank of Toledo. Two of the defendants were the receivers of the assets of the latter bank, and others were creditors of that bank, who had attached its funds.

The action was commenced in September, 1848, by De Peyster against Joseph 0. Hasbrouck and Eliza his wife and others. The complaint alleged the following facts: That in January, 1846, Joseph 0.

<p>Error from the Steuben common pleas. Wilmot sued Hurd in a justice’s court. The defendant did not attend upon the return of the summons, but the plaintiff declared against him for the breach of a warranty in the sale of a horse, and the cause was adjourned to a subsequent day; at which time the defendant appeared and pleaded the general issue, and offered a set-off of demands which he had against the plaintiff. The justice ruled that the defendant was entitled *to plead a set-off, provided he paid the costs ; to which the plaintiff assented ; but the defendant did not offer to pay the costs. A jury was then summoned, who tried the cause and found a verdict for the plaintiff, upon which the justice rendered judgment. The defendant removed the cause by certiorari into the Steuben common pleas, and from the return of the justice, it appeared that when the parties first were in treaty respecting the sale of the horse, the defendant offered to warrant him as sound ; but it did not appear that at the completion of the sale, which was some days subsequent to the first conference, the defendant again warranted him. The horse was proved to have been unsound. The common pleas reversed the judgment, and the plaintiff sued out a writ of error.</p>

This action was brought to recover damages for injuries alleged to have been caused by the negligence of one of defendant’s servants. It was originally commenced in Justice’s Court, in April, 1870. A judgment was there rendered in favor of defendant. It was appealed to the County Court.

Babcock was brought before a justice of the peace, on a charge of having violated the statutes of this state regulating ferries, by having transported across the Niagara river, from Youngstown, in the county of Niagara, persons and goods for profit or hire, without having obtained a license, in the manner prescribed by the Revised Statutes, vol. 1, pages 526, 7, and having refused to give bail for his appearance at the oyer and terminer, was committed to the jail of the…

Gorham, being a justice of the peace in Chautauqua county, had pending before him an action, of which he had jurisdiction, in which one Cotton was plaintiff and one McCluer defendant, to be tried on the 6th of July, 1855. The parties appeared before him on that day, and the defendant (McCluer) demanded a- trial by jury.

<p>Error to the General Term of the Supreme Court in the first judicial department, to review judgment affirming a judgment of the Court of General Sessions of the Peace, in and for the city and county of Hew York, entered upon a verdict, convicting plaintiff in error of the crime of receiving property knowing it to have been stolen. (Reported below, 8 S. C. R. [Hun],'15.)</p> <p>On the 30th June, 1871, plaintiff in error, a pawnbroker, in the city of Hew York, purchased and received from one James Robinson two parcels of sewing silk, stolen by Robinson from the store of R. Gardner & Co., in whose employ he was as a clerk. The silk was worth $17.50. Plaintiff in error purchased it for six dollars. Robinson, as a witness, testified that he had stolen similar goods from his employers on ten or twelve previous occasions, all within a year, which' he had delivered to the accused. The counsel for the latter objected to proof as to what was said or done on the previous occasions; the objection was overruled. The witness testified that on the first two occasions he pawned the goods; when he went the third time he sold the goods and sold the pawn tickets received on the prior occasions; that upon all the subsequent occasions he sold the goods, receiving in each instance not over one-third the value of the goods. When any one else was in the room his conversation with the accused was in a low voice and the latter handed to him a blank pawn ticket. When they were alone this was not done. The two first occasions were the only ones where the tickets were filled out. That one occasion, when he had been there a short time before, the accused said to him: “You came back again soon,” and told him to look out or he would get caught; on another occasion the accused asked him if they kept gold medal silk braid in the store, and asked him if he could get some of it, that it was more salable.</p> <p>Further facts appear in the opinion.</p> <p>Upon the tidal of a prisoner under an indictment it is improper for the prosecutor to give testimony ’ tending to show him guilty of another and distinct offence, unless it be unavoidably connected with the res gestee. (People v. Coleman, 51 N. Y, 81.)</p> <p>Upon the question of guilty knowledge, it was proper to show that the prisoner had, on several prior occasions, received from Robinson goods similar to those described in the indictment, stolen by him from Gardner & Co. (Reg. v. Runn, 1 Moody C. C., 146; Reg. v. Davis, 6 C. & P.; Reg. v. Nichols, 1 Fos. & Fin., 51; 2 Russ, on Crimes, 252, 776; Wood v. U. S., 16 Pet., 360; 3 Greenl. Ev., § 15; Roscoe’s Cr. Ev., 876; Comm. v. Jenkins, 76 Mass., 485; Reg. v. Foster, 2 Eng. L. and Eq., 548.)</p>

This was an action of ejectment of dower, tried at the Seneca circuit in December, 1831, before the Hon. Daniel Moseley', one of the circuit judges.

The action was commenced in the supreme court, on the 27th of April, 1852.

The complaint averred that the defendants kept certain stores at the Atlantic Dock in Brooklyn, known as John Wright & Company’s stores, in which they received grain and kept it on storage for compensation that, in .the months of May and June, 1848, the defendants gave put certain storehouse receipts, whereby they represented that they had received on storage, on account of Ford&_Spp,A_,835 bushels of mixed corn, 6,531 bushelá of rye and 1,203 bushels of wheat, amounting in…

This was an action of slander, tried at the Otsego circuit in September, 1831, before the Hon. Robert Monell, one of the circuit judges.

Demurrer to declaration. By the statutes of this state, inspectors of turnpike roads are required to be appointed in each county in which there is a turnpike road; and it is made the duty of each inspector, upon complaint being made to him that a turnpike road is out of repair, to view and examine the road and if he finds the complaint just, to give notice of the defect to the toll gatherer nearest to the place out of the repair, and also to one of the directors of the…

This was an action of ejectment, tried at the Albany circuit in September, 1831, before the Hon. James Vanderpoel, one of the circuit judges. The plaintiffs are the heirs at law of Rebecca Fetherly, daughter of Frederick Ramsey, who, in his life time was the owner of a farm of 119. acres of land in the town of Guilderland, whereof he died seised upwards of 30 years before the trial of this cause.

Information in the nature of a quo warranto. An information in the nature of a quo warranto was filed by the attorney general, charging the defendants with having intruded themselves into the office of trustees of the Bethel Baptist Church of the city of New-York.

Error coram, nobis. C. & L. Denison, October term, 1828, sued Mason & Hale ; Mason was returned taken upon the capias ad respondendum, and Hale not found. The plaintiffs declared against both defendants under the statute against joint debtors, in an action of assumpsit, for goods sold and delivered, on the common money counts, and on an account stated. Mason gave a cognovit $515 64, upon which a judgment was entered against both defendants.

Action to foreclose a mortgage executed by the defendant, Consalus, in 1833, and of which one Linn, who subsequently assigned it to the plaintiff, had been the owner. Upon the trial, before a referee, the plaintiff insisted that the amount due upon the mortgage had been conclusively adjudged by the determination of referees to whom three actions pending between Consalus and Linn were referred in 1853..

This was an appeal from a judgment of General Term, affirming a surrogate’s decree fixing the- amount to be paid by appellant, as executor of the last will and testament of Benjamin Peck, deceased,… Held: as above stated. 2d. That the executor having made his supplemental account, under oath, and exhibited vouchers, the surrogate could not inquire into or dispute any of the items, without the making and filing of specific objection.

Landlord and tenant. This was a certiorari to remove proceedings, instituted by Lytle against Rowan, under the *act authorizing summary proceedings to recover the possession of land, 2 R. S. 511, for holding over certain premises after the expiration of his lease.

<p>Appeal from the Superior Court of the city of Buffalo. The action was brought to restrain the sheriff of Brie from executing a deed to one Miller, upon his alleged redemption of the land of Milo W. Hill, which had been sold on execution, on the ground that the judgment on which Miller claimed to redeem had been previously satisfied. The complaint also prayed that the sheriff be required to execute a deed to the plaintiff,: who claimed to have acquired a right to such deed, in virtue of his redemption under a judgment assigned to him by Lovell and Coles, the plaintiffs therein. The trial was before the court without jury. The plaintiffs’ title to the Lovell and Coles judgment was proved to have been obtained in this way: Lovell and Coles, having obtained judgment against one Hill, took from him two notes for the amount thereof, payable two and four months from date, both indorsed by the plaintiff, and stated, in their receipt for the notes, that “ when paid they aré to apply on the judgment.” At the time the arrangement was made, it was agreed that if the plaintiff had to pay the notes the judgment should be assigned to him. Hill paid the first note: the plaintiff was charged as indorser upon the second note; paid it, and Lovell and Coles assigned to him the judgment. In the affidavit made when the plaintiff claimed to have redeemed, he stated the sum due to him upon the judgment as the whole amqunt, whereas, in fact,, it was but half that amount. The judge found, as matter of fact, that this misstatement was casual and not fraudulent.</p> <p>The right of the defendant Miller to redeem arose in this way: Carter, Quinan & Deforest had recovered judgment against Hill, and an execution thereon was in the hands of the sheriff. Miller paid the amount due thereon to the sheriff, the judge found, as matter of fact, “in the hope and expectation that the plaintiffs therein would assign the judgment to him, but the money was not to be returned to Miller, if Carter, Quinan & Deforest, the plaintiffs in that judgment, refused to assign it. At and prior to the time of payment, nothing had been said to Carter, Quinan & Deforest about assigning the judgment.” Upon receiving the money, the sheriff signed and delivered to the defendant Miller a paper in these words:</p> <p>“ Received, Buffalo, Sept. 1,1855, of L. A. Miller, $1,067.77, to apply on judgment of Carter, Quinan & Deforest against Milo W. Hill,"said judgment to be under the control of said Miller, and not to be canceled except by his order, if plaintiffs will consent to and make an assignment of said judgment to said Miller.”</p> <p>Upon paying over the money to the plaintiffs’ attorney in the execution, the sheriff informed him that Miller wanted an assignment of the judgment. The attorney replied that he had no authority to assign it, but would correspond with the plaintiffs on the subject. They subsequently assigned the judgment to Miller. The judge held that the payment of the money by Miller to the sheriff extinguished the judgment, and upon his order the plaintiff had judgment that the sheriff convey the land in question to him. Upon appeal, the court at general term reversed the judgment, and the plaintiff appealed to this court, stipulating for judgment absolute against him, if the order for a new trial should be affirmed.</p>

<p>Error from the Clinton common pleas. Hamilton sued Averill and Whyte on an appeal bond,, bearing date 24th October, 1829, conditioned that Whyte should prosecute with dilligence an appeal taken by him from a judgment r.endered by a justice of the peace against him in favor of Hamilton, to the common pleas of Clinton, and pay the judgment and costs of such appeal, in case judgment should be given in the common pleas against him ; and further, that Whyte should pay the debt or damages recovered before the justice, together with the interest thereon, and costs of the appeal, if the appeal should not be prosecuted with diligence ; or surrender his body in execution of the judgment. The plaintiff assigned, as a breach of the condition of the bond, that he recovered judgment in the common pleas against Whyte on the appeal, for $70 73 damages and costs that he issued an execution on *such judgment, returnable at the May term, 1830, of the common pleas ; and that the sheriff of Clinton made a return thereto nulla bona, &c. whereby an action had accrued, &c. Averill alone appeared and pleaded, 1. Non est factum: 2. Performance generally ; 3. That the judgment on appeal was rendered in favor of the plaintiff on the first Tuesday in January, 1830, and that the plaintiff did not sue out execution thereon within thirty days next after the term in which such judgment was rendered ; and 4. That he, Averill, has at all times been ready and willing to surrender the body of Whyte, in execution, in discharge of the bond, and still is ready, &c. but that no execution had been issued by the plaintiff, upon which he was able to surrender Whyte.</p> <p>To the second plea the plaintiff replied, denying performance; to the third he demurred, and to the fourth reiterated the averment in the declaration of the. issuing and return of the execution. The defendant demurred to the replications of the plaintiff, and assigned, as special cause, the want of the signature of counsel. Upon this state of pleadings, the parties went to trial. The plaintiff proved the execution of the appeal bond, a judgment rendered in his favor in the common pleas in January term, 1830, the judgment roll filed 9th April, 1830, execution issued 21st April following, and a return of nulla bona, &c. in July, 1830 ; after which the suit on the appeal bond was commenced. The defendant moved that the plaintiff be nonsuited, for that he had not shown an execution issued against Whyte ivithin thirty days after the term in which judgment was so rendered against Whyte. The court sustained the motion, and granted the nonsuit, on which judgment for costs was entered against the plaintiff, who, having excepted to the decision, and obtained a bill of exceptions to be duly signed, sued out a writ of error.</p>

The plaintiff sued as indorsee of two promissory notes made by the defendant to the order of James B. Sargeant, payable on demand—one dated October 25, 1852, and the other Movember 13, 1852, and indorsed by the payee to one Prime, a brother-in-law, late in the year 1855, and by the latter indorsed to the plaintiff a few days thereafter.

On the hearing of this cause before referees, in July, 1831, a witness offered by the defendants was objected to by the plaintiff, on the ground of interest; and it was proved that he had been reputed to be a stockholder, and had acted as the president of the company.

Error from the Washington common pleas. Backus sued Shipherd in the Washington common pleas. The declaration contained four counts: First. A count against the defendant, as the endorser of a promissory note made by one W. B. West, bearing date 13th December, 1819, for $40, payable on demand, alleged to have*been transferred by the defendant to the plaintiff, on the 13th January, 1821. Second.

<p>The term “ county judge ” as employed in the act of 1860 “ to secure to creditors a just division of the estate of debtors who convey to assignees,” etc. (chap. 348, Laws of 1860), and the various acts amendatory thereof (chap. 860, Laws of 1867; chap. 92, Laws of 1870; chap. 838, Laws of 1872; and chap. 363, Laws of 1873), includes the judges of the Court of Common Pleas for the city and county of Few York, and the jurisdiction conferred by said acts upon the county judge is rightfully exercised by the judges of said Court of Common Pleas when the debtor resides in the city of Few York.</p> <p>Under the amendment of said act in 1872 (§ 4, chap. 838, Laws of 1872) the judge has no authority to refer it to a referee to take and state the account of the assignee; the authority to refer is limited to the taking and reporting the evidence.</p>

<p>A clause in a chattel mortgage upon a stock of goods, which purports to extend the lien of the mortgage over after-acquired property, does not render the mortgage absolutely void, where there is no arrangement permitting the mortgagor to deal with the goods mortgaged, and no knowledge of such dealing on the part of the mortgagee, and the absence of an intent to defraud creditors is affirmatively found. Communications between attorney and client in reference to all matters which are the proper subject of professional employment are privileged.</p>

Error from the Yates common pleas. Williams sued Heermans in a justices’ court and declared against him, claiming damages sustained in consequence of the non-attendance of the defendant as a witness in a suit depending before J. Lain, Esq., in which he, Williams, was plaintiff, and one Waterman defendant; averring that Heermans was a material witness for him and was regularly subpoenaed. The defendant pleaded the general issue.

This was an action on the case, tried at the Greene circuit in October, 1831, before the Hon. James Vanderpoel, one of the circuit judges.

This was an action of trespass quare clausum fregit, tried at the Orange circuit in September, 1831, before the Hon. Charles H. Rtjggles, one of the circuit judges. The cause was removed by certiorari into this court from the Orange common pleas.

This was an action of ejectment, tried at the Sullivan circuit in October, 2831, before the Hon. Charles H. Ruggles, one of the circuit judges. The plaintiff claimed an undivided 458 acres of lot No. 3, in the first division of the Minisink patent, and showed title under a deed from the comptroller of the state, and also to an undivided 56 acres by purchase from owners of the same lot, and rested.

Error, from the superior court of the city of New-York. Wheeler sued Curtis and Fisher.

Error from the Cayuga common pleas. M’Fadden sued Kingsbury and two others, commissioners of highways of the town of Sterling, in the county of Cayuga, before a justice of the peace, to recover a penalty given by statute, for their neglect to prosecute one Charles W. Turner, an overseer of highways, for not removing an obstruction from the highway of which he was overseer. The cause was tried before the justice, and the defendants had a verdict.