Volume 15 — Barbour's New York Supreme Court Reports

This was an action to foreciose two mortgages. The complaint alleged that John W. Latson, to secure the payment of $7980 with interest, to the plaintiff, on the 8th February, 1846, executed his bond, with a condition to pay that amount to the plaintiff as follows: $2000 on the 8th of February, 1847, $3000 on the 8th February, 1848, and the balance on the 8th February, 1849, with interest; and as collateral thereto, he executed to the plaintiff a mortgage on certain premises,…

This cause was commenced before a justice of the peace. The justice rendered a judgment in favor of the plaintiff for $>10b besides the costs. The defendant appealed to the county court of Washington county; and the county judge having been counsel for one of the parties, the cause was certified to this court. The facts are stated in the opinion which follows.

The complaint alleged that in October, 1838, one Sylvester Gilbert gave his bond, in the penalty of §10,000, with a condition for §5000, payable at the time therein specified, to the president of the St. Lawrence Bank, for the purpose of organizing that institution, and also a mortgage on a farm of the obligor to secure that sum.

<p>The docket of a deceased justice of the peace, although evidence, in a subsequent suit between the same parties, to prove that a judgment was rendered by him, is not evidence in a suit between others,, to show what constable served the summons, nor the amount of his fees.</p> <p>With respect to that matter the docket is res inter alios acta.</p>

This was an appeal from so much of the order granted by Justice Hand, at the Saratoga special term, in June, 1852, as denied the defendant’s motion to vacate the order of arrest granted by Justice Harris, in this action, and to discharge the defendant out of custody^ &c.

This was an appeal from a judgment rendered on the report of a referee, for the plaintiff, against the defendant. As the whole claim of the plaintiff was withdrawn, when the case was finally submitted to the referee, except the issue on the second count of the complaint, no more of the pleadings and evidence will be stated than what was material to the issue decided.

Demurrer to complaint. The complaint was as follows: “The complaint of the plaintiff shows to the court, that the defendant is indebted to the plaintiff in this action,, in the sum of three hundred dollars and interest thereon, from and after the 16th day of May, in year 1847, for the use and occupation of certain - lands and tenements, being the property of the said plaintiff,” (describing them,) “ for and during the following years, to wit, commencing on or about the month…

Demurrer to reply. The complaint alleged that on the 1st day of October, 1850, and on divers other days and times between that day and the, day of the commencement of this action, at the town of Grreenbush. in the county of Rensselaer, the defendants, without leave, and wrongfully, entered into and upon the farm and premises of which the plaintiff then was the owner, and of which, before said trespasses by said defendants, she was' possessed, situated in the town of…

The plaintiff sued the defendant in the justices’ court of the city of Troy. The summons was returned by the constable personally served, and on the return day the plaintiff appeared, put in his complaint, and introduced evidence on which the justice gave judgment against the defendant for $8,18 damages and $1,21 costs. The defendant did not appear before the justice.

This was an action of assumpsit, brought to recover payment of freight, pro rata itmeris, of a cargo of wheat shipped by the defendant on board the plaintiff’s vessel, at Sandusky City, Ohio, to be transported thence to Oswego, and there delivered to the defendant; he paying charges, to wit, lake freight at 8 cents per bushel. The cargo was insured by the defendant in the office of the Merchants’ Mutual Insurance Company, of Buffalo.

This action was for taking and converting certain personal property. The plaintiffs claimed under an assignment executed hy one James W. Backus for the benefit of creditors, giving preferences; and the defendants, as judgment creditors of Backus, caused the property to be taken and sold upon an execution against Backus, Upon the trial the plaintiff obtained a verdict, and from the judgment entered thereon the defendants appealed.

Case agreed upon by the parties, under section 872 of the code. On the first day of April, 1852, at 9 o’clock in the forenoon, several judgments were recovered and docketed, (so as to become liens upon real estate,) against the “ Astorogan Company)” a manufacturing corporation, located and doing business' in the county of Herkimer, amounting in the aggregate to about $12,000.

The action was for medical services and attendance of the ‘ plaintiffs’ intestate upon the defendant, for a broken leg. The defendant set up as a defense to the action, the recovery of a judgment in the supreme court, by himself, against the- intestate, in an action for negligence and unskillfulness in his treatment of the defendant.

This was an action to restrain and perpetually enjoin the foreclosure of a mortgage given by one Artemas L. Freeman to Daniel Kellogg in his lifetime, for $2500, upon 280 acres of land owned, at the time of the execution of the mortgage, by the mortgagor. The plaintiffs now own about 123 acres of the mortgaged premises, and claim that the mortgage became merged in the fee upon the purchase of the premises by George F. Leitch, one of the executors of the mortgagee.

Action to recover the possession of the undivided one-fourth of certain real property described in the complaint. In February, 1828, Ogden, Troup and Rodgers, held in trust for the proprietors, the pre-emption title or right to certain lands then possessed and occupied by the Seneca nation of indians, as one of their reservations. The defendants were incorporated in March, 1827.

<p>Although the owner of land has a right to erect a house thereon, to cover it with a roof which will prevent the rains from falling upon the surface it covers, and to turn the water falling upon such roof, upon any portion of his own soil, at any point and in any quantity he may choose, yet for any diversion or interruption, to the manifest injury of another, he is responsible.</p> <p>Thus where the eaves of the defendant’s building came within about two feet of a dwelling house, erected by the plaintiff upon his lot adjacent, and owing to a want of suitable repairs to the gutter of the defendant’s building, the water from his roof fell between the buildings, and by percolation found its way into the plaintiff’s cellar, through the wall, to the injury of his wall, and the lower timbers of his house; Held, that an action would lio; although it did not appear whether the water from the defendant’s roof actually fell upon his own land, or not.</p> <p>It seems that such an action may be brought against the owner of the building, as the one who keeps up and maintains the erection which causes the injury, whoever may be the temporary occupant under him.</p> <p>To render the objection that such action should have been' brought against the tenant in possession, available, it should be shown that the tenant was bound to make repairs.</p> <p>Where evidence offered, on a trial before a justice, is objected to and excluded, and neither the grounds of the objection, nor the object of the proof, is stated, and the court, on appeal, can see that a good objection might have been taken, it will presume that the proper objection was taken, and the decision made upon that ground.</p> <p>So where evidence is admitted by the justice, after objection, and it appears from the return that the objection was general, and the court can see that fclio subject matter of the evidence was proper, and that only the manner of proving such facts was objectionable, it will presume that no objection was made to the manner of proving the fact, but that the party objected to any proof of such fact.</p> <p>Where title to real estate is not pleaded, before a justice, he will not be ousted of his jurisdiction merely because it may be necessary to prove title, in order to sustain the action; unless such title is disputed by the defendant.</p>

This was an appeal by the defendant from a judgment entered upon a trial at the circuit. The complaint charged the defendant with publishing a libel, of and concerning the plaintiff, on or about the 21st of June, 1850, in the words following, viz.: “ He (the plaintiff) has been repeatedly guilty of falsehood, lying and deceiving, in his business transactions with Hiram Clark, Deter Myers, A. Davis, Conrad Welch, James 0.

Appeal by the defendants from a judgment rendered against them at a special term, after a trial at the circuit before Justice Barculo, without a jury; the parties having waived a jury. The action was brought against the defendants to recover damages for taking and selling and converting to their own use two cows belonging to the plaintiff.

This was an appeal by the defendants from a judgment rendered in favor of the plaintiff at a special term. The action was brought against the defendants to recover the value of property taken under a warrant issued by them as trustees of a school district, in the town of Whitestown, Oneida county, for the collection of a district tax. A portion of the tax was levied under the free school law of 1849.

■ Appeal from a judgment of the Washington county court. The action was originally commenced by Beattie, against Qua, before a justice of the peace. The plaintiff complained against the defendant for work, labor and services,- done and performed; also for work of the plaintiff, his servants and horses and team; and horses and wagons; also for goods, wares and merchandise, sold and delivered; for grain, butter and apples, in the years 1849 and 1850.

The commissioners of highways of the town of Lewiston applied to the county court of Niagara county for the removal of a toll gate on the Lewiston and Niagara Falls plank road. The county court made an order directing the removal of such gate, and from such order the plank road company appealed to this court. Referees were appointed, in pursuance of the act passed July 10, 1851, amending the plank road law.

- Complaint filed for the construction of a will. On the 5th October, 1850, Reuben Bundle, jun., a resident of Greenvillé, in the county of Greene, died ; having previously made and published his last will and testament. The testator left him surviving a widow and two brothers, Hardy Bundle and Josiah Bundle, his only heirs at law and next of kin.

This was a certiorari issued for the purpose of removing to this court the proceedings had before a justice thereof, upon habeas corpus. Hicks was committed to prison, by the recorder of the city of Hew-York, for a criminal contempt, in refusing to he sworn and testify as a witness, upon a criminal complaint, before the recorder. Upon a writ of habeas corpus sued out by him he was directed to be discharged ; whereupon the proceedings were removed by certiorari.

This was an action on a joint and several promissory note, made by John Crary as principal, and John McNaughton as surety, for two hundred dollars, with interest annually, and payable to the order of Daniel Reid, and dated July 28, 1841.

This was an application by the plaintiffs for a perpetual injunction, to restrain the defendants and their associates from constructing a railway… Held: all of which are void, if this resolution he so. A legislative act is one which establishes a new rule, or a new privilege. An executive act is one which executes a legislative or judicial act. This was an act of .special legislation, like the granting, by the legislature, of an act of incorporation or other franchise. III.

This was a motion for an injunction, to restrain the digging up and breaking of the first and second avenues, and Twenty-third, Allen, Grand, Chatham, Oliver, South, Roosevelt, Front and Christie-streets, and Peck slip and the Bowery, in the city of New-York, and the laying of a railroad track therein, under an agreement with the common council.

Action for an assault and battery and false imprisonment. The plaintiff was the illegitimate child of Eliza Gilbert, and was aged about four years. Eliza Gilbert was the daughter of Ozias Gilbert, who resided in Norfolk, St. Lawrence county, and was in comfortable circumstances. Eliza Gilbert and her child had, ever since the birth of the child, resided in the family of Ozias Gilbert, and been supported there.

This was an appeal by the defendant, to the general term, from the decision made by Justice Paige, at special term, and reported in 9th Barbour’s B.ep. p. 202.

Motion by the plaintiff for an injunction to restrain the defendants from selling his land under and by virtue of an assessment for the opening of Montrose avenue, in the city of Williamsburgh.

This was an appeal from portions of an order made at a special term of this court in the county of Genesee, held by Hon. * Levi F. Bowen, on the 10th day of January, 1853, denying in part the práyer of the petition in this matter. The petition expressed that it was in behalf of the petitioners and all other persons standing in the same situation; and the following facts, among others, appeared by the petition and affidavits in answer thereto.

' The complaint in this cause alleged that in the month of January, 1851, the defendant, at Bath, made his two promissory notes, or bills, or instruments in writing, of which the following are copies; “ Bath, January 13th, 1851. Pay Abram Lent for 68-f-f- bushels wheat in store at three cents below first quality wheat.

This was an action for the seduction and debauching of the plaintiff’s daughter. The proof, upon the trial, was that the daughter was about sixteen years of age; that she was the youngest child of the family and the only one remaining at home with her parents, by whom she was supported; that she had been accustomed to help her mother about the house-keeping.

The complaint in this cause alleged the making of a promissory note for $500, by the defendant, on the 5th day of October, 1848 ; that he delivered it to the plaintiff, on the same day; that the plaintiff was the legal owner of the note; that no part thereof had been paid ; and that the defendant was justly indebted to the plaintiff therefor, in the sum of $500, and interest.

upon an appeal from an order of filiation made by two justices in a case of alleged bastardy. The return of the sessions embraced all the proceedings and all the evidence taken by them on the hearing of the appeal.

Case agreed upon by the parties, pursuant to section 372 of the code of procedure. Upon proceeedings supplementary to execution before Hon. George Humphrey, county judge of Cayuga county, in favor of Joseph Moore, plaintiff, against Joshua M. Bidlock, defendant, Dexter E. Havens was appointed “ receiver of all debts, property, equitable interests, rights and things in action of said Joshua M. Bidlock, on the 16th day of January, 1852.

This was an application, by the respondents, for letters of ad-ministration of the goods, chattels.and credits of Eunice Tillotson deceased, to be granted to the said Chauncey Chapman, in right of his wife Lucinda, who is a granddaughter of the deceased.

<p>The declaration required hy the statute to he made hy a testator, at the time of subscribing his will in the presence of the witnesses, that the same is his last will and testament, need not be in the exact words of the statute. IVords équivalent in import and signification, or acts and words together, which amount to a clear and unequivocal declaration by the testator of his intention to execute the instrument, as his last will and testament, are sufficient.</p> <p>It must appear by the proof before the surrogate, not only that the testator knew that the instrument he was subscribing purported to be his will, but that he intended to give the attesting witnesses to understand, also, that it was his last will and testament, and that he was'.subscribing, or had subscribed, it as such. •'</p> <p>The provision of the statute, requiring the testator to declare the instrument to he his last will and testament, is satisfied if it appears from the testimony that the subscribing witnesses knew at the time they subscribed the instrument, from communications made to them by the testator, or other persons in his presence and acting in the matter for him, that the instrument was the testator’s last will and testament, and was executed by him as such.</p> <p>Thus, where the testator requested the witnesses to see him write his name, and they looked over his shoulder and saw him subscribe the instrument; the testator pointing with his finger to his signature and seal, and declaring that to be his hand and seal, for the uses and purposes therein written or expressed; and on being asked by a person present, who had drawn the will at the testator’s request, and was one of the executors named therein, if he wished the witnesses to witness the instrument, he replied that he did; and thereupon such person, in the testator’s presence, read to the witnesses the attestation clause, and they subscribed the instrument as witnesses ; Held, a valid execution of the will.</p>

This was an appeal by the defendants from a judgment entered against them, at a special term, upon the verdict of a jury. The action was brought against the defendants as administrators of Horace D. Jameson, deceased.

<p>This was an appeal by the defendant, from a judgment entered against him, at a special term, after a trial at the Seneca circuit, before Justice Welles, without a jury. The judge specified the facts found by him upon the evidence given on said trial as follows: That on or about the 16th day of July, 1842, one Nathaniel P. Lee had in his possession a promissory note for the sum of two thousand dollars, made by himself, payable to the- order of one Augustine Reading, at the Seneca County Bank, indorsed by said payee Reading, and also by the plaintiff in this action, Neass; that the same was indorsed by said Reading and said Neass for the accommodation of said maker, Lee, and which note was not then dated, a blank having been left in which to insert the date; nor was the time when said note should become payable fixed by said note, but a blank was left in which to insert the time when it should become payable; that on or about the 16th day of July, 1842, at Waterloo, in the county of Seneca, the defendant Mercer solicited said Lee to let him, Mercer, have said note so indorsed, and, in consideration that Lee would let Mercer have said note, so that he, Mercer, could negotiate the same, Mercer promised and agreed, which said promise and agreement were verbal, that he would pay said note at maturity, and that he would save the indorsers harmless from any loss or damage which they respectively might sustain on account of their indorsement of said note; that Lee, in consideration of said promise and agreement, thereupon delivered said note to the defendant; that the defendant at the same time knew that said note was so indorsed for the accommodation of Lee; that the blank for the date of said note was filled by Mercer by inserting the word and figure July 9th, so that the date thereof' was made to be July 9th, 1842; that the blank for the time when said note should become payable was filled by Mercer by inserting the words “nine months,” so as to make said note read as follows: “ Nine months from date, I promise to pay to A. Beading or order at the Seneca County Bank, two thousand dollars, value rec., Waterloo, July 9th, 1842.” (Signed) “ N. P. Lee.” Indorsed, “ Augustin Beading, George Neass.” That the defendant negotiated said note, so indorsed, to the president, directors and company of the Seneca County Bank, and delivered the same to them, whereby they became the holders thereof; that the defendant did not pay said note; that on about the 23d day of August, 1843, the Seneca County Bank brought an action in the supreme court, against the plaintiff, Neass, as indorser of said note, to recover of him the moneys payable thereby; that the defendant, Mercer, during the whole time of the pendency of that action, was cashier of said bank, was a director thereof, and one of the principal financial officers thereof; that he knew of the commencement of said suit, and was cognizant of the proceedings in, the progress thereof to its final determination in the court of appeals; that said bank, on or about the 27th of May, 1848, recovered a judgment in that action, in the supreme court, against Neass, on said note for $2889,96; that on the 20th day of July, 1850, Reass paid said judgment, with interest thereon, amounting to the sum of $3319,43, to the bank, on account and by reason of his indorsement of said note, which was known to Mercer; that before the commencement of this action, the plaintiff requested the defendant in this action to make some arrangement with him with regard to the moneys so paid by the plaintiff to the bank; that the defendant Mercer neglected and refused to make an arrangement in reference thereto, and had neglected and refused to protect and save harmless the plaintiff from the damages so sustained by him; that the interest accrued on the sum so paid by Neass, to said bank, from the time of payment to the trial, was $291,71, making with the amount so paid, $3611,14, which sum the said judge decided was due from the defendant to the plaintiff for money so paid by the plaintiff for the defendant, and interest thereon.</p> <p>And the judge specified his conclusions of law arising in the case as follows; that although it did not appear that the plaintiff bTeass was expressly named when the promise and agreement of the defendant, Mercer, was made to pay the note, and to save the indorsers harmless from any loss or damage on account of their said indorsement, yet the plaintiff was sufficiently designated as indorser of the note, the note being present; and that Neass, the plaintiff, might maintain the action 'against the defendant upon such agreement.</p> <p>Judgment was therefore entered in favor of the plaintiff, for the above amount.</p>

Appeal, by the plaintiff, from a judgment of the Livingston county court. The facts appear sufficiently in the opinion of the court.

<p>In this action the plaintiff sought to charge the defendant, William Beach, as indorser of a bill of exchange for $2000, drawn on the 26th day of August, 1851, by defendant, Peter Boyce, upon Chipman & Savage, also defendants, and accepted by them, and indorsed by the defendants M. Boyce and W. Beach respectively, payable forty-five days after the date thereof.</p> <p>The complaint alleged the making, drawing, accepting and indorsing of said bill of exchange by the defendants as above stated; that at its maturity it was presented to and payment was demanded of the acceptors, which was refused, and that thereupon the bill was duly protested and notice of protest was given to the drawer and indorser respectively. The complaint also alleged that the plaintiff was the owner- and holder of said bill, and demanded judgment against the defendants for the amount of said bill, interest and costs. The defendant Beach denied specifically the allegations in said complaint and all liability on said drafts as an indorser thereon. He also claimed to be discharged from any liability upon said bill by reason of an agreement alleged by him to have been made and entered into without his knowledge or consent, for a valuable consideration, between the plaintiff and defendant, Peter Boyce, for whose accommodation said bill was drawn and indorsed, extending the time of payment of said draft for a definite period beyond its maturity. The plaintiff denied all allegations of the defendant in his answer constituting a defense or counter-claim. The issues joined as to defendant Beach were referred to Isaac B. Elwood, Esq. as sole referee. On the trial, before the referee, the plaintiff produced the bill of exchange set forth in the complaint, accepted by Chipman &- Savage and indorsed by Manchester Boyce and William Beach; and the indorsement of Beach was admitted by his counsel; and the signatures of the other parties proved. The certificate of the notary was then introduced, by which he certified that on the 13th of October, 1851, at the request of the Bank of Albany, he, the notary, presented the bill at the office of Chipman 6p Savage, the acceptors, and demanded payment of the same, which was refused. That thereupon he protested said bill and on the same day gave notice of the non-payment thereof to the drawer and indorsers, by mail. The counsel for the defendant objected to the reading of the bill of exchange in evidence, because .the certificate of the notary showed that the alleged protest and the notice therein certified to have been given to the defendant, were insufficient to charge him as indorser. The objection was overruled by the referee. Charles P. Bissell, a witness for the plaintiff, testified that the plaintiff, Mr. Burbank, Mr. David Cope, himself and others were joint proprietors of an individual bank, known as the Eagle Bank of' Rochester, and the bill was discounted at this bank. Mr. Burbank was president, and was the nominal proprietor of the bank; the witness and others were interested wit.h him; that is, interested in all the transactions of the bank. Burbank, Cope and the witness continued interested in the bank up to the maturity of the bill; the bank then held it. On the 13th October, when the bill matured, the bank was still an individual bank. The bill was discounted for Peter Boyce—possibly for Beach. The witness was cashier at the time of this discount. It was • paper originally discounted for Peter Boyce, and witness thought it was Boyce’s draft on Chipman <fc Savage. That no one was interested in the bank at the time of the discount and up to its maturity except Burbank, as nominal owner, and the witness and Cope jointly interested with him. On ¡his re-direct examination this witness testified that they paid part money for this paper when discounted. The plaintiff, by his counsel, moved that the testimony of this witness, relating to the proprietors of the Eagle Bank, be stricken out as irrelevant and immaterial upon any of the issues of the action. But the referee refused so to do, and the plaintiff excepted. It was agreed by the respective counsel that this suit was commenced November 17,1851. On his reexamination, this witness further testified as follows: “ Gideon W. Burbank was the individual banker of the Eagle Bank; he furnished the securities to the comptroller; the circulating notes of the bank were delivered to Burbank by the comptroller. The notes or bills were ‘I promise to pay,’ &c., and named the Eagle Bank. They were signed by me as cashier and Burbank as president. It was called the Eagle Bank : but so far as necessary to use any name, Burbank’s name was used, except that I was cashier of the bank. Cope’s and my interest arose from our having advanced specific sums of money to Burbank for the capital. We were to receive dividends from the earnings of the bank as interest. There was a certificate filed with the comptroller at the beginning of the organization of the bank, showing in whose name the business of the bank was to be conducted. Gideon W. Burbank acted as president; I think it was not generally known that other persons were interested; Burbank was ostensibly the sole proprietor. I received a salary as cashier.” The defendant’s counsel again insisted that the protest of the said bill of exchange was insufficient, and that said evidence was insufficient to charge the defendant Beach; and being called upon by the counsel for the plaintiff to specify wherein the said protest and evidence were insufficient, stated that the certificate of the notary showed that the said bill of exchange was not sufficiently or properly protested to charge this defendant,, inasmuch as it did not appear that a proper demand had been made at the proper place, nor that the demand was properly made ; because no hour of the day was stated when the demand was made; because no personal demand was made of the acceptors or either of them: because the person making the demand had no authority to make it, nor was the demand made by or for the proper person; because it did not appear that any notice of the demand of payment was given to the defendant, but merely a notice of non-payment; because the demand was not made at the request of the owner. Which said several objections were overruled by the referee. Peter Boyce was then called as a witness for the defendant, Beach, and testified as follows : “ I have seen this bill of exchange before; it was discounted by the Eagle Bank of Rochester for me, about the time of its date—probably on the day of the date. William Beach was an accommodation indorser upon the bill. After the discount, I had a conversation with Burbank about payment and giving security and extending time of payment of this bill; it was after the bill was due; it was two or three days before a mortgage was given, which bears date October 18, 1851; it was at the Eagle Bank in Rochester. Burbank introduced the subject about the payment of this bill. He said if I would give him a mortgage on the mill he would extend my paper to such and such dates. This bill was on one of the pieces of paper referred to. I told him that I would do it. The paper.I hold is the mortgage I gave in pursuance of this agreement or conversation. I delivered it to him on the day of its date; he accepted and took the mortgage. This bill was to be extended to the 15th January then next. I made this arrangement without the knowledge of the defendant Beach. This bill was discounted for my benefit. It was presented for discount by me personally.” The mortgage referred to was then read in evidence.</p> <p>It recited that Boyce was indebted to Burbank, president of the Eagle Bank of Rochester, as drawer of certain bills of exchange, (one of which was the one in question, in this suit,) which had been discounted by said bank, and was given for the purpose of securing the payment thereof; the condition being that Boyce should pay to the Eagle Bank, the said drafts, and the sums of money secured to be paid thereby, and all and every such sum or sums of money as Burbank, his successors or assigns, should at any time advance, lend or pay to Boyce, or on his account or behalf, upon or by way of discount, &c., and it was expressly agreed and understood that said mortgage was in no way to affect or impair any security held by the mortgagee for the payment of the sums of money and drafts therein mentioned, but was intended to be in addition thereto. The witness further testified that after the mortgage was drawn, he at first refused to sign it, on the ground that it was not according to the agreement, because it required him to pay the drafts, &c., without extending the time of payment. But that he finally executed the mortgage, on Burbank’s assuring him that he might rely upon the arrangement being carried oiit, just as it had been agreed. The counsel of Burbank testified that he advised Burbank that no time could be given to Boyce in the mortgage, without discharging the indorsers; and that this Was the reason of Burbank’s refusing to insert such a provision in the mortgage, and Boyce was so informed at the time.</p> <p>The referee reported in favor of the plaintiff, for the amount claimed; and judgment was entered upon his report, from . which the defendant appealed.</p>

<p>Appeal from the decision of the Wayne county court, reversing a judgment of a justice of the peace. The action was brought to recover the value of the plaintiff’s interest in a quantity of wheat., about seventy bushels, which it was alleged the plaintiff and one Thomas Hare owned in common. The defendants, by their answer, denied the allegations in the complaint, and alledged that if any wheat was taken it was by virtue of an attachment in favor of John Wells and Philip 0. Wells, against Thomas Hare, to whom the wheat belonged. Hare was examined as a witness, and testified that he raised the wheat in question, upon'the land of Wells, on shares. Hare was to thrash the wheat and deliver one half to Wells, after it was thrashed. He employed the plaintiff to thrash it; agreeing to pay him one-tenth for thrashing. The plaintiff thrashed about 400 bushels. His tenth part had not been divided off to him, but Wells had drawn away his part of the wheat, and Hare had drawn away a part of his share and sold it; leaving about 70 bushels in the barn, for the plaintiff. The taking and conversion by the defendants was proved. The justice rendered a judgment in favor of the plaintiff for $40,27, besides costs; which the county court reversed. ,</p>

<p>A comptroller’s deed is now prima facie evidence not only of the regularity of the sale, but also of all the steps and proceedings necessary to confer authority upon the comptroller to sell; and the burthen of disproving the authority of the comptroller is thrown upon the party disputing the deed.</p> <p>But if a party claiming under a comptroller’s deed, instead of relying upon the prima facie evidence afforded by it, undertakes to give direct evidence of the preliminary steps, and thus make out the comptroller’s authority, but fails to establish the regularity of the proceedings, the presumption in favor of the deed will be overthrown.</p> <p>Thus where a party introduced a certified copy of the return of the collector, of the non-payment of the taxes under which the sale was made, with an affidavit annexed, which did not show that the account returned to the treasurer was a transcript from the original assessment roll, nor any thing upon that subject; Held, that neither the treasurer nor the comptroller had any evidence before him that the taxes assessed by the assessors and contained in the assessment roll remained unpaid; and that the presumptions in favor of the validity and regularity of the sale, afforded by the deed, were completely negatived, and the sale and conveyance shown to be entirely void.</p> <p>Unless it appears from the return of the collector that the taxes assessed and contained in the assessment roll, have not been paid, the comptroller has no authority to sell. The evidence of that fact, in the manner prescribed, can alone give him jurisdiction.</p> <p>; A deed by husband and wife, not acknowledged by the wife, gives to the grantee an estate for the life of the husband only, and upon the death of the husband, the wife will be restored to all her rights in the premises, divested of the claims of the husband and his grantees.</p> <p>And the statute expressly declaring that the right of a married woman shall not pass by her deed, unless the same is acknowledged, the fact that the consideration of a conveyance by her and her husband was paid to the Wife, will not estop her from claiming the land after the death of her husband.</p> <p>A subsequent conveyance by the occupants, of premises which have been sold for taxes,, is no evidence that they have waived the notice which the statute requires a purchaser at a tax sale to give to the occupant of the land, in order to- perfect his title.</p> <p>A waiver is not equivalent to the service of a notice which the statute requires, to render a title under a statutory proceeding complete. !</p>

<p>In an action to recover moneys which the plaintiff has been compelled to pay upon a judgment against him and others for a trespass committed hy them upon the property of another, hy the direction of the defendants, the judgment in the trespass suit is competent evidence to show that such a judgment was recovered, and also to establish the fact of the commission of the • trespass for which it was rendered.</p> <p>Of that fact the former judgment is conclusive evidence, and estops the plaintiff in the second suit from showing the truth to he otherwise.</p> <p>But whether the trespass was done mala fide or Iona fide the record of the former judgment does not show. It is therefore competent for the plaintiff to prove that the act wa$ done in good faith, and with the consent of the owner of the property.</p> <p>The law will not raise an implied promise to indemnify a party for the committing of a trespass.</p>

This- was a motion by the defendant for a new trial,, upon a bill of exceptions. The legal question presented by the bill of exceptions, and the manner in which it arose, appears from the opinion of the court.

This was an action of ejectment brought'by “ The Northern Turnpike Road Company” plaintiffs, against the defendant Smith, for “a strip of land about ten feet wide and about twenty rods in length,” lying contiguous to the defendant’s premises. The complaint alleged title in the plaintiffs, and that the defendant entered and took possession. The defendant in his answer denied title in the plaintiffs, and averred title in himself.

This was an action to recover money paid by the plaintiff on a note given by him to the defendant or order, for the sum of $175, payable in thirty days at the Cherry Valley Bank, and dated May 15th, 1845.

This was an action to recover the possession of the undivided third part of a lot of land formerly owned by Charles Dewey, deceased, late the husband of the plaintiff, of which the complaint alleged he died seised and possessed; the plaintiff claiming to be entitled to an undivided third of said lot, in virtue of her right of dower.

<p>At common law, it was not necessary to the validity of a transfer of a sealed contract, that it should he by deed, or in writing. If there is any such necessity at present, it arises from a statutory provision, restrictive of a common law right; and in such cases it is not necessary, in a declaration or complaint, to aver a compliance with the requisition of the statute. That is matter of evidence only.</p> <p>The code does not change the former rule, in this particular.</p> <p>Where a contract has been assigned to the plaintiffs, the fact necessary to be stated in the complaint is the change of interest in the contract; so that the plaintiffs may maintain the action as “ the parties in interest” under the 111th section of the code. It is not necessary to state a compliance with each and every particular, requisite to render the change effectual.</p> <p>When a contract is made by a state prison inspector, for the labor of the convicts, the length of time for which the contract is to run, and the number of convicts to be employed, must be definite, and must be specified in such contract; otherwise it will be void.</p> <p>Accordingly, where the time mentioned in a contract was from three to five years, and the number of convicts was from fifty to one hundred; Held, not a compliance with the statute. (Haws of 1847, p. 593.)</p> <p>When a contract is the mere subject matter of a new engagement, it is net necessary, in an action to enforce such new engagement, and not for the purpose of carrying out the provisions of the original contract, to set forth in the complaint that the requisite steps were taken to make such original contract effectual.</p>

Appeal by the plaintiff, from a judgment entered at a special term of the court. The complaint was filed by Bouton, a resident of the city of Brooklyn, in behalf of himself, and in behalf and for the benefit of all others interested in the matter of Washington park grading, a proceeding instituted by the defendants, tlie City of Brooklyn, against the plaintiff and other persons, who were the owners of certain lands and premises in the city of Brooklyn.

This was an appeal, by the defendant, from an order made at a special term, denying the defendant’s motion to vacate a writ of ne exeat, and discharge the surety. The case, at special term, is reported in 7 Howard’s Prac. Rep. 389.

This was an appeal by the plaintiff from a judgment- entered against him at a special term, upon demurrer. The complaint stated that the plaintiff was the owner of a farm situated in the town of Red Hook, Dutchess county, fronting on the Hudson river, and- of a dock, adjoining said farm, -built in the year -1836, -which had since been in continued use for commercial purposes. That the defendants became incorporated May 12,1846.

<p>A policy of insurance was “ on the stock of looking glasses, looking glass plates,” &e. of H. & B. “ contained in the brick building situate,” &c. During the running of the policy the property of H. &B. then in the building was sold upon execution, and purchased by the plaintiff. The goods were delivered to him by the sheriff, and the secretary of the insurance company signed a consent that the interest of H. & B. in the policy might be assigned to the plaintiff, which was done, accordingly. The goods purchased by the plaintiff corresponded with those described in the policy. They remained in the brick building until they were consumed by fire. Reid, that the policy ceased to be effective upon the goods purchased by the plaintiff at the sheriff’s sale, from the time they were sold. But that the insurance was not upon such goods only as were in the building at the date of the policy. That it was upon personal property of the assured and their assigns, of the description contained in the policy, which might be in the building at any time during the running of the policy.</p> <p>Accordingly held, that the policy, although inoperative as to the property sold at the sheriff’s sale, was not dead, but had sufficient vitality to protect any goods of the same description which might subsequently be purchased by the assured and placed in the same building, so long as it might be occupied by them; and that when the policy was assigned to the plaintiff it was an operative instrument.</p> <p>Reid also, that the effect of the assignment to the plaintiff was to put him in the same situation, and to confer upon him the same rights as to the future, as if he had been the- Original assured.</p>

This was an appeal by the defendant Beyea, from the decision and judgment of Justice Brown, made at a special term. The action was brought by the plaintiff, executor of Increase Crosby, against Isaac Beyea, administrator of his wife Isabella Beyea, deceased, and others, to obtain a judicial construction of the will of the plaintiff’s testator, and for directions as to the distribution of the personal estate.

This was an action brought against the village of Plattsburgh for the recovery of damages arising from an injury to the plaintiff’s leg, occasioned by his falling, in the night time, into ai$ open ditch or trench constructed in one of the streets of that village.

<p>Where services are rendered by a daughter to her father, in his house, without any agreement for compensation, and there is no proof that she, at the time, expected any .such reward, or supposed that any pecuniary obligation was to be thereby incurred; the daughter living with her father, as a member of his family, and being taken care of, and her wants supplied, by him, and no accounts being kept by either; the law will not imply a promise to pay for services thus rendered, nor permit a recovery, unless an express promise is shown, or something-to prove that such was the expectation on. both sides.</p> <p>The fact that one of the executors of the father, after the death of the latter, has given his note for the amount of such claim, and taken a release and discharge of the claim, will not entitle the executors to be allowed for it, on a final settlement of their accounts with the estate.</p>

Demurrer to complaint. In 1838, the plaintiff was the owner, by devise from her late husband, Hubbard Turner, of a house and lot in the village of Greneseo, valued at $2500. In •the year 1840, and while such dwner, she intermarried with Elijah H. Perkins, and during the same year her husband, Elijah H. Perkins, assigned all his right, title and interest in said property to William J. Hamilton and Chauncey Metcalfe, for the benefit of his creditors.

This was an appeal by the defendant from a judgment of the Dutchess county court. Roberts sued Gee, before a justice of the peace, to recover for the board of Gee and his wife. Gee was called and examined as a witness, by the plaintiff, and was the only witness on the trial. The facts proven were that Gee boarded with Roberts from .

This was an appeal by the plaintiff, from a judgment rendered at a special term. The suit was commenced on the 23d day of August, 1851.

<p>Commissioners appointed under section 6 of title 6, of the charter of the city of Buffalo, are not authorized to assess upon the real estate of those benefited by a canal about to be made, the cost or expense of constructing the same, in addition to their estimate and assessment of damages.</p> <p>The assessors appointed by the common council, pursuant to section 11 of the charter, have power to assess such costs or expenses; and an assessment thereof, by them, is valid.</p> <p>Where the common council of the city of Buffalo resolve and determine to take and appropriate the land necessary to lay out and construct a ship canal, and cause notice of their intention to be published 14 days, in the city paper; and commissioners to assess the damages are duly appointed, who take the oath of office but do not act, the recorder’s court .has the power, after notice of an application for that purpose has been published for 30 days, to appoint new commissioners; without requiring the proceedings to be commenced de novo.</p> <p>The power of the court to appoint is not exhausted by the first appointment.</p> <p>The court may also appoint another commissioner in the place of one who is interested, and has been appointed inadvertently.</p>

This was an action for a trespass alleged to nave been committed by the defendant, in entering upon the plaintiff’s land in the town of Greece, Monroe county, and breaking down and removing his fences, and tearing up the soil, &c. The defendant, by his answer, denied the facts set forth in the complaint, and alleged that a road or public highway had been duly and lawfully laid out and established, before the time of any of the alleged tresspases set forth in the complaint,…

This was an action in the nature of ejectment for dower. The plaintiff claimed, as the widow of Enoch Poor, her right of dower in 22fW acres of land, being part of Grass river lot No. 50, in the town of Madrid in the county of St. Lawrence.

This was an appeal from the decision of the Saratoga county court, reversing a judgment of a justice’s court, in favor of the plaintiff. The complaint was that the wife of the defendant, B. Badgeley, broke and entered the close of the plaintiff, and enticed Catharine, a servant girl of the plaintiff, to leave his employment ; that said servant had ever since been discontented and refused to serve the plaintiff, in consequence.

This action was brought by the plaintiff, widow and administratrix of Otis I. Tracy, who died in 1850, leaving a will, and infant children, as well as other children of full age. The personal property of the testator was insufficient to pay his debts. His real estate was therefore sold, under the order of the court. After the payment of such debts, a surplus of $500 from such sale remained.

This was an action to recover the value of 5200 bushels of wheat, against the defendants as copartners in the storage and warehouse 'business, under the name of Colt &. Shackleton, and was' founded upon three warehouse receipts for the wheat, signed by the defendant Shackleton, in the name of Colt &. Shackleton.

Demurrer to answer. The complaint stated that by an ordinance of the common council of the city of Rochester, passed December 10th, 1850, it was determined that Main-street should be continued and opened eastwardly, from the angle near 3ST. Osborn’s house, on the site of Summit-street, to the east line of the city of Rochester; and by the same ordinance it was declared that the estimated expense of the said improvement was $20,284; and after describing therein the lands…

In Equity. This was an appeal from a decree of the vice chancellor of the sixth circuit, dismissing the complainant’s bill with costs.

This suit was brought against the defendants Abram Higham, Gerry Sanger and Henry M. Benedict, as joint debtors, upon an award of arbitrators, made against them as copartners. Higham was the acting member of the firm, and executed the submission in the firm name of Higham & Co. There was proof on the trial that Sanger assented to the submission, but none that Benedict knew or ratified it in any manner.

This was a motion for a mandamus, to compel the defendant to pay the amount of an account, which had been audited and allowed by the board of supervisors of the county of New-York, and directed to be paid by the defendant as county treasurer of the city and county of New-York. The facts are set forth in the opinion of the court.

This action was originally brought in.a justice’s court. The plaintiff alleged in his complaint that the defendant was justly indebted to him in the sum of thirty dollars, for money had and received by the defendant to the plaintiff’s use. The answer denied the indebtedness, and set up matters of defense upon the merits. The justice rendered judgment in favor of the plaintiff, for the amount claimed, with costs. This judgment was affirmed by the county court.

This was an appeal by the plaintiff, from a judgment of the Chemung county court. The opinion which follows, sets forth all the material facts.

Appeal by the defendant from a judgment, entered upon the report of a referee. The material facts are set forth in the opinion of the court.

The facts disclosed by this case were, that in the year 1844 Betsey Van Allen owned a piece of land, on which was a valid mortgage executed by her grantor, to secure a sura of money •due to a third person.

This was an appeal by the defendants, from a judgment rendered against them at a special term. The plaintiffs were judgment debtors óf the defendant Cornelius Peters, and the complaint was filed for the purpose of setting aside an assignment of his property, made by Peters to the defendants Brock and Doughty, in trust for the benefit of his creditors, on the ground that it was fraudulent and void as against creditors.

This action was brought to foreclose a mortgage executed by John Hart to Phinehas Carll—accompanied by a bond of the mortgagor—on the 19th of October, 1805, for $1460, payable on or before the 1st day of May then next, with interest. The mortgagee died in 1828, leaving a will, of which the plaintiff was appointed executor. In 1831 the mortgagor died, leaving a will, of which Joel S. Hart was appointed executor.

<p>Where an execution is issued upon a judgment recovered in an action for taking personal property without the consent of the owner, and converting-and disposing of the same, such execution is not to bo considered as issued on a demand for the purchase money of the property, so as to bring the case within the proviso of the first section of the exemption act. {Laws of 1842, ch. 157.)</p> <p>By the compound word purcliase^nwneij,- as used in that section, the legislature intended the money agreed to be paid by the purchaser, for the property. In an action of trespass, fbr taking personal property, the plaintiff is bound to show title to the property taken, or a rightful possession. In showing title, proof that he was in possession claiming title, is sufficient prima facie evidence to enable him to maintain the action; and no one but the true owner, or one connecting himself with the true owner, in some way, is at liberty to impeach his title.</p> <p>An execution only justifies the officer in taking the property of the defendant therein which is liable to be levied upon and sold as the property of such defendant. If property belonging to another person is taken, the execution will have no effect upon it; and if the property belongs to the defendant, but is exempt from execution, the officer is a trespasser in taking- it.</p>

Demurrer to the complaint. The facts set forth in the complaint sufficiently appear in the opinion of the court. • The defendants demurred to the complaint, assigning the following causes of demurrer: 1. That the facts stated in the complaint were not sufficient for the plaintiff, as the administratrix of Sharon Sherman, deceased, to maintain an action against the defendants. 2.

This was an action for slander, in charging-the plaintiff with being a thief, and with having stolen the defendant’s corn.

This was an action for trespass on lands, originally commenced in a justice’s court, and afterwards discontinued there and brought in this court, upon the defendants’ plea of title, pursuant to statute.

<p>It is not improper for a witness to testify that the plaintiff was in possession of real estate, at a particular time; although the question whether the plaintiff, or the defendant, was in possession at that time, is a material question in the cause The witness is not to be confined merely to a state» ment of the facts constituting possession, i A possession in fact, of land; will justify the possessor in using violence, if ne~ > cessary, in order to defend his possession; but a mere right to the possession j will not justify a person in committing an assautiandbattery upon another, ' for the purpose of reducing his right to actual possession.</p> <p>Where, in an action for assault and battery, the defense is son assault demesne, j and in defense of the defendant’s possession of real estate, both parties I claiming to have been in possession, the true question to be submitted to the jury is, which party had the actual possession at the time the assault was committed.</p> <p>Where the bill of exceptions, in such a case, states that “ the judge, among other things, charged the jury that,” &c. the court will infer that other instructions than those mentioned were given by the judge, and will assume that the question of actual possession was properly left to the jury; unless the contrary appears.</p> <p>If a party wishes the attention of the jury, upon a trial, directed to any par» tictilar fact, question, or aspect of the case, and desires the advice of the judge thereupon, he should make the request. In the absence of any such request, the verdict should not be disturbed, uuless for some mistake of law eommitted by the judge, affirmatively appearing upon the bill of exceptions.</p>

The action was for unlawfully entering upon a farm in possession of the plaintiff, and then and there, without lawful right, selling and converting to the use of the- defendant, about nine acres of wheat there growing, the property of the plaintiff. The defendant denied the allegations in the complaint, and then justified the taking as collector of a school district, for the purpose of -collecting a tax against one Hooker.

Action to recover the value of a pair of oxen wrongfully taken by the defendant. One Ira L. Plant was indebted to the plaintiff, and on the 9th December, 1850, executed ,to him a mortgage of the oxen in question. The mortgage was properly filed December 10, and the same day, after the mortgage was filed, the defendant, a constable, levied upon and took the oxen by virtue of an execution against Plant, and in favor of one Hubbard.

<p>Where a person indebted to a judgment debtor pays the amount of his debt to a sheriff holding an execution against the judgment debtor, and takes the sheriff’s receipt, as authorized by section 293 o‘f the code, in order to entitle himself to have such payment allowed to him in an action brought against him to recover the amount of his indebtedness, he must prove the judgment upon which the payment was made, by the production of the record thereof, or of a certified copy of such record. Shankland, J. dissented.</p> <p>It is not sufficient to produce a certified copy of the transcript of a justice’s judgment, filed in the clerk’s office of a different county from that in which the judgment was docketed.</p>

This action was commenced in a justice’s court, to recover the value of a cow which had been taken and sold by direction of the defendant, on an execution in his favor, issued by a justice of the peace, against the plaintiff. Judgment was rendered in favor of the defendant, in the justice’s court, which was reversed by the county court. The defendant appealed to this court.

These causes came before the court on demurrer to the returns made by the defendants to the writs of alternative mandamus, issued against them, upon the application of the relators, respectively. The mandamus issued in the case of Peter Loril-Sard alleged that the relator had been unjustly assessed the sum of $769,41 for his personal property, and the sum of $1020,80 for property held by him' as trustee or executor, amounting in the aggregate to $1790,21.

This was an appeal by the defendants from a decision made at a special term, setting aside an assignment made by the defendant Clark Tillinghast to John S. Tillinghast and William W. Farwell, the other defendants, for the benefit of creditors,

This action was commenced in October, 1850, and was brought to recover a piece of land in Montgomery county. The complaint stated that in December, 1845, Abraham -Lintner the plaintiff’s late husband, deceased, George Lintner and John Lintner, were joint owners of a farm in Minden, in Montgomery county, in Lansing’s patent, describing it by metes and bounds, containing 106 xfo acres of land, more or less.

<p>This was an action of ejectment, to recover a portion of the Brie canal as originally constructed. The complaint alleged that the plaintiffs were seised of the premises in question, situated in the town of Clifton Park, in the county of Saratoga) and that the defendant was in possession of the said real estate, and claimed to own and hold the same against the rights of the plaintiffs. The plaintiff, Jemima Rexford, claimed to be possessed of one undivided third part of the premises as her reasonable dower as widow of Eleazer Rexford, her late husband, and claimed to recover possession thereof, and the mesne profits of the said undivided third part for six years. And the other plaintiffs, Cyrus W. Rexford, Alonzo Rexford and Eleazer A. Rexford, each claimed an equal undivided third part of the said premises in fee, as the heirs-at-law of the said Eleazer Rexford, deceased, subject to the right of dower therein of the said Jemima Rexford, and mesne profits of the said undivided two-third parts thereof for six years. Jemima Rexford demanded judgment for the one undivided third part of the premises as her reasonable dower, and mesne profits thereon for six years, besides her costs. And Cyrus W. Rexford, Alonzo Rexford and Eleazer A. Rexford, each demanded judgment for an equal undivided third part of the premises in fee, subject to the right of dower of Jemima Rexford therein, and mesne profits for six years on two undivided third parts thereof, besides costs. The defendant, by his answer, denied that the plaintiffs were seised of, or that they owned, all or any part of the land, mentioned and described in the complaint. He admitted, however, that he was in the possession of the same, and that he claimed to own and hold the same against the plaintiffs; and he denied that the plaintiffs had any rights in or to the said piece of land. And the defendant denied that the said Jemima Rexford was possessed or entitled to an undivided third part of said land as her reasonable dower as widow of Eleazer Rexford, her late husband, or that Cyrus W. Rexford, Alonzo Rexford and Eleazer Rexford were each entitled to an equal undivided third part of said land, as the heirs-at-law of the said Eleazer Rexford, subject to said dower. And he denied that the plaintiffs, or any or either of them, were entitled to the mesne profits of said land for the last six years, as claimed in their complaint. And the defendant alleged that he was in the lawful possession, use and occupation of the said premises.</p> <p>The cause was tried at the circuit court, held in the county of Saratoga, on the 7th day of October, 1850, before the Hon. A. C. Paige, one of the justices of the supreme court, and a jury. The plaintiffs, on the trial, called as a witness Elisha Rexford, who testified as follows : “ that he resides in the town of Clifton Park, about two miles from Rexford’s Flats, and knows the premises in question. They are situated at Rex-ford’s Flats, on- the north side of the Mohawk river, at the upper aqueduct on the Erie canal. My father owned the farm which included the premises in question. He died over 30 years ago. He left five children, to wit, myself, Edward, Eleazer, Rosina and Polly; Rosina married Ephraim Knowlton; Polly married John Knowlton. My father left no will, Edward Rexford, my brother, is dead, and Eleazer is dead. Jemima Rexford, the plaintiff, is the widow of Eleazer Rexford, and Cyrus W., Alonzo, and Eleazer A. Rexford, plaintiffs, are the only children of my brother, Eleazer Rexford.” The plaintiffs then produced a deed of release from Elisha Rexford and wife, to Eleazer Rexford, dated, June 24th, 1825, of 800 acres of land, covering the premises in question, duly executed, and also a deed of release from Edward Rexford, dated 29th June, 1824, to Eleazer Rexford, of the same premises, duly executed. Also a release executed by Ephraim Knowlton and Rosina his wife, and John B. Knowlton and Polly his wife, to Eleazer Rexford, dated 27th January, 1819, of the same premises. Alonzo J. Chadsey, a witness for the plaintiffs, testified that he was acquainted with the premises described in the above deeds, and that they covered the premises described in the complaint, and that Eleazer Rexford died in December, 1829. It was also admitted that the plaintiffs demanded the possession of the premises from the defendant before suit brought, and that the defendant was then in possession, and refused to deliver them up. It was also admitted that the plaintiff, Eleazer Rexford was now a minor, and that the plaintiffs Cyrus W. and Alonzo Rexford were minors until within the last six years. The plaintiffs then rested. The defendant then called William Shepherd, as a witness, and' produced two maps, which included and covered the premises in question; the one marked No. 1, being a map of the Brie canal as enlarged, and the adjacent grounds, made since the Erie canal enlargement, and showing the lands claimed by the state ; the other map, marked No. 2, being a like map of the Erie canal as originally constructed, and showing the lands claimed by the state. The plaintiff’s counsel objected to the use of these maps, except for the purpose of designating the locality of the premises in question, and the adjacent premises, and to designate the lands which were claimed by the state, but objected to their being evidence of the title or possession by the state. The question was reserved by his honor, the justice. The witness, William Shepherd, stated that he had examined these maps, and that he was personally acquainted with the location of the premises in question ; that these maps were correct delineations of the canal as originally constructed, and of the new canal as at present constructed, and of the lands as claimed by the state. The exterior blue lines on the maps represented the lands claimed by the state, as appropriated for said canals. The westerly blue line was on the westerly line of the towing path of the original canal. The premises in question were between that westerly blue line and the center of the new canal as now used. The lot owned by the defendant adjoins this blue line on the westerly side opposite the premises in question. The defendant’s counsel then introduced in evidence a deed from Eleazer Rexford and Jemima his wife, Elisha Rexford and wife, and Lucina Rexford, to Elisha Curtis, dated 26th September, 1825, describing two parcels of land; the first described parcel was on the easterly side of the original canal, • and was bounded on the west by the Erie canal, and was opposite the premises in question, containing seven acres of land' the secondly described parcel of land was on the westerly side of the original canal, opposite the premises in question, being bounded in front 100 feet on the canal, by 80 feet deep; which said deed, to Elisha Curtis, was duly acknowledged by the parties.</p> <p>The witness further testified: “ the premises m question lie between, the two parcels of land described in said deed. When the state made the original appropriation of lands for the original canal, the state engineer staked out the lines of the land taken. The premises in question are upon the southerly end of the old lock of the original canal. The old canal was used as marked on the map up to the blue line, until the enlarged and independent canal was completed.” On cross-examination, this witness testified: “ the enlarged or new canal was constructed east of the lock of the old canal. Job F. Gardiner’s land, opposite the premises in question, on the east, was taken for the enlarged canal. This was a part of the first parcel of land deeded to Elisha Ourtis. The defendant claims title under the Elisha Curtis deed. Knight took no title on the east side of the old canal. The bank of the new canal runs down into the bed of the old canal. The premises in question are west of the foot of the bank of the new canal. The bank of the new canal varies in height from 17 feet near the aqueduct, to about 6 or 7 feet opposite the premises in question. The distance between the foot of the bank of the new canal on the west side, and the westerly blue line of the original canal, is 60 to 70 feet.” The witness also testified that since the construction of the new canal, a part of the premises had been used as a highway, and a part had been occupied by the defendant. The plaintiff proved that in the year 1822, when the Erie canal was originally constructed, Eleazer Rexford, then the owner of the premises in question, presented a claim for damages against the state, occasioned by the construction of the canal; that the board of appraisers deliberated upon such claim, and adjudged “ that the benefits and advantages arising from the canal, were equal to the loss and damage the claimant had sustained.”</p> <p>The defendant’s counsel moved the court to nonsuit the plaintiffs, on the following grounds: 1. That the premises in question belonged to the state, if they did not belong to the defendant. 2. That if the right of the state had ceased, the land reverted to the defendant, as a grantee deriving title from the Rexfords. The court granted the motion, and directed the clerk to enter an order that the plaintiffs be nonsuited, with leave to the plaintiffs to make a case to be carried to the general term of the Supreme court. To which decision the plaintiff excepted.</p> <p>I. The case shows that the plaintiffs hate the title to the premises in question, unless they have been divested of it by some act of law.</p> <p>II. The" defendant has shown no act or authority by which the plaintiffs have been divested of title. The maps introduced could not be evidence of any thing, except to show the localities. They lack every requisite prescribed by statute, to make them even presumptive evidence. (1 R. S. ,218, §§ 4, 5,6, 7.) They were received by the justice, and the question reserved. By the session laws of 1837, chap. 451, § 6, it is provided that all such maps as have heretofore been made under the aforesaid act, and such as shall hereafter be made under said act, may be presumptive evidence that the lands indicated have been taken and appropriated by the state. No such maps certainly were produced, and had they been, the taking and appropriating such lands is nowhere held to divest or confer title. On the contrary, it is expressly adjudicated that “ the appropriation of land for a canal by the authorized agents of the state,” does ■ not vest the fee in the state till the appraisement of damages. (Baker v. Johnson, 2 Hill, 342.) And the payment of the money was a condition precedent to the passing of the fee from the owner to the state. (Brinckerhoff v. Wemple, 1 Wend. 474, per Savage, Ch. J. Baker v. Johnson, 5 Hill, 347, per Bronson, J.) Nor is there even any evidence of appropriation by the state. The evidence of Wm. Shepherd is not that the state did appropriate ; had it been offered for that purpose, it would have been objectionable and improper. (Jackson v. Daley, 5 Wend. 526.) But it was to show the time when the state engineer staked out the lines of the land taken, and referring to the time when it was done, and as being at the time of the appropriation; but the distinct fact of appropriation, is nowhere shown or attempted to. be shown; though it is attempted to be shown where the state located also. There is no evidence in the case that the state are in possession of the lands in question; but on the contrary all the evidence is that these lands are in possession of others.</p> <p>III. The justice erred, if his decision to nonsuit the plaintiffs was based upon the proposition that the premises in question belonged to the state. (1.) The state could only obtain the title of this property in the way prescribed by statute. If they have failed to get it in that way, they have never had it. This power to take lands is found in Sess. Laws of 1819, chap. 105, p. 123, § 3, and Sess. Laws of 1817, p. 302-3, § 3. The statute of 1819 does not declare what the character of the title to be taken under its provisions shall be. But by the manner of construing statutes it excludes the idea of its being a fee, and that part of the third section of the law of 1817, not being adopted by the statute of 1819, which declares the character of the title, leaves it in this case a mere title during use. The enumeration of certain powers, in a statute, excludes all others. Ho implied power to take private property, against the consent of the owner, is ever given to a statute, by construction. Express terms must be given to confer such power. Section 2 of Laws of 1817 provides only for taking lands between the Seneca and Mohawk rivers. This power remained unchanged; but in 1821, (Sess. Laws, chap. 240, p. 248, § 1,) the appraisal was committed to two canal commissioners, instead of the persons to be appointed by the court. In 1825, (Sess. Laws, chap. 275, p. 398, § 1,) it was provided that the governor should nominate two reputable freeholders, who, with one acting canal commissioner, should be appraisers. In 1836, (Sess. Laws, ch. 287, § 1,) another change was made by giving the governor and senate power to appoint three appraisers. Through all these changes the power to take, and the necessary pre-requisite steps to acquire title, remained unchanged. It was through the officers appointed by the law of 1821, and under the power of the statutes of 1817 and 1819 that this land was attempted to be taken. From the case it appears, 1st. That the lands were attempted to be taken by an appraisal. 2d. That such attempted appraisal is fully given. 3d. That it was attempted to be exercised by the persons who then, by law, had the right to exercise the power. 4th. That there was never any other attempt, by any means, to get the title. 5th. The proceeding was filed in the proper, place; and 6th. That a claim for the damages was actually made by the owner, for' the land and for other damages, including damages for the years 1822 and 1823, which claim the proper authorities recognized and passed upon. 7th. The court will take judicial notice that the Erie canal was completed in 1825. (2.) By this proceeding the state did not acquire the title to the land. 1st. There was no just and equitable estimate and appraisal of the loss and damage. Whoever attempted the performance of this duty, entirely misapprehended their duty under this branch of the section. By estimate something more is meant than merely to say one thing is equal to another, without showing that either has any value; it means “ to compute,” “ to calculate,” “ to form an opinion or judgment of the value, extent, quantity or degree of worth of any object.” And by the word appraise is meant “ to set a value,” “ to estimate the worth of a thing.” This is the construction given to the meaning of the terms by Webster. But the legislature have also given legislative construction of what was intended by these terms. By Sess. Laws of 1829, § 2, chap. 368, p. 561, found in 1 Rev. Stat. 3d ed. 254, § 58, they (the appraisers) “ shall enter in a book to be kept for that purpose, the nature and extent of all claims on which they shall pass; the items on which allowances are made, and the several amounts allowed, and the items on which no allowance is made.” This is no more than the terms used would naturally require. 11 The benefits and advantages to the respective owners or proprietors,” were to be estimated and appraised in the same manner. This is also omitted. 2. They, the appraisers, do not state that either the benefits and advantages, or the losses, are “ by and in consequence of making and constructing the canal.” 3. They did not make “ regular entries of their determination and appraisal,” “ in a book or books to be provided and kept by the canal commissioners.” 4. They made no “ apt and sufficient description of the premises so appropriated, in a book or books, to be provided and kept by the canal commissioners.” In the performance of the duty of making “ an apt and sufficient description of the premises,” they do it by adoption of the language contained in the claim, to wit: “ To land,-acres, at $100 per acre.” This is the only apt and sufficient description made by the appraisers. How much land (will this court determine) did the claimant lose title to, by this description 1 5. They had no book in which they made an entry of this apt and sufficient description, and estimate and appraisal. 6. They did not certify and sign their names to such entries and appraisal. 7. They did not pay the damages. The title to the lands in question, therefore, never passed to the state. They were bound to perform, positively, all the matters above enumerated, as conditions precedent to obtaining the title, any title, of other or of any character. (1 Wend. 474» 2 Hill, 342. 5 Id. 347.) Where property is taken under a statute authority, without the consent of the owner, the power must be strictly followed, and if any material link is wanting, the whole proceeding will be void. (Doughty v. Hope, 3 Denio, 595. 4 Hill, 86-92. 7 Id. 25.) (3.) If the appraisal was in due form, as required by the statute, the title of the premises in question did not pass to the state. By art. 5 of Amendments to the Constitution of the U. S. it is provided that “ private property shall not be taken for public use without just compensation.” The same provision, in the same language, is contained in the constitution of the state of H. Y. of 1821. (Art. 7, § 7.) Tho “just compensation ” to the owner, for taking his private property for public uses without his consent, has repeatedly received judicial construction, and means “ the actual value of the property in money, without any deduction for estimated profit or advantages accruing to the owner from the public use of his property. Speculative advantages or disadvantages, independent of the intrinsic value of the property, from the improvements, are a matter of set-off against each other, and do not affect the dry claim for the intrinsic value of the property taken.” (Jacob v. The City of Louisville, 9 Dana, 114. 2 Kents Com. 6th ed. 339, and note.) Ho speculative value, contingent and not actual, can satisfy the words “just compensation in the constitution. (Id.) ......</p> <p>IY. If the justice based his decision upon the ground that the title was in the defendant he erred.</p> <p>Y. If the state ever had the title to the premises, such title reverted to the heirs of Eleazer Sexford, (who are the plaintiffs,) when the object for which they were taken had ceased."</p> <p>These lands are now useless, and have become abandoned by the state. Whenever lands are taken for public use and when, for such purpose, the title vests absolutely, yet whenever that purpose is abandoned, the title reverts to ihe original owner. (Hooker v. The Utica and Minden Turnpike Co. 12 Wend. 371, 373.) And though the estate is declared by statute in one case to be a fee and in another case to be “ the property of the state,” yet it must in the former case be understood to be a conditional fee, and to cease when the purpose for which only it could have been acquired, ceases, and in the other case can only be deemed to have been acquired for the purposes for which it has been used. But as the lands in this case were taken under the statute of 1819, in which the character or tenure of the property taken is not declared by statute, there can be no difficulty in assuming that it now belongs to the original proprietor, certainly not after the abandonment of its use. After taking or getting possession of private property, under one power, a subsequent statute by the state, confirming or increasing its own title, would be void, no new consideration passing to the owner.</p> <p>YI. If the justice based his decision upon the ground that the land reverted- to the defendant as the grantee of plaintiffs’ ancestor, such decision was erroneous. If the proposition that the state has the unconditional fee simple of the lands by virtue of an appraisal, be true, then it reverts to nobody. (Sess. Laws, 1817, p. 302, § 3. 1 R. S. 3d ed. 255, § 66, (52.) Sec. 10, art. 7 of ihe Const, of 1821.) If the proposition be true, that the premises became the property of the state by reason of no claim having been interposed by the owner, then the title reverts to the original proprietor. (1 R. S. 3d ed. 255, §§ 62, (48,) 63, (49 ;) see sec. 6, art.7 of ihe Const, of 1846 ; sec. 10, art t of the Const, of 1821.) We have a legislative precedent, which amounts to legislative construction of the question whether the title to the abandoned canal reverts to the adjoining owners. (#S'ess. Laws 1847, chap. 413, p. 512.) If the title to the premises in question never passed from the ancestor of the plaintiffs to the state, then they did. not revert to the defendant. The principle laid down in Jackson v. Hathaway, (15 John. 454,) it is submitted, would determine this case against the defendant, even if the rights of reversion in relation to a canal, were like those of a public highway. But it is insisted that the reversion of an abandoned canal differs in principle from that of a public highway. In the former case, by the terms of the statute, the title passes absolutely to the state. In. the latter, it is a mere easement to the public, the title remaining in the original proprietor. At the date of the Curtis deed, 26th September, 1825, (under which the defendant holds,) the state (if they ever had title) had the absolute title, and the plaintiffs’ ancestor could not have conveyed it. The canal was not therefore an easement over the defendant’s property, subject to a reversion to him.</p> <p>I. The plaintiff failed to show that the title of the state had been divested. (1.) The state was shown to have acquired title. ÍTo resolution of the commissioners was necessary. “ Entering upon the land and laying out and commencing the work amounted to a sufficient appropriation.” (2 Hill, 342, 347. 6 Id. 359.) The transcripts from the state map were presumptive evidence of an appropriation by the state, and especially when coupled with proof of actual location and occupancy. (1 R. S. 218, §§ 7, 8.) (2.) The fact that no money was paid to Rexford for damages does not impair the title of the public. The state has discharged its duty as to compensation, when it has provided for the adjudication- upon the claim, by a tribunal invested with the requisite powers. (6 Hill, 359,361.) The adjudication by the appraisers that the “ premises will suffer no damages, or will be benefited more than injured,” passes “ the fee simple of the premises so appropriated” in the same manner as when damages are awarded</p> <p>and paid in money. (Laws of 1817, p. 303, ch. 262, § 3.) So under the revised statutes, the duty of payment arises only when the appraisers adjudge the damages to exceed the benefits. (1 it. 8. 226, § 53.) (3.) The right to damages was waived, and the premises became “ the property of the state,” even if it had not been so before, by the omission to exhibit the alleged claim to the appraisers after the adoption of the revised statutes, and within one year from the time when they took effect. (1 R. 8. 226, § 49.) (4.) The state takes not a mere easement, but the title to the land in fee. Such is the plain import of the various statutes. “ The fee simple of the premises so appropriated shall be vested in the people of this state.” {Laws of 1817, 303, § 3.) “ The premises so appropriated shall be deemed the property of the state.” (1 R. 8. 226, § 49. Id. 218, § 4.) The old and the new constitution both recognize the absolute title of the state, by prohibiting legislative alienation. “ And the legislature shall never sell or dispose of the salt springs, &c. nor the said navigable communications, or any part or section thereof; but the same shall be and remain the property of this state.” (Const. of 1821, art. 7, sec. 10; 1 R. S. 3d ed. 46. See also Const, of 1846, art. 7, sec. 6 ; 3 R. 8. Sd ed. 422.) The courts have regarded the title in the same way. “ The absolute fee did not pass to the state until the appraisement of damages,” &c. (2 Hill, 347.) “ The state takes a fee, not a mere usufructuary interest.” (2 Hill, 348.) Chief Justice ¡Nelson holds, in the case of The People v. Hayden, (6 Hill, 361, 2,) that though the work should never be completed, and the benefits deducted by the appraisers are thus lost, it is a wrong without a remedy— not a wrong remedied by the reversion of the land. (5.) The fee being in the state unconditionally, it is clear at all events that nothing short óf a state grant can divest it. So held, when land was originally taken by a turnpike company, became vested in the company by the act of 1804, and subsequently in the state by the act of 1820. (2 Paige, 184.) Such has been the practical construction of the legislature) though it is a grave question whether in giving legislative grants they have not exceeded their power. (Laws of 1847, p. 512. Laws of 1850, pp. 395, 575. Laws of 1851, p. 427.)</p> <p>IX. But even assuming that the title of the state is not a fee simple in the legal sense of that term, and that the estate could he divested without a legislative grant; still it was at most a question of fact for the jury, whether the evidence established an absolute abandonment of the premises by the state, and the plaintiff did not ask to go to the jury on that question. (1.) The plaintiff should have requested the court to submit that question to the jury. (6 Hill, 407, 410.) (2.) All the evidence was reconcilable with the continuance of the claim and dominion of the state. The west blue line, instead of being abandoned was adhered to when the canal was enlarged. The mere fact that land is not included bodily within the canal as actually constructed, is not controlling on the question whether it is a part of the canal property of the state. It is usual for the state to take adjacent lands, and not unusual to allow others to occupy the state lands, when such occupancy does not prejudice the public for the time being. The bank of the enlarged canal actually ran into the bed of the old canal. Neither the canal board nor any state officer had ever declared it abandoned, or done any act indicating such an intent.</p> <p>III. If the state title had ceased, the premises reverted to the grantees, and not to the heirs. (1.) The two lots conveyed by the deed to Curtis were on the two sides of the canal, embracing the premises in question; the first “ bounded on the south by the river, and on the other sides by the canalthe other being Knight’s lot, and described as “one hundred feet front on the canal by eighty feet in the rear.” (2.) When a canal is named as a boundary, it is the same as if a ditch or a highway were designated. (4 Hill, 373. 24 Wend. 68. 6 Conn. 471, 474, 2 Hill, on Real Prop. 39, note. 6 Cowen, 518.) (3.) “ When a farm is bounded along a highway, or upon a highway, or as running to a highway, there is reason to intend that the parties meant the middle of the highway.” (4 Hill, 373. 15 John. 454.) So when the land was described as “ lying adjacent and extending to the Oswego river,” (9 Paige, 547, 550,2,7.) So also when described as on the side of a street, held that the grant carried to the middle. (1 Sandf. S. C. Rep. 323, 340,1.) (4.) The grant runs to the center, even where the given measurement is satisfied by running to the edge. (1 Sandf. 349. 8 Wend. 183. 4 Paige, 209,212. 9 Id. 169. 3 Barb. 357,8.) (5.) In order to exclude the stream, canal or highway, the terms of exclusion must be clear, express, and of a very decided and controlling character. (24 Wend. 451, 453. 5 Id. 443, 4. 1 Sandf. 344, 348, 9.) (6.) If it be left in doubt from the description whether the intent was to exclude the highway or boundary, the grantee takes to the middle. (20 Wend. 156. 8 John. 394.) (7.) If there is any remaining estate in the original owner, it passed by the warranty deed to Curtis. (15 John. 491. 2 Hilliard, 40. 1 Sandf. 323.) (8.) At most, all that the plaintiff could insist upon was that the intention of the instrument was a question of fact, to be determined on its language in connection with the surrounding circumstances, and no request was made to submit that question to the jury. (1 Eng. Laxo and Eq. Rep. 236, 239. 61 Eng. Com. Laxo, 641.)</p> <p>IY. The bill of exceptions shows no specific grounds or claims on the part of the plaintiff, on which the court should have decided that the title of the state had been divested, or that if divested, it did not pass to the grantees of Eleazer Rexford. (2 Hill, 603. 6 Barb. Rep. 335, 581, 2. 1 Hill, 532, 536, 7. 1 Comst. 91, 2, 4.)</p>

This action was brought upon an arbitration bond, dated 21st March, 1845, reciting the pendency of a suit in the late court of chancery of this state, wherein the plaintiff was complainant and the defendants and others were defendants, and a cross-bill filed by the said Lewis Wood, against the plaintiff Olcott and others, and the submission by the said parties of the matters in controversy to the arbitrament of certain arbitrators.

This was an appeal by the defendant from a judgment of the Washington county court. The cause was originally commenced before a justice of the peace, to recover damages for an injury to the plaintiff’s land in overflowing the same by the construction of the railway, embankments, &c. adjoining the same. The justice gave a judgment for the plaintiff, for $61,75 damages, besides costs ; and on appeal, the county court affirmed the •judgment.

Enoch D. Bennett in his lifetime made and published his will, bearing date January 10th, 1850, and died on the 9th day of February next following.

<p>This was an action for an injury to real estate. The defendant justified the entry under the authority of the “ Rochester, Lockport and Niagara Falls Railroad Company.” The entry upon the premises was admitted. The important questions in the case, arose upon the defense, namely, whether the Rochester, Lockport and Niagara Falls Railroad Company had a legal existence as a corporation and had acquired a good title to the locus in quo, and a right to enter and construct their road thereon. The facts, and the questions raised by the plaintiff, appear sufficiently in the opinion. The learned justice before whom the cause was tried held that the defendant was justified, and directed a verdict for the defendant, and the plaintiff now moved for a new trial, upon exceptions taken.</p>