Volume 18 — Barbour's New York Supreme Court Reports

This was an action brought by Thomas, the late sheriff of Delaware county, against Hubbell, his deputy, and Wheeler and Palmer, the sureties of the latter, upon Hubbell’s official bond to the sheriff. Messrs. Conover and Labagh, by their attorney, placed in the hands of Hubbell, as deputy of the plaintiff, an execution issuing out of the supreme court against one of their judgment debtors.

This was an action of ejectment brought to recover the north half of the stream and falls in the Esopus creek,'at a place called “ Demeyer’s Falls.” It was tried before justice Harris, at the Ulster circuit in May, 1851. The plaintiff introduced a deed, dated February 20,1688, from the trustees of the corporation of Kingston, to Wilhelmus Demeyer, for 800 acres of land situated in the town of Kingston, lying on the northerly side of said creek.

This was an appeal by the defendant from a judgment entered at the circuit, upon the verdict of a jury.

This was an appeal by the defendant from a judgment entered upon the report of a referee. The action was brought to recover compensation for services as an attorney, and for disbursements paid, and for counsel fees. The complaint was in very general terms.

This action was brought to recover for the use of the plaintiffs’ boats in transporting three loads of wheat from the city of Troy to the cities of New-York and Brooklyn; also damages and demurrage for the detention of said boats at the city of New-York; also for towage, extra dockage and extra services. The question tried was, whether the plaintiffs were entitled to recover for such damages and extra services beyond the price agreed on for carrying the grain.

This was an appeal, by the plaintiff, from a judgment entered upon the report of a referee. The complaint alleged that on September 13; 1842, the plaintiff became, and had ever since been, a religious corporation, under the general act to provide for the incorporation of religion's societies., passed April 5,1813.

This was an appeal by the defendant from a judgment entered upon the report of a referee.

This was an action brought to recover damages against the , defendant, as sheriff of Greene county, for neglecting to attach sufficient property to satisfy the plaintiffs’ demand, against one Peter Yandenbergh. On the 5th of April, 1852, an attachment against Yandenbergh in favor of Hoy & Wilson was issued and put in the defendant’s hands, on which the plaintiffs therein claimed, including costs and expenses, $258.29.

This was an action to enforce the specific performance of an agreement for the sale of real estate. The complaint alleged that about the middle of September, 1848, John M. Secor, being the owner of a lot of ground at the corner of Broadway and Thirty-ninth street, in the city of Hew-York, employed one Rowland S. Malloy, a real estate broker, to sell such lot for him, and authorized him, as his agent, to sell the same on said Secof’s account, for the sum of $3000.

<p>On the 22d of July, 1845, the defendants insured the plaintiffs’ church against fire for one year, to the amount of §5000. The policy was not delivered on that day, nor was any memorandum given, or premium paid; but a verbal agreement was made between the agents of both parties, that the church should be considered insured, and that the policy should be made out, and the premium paid in a convenient time afterwards. The policy contained a provision that the insurance might be continued for such further term as might be agreed on, the premium being paid and indorsed on the policy, or a receipt given for it. The policy was afterwards delivered, but the premium was not paid till the 21st of February, 1846, when the president of the insurance company collected it of the treasurer of the church, at his office. Some days before the policy expired, the president of the com-party called again on the treasurer of the church, and then an arrangement was made that the policy should he renewed from time to time, without further notice, until one party or the other should give notice of an intention to discontinue the renewal; until which time, it was understood that the church should pay the premium, and the company make the renewal and give a certificate thereof. In pursuance of this arrangement the parties went on, the company at its convenience sending a renewal certificate to the church, and the church at its convenience paying the premium ; the two acts being in no case performed at the same time, and neither of them until after the time of the previous insurance had expired. The church was burned on the 10th of September, 1848; the company not having as yet sent the renewal certificate, or called for the premium. The last renewal certificate had been taken to the church after the 22d of July, 1847. It was proved that the company had been in the practice of making permanent arrangements for renewals similar to that in this case. The case before the jury turned upon the fact of there having been an arrangement made, as the plaintiffs alleged, and the jury found that there had; the court charging, “ That if the jury believed that an arrangement was made, as testified to by Mr. Lewis, that certificates of renewal were given for two years', and that the last was given after the 21st of July, 1847, then the last renewal, connected with the agreement and the course of dealing, would operate as a contract to give a renewal on the 21st day of July, 1848, and would entitle the plaintiffs to recover.”</p> <p>The jury found a verdict for the plaintiffs for §5000 and interest ; and from the judgment entered thereon the defendants appealed.</p>

This was an appeal by the defendants, from a judgment entered upon the report of a referee. The opinion of the court contains all the material facts.

The action was against Pluinb and William Gr. Miller, for unlawfully seizing, taking and converting certain goods and chattels,, the property of the plaintiffs. Miller did not defend.

<p>Superintendents of the poor cannot maintain an action against a husband for boarding, clothing and medical aid furnished to his wife asa pauper; notwithstanding he has maltreated her and expelled her from his house without just cause, and refuses to provide for her though of sufficient ability to do so.</p> <p>The wife of a man who is bound by law to support her, and who is abundantly able to do so, cannot be regarded as a pauper.</p>

<p>Where one is the agent of another, for the sale of real estate in his vicinity, and for making contracts for sales, and for receiving the consideration agreed to be paid by the purchasers, and as such agent he has in his possession contracts for the lands, executed by his principal, who resides in another place, and by the several purchasers of the land, the amount owing by the purchasers, upon such contracts, is not subject to taxation, against the agent, as personal estate in Ms possession or wnder Ms control as such agent.</p>

<p>On the 27th of September, 1838, P. and others entered into a contract with the state for the construction of the ten combined locks on the canal at L. This contract being assigned by P. and others to the defendant, and D., the defendant, on the 15th of Sept. 1841, entered into an arrangement with the plaintiff, by which the latter was to furnish to the defendant all the iron castings necessary fbr the construction of the lodes, &e. at specified prices, to be paid by the defendant whenever he should receive his pay, on estimates, from the state. The plaintiff accordingly furnished the castings, &e. for the north tier of locks and received his pay therefor. In May, 1842, the state suspended the work upon the locks, in pursuance of an act of the legislature. In July, 1847, W. B., jun. entered into a contract with the state for the construction of the south tier of</p> <p>e locks, which contract was subsequently assigned to the defendant, who con-st,ructed those locks under such contract, procuring a portion of the castings from a person other than the plaintiff. In an action by the plaintiff, upon the contract of Sept. 15,1841, to recover as damages the profits he would have made had the defendant procured all the castings, Sic. from him, at the prices specified in such contract;</p> <p>Held, 1. That when the state suspended work upon the locks, and thus put an end to its contract with P. and others, the contract between the plaintiff and the defendant, which was made with reference to such prior contract, also came to an end.</p> <p>2. That the plaintiff could not, in an action upon the contract of Sept. 1841, recover damages of the defendant for not employing him to furnish the castings required for the construction of the south tier of locks.</p> <p>3. That after the original contract with the state had been annulled, the same was not revived and made binding, by the act of the defendant in claiming and receiving from the plaintiff a portion of the castings required for the building of the south tier of locks.</p> <p>4. That the original contract could only be revived, so as to be binding upon the defendant, by a new valid agreement; and if there was any new agreement, the action should be founded upon such new agreement.</p>

This was a motion by the defendants for a new trial, upon a bill of exceptions.

This was an appeal by the defendant, from a judgment entered at a special term, overruling a demurrer to the complaint.

This was an appeal by the plaintiffs from an order made at a special term, setting aside, an attachment issued against the defendant as a non-resident debtor.

<p>Appeal by the plaintiffs from a judgment entered at a special terra, in favor of the defendants, upon the report of a referee. The complaint alleged that the plaintiffs were partners, merchants and traders, doing business in the city of New-York, under the name, style and firm of Smith, Thurgar & Co.; that in August, 1848, the defendants, William H. Deforest, and Nathaniel Chittenden, who were also merchant copartners, trading and doing business, among other places, at New Orleans, purchased of the plaintiffs a quantity of dry goods and other merchandise, to the amount of $765.20, through one Anning S. Chittenden, who then and for a considerable period before and after acted as their general agent, more particularly for the purchasing of such merchandise as they required for their aforesaid business at the city of New Orleans, for .which purpose said Anning Si Chittenden kept an office in the city of New-York, and purchasing ostensibly for the said William H. Deforest and Nathaniel Chittenden, usually* for the purpose of facilitating their business, and conforming to the usages of trade by giving what is termed city paper, gave the plaintiffs, on purchasing said goods and merchandise, a note, of which the following is a copy:</p> <p>“ $765.20.</p> <p>New-York, August 29th, 1848.</p> <p>Eight months after date, I promise to pay to the order of Smith, Thurgar & Co., seven hundred and sixty-five -ffe dollars, value received.</p> <p>A. S. Chittenden.”</p> <p>That said note became due and payable on the second day of * May, 1849, and that payment thereof was duly demanded of said Anning S. Chittenden, who did not pay the same, and that said note remained unpaid and continued in the possession of the plaintiffs as worthless; said Anning S. Chittenden having absconded from the city to parts unknown, without leaving any property in his said office. That the said goods were shipped hence by the plaintiffs per the “ Martha J. Ward,” bound to said city of New Orleans, addressed to the defendants, and after-wards safely arrived there, and were delivered to them. Wherefore the plaintiffs demanded judgment against the defendants for said sum of $765.20, with interest and costs.</p> <p>The defendants, by their answer, denied that they purchased of the plaintiffs any dry goods or other merchandise mentioned in the complaint. They admitted that Anning S. Chittenden was their general agent, before and after that period, for the purchasing of such merchandise as they required, and that the said Anning kept an office in the city of New-York; but they denied that he kept an office there exclusively or ostensibly for that agency. And they denied that the said Anning S. Chittenden gave the note mentioned in the complaint for the purpose of facilitating the business of the defendants, or of conforming to the usages of trade by giving city paper. The defendants averred that the said Anning S. Chittenden bought said goods on Ms own responsibility, and not on the responsibility of the defendants. That the said Chittenden was well known in the city of New-York generally, and particularly to the plaintiffs, of whom he had before that time purchased goods in his own name, and on his own responsibility, for the defendants, which the plaintiffs well knew; and the said Anning S. Chittenden was reputed and known in said city of New-York, and to the plaintiffs, as a person of large wealth and pecuniary responsibility, and the defendants were unknown to the plaintiffs, except as the persons for whom said goods were purchased by said Anning S. Chittenden. The defendants alleged that Chittenden informed the plaintiffs, at the time he purchased said goods, that he was purchasing the same for the defendants; that the plaintiffs agreed that Chittenden should be the purchaser of said goods mentioned in the complaint, and that the said Anning should give his liability therefor, and not the liability of the defendants." That Chittenden thereupon purchased said goods and gave his own note therefor, which was accepted and received by the plaintiffs in payment of the said goods and merchandise sold to him, which said note was particularly mentioned and set forth in the complaint. The defendants further alleged that they had settled with said Annijig S. Chittenden, and fully paid him for said goods and merchandise before the commencement of this suit against them.</p> <p>The plaintiffs’ reply to the defendants’ answer was as follows : First. That the said Anning S. Chittenden did not purchase the goods set forth in the plaintiffs’ complaint exclusively on his responsibility, but that they were purchased by order and direction and for the defendants’ own account. Second. They admitted that said Anning S. Chittenden, in said answer named, was reputed to be a person of large wealth and pecuniary responsibility, but denied that he was such, and stated that he fraudulently represented and led persons to believe him such. They admitted that said Chittenden, as the defendants’ agent, did purchase other merchandise from them on account of the defendants, but alleged that the defendants were liable to the plaintiffs therefor. Third. The plaintiffs denied that their own knowledge of the defendants was that they were the persons for whom said goods were purchased by said Anning S. Chittenden. Fourth. The plaintiffs admitted that A. S. Chittenden informed them, at the time of the purchase of the merchandise in the plaintiffs’ complaint set forth, that he was purchasing the same for the defendants, but denied that they released, or intended to release, the liability of the defendants ; and stated that they took the note of Chittenden, as set forth in their complaint, and that they did not receive said note in payment, and that no payment had ever been made thereon. The plaintiffs, not having any knowledge as to whether the defendants made any settlement or • payment with, or to, said Chittenden for said merchandise, denied that they had done so.</p> <p>The cause being thus at issue, was referred to the Hon. Michael Ulshoeffer, as sole referee therein, to hear and determine the same. On the hearing before the referee, the plaintiffs introduced in evidence the deposition of Anning S. Chittenden, which had been previously- taken de bene esse, and which was admitted by the counsel of the respective parties as evidence in the cause. He testified that the defendants were doing business in New Orleans as merchants, in 1848, and they so continued up to last spring; that he made a purchase of the plaintiffs in the- summer of 1848 of between $700 and $800 in amount, and gave the plaintiffs his note for the amount. Being shown the note set out in the complaint, he testified that he believed that note to be a copy of the one given by him for said purchase ; that he informed the plaintiffs the goods were purchased for Deforest & Co. of New Orleans, (the defendants herein,) and directed the goods, to be shipped to them at that place; that he offered them the liability of Deforest & Co. at the time of the purchase, and they preferred to take the witness’ note, and he accordingly gave it to them; that he bought the goods on the order of the defendants; they (the defendants) wrote to him for certain kinds of goods, and the witness found the goods at the house of the plaintiffs, and bought them there. He told them, at the time of the purchase, that they could have the draft of Deforest & Co. on him for the goods if they would wait until the invoice arrived out at New Orleans, or they could have his, the witness’ note, and they preferred to take his note, and he accordingly gave it to them. The witness further testified, that he stopped payment in March or April, 1849; that the principal cause of his stopping was the failure of the defendants to remit funds to him; that the defendants did not remit specially for any particular debt; no special amount was sent for the plaintiffs; this account had been paid to him by the defendants ; it was paid him by his crediting them in his account for funds remitted by the defendants.</p> <p>The plaintiffs offered to cancel the promissory note of Anning S. Chittenden, mentioned in the complaint, and rested their case. The defendants offered in evidence a receipt, of which the following is a copy:</p> <p>“ Received, New-York, Sept. 12th, 1848, from Mr. A. S. Chittenden, his note, at 8 months, dated Aug. 29th, for seven hundred and sixty-five dollars, for bill same date.</p> <p>f>765fW.</p> <p>(Signed,)</p> <p>Smith, Thurgar & Co.</p> <p>Per T. Newton.”</p> <p>Which receipt was admitted by the plaintiffs’ counsel; and the counsel for the defendants also read in evidence a stipulation signed by the attorney for the plaintiffs, in which it was further admitted, that the goods mentioned in the complaint were charged to A. S. Chittenden on the books of account of the plaintiffs, and not charged to the defendants. The referee reported in favor of the defendants.</p>

<p>Appeal by the plaintiff from an order made at a special term, directing that unless the next friend of the plaintiff give security for costs the complaint should be dismissed.</p>

This was an appeal by the defendant from a judgment rendered at a special term, upon the verdict of a jury, The plaintiff, claiming to b.e a creditor of ah alleged corporation called “ The New-York Croton and Steam Faucet Manufacturing Company,”1 on certain promissory notes of said company, bearing date from November 28, 1849, to January 14,1850, recovered a judgment in the New-York common pleas against said company, on the 19th of June, 1850, for $3,239.60, and an execution…

The complaint alleged that the plaintiffs, on the 6th day of August, A. D. 1816, were the owners in fee and possessed of all that certain water lot, vacant ground, and soil under water, lying and being on Harlem river,at what is commonly called “ Bussing’s Point,” in the ninth ward of the city of Hew-York, &c. describing it: and that, being so seised and possessed thereof, the plaintiffs did, on that day, sell and convey to Robert Macomb, and to his heirs and assigns…

This was an appeal from a decision made by Justice Roosevelt, at a special term, on exceptions to the report of a referee, in respect to the surplus moneys arising from the sale of mortgaged premises. The appeal was by Henry Whinfield, who was not a party in the suit, but who claimed a lien upon the surplus moneys as the assignee of certain judgments, recovered by John B. Vail against the husbands of two of the daughters of the mortgagor.

This was an appeal by the defendant Romeyn- from a judgment rendered at a special term. The complaint was an ordinary one on a promissory note for $300, dated January 3,0,1850, charging the defendant Bade as maker, ahd the defendant Romeyn as indorser. The answer of the defendant Romeyn alleged that he was an accommodation indorser of the. note, to the knowledge of the plaintiff.

Motion to set aside a report of referees. On the 22d of July, 1848, De Voss & Hanenwinckel effected an insurance with the Mutual Safety Insurance Company, upon the ship Burgundy, to the amount of $8000. The ship was lost, by one of the perils insured against. In May, 1849, the company discontinued the. business of insurance; and in October, 1850, it was dissolved and a receiver appointed.

<p>The plaintiffs, who were jointly interested in an oil manufactory, entered into a contract with E. & Co., by which it was agreed that the plaintiffs should, within 76 days, enlarge their works, so as to be able to produce a double quantity of oil, and when this should be done E. & Co, were to advance $10,000 to them, to be refunded, as provided in the agreement. The plaintiffs were to continue to manufacture the increased quantity and to deliver one half of it to E. & Co., who were to receive the consignments, and make further advances upon them, and sell them on commission. As a further security for the $10,000 the plaintiffs agreed that “ when the same was advanced they would deliver to E. & Go. bills of sale of the oil works, and policies of insurance thereon, for $10,000. Subsequently the plaintiffs, with the consent of E. & Co., sold their works, and their interest in this agreement, to P., who agreed to take the place of the plaintiffs in said contract, and to do every thing which it bound the plaintiffs to do; but the plaintiffs were to receive the $10,000 from R. & Co. for their own benefit. In an action against P. for refusing to deliver to E. & Co. such bill of sale and policies of insurance, as security for the $10,000 to be advanced to the plaintiffs, the defendant alleged in his answer that he prepared the securities, and gave notice to R. & Co. that he was ready to perform the contract on his part, and requested them to pay the $10,000 and receive the securities, but that E. & Co. failed to do so, or to perform any of the provisions of the contract incumbent on them to perform, and that for that reason the defendant did not deliver the securities. Held, on demurrer, that the two acts—the giving of the securities and the payment of the money—were to be contemporaneous; that P. had fulfilled his part of the contract by being ready and offering to perform it, and that he was not bound, and would not have been authorized, to deliver the securities without receiving the money; and that consequently thé answer was sufficient. Roosevelt, J., dissented.</p> <p>Held also, that if the plaintiffs intended that P. should deliver the securities without the money being paid, they should have expressly waived the condition, and have alleged such waiver, in their complaint.</p>

The action was brought against the defendants Bell & Goodman as makers,- and the defendant Lee as indorser, of a promissory note, in .words and figures following: “ $1000. Rochester, July 4,1851. Three months after date, for value received, we promise to pay to the order of Charles M. Lee, at the American Exchange Bank, New-York, one thousand dollars. (Signed) Bell & Goodman.” Indorsed “ Charles M. Lee.” .

This action was for the wrongful taking and converting of a •four horse post coach; the plaintiff claiming title by virtue of a chattel mortgage executed by one L. Seymour, and the defendants justifying the taking and conversion under a judgment in favor of the defendant Potter against Seymour, the mortgagor.

<p>This was an action for trespass upon land, in cutting and carrying away timber. The defendants, by their answer, denied the facts 'stated in the complaint, and alleged that they were the owners of the lot of land described in the complaint; also that the same belonged to one McCoy, and that they entered by his authority, license and permission. The cause was tried at the Steuben circuit, in November, 1851, before Justice Johnson and a jury. It was admitted that the title to the land was originally in Oliver Phelps and Nathaniel Gorham, and that Ephraim Patterson was one of the six original proprietors of the town of Painted Post, in which the lands lay, by purchase from Phelps and Gorham. The plaintiff produced and read in evidence the second part of a deed of lease and release from Ephraim Patterson to Ichabod Patterson, dated Nov. 4,1791, conveying the lands in question, with a covenant of general warranty, acknowledged July 1,_1817, and recorded July 21,1817. It was proved that a portion of the land had been in the possession of Ichabod Patterson, and his heirs,'claiming title to the whole, ever since the date of the deed. The plaintiffs- having closed their evidence respecting the title to the land, the defendants’ counsel objected that such proof of title was insufficient, on the ground that the deed from Ephraim Patterson to Ichabod Patterson was but a release, and purported to be founded upon a lease which was not produced. The objection was overruled. The plaintiffs proved the trespass as alleged in the complaint. The defendants claimed title to the land through Benjamin Eaton, and introduced evidence tending to show that Ichabod Patterson executed a deed of the lands to Eaton, in 1793, which deed was lost. The material parts of the testimony are stated in the opinion of the court; the evidence is therefore omitted, here.</p> <p>The justice charged the jury that there was no dispute that Ichabod Patterson had a good title to the land in dispute, by virtue of a conveyance from Ephraim Patterson by metes and bounds, and the only question was whether Ichabod Patterson had ever parted with his title: thus the burthen of proof of showing a conveyance by Ichabod Patterson lay on the defendants, and that they claimed under him; that land can only be conveyed by deed; that the deed must be under seal, and describe the land with sufficient certainty; that a deed describing lands as back lands would be void for uncertainty, unless there were some particular tract or parcel of land known and designated by that name; that it was not competent for a party not in the actual possession of land to establish a title by the mere admission of a former owner that he had executed a deed; that the fact of the execution and the delivery of the deed by such former owner must be established by some person who saw it executed and delivered, or by the existence at some time of such a deed, or by some other competent proof, independent of the mere admission of the former owners ; but that when such fact was established by other proof, the admission of such former owner was competent by way of corroborating the other evidence, and to make the particular piece and quantity conveyed more definite and certain; that unless the jury could find from the evidence before them that Ichabod Patterson had executed and delivered a conveyance of this identical piece of land in dispute, under seal, they must find a verdict for the plaintiffs; that in determining the question of fact, whether such deed had been executed or not, the jury were at liberty to take into consideration the surrounding circumstances, the subsequent occupancy by the heirs of Patterson of a portion, with a claim to the whole, back to the town line, for so great a length of time, unmolested, as testified to by Hubbell. But if the jury were satisfied from all the evidence in the case that Ichabod Patterson did convey the land by deed, under seal, as claimed by the defendants, the defendants were entitled to their verdicti The counsel for the defendants excepted to the charge of the said justice and every part thereof, and requested the court to charge the jury, that^to entitle a party claiming under a lost deed to recover, it is not necessary to show the metes and bounds mentioned in the deed, or how the land was described in it; if, from other proof, the jury are satisfied what land it conveyed, and that it conveyed the land in controversy ; that if the deed conveyed the back lands, either by that , or some other designation—and the lands known as back lands at the time were the lands north of the river farms, and between these farms and the town line—then the land conveyed was sufficiently certain; and if they covered the premises when the alleged trespass was committed, .then they should find for the defendants. That to prove the execution of a deed that was lost, and which had not been seen for many years, it was not necessary to prove by a witness that he remembered having seen a seal on it; that the word deed, imports an instrument under seal, and that proof by a witness that an instrument was executed, and intended and purported to convey lands, and proof of the declarations of Ichabod Patterson that he had conveyed his back lands to Eaton, was proper evidence for the jury to pass upon, and sufficient to authorize them to find that the instrument was under seal, if they believed the testimony of the witnesses. The said justice declined so to charge as to either of the points above mentioned, and on the contrary charged, that in order to make the conveyance valid, there must be a particular lot or tract conveyed, which can be identified by metes and bounds known as such lands, or some other designation contained in the deeds by which the lands intended could be identified; to which refusal to charge as requested, and the charge as given, the defendants’ counsel excepted.- The jury found a verdict for the plaintiffs.</p>

Motion by the defendant for a new trial. The action was brought for the seduction of the plaintiff’s daughter,-and was twice tried. On the first trial the plaintiff was nonsuited, and a new trial was granted. (See 15 Barb. 279.) On the second trial, at the Monroe circuit in October, 1853, the proof was similar to that introduced on the first trial.

This was an appeal by the plaintiff from a judgment rendered against him, for costs, at a special term of the court. The action was brought to recover damages occasioned by the construction and use of the defendants’ railroad on Washington street in Syracuse, and to restrain the defendants from the further use of the same.

<p>In an action to recover damages against the defendant for setting fire to, arid burning the plaintiff’s barn, the case turned almost entirely on circumstantial evidence, and it was a leading and material point to establish the description of a gray horse, supposed to have been ridden by the incendiary on the night of the fire. The plaintiff, being absent from home at the time of the fire, had no personal knowledge on the subject, but from information which he said was derived from people residing in the vicinity of the barn, he stated to several witnesses, soon after the fire, that he supposed the man who fired the barn rode a large, gray, logy-traveling horse, dapple gray behind; which description pointed to a certain horse known as the L. horse. On the trial the entire drift of the plaintiff’s evidence was to show that on the night in question the defendant had in his possession, and rode, in the direction of the fire, a gray mare belonging to one H., and the description given of her was very different from that of the h. horse. Held, that evidence to prove the making of the above statements by the plaintiff, soon after the fire, as to the size, color, and gait of the horse ridden by the incendiary, was competent, and was properly received, as tending to show that the description on which the witnesses finally rested was entirely an after thought, upon discovering the fact that on the night in question the H. mare was in the possession of the defendant. Admissions arid confessions of parties are not by any means conclusive, and not necessarily even prima facie evidence of the fact to which they relate.</p> <p>They may be controlled and overborne by evidence of a higher character, and more commanding weight; but when they relate to a matter material to the issue, they should be received, and the effect to be given to them is wholly with the jury.</p> <p>If it appears from1 the declarations themselves, or from evidence aliunde, that the party had no personal knowledge of the facts as to which the admission is made, then but little importance is to be attached to them, and the jury will be instructed accordingly.</p>

<p>In an action for slander, matter in mitigation can tie pleaded only When the det fendant alleges the truth of the matter charged as defamatory.</p> <p>In an action for slander, in charging the plaintiff with stealing and carrying' away the examination of S. G., taken by and deposited with t.,-a justice of the peace; the complaint did not allege that the examination was taken bv the justice upon any complaint, made or pending before him, against S. G.- or any other person; nor did the occasion or parpóse, or whether it was a civil or criminal p^o* _ ceeding, appear7 nofTEaTT-. had jurisdiction. Held, on demurrer, that the complaint was defective in substance; and that thisoBjection'wasnot obvjated by the new rule of pleading a judgment or determination of an officer of special jurisdiction. (Code, § 161.)</p> <p>Where, in an action for slander, the defendant justifies, and in so doing supplies^ the omission of a material fact in the complarñíTíE^wili cure the defect. But where the plaintiff demurs to one plea or answer, and the admission or averment is found in another, such admissionm^ averment will not avail the plaintiff as supplying the deficiencies in his complaint; the pleaTor answer containing the admission not being before the court,-on the demurrer.</p>

<p>One of several tenants in common, who possesses the entire premises, without any agreement with the others as to his possession, or any demand on their part to he allowed to enjoy the premises with him, is not liable to account to them, in an action brought by his co-tenants, for the use and occupation of the premises.</p>

This was an appeal by the defendant from a judgment rendered at a special term of the court, upon the verdict of a jury, in an action brought to recover the possession of real estate.

Motion by the defendant for a new trial. The action whs brought to recover the possession of personal property. On the trial at the circuit the jury found a verdict for the plaintiffs.

This was a motion on the part of the defendants to dissolve or modify an injunction. The plaintiff owned a dam, boom, and saw-mill on Raquette river, at what is called Raquetteville, near the Northern Railroad in the town of Potsdam, about five miles below Potsdam village, which they valued at more than $80,000.

This was a motion by the1 plaintiffs to set aside a verdict rendered at the circuit in favor of the defendant Russell Warren, and for a new trial, on a bill of exceptions. The action was brought against the defendants as indorsers of the following bill of exchange: “ $1000. Otsego, Nov. 20,1849.

<p>Payment of tbe calls made upon the capital stock of a railroad company may be enforced, by an action upon the undertaking of the stockholder, notwithstanding the statute authorizes a forfeiture of the stock, in case of nonpayment.</p> <p>The obligation of actual payment is created by a subscription to a capital stock, unless plainly excluded by thederms of the subscription.</p> <p>An individual does not become a member and stockholder of a railroad company under the general railroad act of 1848, by the act of subscribing a preliminary paper, previous to the organization of the company, by which he agrees to take the amount, in capital stock, placed against his name; without subsequently affixing his signature to the articles of association, or subscribing to the capital stock, in the books directed by statute to be opened after the corporation is formed.</p> <p>Nor can a recovery he had upon his subscription to such preliminary paper, for calls made upon the capital stock of the company. %</p> <p>The only modes prescribed by the statute for becoming a corporator and stockholder in a railroad company are, originally subscribing the articles óf association, or, after the company is incorporated by the filing of the articles, by subscribing to the capital stock in the books opened by commissioners.</p> <p>It is only the stockholder, created in one or the other of these modes, from whom the directors of a company formed under the act of 1848, are authorized to require payment.</p> <p>An informal subscription, or promise to take stock, prior to the signing of the articles of association, has no legal vitality, standing alone. It is a mere provisional act, inoperative unless pursued through the remaining forms of the statute.</p> <p>Of itself it secures no-right of membership,present or future, to the subscriber; and, it is not essential to a regular organization of the company, and imposes no legal obligation upon the company to issue stock to the amount named therein, or upon the subscriber, to pay for it.</p> <p>The general railroad law of 1848, confers no power to make conditional subscriptions ; and such a subscription is contrary to public policy.</p> <p>A condition, annexed to a subscription, which provides for a dividend by way of interest, to each paying subscriber, until the full completion of the road, is illegal and void, as contravening public policy.</p> <p>So of a condition imposing an unauthorized limitation upon the power to call m stock, conferred on the directors by the statute.</p>

This was an appeal by the defendants, from a judgment entered at the circuit. The action was brought to recover the amount of several calls made upon an alleged subscription by the defendants to the capital stock of the plaintiffs’ company. The action was tried by the court without a jury.

This action was brought to recover the amount claimed to be due from the defendant to the plaintiffs on the subscription by the defendant, upon the subscription or stock book of the plaintiffs, for six shares of the capital stock of the company, at $25 a share. The action was tried before Johnson, justice, at the Ontario circuit, on the 18th day of February, 1853.

This action was brought against the defendant to recover the sum of $300 and interest upon an instrument in writing, in the following words: “ Provided the Macedón and Victor plank road crosses at Brownsville and passes through by Conover’s, we agree to take stock to the amount set opposite our several names.” This paper was signed by a number of persons, with various amounts carried out opposite their names respectively, among which was the name of the defendant with the…

The action was brought to recover the amount due on a promissory note made by the defendants, Robert Fulton, Townley Hopkins and William 0. Sergeant, dated Lyons, August 17, 1847, for $125, payable to the plaintiff or bearer, one year after date, with use, and payable in the village of Lyons. The defendant Sergeant set up as a defense, in his answer, that at the time of the execution of the note he was an infant under the age of twenty-one years.

The action was upon a parol or verbal special agreement entered into between the parties in February, 1852, by which, as the complaint alleged, the defendant agreed to make 3000 scythe snaths for the plaintiff, agreeably to a certain pattern then in the possession of the defendant, and to make the forms or moulds on which to bend the snaths, and to make and complete them in time for the plaintiff to deliver them to purchasers before the commencement of the season for cutting…

<p>Where a warrant issued by the trustees of a school district, for the collection of a school tax, directs the collectorto collect the amount of the assessments, together with five cents on each dollar, for Ms fees, this is an excess of authority in the trustees, so far as relates to the fees of the collector, and the warrant is no protection to the collector; the irregularity being apparent upon the face of the warrant.</p> <p>For an erroneous charge of a justice to the jury, upon a question of law, the judgment wiE be reversed.</p> <p>The powers of a school district collector, derived from a warrant issued for the coEectionof a tax or rate biB, cease with the expiration of the time limited in the warrant, for the collection of the tax or rate biB, when his liabEity for not coBecting &c. becomes fixed; unless the warrant is renewed by the trustees.</p> <p>If he seBs property after the expiration of the time limited in the warrant, he acts without authority, and becomes a trespasser.</p>

This was an appeal by the defendant, from an order made at a special term, denying a motion to set aside the summons and complaint, for irregularity.

Motion by the defendant for a new trial, upon a bill of exceptions. The action was brought upon a written agreement, executed by the parties, on the 9th of January, 1851, by which the plaintiff agreed to sell and convey to the defendant a certain piece of land in the village of Farmersville, with a storehouse thereon; possession to be given on the first day of March then next.

Appeal by the defendant from a judgment entered at a special term. The action was upon a promissory note for $50.64, made by the defendant on the 12th day of Dec. 1850, payable to Joseph Lasher' on the 1st day of Nov. 1851, and assigned to the plaintiff: also upon a joint and several promissory note for $20, made by the defendant and Joseph Lasher on the 11th of March, 1850, payable to W. W. Wooster or bearer, and transferred to the plaintiff.

Appeal by the defendant from a judgment entered upon the report of a referee. The complaint alleged that on the 25th of August, 1849, the defendant made and delivered to one Peter S. S. McNeil his promissory note for $74, payable on the first day of January thereafter. That on the '10th day of July, 1852, said McNeil transferred said note to the plaintiff, and that the plaintiff was the owner of the note at the time of the commencement of this action.

This was an appeal, by the defendant, from a judgment of the Steuben county court. Bennett brought an action before a justice of the peace against Scutt, alleging in his complaint that the plaintiff, on or about the month of August, 1852, was the owner of about- 40 or 50 cords of wood, lying on the land of the defendant by his, the defendant’s, permission and consent.

Appeal by the defendants from a judgment entered at a special term. The complaint alleged that on the 20th of September, 1851, the plaintiff, being seised and posessed of a village lot in East Holley, he, in pursuance of an agreement previously made with the defendants, sold and conveyed to them a strip of said land fifty feet in width, running easterly and westerly through the same, for the purpose of constructing their railroad thereon.

This was an appeal, by the plaintiff, from a judgment of the county court of the county of Cayuga. The cause was commenced before a justice of the peace.

This was an appeal, by the defendants, from a decision made at a special term, overruling the demurrers of the defendants to the complaint. Held: at the time of his death, as a trustee, and which fund came into their hands as his executors.

This was an appeal from a judgment rendered by a justice of the peace of Hamilton county. The judge of that county being related to one of the parties certified that fact, and the appeal, into this court.

<p>When a statute requires service of a notice 'upon an individual, it means personal service; unless some other service is specified or indicated.</p> <p>Statutes in derogation of the common law, and by which authority is delegated to corporations, &c. to sell the real estate of the citizen, or acquire the title thereto, are to be strictly construed; and the authority is to be clearly shown, and strictly pursued.</p> <p>Thus, if a statute requires personal notice of a village ordinance to be given to the owner of lots affected by such ordinance, a notice by mail, though it reaches the party, is not a compliance with the statute.</p> <p>Where a statute requires that notice of a village ordinance shall be published, it is not sufficient to publish the ordinance itself, without any notice that it is an ordinance, passed by the trustees.</p> <p>Where the charter of a village provided that if any person, upon whose estate or property a tax should be assessed by the trustees, should neglect to pay the same, and there should be no personal property found whereon to levy, the collector should make return thereof to the trustees, who were then authorized to cause the estate, on which the tax was assessed, to be sold; Held, that the trustees were not authorized to sell land assessed, before a tax warrant had . been issued, and an attempt made to collect the tax, of the owner of the land.</p>

This was an appeal by the plaintiff from a judgment of the Niagara county court. The action was commenced in a justice’s court. The defendant put in an answer claiming that the title to real estate would come in question; whereupon the action was discontinued, and commenced in the county court, where it was tried by the court without a jury. Judgment was given for the. defendant, and the plaintiff appealed. The facts appear- in the opinion.

<p>Where, in an action by the purchaser, upon a sealed instrument, for the sale and purchase of land, the plaintiff alleges in his complaint, generally, payment by him of the whole purchase money, and upon that ground claims a conveyance from the defendant of the legal title, pursuant to the covenant contained in the written contract, and for the evidence of payment relies solely upon the presumption arising from the lapse of time, no evidence can be given, by the defendant, to repel that presumption, except the payment of some part of the consideration, or a written acknowledgment of a right of action, within twenty years.</p> <p>The section of the statute, relative to the presumption of payment, arising from lapse of time, in actions upon “ sealed instruments for the payment of money,” (2 R. S. 301, § 48,) includes sealed articles of agreement for the sale and purchase of land,</p>

This was a motion ‘to quash or supersede a certiorari. The writ was issued to remove summary proceedings, commenced before a justice of the peace, for the purpose of removing a tenant from possession.

This was an appeal from a judgment entered upon the report and decision of a referee. The facts sufficiently appear in the opinion of the court.

(a) The Tonawanda indian reservation was included in the sale to the Ogden company, so called—the pre-emptors—made by the Seneca nation of indians in 1838, and also as modified in 1842. The indians upon this reservation did not consent to the treaties or sale, and have constantly refused to acquiesce in them.

Motion by tbe defendant, for a new trial, upon exceptions. The cause was tried at the Chenango circuit in October, 1853, and a verdict was found for the plaintiff. The facts appearing on the trial are stated in the opinion of the court.-

<p>Motion by the plaintiff for a new trial, upon a bill of exceptions.</p>

The reporter has not been furnished with any papers, to enable him to make a fuller statement of the facts than that contained in the opinion of the court.

The complaint alleged that the plaintiffs in right of Phila Cheeney were lawfully possessed of, or entitled to, a certain farm in the town of New Berlin, Chenango county, formerly owned by Charles Harris, deceased, the father of said Phila, she being his only child. The plaintiffs claimed this farm in, fee, subject to a dower right therein of Betsey Pike, formerly the wife of Charles Harris, deceased.

<p>Motion by the defendant, to set aside an execution, on the grdurid of irregularity.</p>

<p>This was an application by the petitioner, who was a native of Scotland, to become a citizen of the United States.</p>

<p>The facts in this case are fully stated in the opinion of the court.</p>

<p>Free banks have authority to buy, at a discount, bonds, notes, or any evidence of ' the public debt of a state.</p> <p>They are not prohibited from giving their engagements on time, provided such engagements were not adapted, nor intended, to circulate as money.</p> <p>They are not bodies corporate, within the meaning of the constitution, or the general banking law.</p> <p>For are they subject to penal regulations involving forfeiture or imprisonment, enacted in reference to corporations proper.</p>

<p>Under the provision of the statute, declaring that where a trust shall he expressed in the instrument creating an estate, every sale, conveyance, or other act of the trustees, in contravention of the trust, shall be absolutely void, a mortgage, executed by trustees, upon the trust estate, would be an act contravening a trust to hold the estate and receive its rents and profits and pay them over, from time to time, to the cestui que trust.</p> <p>Such a mortgage being, when executed by the trustees on their own responsibility, absolutely void, would not be rendered valid by receiving the previous sanction of the court.</p> <p>By a marriage settlement, the greater portion of the wife’s real estate was given to her three brothers, their heirs and assigns forever, as trustees, to hold in trust for her; the rents and profits thereof to be subject to her order; and in case she should die before her husband, the property was to be held by them in trust for him, during his life, he maintaining, bringing up, and educating the children and lawful issue of the marriage, in a suitable manner, out of the rents and profits; and upon the husband’s death, the property was to be held in trust for his heirs by the wife. The wife died, leaving her husband, and a son, surviving her.</p> <p>Held, 1. That the marriage settlement created in the trustees an estate for the life, at least, of the husband, for his support, and the support of all his descendants by his wife, now bom or who might hereafter be born during his life.</p> <p>2. That neither the estate of the trustees, nor the interest of the beneficiaries, could be assigned or in any manner disposed of; except that the surplus of such rents and profits, beyond the sum necessary for the support and education of the cestuis que trust, would be liable in equity to the claims of their creditors, in the same manner as other personal property which cannot be reached by an execution at law.</p> <p>3. That the only estate in the land, absolutely and directly alienable, was the remainder in fee which, on the death of the wife, became defeasibly vested in her son, and which, subject to the incumbrance of the prior quasi life annuity —in no event exceeding half the value—might be'effectually mortgaged.</p>

This was an appeal by the defendant, from a judgment entered at a special term of the court, after a trial at the circuit.

This was an appeal by the plaintiff from a judgment entered •■against him at the circuit.

This was an appeal, by the plaintiff, from an order made at a special term, refusing a new trial. The plaintiff, in his complaint, claimed to recover the possession of real estate from which he was ousted by the defendant. He also claimed damages for a tortious entry upon the same premises, at the same time.

This was an appeal by the defendants from a judgment entered against them at a special term, upon the verdict of a jury.

Appeal by the defendant, from an order made at a special term, refusing a new trial in an action of trespass quare clausum fregit; verdict for the plaintiff.

Appeal by the plaintiff from a judgment of the Westchester county court. The suit was commenced before a justice of the peace, and was brought against the defendant for money had and received as agent of the plaintiff. The justice rendered a judgment in favor of the plaintiff, and the defendant appealed to the county court. The grounds of appeal were as follows : 1.

This action was commenced by Collins against Knapp, before a justice of the peace, for the recovery of the amount of a note given by Knapp to one John H. Otis, dated 29th March, 1849, for $45, payable nine months after date, which note was transferred to the plaintiff by said Otis, 2d June, 1851. The defense was payment to Otis before the transfer of the note. The cause was tried by a jury, and on their verdict a judgment was given for the plaintiff for §47.08.

The complaint in this cause alleged that Isaac Moser, late of the city of Brooklyn, died on the 18th of October, 1846, leaving a widow, and the defendant Samuel H. Moser and the plaintiffs, Susan Ann Bigelow, Eliza M. Green and Lydia K. Reynolds, and Isaac Moser, his only children and heirs at law, him surviving.

<p>This case came up on exceptions taken by the defendants on the trial at the circuit. The action was upon a policy of insurance issued by the defendants, upon the life of John C. Buck-bee, in the sum of $1000, for the benefit of his wife, the plaintiff. The policy contained a clause by which it was declared and agreed that in case the declaration made by the insured, and upon the faith of which the policy was issued, should be found to be fraudulent in any respect, or that there was any willful misrepresentation or concealment in said declaration, or in case the wife should not pay the premiums on or before the several days specified for the payment of the same, then the policy should be void and of no effect. ■ The policy was also made subject to the conditions and regulations printed on the back thereof, One of those conditions was that premiums of lapsed policies might be renewed at any time, on the production of satisfactory evidence as to the health of the insured, and payment in full for back premiums, with interest: a re-examination by a medical examiner of the company (at the expense of the insured) being in all cases indispensable, when thirty days should have expired. The defendants alleged, in their answer, that the quarterly premiums on the policy -were not duly paid to the company; that on the 10th of December, 1851, a premium of, $ 10 became due to the company which was not paid on or before that day, and that thereupon the policy became lapsed and void; that on the 16th of December application was made to the agent of the company, in blew-York, to renew the policy, when the applicant, in order to obtain such renewal, represented that the insured was then in good health ;■ upon the faith of which representation the quarterly premium was received by the agent and by him indorsed on the policy. That such representation was false and fraudulent; that the insured was not then in good health, but was suffering from a lingering disease and dangerously ill, and known to be so; by the plaintiff and the applicant; that the insured died, soon after, of such disease; and that the receipt and indorsement of the premium were procured by false and fraudulent representations, and were not binding on the defendants, &c. The facts appearing in evidence on the trial are mentioned in' the opinion of the court. The jury found a verdict for the plaintiff, for the sum insured, with interest.</p>

This was an appeal by the plaintiffs from a judgment entered upon the report of a referee. The opinion of the court states the material facts.

Motion by the plaintiffs for a new trial, upon exceptions. The action was brought by the plaintiffs as judgment creditors of the defendant Break, to enforce a judgment recovered against him, and to set aside an assignment made by him, of his property; to the defendants Allen and Paxson, in trust for the benefit of creditors.- The judge, at the circuit, directed that judgment be rendered against the defendant Break, and that the complaint be dismissed as to the defendants…

This was an appeal, by the defendants, from a judgment entered at a special term. In February, 1850; a prospectus, dated at Rouse’s Point, was issued, commencing as follows: “ Lake Champlain Beacon.

This was an action to recover of the defendants the price of a quantity of lard, sold and delivered to them by the plaintiffs, on the 23d of March, 1853.

This was an appeal from a decision made at a special term, on exceptions to a referee’s report. The action was to foreclose a mortgage executed by the defendants Underwood and wife to the plaintiff. Upon the sale of the mortgaged premises, in pursuance of the judgment, there were surplus moneys, after satisfying the mortgage, which were claimed by the judgment creditors of Underwood and also by Mrs. Underwood.

This was a motion for a mandamus to compel the board of supervisors of the county of Monroe to audit and allow the expenses incurred by the relators, in the year 1853. The motion was ordered to be heard, and was heard, at the general term in June, 1854, upon the affidavits on which the application was made, the return of the respondents and the answers thereto. The claim presented for allowance amounted to between four and five thousand dollars.

<p>Where a railroad corporation was sued before a justice of the peace, and the constable returned, upon the summons, “ personally served and by copy on E. L. W., a managing agent of the defendantsit was held, that this was sufficient to give the justice jurisdiction of the person; and that he was not bound to require further evidence of the official position or character of the agent on whom the process was served.</p> <p>Personal service upon the managing agent of a corporation, is personal service upon the corporation; and if the constable’s return shows such a service, the jurisdiction of the justice is established, and his judgment will he regular upon its face.</p> <p>The fact stated in the constable’s return cannot he contradicted., and shown to he false, collaterally, in another action, for the purpose of defeating the judgment and rendering parties enforcing it trespassers.</p> <p>The remedy of a defendant who is injured by the false return of a constable upon the summons, is to appeal, and allege errors of fact, or to prosecute the constable.</p>

This was an appeal from a decision of the surrogate of the county of Cayuga, admitting to probate an instrument purporting to be the last will and testament of Israel Mead deceased.

This action was by the assignee of a bond for the conveyance of real estate. The breach alleged was the refusal to convey or procure a conveyance. The facts are sufficiently stated in the opinion.

Appeal by the defendants, from a judgment of the Seneca county court. The action was commenced before a justice of the peace, to recover the value of a cow, run over and killed by the locomotive of the defendants, upon their railroad track. It appeared in evidence that the cow got upon the track from a lane which the railroad crossed.

<p>This was an action to recover the freight on a cargo of wheat, shipped on board the plaintiff’s vessel, at Detroit, under a bill of lading as follows:</p> <p>“ Detroit, Nov. 15,1853.</p> <p>Shipped in good order and condition, by H. N. Strong as agent, and. forwarder for account and risk of whom it may concern, on board the schooner Argo, whereof Wilcox is master, bound for Ogdensburgh, the following articles as here marked and described, to be delivered, in like good order and condition, as addressed in the margin, or to his or their assigns, or consignees, upon paying the freight and charges as noted below, the dangers of navigation excepted.” The property was consigned on the margin of the bill, “ Burbank & Langdon, Montpelier, Vt. Care Northern R. R. Co. N. Y.”</p> <p>; The master delivered the wheat to the defendants, in pursuance of the bill of lading. It was ascertained, in the process of delivery and measurement, that the wheat fell short in quantity, 175 bushels, of the amount mentioned in the bill of lading. The master demanded the amount of freight actually earned, upon the quantity of wheat delivered. The defendants refused payment as exacted, but offered to pay the balance of freight, after deducting the value of the wheat deficient. No adjustment was made of the 175 bushels, and no freight was paid. This action was brought to recover the freight earned upon the quantity of wheat delivered to the defendants. It was tried before a referee, upon whose report a judgment was entered in favor of the plaintiff, for the amount claimed.</p> <p>The defense rested mainly on two grounds, 1. That the defendants, by the terms of the bill of lading, were the mere agents of the owner of the property, and hence that no promise to pay the freight could be implied; and 2. That the defendants offered and tendered to the master of the vessel all that the plaintiff was entitled to, being the freight on the wheat delivered, less the value of the 175 bushels deficient.</p> <p>The defendants appealed.</p>

<p>Demurrer to complaint.</p> <p>This suit was brought by William and Peter Voorhies, upon two notes made by the firm of Baxter, Brady, Lent & Co., one of whom was H. W. Childs, since deceased. The complaint joined the executors of Childs, with the surviving partners of the firm, but stated no special grounds on which relief was-claimed against the executors.</p> <p>The executors demurred to the complaint, on the ground that it showed no cause of action against them. The demurrer was sustained at special term, and the complaint dismissed as to the executors of Childs. From this decision the plaintiffs appealed.</p>

Motion to set aside order of discontinuance. The defendant having answered the complaint in this cause setting up a counter-claim, the plaintiff éntered an exporte order of discontinuance; which the defendant moved at special term to set aside. The motion was denied pro forma for the purpose of presenting the question involved, to the general term in the first instance.

Appeal by the plaintiffs from a judgment entered upon the report of a referee. The action was brought to recover possession of fifty barrels of potashes. The referee, by his report, found the facts to be substantially the same as they are stated in the opinion of the court.

Appeal by the plaintiffs from a judgment entered at a special term, upon the report of a referee. The action was brought for the recovery of rent.

Appeal by the plaintiff from a judgment entered at a special term. The action was brought by the plaintiff as a judgment creditor of G-eorge Cook, to set aside an assignment made by the latter, on the 6th of May, 1851, for the benefit of his creditors, as fraudulent and void.

This was an appeal from a judgment rendered at a special term, on a demurrer to the answer of Cornell and Clark, two of the defendants.

This was an application by the trustees under the will of Levinus Clarkson, deceased, for the direction of the court in the disposition of certain bonds and certificates, received by the trustees, from investments made by them, under the will, on a case agreed upon between the parties and submitted under sec. 372 of the Code of Procedure.