Volume 16 — New York Reports

The action was brought in the Superior Court of New-York city, to obtain a direction of that court, requiring the defendants, the executors of the late J. J. Astor, to set apart funds for the satisfaction of two several legacies, bequeathed by the deceased to the plaintiff, his daughter, each being for 'the interest, for her life, of the sum of $100,000. The defence was that both legacies had been satisfied by advances made by the testator, in his lifetime, to the legatee.

Writ of error to the Supreme Court. McCann was indicted for the murder of his wife. At his trial, in the oyer and terminer for Albany county, the killing of Ms wife by the prisoner was not controverted, but the defence rested entirely on the ground that he was in a state of insanity at the time the homicide was committed.

The action was brought in the City Court of Brooklyn, to recover the possession of a house and lot. It appeared on the face of the complaint that the plaintiff was a married woman.

<p>The statute defining the jurisdiction of the county courts is constitutional, so far as it confers upon those courts jurisdiction in proceedings to obtain the partition of lands.</p> <p>The proceeding to obtain the partition of lands, under the Hevised Statutes and the Code of Procedure, is a special statutory one, instituted to take the place of the action by original writ out of Chancery, and is a special case, within the meaning and according to the use of that phraseology in the constitution (art. 6, § 14) which provides that the county court shall have such jurisdiction in special cases as the legislature may prescribe.</p>

At the trial a special verdict was rendered, upon which the justice holding the circuit and special term decided that the plaintiffs were entitled to judgment, and directed that the argument on the exception to his decision should be heard in the firs! instance at general term. The Supreme Court, at general term in the seventh district, gave judgment for the plaintiff, and the defendant appealed to this court.

<p>The dedication of land to the use of the public as a highway does not preclude the owner of the fee, subject to the public easement, from maintaining an action agaiust a railroad company, which, without his consent or an appraisal of his damages, enters upon and occupies such highway with the track of its road.</p> <p>Such an appropriation of the highway by the railroad company is the imposition of an additional burden upon, and a taking of the property of, the owner of the fee, within the meaning of the constitutional provision which forbids such talcing without compensation. The company can, therefore, derive no title under acts of the legislature, and the license or consent to a use, inconsistent with the public easement, of municipal or other authorities, who represent the public as to such right, without the consent of the owner of the fee, or the appraisal and payment of his damages in the mode provided by law.</p>

The question arose upon demurrer to the complaint, which states that the plaintiff sues according to the form of the statute, etc., as treasurer of Cayuga Lodge, No. 80, of the Independent Order of Odd Fellows of Northern New-York, an association of persons thirty-seven in number, who are named, and all of whom, it is averred, have an interest in the right of action, money, property and effects thereinafter mentioned as belonging to the association.

The plaintiff, a banking corporation of the State of Maryland, brought the action to recover the amount of five checks, drawn upon the defendant’s bank by T. A. C. Green, payable to the order-’ of S. W. Spencer, cashier of the plaintiff. The checks were all dated on February 16th, 1852 ; three were for $1000 each, and two for $1500 each, and each of them was certified upon its face to be good for the amount mentioned therein, by E. Peck, the defendant’s paying teller.

By ch. 229 of 1821, a district therein described is made a village, and the freeholders and inhabitants residing within its limits are declared to be a body politic and corporate by the name of The Trustees of the Village of Ithaca.

Francis Kain died on the 7th of June, 1844, intestate and without issue. His heirs-at-law were William Kain, and the children of a deceased brother, James. William Kain conveyed his undivided interest in the real estate, of which the intestate died seized, to Augustus W. Clason, on the 16th January, 1845. His widow, Henrietta, who afterwards intermarried with Clinton Bird, was appointed his administratrix.

The plaintiff, Sibley, commenced his action to obtain possession of eleven acres iof land purchased by him at a sale made by Stephen Dusenbury, administrator of the estate of his deceased father, Moses Dusenbury, in pursuance of an order of the surrogate of Monroe county.

Whit of error to the Supreme Court. The plaintiffs iu error brought their action of ejectment in the Supreme Court in 1844.

<p>the provisions of the act respecting intrusions on Indian lands (ch. 204 of 1821), which authorize the summary removal, by a judge’s order, of persons, other than Indians, who settle or reside upon lands belonging to or occupied by any nation or tribe of Indians, are constitutional. A citizen who enters upon their lands, before their title has been extinguished and they have removed, or have been removed by the act of the government, can acquire no such right of property or possession as is within the protection of those provisions of the constitution which secure the trial by jury, and forbid the divesting of property and personal rights otherwise than by proceedings according to the course of the common law.</p> <p>6.n order of removal, under the statute of 1821, adjudicates upon no claim and determines no right or title, but leaves to the party removed the usual remedies to assert any title to the locus in quo which he may deem himself to possess. The proceeding is one of police regulation merely, for the purpose of preserving the Indian reservations from the intrusion of persons not Indians.</p> <p>An entry by a person not an Indian, upon land included within the bounds of an Indian reservation, which is in the general occupation of a band of Indians, is an intrusion subjecting the offender to summary removal under ch. 204 of 1821, notwithstanding the intruder entered peaceably, and with the assent of the individual Indian to whose possession he succeeded, under a title claimed to have been acquired by citizens through a deed of cession recognized by a treaty made between the United States and the Indian nation to which the Indians occupying the reservation belong, and although the lands occupied by the intruder are in a portion of such reservation which is occupied by other citizens having contiguous possessions forming a white settlement, all claiming ownership under the same title. Denio, Ch. J., and Johnson, J., dissenting.</p>

The plaintiff brought his action to compel the defendant to account for the money-received by him upon the sale of certain lots of land'in .Wiliiamsburgh, and to convey to 'the plaintiff other lots remaining in his hands unsold, claiming that the lots, and the proceeds of such as had been sold, were held by the defendant as security for the payment of a debt by one Charles Hoyt.

This action was .commenced in that court against the defendant, Miller, as the indorser of a promissory note made by one B. B Boerum, dated New-York, January 31, 1855, payable, six months after its date, to the order of the defendant, at the Market Bank, in New-York, for $2500.

To the summons issued in the action, the sheriff of the city and county of New-York made return that he had made diligent effort to serve the defendant in his county with the summons, and that he could not be found; that on application at the place of business of the defendant, in the city of New-York, he ascertained that the defendant was a resident of said city, but was then absent temporarily therefrom, and was a householder in the city, where his family resided; and that…

The sale was made under a judgment of the Supreme Court, in an action wherein Catharine Jackson was plaintiff, and. Lewis Calder and others, defendants. Catharine Jackson was entitled, under the will of her sister, Mrs. Williamson, who died in 1824, to an estate for life in the rents, issues and profits of a lot and house, No. 104 Church-street, and the remainder was devised to the lawful children of Mrs. Jackson, who should be living at her death.

The action was brought to recover the possession of a draft alleged to belong to the plaintiff and to be wrongfully detained by the defendant, and also to recover the possession of $7250 of money alleged to be the property of the plaintiff, wrongfully detained by the defendant. These claims are set out separately in the two counts of the complaint.

The plaintiff commenced this action on the 27th January, 1853, to recover for work and labor, performed by himself and his wife, in the management of the farm, business and affairs of James Moore (of whose estate the defendant was administrator), and averred such services to be reasonably worth the sum of $1715. The defendant pleaded the statute of limitations. The action was referred.

The plaintiff brought the action against the executors of his father’s will, to recover a legacy of $1200. The complaint set out the will, and averred that the defendants possessed themselves of the testator’s real and personal estate, to the amount of about $15,000, which was more than sufficient to pay and satisfy all the testator’s debts, legacies and funeral expenses, without making any allegation that the personal estate was sufficient to pay the legacies.

The plaintiffs in their complaint demanded judgment that a policy of insurance upon the steamer Garden City, issued by the defendant, should be reformed so as to conform to the agreement made between the parties for the insurance of such vessel, and that the defendant should pay $7000, the amount insured, the vessel having been wrecked in Lake Huron.

The action was upon a policy of insurance issued by the defendant. The question raised by the pleadings and litigated on the trial at the Kings circuit was, whether the policy covered a building of the'plaintiffs on the southwest corner of South Eighth and First streets, in Williamsburgh, which had been burned, or referred to another building of the plaintiffs, situated on the northwest corner of the same streets.

The complaint demanded. $500 as liquidated damages upon a contract by which the plaintiff covenanted to convey to the defendant his farm on or before the 15th day of December, 1851, provided the defendant should pay the said plaintiff, ‘6 on or before the 15th of December, 1851, three thousand and one hundred dollars, in the following payments, viz.: five hundred dollars on or before the 15th of December, 1851; the second payment, by note, two hundred dollars, due on or…

Stephens. James Wallace, of Troy, died in 1836, intestate, owning real and personal property, and leaving a widow and three children, of whom the respondent, Eliza B. Stephens, is one, his only heirs. The widow and her brother, Jesse Anthony of Troy, who was in partnership with Mr. Wallace at the time of his death, took out letters of administration.

This action was brought by the plaintiff, as the only daughter and heir-at-law of James Conway, deceased, to compel the defendant to convey to her fifty acres of land in Cattaraugus county. The trial was before a referee, who found, and reported as facts, that on the 27th April, 1852, Conway, the plaintiff’s father, was indebted to one Allen in the sum of $60, which was then due.

In March, 1852, the Supreme Court, at general term in the seventh district, affirmed a previous order, made at special term, in regard to the character of which all that is material to state is, that it was made upon a summaiy application in an action after judgment, and affected a substantial right, so as to be the subject of an appeal to this court.

The complaint alleges that the plaintiff entered into the employ of the defendant on the 12th day of May, 1852, and continued in such employment, doing labor and service for the said defendant, at his request, until the 3d day of May, 1854, and avers that such work, labor and service were worth the sum of $650.

The action was brought to recover the amount of a note in the following words: “$500. “ For value received, in policy No. 122, dated August 16th, 1850, issued by the Union Mutual Insurance Company, at Fort Plain, N. Y., I promise to pay the said company, or their treasurer for the time being, the sum of five hundred dollars, in such portions and at such time or times as the directors of said company may, agreeably to their act of incorporation, require.

Che action was brought to recover the possession of about five thousand bushels of corn. On the trial, before Mr. Justice Oaklet, it was proved that Dows & Carey, eomyiission merchants of New-York city, had agreed with I. F. 'Jack, of Rochester, to advance thirty-eight cents per bushel It was proved by the defendants that Walker, the clerk from whom Bloss obtained the shipping bills, had in fact_no authority to give them.

Marcus Wilbur, being indebted to the Kingston Bank, procured the plaintiffs to make for his accommodation, and without any consideration, their promissory notes, one for $1500, payable ninety days from the 11th May, 1837, the other for $1331.15, payable ninety days from April 38, 1837, which he indorsed, and delivered, before their maturity, to the bank, to hold as collateral security for his liabilities to it, whether primarily oías an indorser, informing the bank, at the…

Weit of error to review a judgment of the Supreme Court, affirming, on error to that court, a judgment of the Oyer and Terminer of Onondaga county. The prisoner was indicted, with four other persons, for grand larceny, the property alleged to have been stolen being money and bank notes, the property of David J. Shaw.

The action was brought to recover the possession of land. The defendant had been in possession of the premises for five years preceding the trial; the other facts are sufficiently stated in the following opinion. The case was submitted on printed arguments.

<p>Practical location and long acquiescence in a boundary line are conclusive, not upon the notion that they are evidence of a parol agreement establishing the line, but because they are of themselves proof that the location is correct, of so controlling a nature as to preclude evidence to the contrary.</p> <p>The acquiescence of adjoining proprietors, for forty years in the practical location of a boundary line between their lands, is conclusive, although it be proved that such location was originally made under an agreement resulting from a mutual mistake as to facts.</p> <p>The rule that fixed monuments are to prevail 'over courses and distances, in applying the description of land, applies with less force to those which are artificial than to natural and permanent objects, and fails entirely when, from the designation of quantity or other elements of description, it is apparent that the courses and distances are correct. Per Selden, J.</p>

The action was brought to foreclose a mortgage. On the trial, before a referee, the plaintiff proved that Maria M. Seward married the plaintiff in December, 1851, and died in April, 1853, leaving a will, the material part of which is: “I give and bequeath unto my beloved mother, Antha Seward, the sum of twelve hundred dollars and interest on the same, con-tamed in a bond and mortgage given to me by Orren W. Seward and Caroline his wife, and dated the third day of January,…

The action was for libel, and was tried at the Wayne circuit, before Mr. Justice Strong. At the trial it was proved that the plaintiffs were merchant tailors at Lyons, and the defendant a banker at the same place. A few days before April 19, 1851, the defendant received for collection, from Cromwell, Haight & Co., a mercantile house in New-York, a note for $100, payable on that day at his bank, and drawn by the plaintiffs.

<p>Appeal irom a judgment of the Supreme Court, at general term in the seventh district, restraining the defendant from the further prosecution of actions commenced by him against certain stockholders of the Canandaigua and Niagara Falls Railroad Company, to recover the amount of their unpaid subscriptions to its capital stock. In December, 1854, Morse, Pierson and Phelps, judgment creditors of the railroad corporation above named, whose execution had been returned unsatisfied, commenced an action in the Supreme Court, in behalf of themselves and all other creditors, and on the 2d of January, 1855, obtained an order of sequestration against the company, and for the appointment of a receiver; under which the plaintiff in this action was appointed receiver, and filed his bond on the 18th of January, 1855. On the same day that the order of sequestration was made, another order was made restraining proceedings at law by any creditor of the company, and directing the creditors to exhibit their claims and become parties in the action in six months from the first publication of the order.</p> <p>The defendant in this action, Elliott, was a judgment creditor of the insolvent corporation at the time of the sequestration, and his execution having been returned unsatisfied, he, on the 6th day of January, 1855, commenced actions against several stockholders in the company, under the tenth section of the general railroad act {Laws of 1850, ch. 140,. p. 214), to recover the amounts due from them respectively for unpaid subscriptions to its capital stock The receiver, who was directed by the order for his appointment to collect all debts due the company, commenced actions against the same stockholders for the same unpaid subscriptions, and, after so doing, commenced this action, praying that the defendant might be restrained from the further prosecution of the actions so commenced by him, and from collecting or receiving any of the unpaid subscriptions of the defendants in those actions. The matters of fact stated in the complaint were admitted by the answer, and the Supreme Court at special term rendered a judgment enjoining the defendant, according to the prayer of the complaint. This judgment was, on appeal, affirmed at general term, and the defendant appeals to this court. The cause was submitted on printed arguments.</p>

Appeal by the plaintiff from a judgment of the Supreme Court in the fifth district. The action was for setting fire to and burning the -plaintiff’s barn, situated near the Oneida lake, in the town of Lenox, Madison county. The bam and contents, valued at over $2000, were consumed about nine o’clock in the evening of November 11, 1850.

The referee to whom the action was referred found the following facts, viz.: The plaintiff, on the 24th day of December, 1828, purchased a parcel of land in Lysander, Onondaga county, from H. & S. W. Baldwin, and gave them a bond and mortgage for the purchase money. On the 30th of December, 1828, the Bank of Auburn recovered a judgment against the plaintiff for $1653.22.

The action was brought to recover for certain services rendered by the plaintiff and his former partner (who had assigned his interest to the plaintiff), as proctors and advocates in the Court of Admiralty of the United States. The case was tried by Mr. Ganson, as referee.

The plaintiffs brought their action, claiming judgment that the defendant should return to them a check, drawn by Wheeler, Wood & Co., upon the American Exchange Bank, for $2000, and fourteen promissory notes made by different persons and firms for various sums, the aggregate amount of which was $2614.73, all of which they alleged had been transferred to him as security for a loan of $1824, made to them by the defendant at the rate of $4 per day for interest on the $2000,…

<p>Appeal from the Supreme Court. Peckham Barker, by his will, dated January 6, 1851, after bequeathing several legacies, gave and bequeathed, in the twelfth clause thereof. to W. S. Bishop and E. Peck, his executors, all the rest and residue of his personal property, in trust, as follows: “ My executors are hereby directed to invest the avails of said property in proper and safe securities, one-half of which sum, principal and interest, shall be for the benefit of the children of Jane A. B. Tucker, and the other half, principal and interest, shall be for the benefit of the children of Augustin B. Childs, and to be paid over in the manner following, viz.: My executors are hereby required to apply one-half of the income and interest of the said personal property, annually, for the benefit of the said children of Jane A. B. Tucker, • and the other half to the children of said A. B. Childs. And whenever either of the children of the said Jane shall come of age, my executors are to pay over to that child his or her proportion of the one-half of said principal; and whenever either of the children of said A. B. Childs shall come of age, to pay to such child his proportion thereof; and so till the whole principal and interest is paid out and expended.” The testator died on the 10th of August, 1853, leaving no children, and only two grandchildren, to wit, the said Jane A. B. Tucker and A. B. Childs. At the time of the death of the testator, Jane A. B. Tucker had living three children, and A. B. Childs six children. Jane A. B. Tucker has had another child born since the death of the testator, and which is still living. Peck, one of the executors appointed by the will, renounced. Mrs. Tucker, claiming that the residuary bequest above stated was void, as suspending the absolute ownership for a longer period than two lives in being at the death of the testator, the parties agreed upon a case and submitted it to the Supreme Court, which, at general term in the seventh district, rendered a judgment declaring the provisions of the will legal and valid, from which an appeal was taken to this court.</p>

On the trial at the Monroe circuit, before Mr. Justice Wells and a jury, the plaintiff introduced in evidence a lease from him to the defendant, Samuel Miller, of a farm in Monroe county, for the term of five years, ending on the 1st day of April, 1848, reserving the yearly rent of $180, payable, $65 April 1st, 1844, $65 October 1st, 1844, and $65 on the first days of April and October of each year until the whole rent was paid (the defendant, Henry Miller, having signed the…

This action was commenced in December, 1853, to recover from the defendant, as owner of the bark “Rising Sun,” compensation for the services of E. B. Hooper, as master of said bark, the claim for which had been assigned by Hooper to the plaintiff.

Appeals from the Supreme Court. The first case arose npon an alternative mandamus, sued out by the relator, requiring the supervisors of the city and county of New-York to reduce its assessment for the year 1853 from the sum of $800,000, at which it had been fixed by the tax commissioners and confirmed by the supervisors, to $100,000. The supervisors made a return to which the relators demurred. The demurrer was sustained at special term, and a peremptory mandamus refused.

The action was on a replevin bond. In April, 1847, Nash and Gardner commenced an action of replevin against Decker, the plaintiff and respondent, and, with the writ, delivered to the sheriff the affidavit and bond required by the Revised Statutes, in which bond the sheriff is named as obligee, and the same was executed by Nash and Gardner as principals, and by Evans and Bennett as them sureties. The bond was a joint and several bond.

<p>It is not necessary to the incorporation of a railroad company under the genoral act that ten per cent he paid upon the amount of each subscription at the time of making the same or previous to the filing of the articles of association with the secretary of state. It is sufficient if the cash payments, by whomsoever made, amount in the aggregate to ten per cent upon one thousand dollars for each mile of road proposed to lie constructed.</p> <p>A subscription for stock, made before the incorporation of the company, is obligatory upon the subscriber, although he make no cash payment whatever.</p> <p>The right to membership is a sufficient consideration for the subscriber’s liability, and he cannot revoke the subscription.</p> <p>Notice of calls for the payment of the subscription is only necessary for the purpose of authorizing a forfeiture of the stock. It is not required to support an action upon a subscription which specifies no condition nor time of payment.</p> <p>The articles' of association to he filed may he upon separate sheets, each of which, being a copy of the others, has been signed by only a portion of tbs members of the company.</p> <p>Signature to a paper which states that the subscribers thereby associate themselves in pursuance and by virtue of the general act for the incorporation of turnpike and plank road companies, gives the name of the proposed company, the amount of its capital stock and the number of shares, imports a promise, upon which an action may he maintained, to take and pay for the number of shares set opposite to the subscriber’s signature. ( Rensselaer and Washington Plank Road Company v. Ba/rton, in note, p. 457.)</p>

Action to recover for work and materials in constructing two piers and two abutments for a bridge across the Mohawk river, in Montgomery county, pursuant to a written contract between the defendants the employers, and the plaintiff and one Eigenbroat (who had assigned to the plaintiff), the contractors for the work. The defendants were to pay three dollars and fifty cents for each cubic yard the works should measure when completed.

On the 1st of October, 1844, Charles B. Peddie entered into sealed articles of agreement with the plaintiff, by which he covenanted to diligently serve the plaintiff; abide with him for four years, to serve him according to the best of his ability in the trade of gold pen making; perform his orders from time to time; keep the secrets relating to said business; that he would not disclose any improvement, discovery or invention of said Bagley, in the making of gold pens, or in…

The action was for negligence of the defendant, in not maintaining proper gates in the fences along the line of its road through the plaintiff’s farm, and in not making cattle guards at the farm crossings, whereby the plaintiff’s horses strayed upon the track and were killed. The trial was at the Orleans circuit, before Mr. Justice Bowen and a jury.

The plaintiffs having had an execution returned unsatisfied, upon a judgment recovered by them against one George Caldwell, brought their action in the nature of a creditor’s bill, for the purpose, among other things, of setting aside an assignment, executed by George Caldwell and his partner in mercantile business, of all their stock in trade and other personal property, and of certain real estate which was alleged to have belonged to them, not as partners but as tenants in…

The cause was tried before a referee. The plaintiff agreed to build a steam engine, with boilers, &c., for the defendants, and to deliver it to them on a day certain, He failed to do so, and a May of one week occurred, during which time the defen dants lost the use of certain machinery for the sawing and planing of lumber, which the steam engine was intended to drive, and which the plaintiff knew it was intended to drive.

The action was brought to foreclose a mortgage executed by the' defendants to one Reuben Sargeant, deceased, to secure $1000, with interest, and assigned by the executors of Sargeant to the plaintiff. The defendants alleged, in their answer, that the mortgage was executed upon an usurious consideration. The trial was at the Orleans circuit, before Mr. Justice Bowen, without a jury.

<p>A juror in a criminal case being challenged for principal cause, testified that he “ had formed and expressed an opinion, but that he had no fixed opinion, none which could not be removed by the evidenceHeld, that he was disqualified.</p> <p>fhe testimony of a juror, on his challenge for favor, cannot be considered in determining whether a previous challenge of him for principal cause was properly overruled.</p> <p>It is error to charge a jury that evidence of the prisoner’s good character is entitled to far inferior weight, where the question is one of great and atrocious criminality, than upon accusations of a lower grade. The presumption of innocence which it raises varies in force with the circumstances, but not with the grade of the crime imputed.</p> <p>When an indictment is brought into the Supreme Court by certiorari, and tried at the circuit, judgment should be pronounced at a general term.</p>

The action was for the foreclosure of a mortgage, and was tried by a referee, who reported the following facts: In November, 1836, the plaintiff and others constituted a joint stock company, carrying on the banking and exchange business at Montreal, in Canada, under the name and style of Viger, Dewitt & Co. This company issued its evidences of debt, for circulation as money, in the similitude of bank bills.

<p>Where a package, delivered to common carriers for transportation along their route, on its way to a consignee upon a lateral route branching off from that of the carriers, is addressed to the care of the agent and representative of the carriers at the place where the carriage by them is to terminate, such address is to be regarded as a direction to have the package stopped at the place where such agent is in charge of the carriers’ business, and does not import that upon receiving it he ceases to be the agent of the carriers in respect to its custody and becomes that of the consignee.</p>

The plaintiffs averred in their complaint that in 1837 their father died seized of a farm, in Schoharie county, leaving a widow, Eleanor, and the plaintiffs, with two other children (C. S. Ward and Polly Ward), his only heirs-at-law. That prior to May 3, 1850, Polly Ward conveyed all her interest in the farm to C. S. Ward.

The action was brought to recover about .$1000, alleged to have been overpaid by the plaintiff upon the purchase of a farm from the defendant. The case was tried before a justice, without a jury.

The plaintiff averred in his complaint, and proved upon the trial before a referee, that on the 21st November, 1850, he recovered judgment against the defendant Stiney; execution thereon was returned unsatisfied; he instituted supplementary proceedings against Stiney, and on the 2d December, 1850, the county judge of Ontario county made an order requiring Stiney to appear before him to be examined on the 6th December, 1850, and enjoining him from disposing of any property…

The action was brought to recover for carpenter’s work performed by one Hynard, who had assigned the claim to the plaintiff, who was his creditor for a larger sum. At the trial before a referee Hynard was admitted, under exception, as a witness for the plaintiff.

<p>The distinction between demands or rights of action which are single and entire, and those which are several' and distinct, is, that the former immediately arise out of one and the same act or contract, and the latter out of different acts or contracts.</p> <p>Where there are several items of account for goods sold or work performed at different times, there must be either an express contract, or the circumstances must be such as to raise an implied contract embracing all the items, to make them a single or entire demand.</p> <p>The business of ship-carpenters was carried on in one part of a building, under the direction of two of the partners in a firm, and the business of ship-chandlers in another part of the same building, under the direction of the third partner. Separate books of account were kept by different clerks in the two branches of business, and the partners confined themselves respectively to the management of one of the branches, without personally taking part in the other. Work was done and materials furnished from the carpentry branch in the repairing and equipping a brig, upon the order of her captain, to the amount of $139, and immediately thereafter goods and articles of ship-chandlery were furnished to the same brig, and on the order of the same captain, at different times through a period of a month, amounting to $521; Held, that the two accounts did not constitute an entire claim, but, on the contrary, formed two several causes of action.</p> <p>Assuming that the accounts would have formed a single demand, they were severed by the giving of a bond to secure the $521 due for chandlery, for the purpose of discharging an attachment against the brig, the account for carpenter’s work remaining a lien on the vessel; so that an action could be 1 maintained on such bond, notwithstanding judgment had been obtained and satisfied by proceedings in admiralty to enforce the lien for carpenter’s work.</p> <p>The cases of Guernsey r. Carver (8 Wend., 492), and Stevens v. Lock-wood (13 id., 644), reviewed and questioned; that of Colvin r. Cw-win (15 Wend., 65), overruled.</p>

The plaintiff sued the defendant on several promissory notes. The defendant denied all indebtedness.and claimed a set-off. The issues were referred, to three referees, who reported that there was nothing due to the plaintiff, and the Court of Common Pleas refused to set aside their report. From that judgment the plaintiff appealed to this court. The facts sufficiently appear in the following opinion.

The defendant was sued for having, as sheriff of Otsego, seized and taken certain goods as the property of one Peck by virtue of an execution against him. The plaintiffs claimed to hold the property under an assignment by Peck of all his personal estate to them in trust for the benefit of creditors, on the 13th August, 1851.

The action was upon an undertaking executed by the defendants upon an appeal by one Snell from the judgment of a justice of the peace granting a warrant for his removal from a farm which had been sold upon execution against him. In December, 1850, the sheriff of Montgomery county sold the farm of Snell upon an execution issued on a judgment recovered by the plaintiff in this suit. Cook became the purchaser for the sum of $1500.

The action was to foreclose a mortgage executed in 1833 by the defendant Consalus and wife to Elisha Jenne, which by sundry mesne assignments came to the hands and was the property, in 1853, of Archibald Linn, by whom it was afterwards assigned to the plaintiff in this action. While Linn was the owner and holder of the mortgage he had extensive business and moneyed transactions with Consalus.

Action on a promissory note made by the defendants, dated October 29th, 1853, for the payment of $943.13, six months from date. The complaint stated that the note was indorsed by the payees thereof to James H. Benedict So Co., who indorsed and transferred it to the plaintiffs, and that on or about March 5th, 1854, while the note was owned by the plaintiffs, it was accidentally destroyed and consumed by fire.

The plaintiffs sued for the refusal of the defendant to deliver a ■quantity of bleaching powders. ' At the trial, before Mr. Justice Boswortii and a jury, it was proved that on the 25th of October, 1853, the defendant sold to the plaintiffs, at the city of New-York, fifty casks of bleaching powders, to arrive by the ship Emma Field, to be paid for, at the market price ruling at the time of delivery, in the notes of Leggett Brothers, a mercantile firm of the same city,…

The action was for the price of a quantity of bricks sold and delivered to the defendant by James White, who had assigned the demand to the plaintiffs. At the trial, before Mr. Justice Clinton, the plaintiff had a verdict, and the judgment entered thereon having, on appeal, been affirmed by the Superior Court at general term, the defendant appealed to this court. The case was submitted on printed arguments.

<p>The proceedings upon a trial at circuit are reviewable in the first instance, at general term, in only two cases: First. Upon a motion hy the unsuccessful party for a new trial, upon exceptions, hy the order of the judge who tried the cause; Second. Where there is an uncontroverted state of facts, and the case presents only questions of law, and the judge directs a verdict subject to the opinion of the court.</p> <p>Exceptions were taken at the trial, by both parties, upon which they had aright to be heard upon a motion for a new trial. The plaintiff had a verdict, which the judge directed to be taken subject to the opinion of the court at general term; and the court, at general term, rendered judgment for the defendant, Held, that the judgment must be reversed as for a mistrial, and a new trial granted, though the judgment appeared from the case to be correct upon the merits.</p>

The action was brought by the plaintiffs, tenants of a store on Cortland-street, in the city of New-York, for injuries sus» tained by the flooding of their store with water.

The appeal book handed up by the appellants’ counsel contained the notice of appeal to this court, the summons and pleadings, an order of reference, the report of the referee, dated Decern ber 9, 1853, finding certain facts and conclusions of law, the last of which was that the plaintiffs were entitled to judgment for $508.43.

The action was to recover sixty-seven beer-barrels, alleged to be wrongfully detained by the defendants on the pretence that they were the purchasers thereof. The cause was tried before a referee, who made a report for the plaintiff, the judgment on which was reversed and a new trial ordered.

the court, without a jury. The action was brought to set aside an assignment made by the defendant Orvis to the defendant Fenton, with intent, as the complaint charged, to hinder, delay and defraud creditors. The cause was submitted to this court on printed arguments.

The plaintiffs brought an action to recover the possession of land in the city of Buffalo. It was tried at the Erie circuit, in October, 1854, when the defendants had a verdict and judgment. The plaintiffs, after offering to pay the amount of the judgment, applied to the Supreme Court for a new-trial under section thirty-seven, title one, chapter five, part three of the Revised Statutes (vol. 2, _p. 309), respecting new trials in the action of ejectment.

Motion to vacate an order dismissing the appeal for want of a return, entered, under the second rule of this court, on the twenty-fifth of February. After the appellant’s attorney was served with notice that he was required to cause the proper return to be filed within ten days, he, two or three times requested the clerk of the Supreme Court to make out and transmit the return.

Motion to dismiss appeal. The action in the Supreme Court was against Billings, Latson and Fowler, on a note made by Latson and indorsed by the two other defendants. Latson and Fowler answered, and the plaintiff brought the action to trial at the circuit, when an inquest was taken, none of the defendants appearing. The verdict was against the three defendants, and judgment was entered upon if, which was affirmed on appeal taken by Billings, at a general term.