Volume 13 — New York Reports

The action was brought to recover damages for injuries to the person of the plaintiff, alleged to have been caused by the negligence of the defendant. The cause was tried at the Rensselaer county circuit, held by justice Wm. F. Aliens in October, 1852.

<p>St. John v. American Mutual Life Ins. Co., 2 Duer 419, affirmed.</p> <p>Action in the superior court of the city of New-York, by the plaintiff as assignee of two policies of insurance, issued by the defendant to and upon the life of one Charles Noyes for $2000 each. The complaint alleged the issuing of the policies to Noyes, the assignment of them by him to the plaintiff for a valuable consideration and notice thereof to the defendant, the death of Noyes and due notice and proof thereof to the defendant, and demanded judgment for the full sums named in the policies. The answer of the defendant, among othes things, denied that the policies were assigned to the plaintiff" for a valuable consideration, and alleged that the plaintiff at the death of Noyes had no interest in his life, and that he had not been inj ured by his death. As a further defence, it was alleged in the answer that the plaintiff only advanced or loaned to Noyes three hundred dollars as a consideration for the transfer of the policies to him, .and that he was only entitled to recover upon them to this amount; and that if defendant was liable beyond this amount upon the policies, the personal representatives of Noyes were interested in the excess, and that they were necessary parties to the suit. The plaintiff, in reply, denied the new matter contained in the answer and alleged that, upon the assignment of the policies to him, he paid Noyes three hundred dollars and agreed to pay the premiums which might be payable upon them during the period for which they were issued; and in the event of ine death of Noyes, to collect the amount agreed to be paid by the terms of the policies, and, after deducting the sum of five hundred dollars to reimburse the plaintiff for his advance to Noyes and his payments on account of the policy, to pay the residue to the wife of Noyes.</p> <p>The cause was tried in January, 1853, before Mr. Justice Campbell and a jury. The plaintiff read in evidence the two policies of insurance mentioned in the complaint. They were dated the 11th of October, 1850 ; and by the terms of each, the defendant, in consideration of $4.20, recited to have been paid by Noyes, and of $19.20 premium, to be paid on each annually, on the first days of January during the continuance of the policy, did insure the life of Noyes in the amount of $2000, for the term of six years and six months, from their respective dates, and did promise and agree to and with Noyes, his heirs, executors, administrators or assigns, well and truly to pay the sum of $2000 to- Noyes, his heirs, executor-s, administrators or assigns, within ninety days after his death, and proof thereof. One of the policies was No. 2500, and the other No. 2499. The plaintiff read in evidence an instrument executed by Noyes, dated the 30th of October, 1850, by the terms of which he, in consideration of the sum of $300, to him paid by the plaintiff as therein recited, did sell, assign, transfer and set over unto the plaintiff the policy numbered 2500. The plaintiff read in evidence another instrument executed by Noyes, and dated February 14th, 1851, by the terms of which, Noyes, for a valuable consideration, as therein stated, did sell, assign and transfer unto the plaintiff the policy numbered 2499. It appeared that the defendant was notified that the policies were- assigned to plaintiff, and an entry of their transfer to him was made in a book kept by the company for .that purpose. It also appeared that these policies were issued to Noyes, in place of and upon the cancelling of a policy issued to him on the 11th of April, 1850, insuring his life for $4000, for the term of seven years. It was proved that the premiums, payable on the policies on the first, of January, 1851, were paid by the plaintiff. Noyes died in March, 1851; and the plaintiff served upon the defendant notice and proof of his death, and claimed that he was entitled to the amounts named in the policies, as assignee. The defendant is a corporation, having its principal place of business in Connecticut; but the policies in question were delivered at its agency in New-York city.</p> <p>The counsel for the plaintiff offered in evidence two instruments, proved to be in the 1 land writing and signed by the plaintiff; the one dated October 30th, 1850, by which the plaintiff promised that in case said policy No. 2500 should be paid to him, he would pay to the wife of Noyes $1500; the other was dated February 14th, 1851, and by it the plaintiff promised to pay such premiums as should be payable on said policy No. 2499, and to account to the wife of Noyes for such sums as he, the plaintiff, should receive thereon. The counsel for the defendant objected to these instruments as incompetent evidence herein; he also objected to their being read in evidence, on the ground that it was not proved that they were executed at the time they bore date, or at any time prior to the commencement of the suit. The court overruled the objections, and the instruments were read in evidence, and the counsel for the defendant excepted.</p> <p>At the close of the evidence, the counsel for the defendant - insisted: 1. That, as to one of the policies, the plaintiff did not prove any consideration for its assignment, or any interest in the life of Noyes beyond $300, and that he was therefore entitled to judgment on this policy only to the amount of this sum. and interest thereon; 2. That as to the other policy, the plaintiff had not proved any consideration for its assignment, or any interest in the life of Noyes, and that to recover on this, the plaintiff was bound to prove that it was assigned to him for $500, and as to the residue in trust for the wife of Noyes; 3. That on the proof, the whole interest in the policy No. 2499, and the principal interest in the other, were in the personal representatives of Noyes, and not in the plaintiff, and that such personal representatives should have brought the action on the former, and been co-plaintiffs in this action on the latter; 4. That the plaintiff was entitled to recover in this action only $300 and interest. The court overruled each of said objections, and instructed the jury that the plaintiff was entitled to a verdict against the defendant for the sum of $4000 and interest; and the counsel for the defendant excepted, A verdict was rendered accordingly, and the defendant made a case, with leave to turn the same into a bill of exceptions, and applied to the court at a general term for a new trial, which was denied, and judgment rendered upon the verdict. (See 2 Duer., 419.) The case was turned into a bill of exceptions, and the defendant appealed to this court.</p>

<p>Where a railroad corporation neglects to maintain fences and cattle guards along its road, as required by the general railroad act (Laws of 1850,p. 288, § 44), and cattle get upon the track and are injured by its engines or cars, the corporation is liable to the owner in damages, although he is not an adjoining proprietor, and it does not appear how or whence the cattle came upon the road.1</p> <p>It seems that a railroad corporation, which omits to comply with the statute as to erecting and maintaining fences and cattle guards, is liable to the owner of cattle which stray upon the track from an adjoining close, or the highway crossing it, and are there injured by the engines of the company, although they were not lawfully in such close or highway.</p> <p>In such a case, the mere negligence of the owner, in permitting his cattle to stray upon the land of another adjoining the railroad, or to run at large in the highway which crosses it, is not a defence to the corporation. Per Marvin and Denio, JJ.</p> <p>The duty imposed by the statute upon railroad corporations is not limited to the maintenance of fences and cattle guards, as against the animals of adjoining occupants, or those lawfully in the highway. Per Marvin and Denio, JJ.</p>

Action in the supreme court against Nicholas Miller as the maker, and Leonard P. Miller as the endorser of a promissory note, dated the 2d of April, 1850, for $125 and interest, and payable in eighteen months from date. The complaint, after stating the making and endorsement of the note, alleged that it was at maturity presented for payment, which was refused, and notice thereof was thereupon given to the endorser. The answer denied the complaint.

On the 14th of September, 1837, persons named Mahoney and Trull brought an action of replevin, in the court oí common pleas for the city and county of New-York. against the sheriff thereof and others; on that occasion, Mahoney and Trull, as principals, and Tobias and Rogers, the parties to this action, as their sureties, executed and delivered to the coroner of the city and county of New-York, a joint and several bond, in the penalty of $1283, conditioned, that Mahoney and…

* Appeal from a judgment of the court of common [*71 pleas of the city and county of New York. Held: as matter of law, that the plaintiff had not acquired a lien upon the building, and decided that the defendant was entitled to judgment, which was accordingly entered, and the judgment was, on appeal, affirmed at a general term; upon which the plaintiff appealed to this court. The case was submitted upon printed points

McCarron, the plaintiff in error, was tried, for murder at the Oneida ' county court of oyer and terminer, held in October, 1854, and convicted. The court was composed of the Hon. Wm. F. Allen as presiding justice, and two-justices of the sessions.

<p>The general railroad act, as originally enacted (Laws of 1850, p, 232, § 39) required the bell to be rung or the whistle sounded, each time the engine passed over the railway, where the latter crossed a public highway, although the railroad and highway did not cross each other upon the same level. Accordingly, Held, that a railroad corporation was liable to the penalty prescribed by the act, for each time a locomotive passing on its road crossed a public highway, although the railroad crossed the highway fifteen feet above the grade of the latter on a well-constructed bridge.1 The rules as to construing statutes, discussed by Marvin, J.</p>

Action in the supreme court commenced in December, 1849. The complaint was as follows: “ State of New-York, county of Albany: Andrew White, receiver of the Canal Bank of Albany, agt. Miles Joy and Lewis Joy. The above named plaintiff complains, that the defendants, partners in trade, on the 24th day of October, 1848, at Buffalo, by a promissory note in writing, for value received, promised to pay the sum of one thousand dollars one year after the said date.

<p>A person, named as an executor in an instrument propounded as a will, is a competent witness to sustain its-probate after he has renounced the executorship.</p> <p>In the absence of proof to the contrary, a devisee of property in trust is pre- ' sumed to accept the trust estate.</p> <p>But he cannot be vested with such an estate against his will; and where he declines to accept it, his disclaimer need not be .in such form as to pass an estate in the property devised.</p> <p>Accordingly, where, by an instrument executed as a will, real and personal property was devised to three persons in trust, and they were also named as executors ; and on its being offered for probate in the surrogate’s court by a party other than the trustees, one of the latter executed, acknowledged and delivered to the surrogate an instrument by which he renounced the executor-ship, and all right and claim to act as trustee; Held, that it was a valid disclaimer, and that the person making it was a competent witness to sustain the will.</p>

<p>The grammatical construction of the language of a will or other instrument is not necessarily to prevail in its interpretation.</p> <p>Thus, where, after bequeathing a sum to be equally divided among the six children of his daughter, the language of the testator was: “ .Also, I give to the said six children of my daughter, or to such of them as may survive me, one hundred thousand dollars of the public debt, called the water loan, .¡.qq-j *to be paid to each on attaining their age of twenty-one years, and the -* interest of the shares of those under that age to be accumulated for their benefit until that period, and in case any of them shall die before that age, without issue, then his or her shares shall go to the survivors Held, that this was a bequest of the $100,000 to the children collectively, and not of that amount to each.</p>

Action commenced in the supreme court, in 1851, to recover the amount agreed to be paid by the defendant in and by the contract hereinafter mentioned.

The St. Lawrence Bank was organized in 1838, under and by virtue of the general banking law enacted in that year, to carry on the business of banking at Ogdensburgh. In December, 1841, the bank, pursuant to a resolution of its board of directors, stopped ■ specie payments, and never afterwards resumed them, and it was then and ever after-wards insolvent.

Action commenced in the supreme court on the 15th of October, 1850, to recover possession of fifty barrels of potash. The plaintiffs were John Brower and Jacob Cram; the defendants were Lovett and Bethune, who were doing business under the firm name of Lovett & Co., and Peabody, who was the captain of the ship Fidelia. Peabody alone appeared and defended. The action was referred to and tried by Lucius Robinson, as referee.

Action commenced in the supreme court in December, 1848, upon a lease executed by the parties under their seals bearing date the 1st day of October, 1844, whereby the plaintiff demised unto the defendant and his representatives a store in the city of Albany, for the term of two years and six months from the date of the lease, at the annual rent of $850, payable quarterly in each year, the lessee paying the taxes.

The plaintiff demised to one Abbott certain premises in the city of New-York, from the 1st day of May, 1852, until the 1st day of May, 1853, at a rent of $500, for the year payable quarterly, and the lessee was to pay the water tax. The lease contained covenants, by which Abbott, the tenant, agreed to pay the rent, the Croton water tax, to keep the premises in repair, and do sundry other things.

The action was brought in the supreme court, in the name of the town of Guilford one of the towns of the county of Chenango, against Cornell and Clark and the board of supervisors of Chenango county, to restrain the board of supervisors from levying and collecting from the taxable property of the citizens of the town, a sum awarded to Cornell and Clark under and pursuant to an act of the legislature for their relief {Laws of 1852, p. 12); and which' the act directed the…

<p>Appeal from a judgment of the superior court of the city of New York. The complaint alleged that the corporation of the city was entitled to certain wharfage accruing at the wharves in a certain district of the city, and payable in respect to such vessels as should lie against or touch at those wharves and the slip and piers thereof; that in April, 1850, the corporation, by writing under the corporate seal and the seal of Mabie, one of the defendants, demised and leased to him the right to collect such wharfage u; on all vessels of over five tons burthen, for the district referred to, for his own use, for one year,from the first day of May ensuing, for the consideration of a rent of $5000, which Mabie covenanted to pay to the corporation in quarterly payments; that Mabie, to secure the payment of this sum, with the other defendants as his sureties, executed a joint and several bond to the corporation in the penalty of $.11,000, conditioned for the payment of the rent above mentioned as it should fall due; that Mabie entered upon the premises and collected the wharfage .to his own use, but had made default in the payment of the S5UÚU,—$4425 thereof yet remaining in arrear and unpaid, for which, with the interest, the plaintiffs demanded judgment.</p> <p>'The answer admitted the grant and the execution of the bond and that Mabie entered upon the premises; but it set up that he was disturbed in the enjoyment of the right to wharfage by certain agents of the plaintiffs, who, by the plaintiffs’ authority and direction, entered upon the premises and assumed the entire control of all vessels coming to the slip and piers embraced within the' district as regarded their berths and locations, and granted to certain vessels and lines or classes of vessels particular berths and locations in the slip or at the piers, and prevented other vessels from using or occupying such berths or locations, whether they were occupied by the favored vessels or not; and that they let and gave to certain vessels the exclusive use of. berths and locations in the slip and at the piers aforesaid, for a compensation paid therefor to the corporation or its agents ; by means of which Mabie sustained great losses of wharfage. The plaintiffs replied, taking issue upon the allegations of the answer.</p> <p>The action was brought to trial in April, 1853, before the chief justice of the superior court. The allegations in the complaint being admitted, the defendant offered to prove the facts set up in their answer. The court excluded the evidence, and directed a verdict to be rendered for the plaintiffs for the arrears of the $5000. Verdict and judgment accordingly. The judgment was affirmed at a general, term, and the defendants appealed to this court.</p>

Actions commenced in the supreme court in September, 1851. The complaint in the case first entitled stated that the defendants, C. Bigelow & Wright were, on the 9th of July, 1851, copartners in the mercantile business, and, as such, indebted to the plaintiff in the sum of about $90; for which amount he recovered judgment against them on the 12th of that month in a justice’s court.

Action in the New-York superior court to recover the price of looking-plass plates, sold and delivered to the plaintiff. The cause was tried before Mr. Justice Paine and a jury.

Replevin for the wrongful detention of a quantity of pork and lard, commenced about the first of May, 1848. The property, by virtue of the writ of replevin, was taken from the possession of the defendant by the sheriff and delivered to the plaintiff. In the writ and declaration the pork and lard were described and alleged to be the property of the plaintiff.

<p>The hen of a judgment on land is subject to the equitable rights of a party in the occupation thereof, under a prior contract to purchase the same from the judgment debtor.</p> <p>Tlio docketing of the judgment is not notice thereof to such purchaser; and payments subsequently made by him to the judgment debtor pursuant to his contract, without actual notice of the judgment, are valid as against its lien upon the land.</p> <p>And where, while the purchaser of land by contract was in possession, a judgment was recovered against the vendor, and the land sold on an execution issued thereon and hid off by the plaintiff in the judgment, who transferred the sheriff's certificate to a third person, to whom the sheriff executed a deed; and the purchaser, after the sale on execution and before the sheriff conveyed, without actual notice of the judgment or the proceedings thereon, made payments pursuant to his contract to the judgment debtor; Held, in an action by the purchaser against the grantee in the sheriff's deed for a specific performance of the contract, that such payments were valid, and that the latter was hound to convey the land on being paid the amount due on the contract after applying the payments made to the judgment debtor.</p> <p>Payments made by such a purchaser to the judgment-creditor without notice after the execution of the sheriff’s- deed would be valid against the grantee therein. Per Denio, J.</p> <p>The recording of the sheriff’s deed is not notice thereof to a party who contracted with the judgment debtor to purchase the land and entered into possession prior to the recovery of the judgment. Per Denio, J.</p>

<p>Payments and transfers of property made by the bankrupt after the passage of the bankrupt act of August 19th, 1841, in contemplation of bankruptcy and for the purpose of giving some of his creditors a preference or priority over the others, will avoid his discharge when set up as a bar to an action upon a prior demand.</p> <p>Accordingly, where the defendant gave in evidence his discharge granted upon his petition therefor, filed in November, 1842, in bar of an action for a previous debt, and the plaintiff, to avoid it, offered to prove that during the fall of 1841, and in January, 1842, the defendant being insolvent, made transfers of his property to certain of his creditors in payment of their debts in contemplation of bankruptcy, ¿nd for the purpose of giving them a prefer ence and priority over his other creditors, which he fraudulently concealed from the court granting the discharge; Held, that the evidence was competent and sufficient to avoid the discharge.</p>

<p>Since the enactment of the statute (1 R. L., 374, % 5, 6, 2 R. 8,645), directing the manner in which mortgage premises shall be sold by virtue of a power, the sale must be at public auction after notice as prescribed by the statute to bar the right of redemption, notwithstanding the power is contained in the mortgage, and expressly authorizes the mortgagee on default to sell the premises at private sale to satisfy the debt.</p> <p>In 1824 a conveyance was executed, in which it was recited that the grantor was indebted to the grantee, and that it had been agreed that he should, as a further security for the payment of the debt and of any further indebtedness which might accrue, convey the premises therein described upon the trusts specified in the conveyance, and by which the premises wore granted upon the trusts: 1st. That the grantee should permit the grantor to enjoy the pz-emises until default: 2d. On payment of the indebtedness to hold the premises to the uses which the grantor should appoint, and in default of such appointment to reconvey them to him or his heirs: 3d. On default in paying the indebtedness to sell the premises at public or private sale for cash or upon credit, and convey the same to the purchaser in fee and apply the proceeds after paying all expenses of executing the trusts to the payment of the indebtedness, rendering the surplus to the grantor or his heirs. The grantor died intestate in July, 1830, the indebtedness remaining unpaid; and the grantee took possession, and in 1833, sold the premises at private sale, without notice to the heirs or representatives of the grantor, and conveyed with full covenants as to title. On bill filed by the heirs against the grantee, and those deriving title under the sale; Held, 1. That the conveyance was a mortgage; and 2. That the right of redemption was not barred by the private sale made by virtue of the power.</p>

<p>An assignment by an insolvent debtor of his property to trustees for the benefit of his creditors, which authorizes the trustees to convert the property into “money or available means” is fraudulent and void as against the creditors of the assignor.</p> <p>Authorizing the trustees to convert the property into available .means as contra-distinguished from money, is equivalent to empowering them to sell it on credit.</p>

* Action in the superior court of the city of New 1 York to recover the amount of certain taxes assessed upon premises occupied by the plaintiff and collected by a' seiziTre and sale of her property, on the ground that such premises were exempt from taxation. The case of Chegaray v.. Jenkins (1 Seld. 376), was brought to recover for the collection of the same taxes in controversy in this suit.

The action was upon an instrument of which the following is a copy: ' “ Middleport, Feb. 6, 1844. “ Mr. Gates—Sir: I will be responsible for what stock M. E. McKee has had or may want hereafter to the amount of five hundred dollars. Chauncey McKee.” The cause was tried at the Orleans county circuit, before Justice Mullett, without a jury.

In May, 1854, an alternative writ of mandamus was issued by the supreme court in the 4th district, directed to Marius Schoonmaker, auditor of the canal department of the State of New-York.

The action was brought in 1853 by the plaintiff, as the assignee of Alexander H. Ritchie, and the complaint set forth that the defendant employed Ritchie to engrave four like- • nesses for $50 each, which Ritchie, it was alleged, had done, and that the defendant had refused to receive the plates and pay for the engraving; and furthermore that Ritche had assigned the demand to the plaintiff The answer denied the allegations of the complaint, and as a further and separate…

*frhe action was upon a bond executed by the de- r*9r>o fendant in January, 1849, to obtain the discharge of L an attachment issued in December, 1848, by the Hon. Lewis R. Sandford, one of the justices of the superior court of the city of New York, on the application of the plaintiffs against the property of Louis S. Hargous and Emilie Voss, composing the firm of L. S. Hargous & Co., as non-resident debtors.

Action commenced in the supreme court in July, 1851, to recover of the defendants for entering the plaintiff’s close and cutting down and carrying away timber.

The action was on a policy of insurance upon seven-eighths of a steamer called the “ G. P. Griffith,” by which the defendant insured Richard Sears the sum of $6000 against the usual sea risks upon the lakes, including fire, upon time from the 4th April, 1850, to the 1st day of December following. The plaintiff was the assignee of Sears. At the date of the policy, April 4th, 1850, the vessel was in port, from whence she sailed on the 14th day of that month.

<p>Appeal from a judgment of the supreme court, in the second district. The action was brought in that court, to settle the construction of a will.</p> <p>*Cyrenius Crosby, on the 3d day of October, 1844, r*275 duly made and executed his last will and testament. L In the first place, he gave to his wife certain apartments in his dwelling-house, and certain rights in portions of his farm, and an annuity of $20 per annum out of the profits of the farm for life. He also gave her $20 per annum for life, to be paid by his four daughters, each paying an equal part. He next devised to his two sons, John Increase and Cyrenius, all his real estate, consisting of the farm before mentioned, subject to the reservations in favor of his wife, and another piece of land in fee; and to each of his four daughters before mentioned, he gave a legacy of $1000. The language was the same in the case of each daughter; the bequest to Isabella being in the following words: “ I give and bequeath to my daughter, Isabella M. Crosby, and to her heirs, one thousand dollars, to be paid within six months after my decease, out of my personal estate.” The next provision is a bequest, as follows: “ To my two sons (who are named), equally between them, share and share alike, one-half part of all the moneys which will be coming to my.estate after my father’s decease, out of his estate, on a certain written instrument from under his hand and seal, securing to me the reimbursement of the costs, &c., by me paid in the chancery suit with the Millikens; the other half of said moneys I give and bequeath to my four daughters aforesaid (who are again named), equally between them, share and share alike.” After giving certain chattels to his wife, “ in trust for the use of his family,” the remainder of the will is as follows - “ Item: All the remainder and residue of my estate, both leal and personal, I give, devise and bequeath to my said two sons, John Increase Crosby and Cyrenius Crosby, and to their heirs, equally between said sons, share and share alike; and in case either of my said sons-shall die before having arrived to the age of twrenty-one years, and without lawful heirs, then I give and devise his half part of the real estate aforesaid, or his share of said real estate, to his surviving brother, to have and to hold to him and to his J heirs forever. The personal estate of him dying as aforesaid I give and bequeath to his surviving sisters, equally between them, share and share alike. And further, in case that both my said sons-or.in case that either of my four daughters-shall die before having attained to the age oí twenty-one years, and without lawful heirs, then I give, devise and bequeath all the estate, real and personal, of said sons so dying as aforesaid, and the estate of said daughter or daughters so dying as aforesaid, to their surviving sisters, equally between them, share and share alike, or sister. And if all my four daughters aforesaid should die before having attained to the age of twenty-one years, and without lawful heirs, then I give and bequeath all their estates aforesaid, to their surviving broihers, share and share alike, or brother.” The appellant, who was plaintiff in the supreme court, was appointed executor. The testator died on the 29th of December, ] 844. Catharine W. Crosby, one of the daughters, died before the testator. Cyrenius Crosby, the younger, died on the 1st day of January, 1845, under the age of 21 and without issue; Isabella M., another of the daughters and legatees, intermarried with Isaac Beyea on the 12th of December, 1846, and died without issue on the 16th day of December, 1848, not having attained the age of 21 years. The widow of the testator married Henry Smith. On the settlement of the accounts of the plaintiff, as executor before the surrogate of Orange county, it was ascertained that there remained in his hands $6641.34, to be paid to the legatees or next of kin, or whoever should be held entitled to it. The pleadings stated the foregoing facts, and the complaint set forth that hostile claims respecting the distributions were made by the widow and surviving children, and by Beyea, who had been appointed administrator of his deceased wife, and prayed the aid of the court. The defendants were Henry Smith and his wife, the surviving children *of - „ the testator, and Beyea. They all answered the complaint, setting up various and in some respects conflicting claims to the fund. Smith and his wife state that they are advised that the shares in the personal estate of Cyrenius, the younger, and of Isabella M. Beyea, upon their deaths respectively vested in their surviving sisters, and they stated that they were willing and desirous that the will should receive that construction; but they submitted that if a certain construction, which they maintained, should bo established, that then Mrs. Smith, as the mother of Cyrenius, the younger, would be entitled to participate in his share of the money equally with his surviving sisters. The surviving daughters, Rachel and Arminda, and John Increase, the surviving son, all of whom were infants, answered by guardian ad litem, submitting themselves to the judgment of the court. Beyea, in his answer, claimed the legacy of $1000 bequeathed to his wife, and also the share given to her in the moneys coming from the estate of the father of the testator, and likewise the share of the said wife, as next of kin, in the legacy bequeathed to Catharine.</p> <p>The action was tried before the Hon. J. W. Brown, one of the judges of the supreme court. He decided that by the death of Cyrenius Crosby, the younger, the two surviving,'daughters of the testator, Rachel and Arminda, and Beyea, as administrator of Isabella, became. and were together entitled to one equal half of the residue of the testator’s personal estate, after payment of the debts and legacies, and to one-fourth of the moneys coming from the estate of the testator’s father, by force of the limitation in the will, which was to take effect upon the death of either of the testator’s sons, under age and without issue; that John Increase was entitled to the remaining half of the residue and to one-fourth of the moneys coming from his grandfather’s estate; that the surviving daughters were also entitled each to one other fourth of said moneys coming from the estate of their grandfather, and that each of *them- ^ was entitled to the legacy of $1000, bequeathed to them respectively, with interest from the time the same became payable by the terms of the will, and also to the two sums of $1000 each, bequeathed to the deceased daughters, Isabella and Catharine, respectively, with interest; that in case John Increase, Rachel or Arminda, should die under age and .without lawful heirs, the share of the one so dying should belong to the surviving daughters or daughter of the testator, except the shares to which the last named children succeeded by the death of Cyrenius, the younger, which it was adjudged was not subject to any further limitation, and that Rachel and Arminda were liable to pay the annuity of $20 per annum, to their mother in equal proportions. The costs of all the parties were to be paid out of the estate.</p> <p>An appeal was taken by Beyea to the general term, and the judgment above mentioned was reversed. It was thereupon adjudged that Rachel and Arminda, and Beyea as administrator of Isabella, were each entitled to a legacy of $1000, with the interest, the latter taking the legacy bequeathed to his wife; and that each of them was entitled to an equal third of the legacy of $3000 mentioned in the will as bequeathed to Catharine, with interest thereon; that the said three persons were each entitled to one-third of one-half of the moneys which should arise out of the claim against the estate of the testator’s father; that John. Increase was entitled to one-fourth of the moneys to arise out of that claim, and likewise to one-half of the residue after, paying the debts and legacies; and that Cyrenius, the younger-, having died after the death of the testator, possessed of a vested interest in the legacies bequeathed tó him by the will, that is to say, of one-fourth of the money due from his grandfather’s estate and one-half of the residue of the testator’s personal estate, these legacies belong to and are to be distributed among the next "of kin of said Cyrenius, the younger, according to the statute of distribuí tions; and finally, that the annuity of $20 per annum to Mrs. *Smith was to be paid by the surviving daughters r*97Q and by Beyea in equal proportions. (See 15 Barb., 416.)</p> <p>From this decree the piamtiff appealed to this court.The case was submitted on printed points.</p>

Action in the superior court of the city of New York, against the drawers and endorser of an instrument of which the following is a copy: $2000. New York, Oct. 5,1849. Cashier of Thompson Bank, Pay Zenas Newell or order, two thousand dollars, on the 12th inst. (Signed) (Endorsed) B. Searls & Son. Zenas Newell. *Newell defended on the ground that he was not r*29p charged as endorser. The action was twice tried..

<p>The child or next of kin of an intestate is a competent witness for the administrator in an action brought by the latter to recover a demand claimed to be duo the estate.</p> <p>Such person is not a party for whose immediate benefit the action is prosecuted within the meaning of § 399 of the (lode of Procedure.</p>

Appeal by the plaintiff from a judgment of the supreme court sitting in 1he 6th district. The facts out of which the questions decided by this court arose, are sufficiently stated in the opinion. The case was submitted on printed briefs.

<p>The act abolishing distress for rent, and providing that where a right of re-entry is reserved to the lessor in default of property whereon to distrain for rent, such re-entry may be made after default and the notice prescribed by the act notwithstanding there may be sufficient property on the premises to satisfy the rent (Laws of 1846, 369), applies to leases in force when it was passed and is valid.1</p> <p>As to such leases, the act is not in conflict with the provisions of the federal constitution forbidding a state to pass any law impairing the obligation of contracts.</p> <p>Accordingly, where by the terms of a lease executed in 1794, the lessee covenanted to pay the rent annually, on the first day of January; and it was *further provided, that on default the lessor might distrain, and should r^nrirv there be no sufficient distress or should the lessee fail to perform any L covenant contained in the lease, the lessor might re-enter ; and in June, 1846, several years’ rent being in arrear, the lessor served, as prescribed by the act of 1846, a notice stating that he intended to re-enter, unless the arrears of rent then due were paid within fifteen days ; in ejectment commenced after the expiration of the time specified in the notice ; Held, That the act was valid, the notice sufficient, and the plaintiff entitled to recover.</p>

*3071 Appeal by the defendant from an order made by J the supreme court at a general term in the 5th district. The case is sufficiently stated in the opinion.

The action was commenced in 1853, against the Patchin Bank, as the endorser of a bill of exchange, dated September 14, 1853, for $10,000, drawn by one Parsons, and addressed to R. Pomeroy, Treasurer Buffalo and New-York City Railroad Company, and accepted by the latter for and on behalf of the railroad company.

<p>A party is liable in an action for damages who, in bad faith and with a view of inducing others to credit a merchant, represents that he has examined into his affairs and considers him solvent and worthy of credit, and that be is going on well, when such merchant is, in fact, insolvent, and the party making the representations has not investigated his affairs, and knows nothing of his business condition, except that he is largely indebted.</p> <p>In an action for falsely and fraudulently representing a person as solvent, the complaint should aver and the plaintiff must prove that the representations were made with intent to deceive and defraud. B ut a complaint which substantially, although not in direct and technical language, alleges this, is sufficient.</p> <p>A variance in some particulars between the fraudulent representations alleged and those proved, is not material, unless the defendant prove to the judge at the trial that he was misled thereby to his prejudice.</p> <p>The responsibility of a party for false and fraudulent representations is not necessarily limited to the credit obtained thereby, at or immediately subsequent to the time they were made. And where the representations were made in April, and the plaintiffs then, and at various times afterwards until November, sold the party recommended merchandise on credit; Held, That it was for the jury to decide whether the credits given during the summer and fall were induced by the representations.</p> <p>A right of action for damages caused by a false and fraudulent representation of the solvency of the vendee of merchandise is not assignable.</p> <p>Such a right of action would not survive to the personal representatives of the party defrauded.</p> <p>It seems that a cause of "action which would survive to personal representatives can he transferred and enforced in the name of an assignee.</p> <p>An action founded on an express or implied promise to a person, does not survive to his personal representatives when the damages consist entirely in the mental or bodily sufferings of the deceased.</p> <p>In actions sounding in tort, where it appears by the complaint that all the proper parties are not made plaintiffs, the defendant should take advantage of the defect by demurrer. If he omit to do so the defect is waived, although the defendant in his answer insists that the complaint should be dismissed for this defect.</p> <p>And where in an action for a tortious injury to personal estate owned by joint tenants, one of the joint owners is not a party plaintiff, and the defendant omits to avail himself of the non-joinder in pleading, he will not be allowed on the trial to prove the interest of the owner not joined, in diminution of the amount to he recovered.</p> <p>A judge is bound to instruct the jury on each proposition of law submitted to him by counsel bearing on the evidence.</p> <p>But where very numerous distinct propositions are submitted, and the judge in his instructions to the jury covers generally all the questions presented, his attention should be particularly called to any question npon which more definite instructions are desired.</p>

Motion to dismiss the appeal. The suit was instituted to foreclose a mortgage. At the special term the plaintiff moved the cause upon the complaint, the bond and mortgage therein set forth and the answer of the defendant. He waived proof of the matters set up in the answer, claiming that they constituted no defence. The judge so ruled and pronounced judgment accordingly. The record does not show that any exception was taken to the decision.

Motion to dismiss appeal. The cause was tried before a referee, and judgment on his report in favor of the plaintiff was entered in September, 1853. The defendant appealed to the general term of the supreme court, and made a case which contained all the evidence, the exceptions taken during the trial, and exceptions to the referee’s conclusions, both of fact and law, as stated in his report.

Action in the nature of a quo warranto, brought by the attorney-general in (he name of the people upon the relation of Henry E. Davies against Edward P. Cowles. The action was in the supreme court and was commenced on the 7th of December, 1855.

Wtnehamer, the defendant in the court below in the case first above entitled, was, in July, 1855, indicted at a court of general sessions, held in and for the county of Erie, for selling intoxicating liquors, contrary to the provisions of the statute entitled “ An act for the prevention of intemperance, pauperism and crime.” The indictment contained several counts, each of which charged in substance that the defendant, on a day subsequent to the 4th of July, 1855, at the…

<p>A simple contract creditor cannot maintain an action against the debtor and his fraudulent assignee, to restrain the latter from disposing of the assigned property, and to have the assignment declared void, and his debt paid.</p> <p>To sustain such au action, the plaintiff must be a judgment-creditor of the fraudulent assignor.1</p> <p>Where, during the pendency of an action to recover judgment against the debtor, he threatens or is about to remove or dispose of his property with intent to defraud his creditors, the court is authorized by § 219 of the Code to restrain him from so doing.</p> <p>But where the fraudulent transfer has been made, the court is not authorized, in an action by the simple-contract creditor against the debtor and his fraudulent vendee, to restrain the latter from disposing of the property.</p> <p>The distinction between actions ’ at law and suits in equity, under the Code of Procedure, discussed and pointed out by Selden, J.</p>

Action commenced in 1838, in the superior court of the city of New-York, upon a hond executed by the defendants in January of that year, pursuant to the statute (2 11. S., 11, § 55), to procure the discharge of an attachment issued on the application of the plaintiff against the estate of John W. Baker and John Young, as non-resident debtors.

This was an action of trespass,commenced in the supreme court prior to July, 1848, for breaking the plaintiff’s close, and cutting and carrying away trees and timber. Plea, not guilty. The premises were wild and uncultivated lands, lying in Steuben county, and the question was as to the legal title.

The action was brought to recover damages for the negligence of the defendant in constructing its road in such a manner that the plaintiff, in driving upon it with his horses and wagon, was thrown out and injured. The trial took place before Mr. Justice Pratt and a jury, at the Oswego county circuit, in February, 1852.

The action was brought to recover the possession of a lot of land in that city. The jury found a special verdict, from which it appeared that Robert Swanton, a citizen of the United States, died seized of the premises in the year 1840, having by his last will and testament devised them to Thomas Roycraft in fee, with a contingent limitation, to the effect that if Roycraft should die without issue, then the premises should go to four persons named, in certain shares.

<p>A party against whom a person is offered as a witness has a right to have the preliminary oath, called the voir dire, administered to him, and to examine him touching his competency before he is sworn in chief.</p> <p>It is not within the discretion of the court to decline to administer the preliminary oath to the proposed witness in the first instance, or to refuse to permit the adverse party to show his incompetency until after he is sworn and examined in chief.</p> <p>Although a witness is sworn in chief without objection, if during his examination it appear that he is incompetent from interest, the objection is in season.1</p> <p>Where, in’an action to recover a balance on a note, the answer alleged that the note “ was by mistake given for a greater sum than was due from the maker to the payee, to wit, a sum sufficient to cancel the balance claimed,” and issue was taken thereon by the reply ; Held, That the defendant was entitled bo prove under the pleadings that the note was given on a settlement of accounts, and by mistake was for a larger amount than the sum actually due.</p> <p>The objection that the allegation in the answer was too indefinite, should have been taken by motion to have it made more certain.</p>

The judgment was rendered at a general term in the 3d district, in favor of the defendant. The plaintiffs appealed to this ecurt. ■ The sole question was whether the defendent was duly charged as the endorser of three promissory notes made by one J. V., payable at the Catskill Bank to the order of and endorsed' by the defendant.

Action commenced in July, 1853, against Samuel Beebe, to recover the value of a mare, three cows and other live stock, alleged to have been wrongfully converted by him. The defendant claimed that the property belonged to one Franklin Beebe, and that he possessed it as his bailee. The cause was tried at the Chenango county circuit, held by Mr. Justice Mason. It was conceded that the stock in question was owned in 1851 by one William Marvin.

Action against the defendants as common carriers to recover damages caused to merchandise by an accidental fire. The case was heard before a referee, who ordered judgment in favor of the plaintiffs. This judgment was affirmed by the supreme court sitting in the 8th district. The defendants appealed to this court.

The action was for taking and carrying away personal property. The trial took place at the Wayne circuit, in December, 1849, before Mr. Justice Selden. Samuel Sutherland, the owner of the property, mortgaged it to the plaintiffs on the 11th October, 1848, to secure them as his endorsers upon a note for $205.78, payable on the 19th December following; and the mortgage was duly filed.

The action was brought in the supreme court against Frederic Bronson, as executor of the will of Arthur Bronson, deceased, to compel the specific performance of a contract alleged to have been made by him, as such executor, by Ogden & Jones, his attorneys, with one Robert F. Bartlett, for the sale and conveyance to the latter of lands situate in the State of Illinois. The plaintiff derived title to the contract and the rights of Bartlett by assignments.

Motion to dismiss appeal. The action was commenced in the supreme court of this state by the plaintiff, a citizen of New-York, against the defendant, a corporation chartered by the legislature of Connecticut.

Action commenced in the superior court of the city of New-York, in December, 1854.