Volume 19 — Barbour's New York Supreme Court Reports

THIS was a case submitted by the parties without action, under the 372d section of the code of procedure, upon the following case. The plaintiffs were private bankers, and were doing business as such at Toledo, in the state of Ohio, under the name and style of Bliss & Hubbard. The defendants were commission merchants, and at the times herein specified were doing business as such, under the name and style of Cutter & Coye, at Buffalo, in the state of New York.

IN January, 1846, the defendant conveyed to the plaintiffs certain lands in Cattaraugus county, by a deed containing a covenantfor quiet enjoyment. Previous to the sale, a part of the lands had been returned to the comptroller, and sold by him for unpaid taxes.

<p>Assessors are not liable, in a civil action, for assessing property which is by law-exempt from taxation.</p> <p>Per all the purposes of the assessment, assessors have jurisdiction over all the inhabitants of their town. The inquiry which they are required by the statute to make, preparatory to their assessment, is a judicial act; and no action can be maintained against them for any error which they may commit in the performance of that duty.</p>

THIS was an appeal from an order of the surrogate of the county of Washington, dismissing a petition for an account.

The action was brought against the defendant for negligence in not delivering a quantity of butter, in the city of New York, in a reasonable time,'by reason whereof the plaintiffs alleged they sustained damage, and lost great gains, which they would otherwise have made by the sale of the butter.

The plaintiff commenced an action upon contract for goods sold, and after obtaining an attachment and order for publication, applied for leave to amend his summons and complaint, so as to make the action “ substantially the common law action of trover and conversion” of the goods.

THIS was an appeal, by the defendant Harrison, from a judgment entered upon the report of a referee. On the 4th of November, 1838, an agreement was made between the defendants, James Harrison and James Glasgow, partners, under the name of Glasgow &• Harrison, and the defendant John Wilson, under which the firm advanced to Wilson a capital of $6000, to be laid out in land speculation; the profits of which were to be divided among them in a specified proportion.

THIS was an appeal by the defendant Mary P. Yarian from a judgment entered at a special term of the court. The complaint was filed by the plaintiff, as executor of Samuel Haskell deceased, for a construction of the last will and testament of the deceased.

APPEAL, by the plaintiff, from a judgment entered upon the report of a referee. The facts reported by the referee were, that on the 2d day of April, 1841, the plaintiff, and all of the defendants, including Thompson, Townsend and Putnam, since deceased, were engaged as partners in the carrying business on the Erie canal, under the name of “ The Troy and Erie Linethat the defendant Wm.

The action was upop. an. account. for carding .-wool, and fulling and dressing cloth, It appeared from the evidence that the account commenced several years before the trial. The wool and cloth were generally taken to the shop or factory by the defendant; sometimes by his brothers. The defendant was asked at the shop to whom the wool belonged, and he said to his mother. And the charges for the wool carding, &c. .were made to the defendant’s mother, Alida Milk.

The action was commenced in the county court, to recover several penalties incurred by the defendant for violations of the excise law, committed in the town of Tyrone: The complaint contained four, counts or statements of causes of action, each charging the defendant, being a resident of said town, with a violation of the law, in selling strong and spirituous liquor in said town, in quantities of less than five gallons at a time, to certain persons therein named, to be by…

<p>Whether a sum agreed to be paid as damages for the violation of an agreement shall be considered as liquidated damages, or only a penalty, depends upon the meaning and intent of the parties, as gathered from a full view of the provisions of the contract, the terms used to express such intent, and the peculiar circumstances of the subject matter of the agreement.</p> <p>An instrument in writing was executed by the defendants, reciting that C. A. H. and E. T; H. claimed to have an unliquidated claim and demand against H. T., and that H. T. had agreed to meet the said 0. A. H. at a place and on a time specified, for the purpose of endeavoring to settle the said claim or demand, n consideration of the premises, and of one dollar, the defendant promised and agreed to and with the said C. A. H. that H. T. should and would appear at the place, and on the day mentioned, and then submit a proposition for settlement of the said claim or demand, or "in default thereof, they, the obligors, bound and obliged themselves to the said 0. A. H. and E. T. H. to pay to them the sum of $10,000, to be applied on any such existing demand to that amount. And in case the obligors, or either of them, should appear at the place and at the time specified, with the said H. T., and submit a proposition for settlement, then the instrument should be void; otherwise to remain in full force and virtue.</p> <p>Held, 1. That the consideration was sufficient, independent of the nominal sum acknowledged to have been paid. • •</p> <p>2. That the intention of the parties was clear, that the obligors should pay a certain liquidated amount, to be applied in satisfaction to that extent, of the sum claimed to be due, in case the alleged debtor failed to appear and perform according to his agreement.</p> <p>3. That the agreement had none of the features of a mere penal obligation; nor was it an agreement to pay any less amount which might be found due, on settlement. But that the amount was fixed and certain, and its application, when paid, expressly provided for.</p> <p>4. That the defendants were sureties for the performance of the principal debtor, and the agreement operated as the settlement of a disputed claim, to the amount specified, the moment the condition was broken. And that, upon such breach occurring, the whole $10,000 was recoverable.</p> <p>5. That in an action upon such instrument, by an assignee, it was not necessary for the plaintiff to allege in his complaint the assignment to himself of the original claim; the assignment of the obligation drawing the original claim after it, to that extent, at all events.</p>

THIS was an action for a libel. The complaint charged the defendant with composing and publishing of and concerning the plaintiff a certain false, scandalous, malicious and defamatory libel, alleging the plaintiff’s character to be bad, and charging him with dishonesty and intemperance, and with being a gambler. The complaint set forth so much of the alleged libel as contained the above imputations, with the usual recitals and innuendos.

THIS action was originally commenced before a justice of the peace of Steuben county, and was discontinued upon an answer of title being interposed pursuant to §§ 55, 56 and 57 of the code.

THIS was an appeal by the plaintiff from a judgment entered upon the report of a referee.

THIS was an appeal by the plaintiff from a judgment entered upon the report of a referee.

THIS was an action to recover the possession of real estate. The cause was tried at the Monroe circuit in January, 1848, and the jildge nonsuited the plaintiff, who now moved for a new trial, upon exceptions. The facts are sufficiently set forth in the opinion of the court.

APPEAL, by the plaintiff, from a judgment entered upon the report of a referee. The following facts were found by the referee, viz : That a bond and mortgage, dated March 4th, 1848, were executed by the defendants, Morse & Wiggin, to lía than Babcock, the plaintiff, and one Gains 0.

APPEAL by the defendant from a judgment of the county court of Steuben county.

APPEAL by the defendant from a judgment entered upon the' report of a referee. The opinion of the court states the facts, and the legal questions arising thereon.

OTIOif by the defendant for a new trial, upon exceptions. The plaintiff, in his complaint, alleged that on the 10th day of May, 1849, Baxter Bowman, the defendant’s testator, in his lifetime, was the husband of Abigail Bowman; and at the request of said Baxter Bowman, the said Abigail Bowman and the infant children of the said Baxter boarded with and were kept by one Samuel Bowman, and by him, at the request of the said Baxter, were furnished and provided with food,…

APPEAL by the defendant from a judgment entered upon . the report of a referee.

mHIS was an appeal by the plaintiff from a judgment entered JL upon the report of a referee. Held: the defendant published and posted in many public places in Rochester, a card or handbill, containing a notice to the public, of the time and place that said fair would be held; and containing also, among other things, these words: “ Articles for exhibition should be carefully labeled with the owner’s name and residence, and may be…

nnHIS action was brought by several owners of land in what JL is called the Borne swamp, against the defendants as commissioners for draining the swamp, appointed by the act of April, 17,1854, (Laws of 1854, ch. 396,) to restrain their proceedings.

THIS action was commenced for the purpose of setting aside, as fraudulent and void, an assignment made by Patridge to one Fessenden, for the benefit of his creditors. The only question involved in the case was as to the proper construction, and the legal effect, of the assignment.

THIS was an appeal from the St. Lawrence county court. The action was originally commenced in a justice’s court, and on a plea of title being interposed, the cause was tranferred to the county court by virtue of the provisions of §§ 55 to 62 of the code. It was there tried by a jury. The complaint was as follows : “ Calvin H. Gould, John Sheldon and John McBride, ■ commissioners of highways of the town of Lisbon, against John Glass.

THIS was an appeal from an order made at a special term, overruling a demurrer. The action was on a note for $706.74, given by the defendant, dated on the 22d day of ¡November, 1853, and payable with interest to the plaintiff, or order, at the Bank of Malone, on the 15th day of May, 1854. The summons and complaint were dated the 24th of May, 1854.

The action was commenced by the respondents against the appellant, before a justice of the peace of the county of Queens, to recover damages for the obstruction of a public highway, in.the town of North Hempstead, in said county.

THIS was an appeal from a judgment entered upon the report of a referee. There were seven other actions brought against the defendants, by Schuyler Button, John McPhee, Horatio G. Clark, William W. Goodrich, Henry H. Perkins, Henry Douglass and Morris B. Andrews, respectively, for the same causes of action as those in controversy in this suit.

THIS was a certiorari to remove proceedings had before the defendants as referees, appointed by the county judge of Chautauque county to hear and determine an appeal of B. Y. Partridge and others from an order of the commissioners of highways of the town of Grerry, laying out a public highway in said town. The highway was laid through inclosed lands, and twelve freeholders had certified to its necessity.

<p>B., an aged lady, who was very iE and expected to die of her then sickness, caused two deeds, to her daughters, of portions of her real estate, to be prepared, and signed and acknowledged them, and handed them to T., instructing him to deliver them to the grantees respectively, after her dgath; adding at the same time, “ If I recover from my present sickness, I intend to retain the right to control the property myself, as long as I live.” She recovered, and lived nearly five years. Soon after her recovery she received back the deeds from T., and never delivered the deed to A., one of the grantees, but the latter obtained possession of it after tbe grantor’s death. Held, that the deed to A. was inoperative, for want of a delivery.</p>

<p>APPEAL by the defendant Nason, from a judgment entered . upon the report of a referee.</p>

<p>APPEAL from a judgment entered upon the report of referees. The facts are sufficiently stated in the opinion.</p>

MOTION by the defendant for a new trial, upon a case. The action was for the publication of a libel in the following words, contained in a postscript to a letter from Sisson & Chapman to Cromwell, Haight & Co.: “ Confidential. Had'to hold over a few days, for the accommodation of L. & H.” Sisson & Chapman were bankers, at Lyons, and the plaintiffs were merchant tailors, residing at the same place. Cromwell, Haight &.

APPEAL by the defendants from a judgment entered upon the report of a referee. The referee reported that he found the following facts: That the defendants made a contract with the Lake Ontario, Auburn and New York Rail Road Company, to build a portion of their road. By this contract the defendants agreed to pay their laborers and indemnify the rail road company, who might retain, under the direction of the engineer, enough to pay them.

MOTION by the plaintiff for judgment, upon a ease made at the circuit. The action was brought to recover damages for an alleged trespass committed by the defendants upon the crops, grass and soil of the plaintiff, situate in the town of Perrinton, Monroe county.

The action was brought to recover a steam engine and boiler, with the machinery for operating the same, which the plaintiff contracted to build for the defendant, and put into a steamboat, to be built by the defendant, at the city of Eochester.

The action was brought for an assault and battery and false imprisonment. The defendants justified under an order made by the county judge of Herkimer county, on the 10th of October, 1851, for the arrest of the plaintiff Landt, under the non-imprisonment act.

A PPE AL by the plaintiffs from a judgment entered at a special -il. term of the court.

A PPEAL from the Livingston county court. Coller sued Shepard in a justice’s court, to recover pay for. four boxes of raisins and one box of tobacco, that came to Shepard’s possession from one George W. Mitchell, under the following circumstances : Coller was a merchant at Scottsburgh, and was owner of the goods in question, which goods, in April, 1850, were at Canandaigua, where they had been brought by an express company.

The plaintiff by his complaint claimed that the defendant on or about the first of April, 1851, entered into a contract with the plaintiff and Samuel C. Holden, by which the defendants employed the plaintiff and Holden to construct the defendants’ rail road from Batavia to Buffalo, (except furnishing ties, laying down of the rails and fencing,) and that the defendants agreed to pay for the same, a certain price, which was specified in the complaint.

APPEAL by the defendant, from a judgment entered upon the report-of a referee. The action was brought to recover for burning a kiln of brick for the defendant, under a written agreement, by which the plaintiff covenanted and agreed to make for the defendant a certain quantity of brick, during the brick-making season of 1853, at $1.50 per thousand-; the payments to be made as fast as a kiln was burned.

MOTION by the defendants for a new trial, upon exceptions taken at the trial. The action was brought against the defendants jointly for wrongfully detaining personal property from the possession of the plaintiff. There was no claim for a wrongful taking. The property consisted of mill stones, conveyers, water wheels, saws, and other machinery belonging to and used in, the Bates mills, at the foot of Canandaigua lake.

The action was commenced in the county court, and was for an assault and battery committed by the defendant, Catharine Bill, upon the plaintiff, Mary Wagener. The answer of the defendants denied the assault and battery charged, and secondly, set up the defense of son assault demesne.

MOTION on the part of the plaintiff, for judgment upon a verdict in his favor, taken subject to the opinion of the court upon a case. The. action was brought to recover the amount due upon a promissory note in the words and figures following: “ Buffalo, July 10,1851. Ten months after date, I, the subscriber, of Buffalo, state of New York, promise to pay to the order of De Witt, Dudley &.

The action was brought upon a paroi agreement between the plaintiff and the defendants, whereby, as the first count of the complaint stated, the, plaintiff agreed to let and rent to the defendants a certain farm ■ of about one hundred acres, situated in the town of Painted Post, in the county of Steuben, for one year commencing the first day of April, 1851.

APPEAL by the defendant from a judgment of the Cayuga county court, affirming the judgment of a justice of the peace.

ÁPPEAL from a judgment entered upon the report of a referee. The facts are sufficiently stated in the opinion of the court.

The action before the justice was brought to recover several penalties for violations of the excise law. The facts are sufficiently stated in the opinion of the court.

<p>Persons whose business is, and is repivsented^by.&emJxUlie^Wlilí0 be, to receive, convey and deliver money, bank bills and goods, of those who choose to l employ them, for a compensation, are common carriers, and responsible as i such for the safe delivery of property intrusted to them.</p> <p>The cashier of the Bank of Amsterdam delivered to the defendants, at that place, a package of bank- notes belonging to the plaintiffs and directed to them at “Port Gibson, care of Dawley, express agent, Vienna.” The defendants were an express company, doing business on the line of the Central Rail Road, from New York to Buffalo. They had an office at Vienna, and Dawley was their agent there; but they had no agent at Port Gibson and were not0in the habit of sending money packages to that place. They charged freight on the package in question only from Amsterdam to Vienna. The package was received by Dawley at Vienna, and his clerk delivered the same to the driver of a stage running from Vienna to Port Gibson, to be carried to the plaintiffs at the latter place, but the package was lost by the driver, and never delivered.</p> <p>Reid, 1. That the fair construction of the direction upon the package was that the package should, on its arrival at Vienna, be committed to the care of Dawley, not as express agent, but as an agent of the plaintiffs, to receive, and forward, the package to them.</p> <p>2. That having carried the package to Vienna and delivered it to Dawley, the duty of the defendants was performed, and their liability at an end; and that theywere not responsible for the subsequent loss of the package between Vienna and Port Gibson.</p> <p>8. That the fact that the charges were unpaid, and that the defendants therefore had aright to detain the package until they were paid, did not alter the case; inasmuch as they had the right to waive the lien, and it was evident that they did so, on delivering the package to Dawley.</p>

<p>S., being in possession of about 23 acres of land, which he held under a contract for the purchase thereof from W., entered into an agreement with M., reciting that M. had purchased the premises, and agreeing that S. should hold and keep possession of the house, and one acre of land, a part of said premises, until M. should pay to S., or his wife in case she survived him, $300, which M. agreed to pay, on taking possession of the house and acre of land. Held, that under this agreement M. could not be called upon to pay the $300, until he took possession, and that it was at his election when he would take possession, and that consequently there was no existing indebtedness from M. to S. upon which a creditor of S. could obtain a lien by commencing proceedings supplementary to execution, before a county judge, and obtaining an order for the examination of S. and for a discovery and an injunction.</p> <p>Held also, that M. could-not be deprived of his rights, under his contract with S., by an order made in proceedings to which he was not a party; and that consequently, he was not bound by the injunction issued by the county judge, although it was served upon him; inasmuch as it was not directed to him, and he was not a party to it, nor to the proceedings in which it was issued.</p> <p>It was therefore held further, that M. had a right after the commencement of the proceedings before the county judge, to pay the amount due upon his contract with S. and accept a surrender of possession of the premises.</p> <p>The sections of the code, relative to proceedings supplementary to execution, were intended to be complete, and to afford a judgment creditor instituting proceedings under them the full benefit, and to put him in possession of all the rights, which the chapter embracing them recognizes, creates or regulates. Hence, an action to recover a debt due to the judgment debtor, from a third person, or to reach property in his possession alleged to belong to the judgment debtor, can only be brought by the receiver appointed under those provisions of the code. It cannot be instituted by the judgment creditor himself.</p>

DEMURRER to complaint. The complaint alleged that the plaintiff was a poor person, and was old and decrepid, so as to be unable by work to maintain himself and those for whom he was bound to provide; that before and on the 15th day of October, 1850, the defendant was and still is a corporation, and was the owner of a rail road between the cities of Rochester and Buffalo, engaged in the business of transporting persons and property by railway between the said cities of…

MOTION to dissolve an injunction. The defendants were incorporated in 1823 “ for the purpose of cutting a canal and making a complete slack water navigation, between the Delaware and Hudson rivers.” By their charter, they were authorized “ to make, construct and forever maintain, a canal or slack water navigation of suitable width, depth and dimensions, to be determined by the corporation,” also “ all necessary locks, aqueducts, culverts, dams, waste weirs,” Under this…

MOTION to vacate or modify an injunction. The plaintiff stated in Ms complaint that he was the owner of a piece of ground in the city of Hudson, bounded east by Second street, south by Rope alley, north by Strawberry alley, and west by land owned by the defendant; that the lot was about 220 feet in width on Second street, and extended westerly two hundred, feet; 'that it was purchased'by the plaintiff of the defendant on the 23d of June 1846 ; that northerly of this lot, on…

THIS action was tried at the Greene circuit, in April 1853, before-Mr. Justice Wright. It appeared upon the trial, that, on the first day of December, 1851, the parties entered into an agreement, whereby the plaintiff was to sell to the defendant, and the defendant was to buy of the plaintiff, a farm.

THIS was an action of assumpsit, tried at the Rensselaer circuit in December, 1849, before Justice Harris.

THIS action was tried at the Rensselaer circuit in April, 1852, before Mr. Justice Parker, without a jury. The plaintiff, as assignee of Baker & Cameron, claimed to recover for moneys paid by that firm as the acceptors of several drafts drawn upon them by the defendant in the years 1844 and 1845. Some of the drafts were payable to the order of Urial Driggs, and others to the order of Driggs and Baker.

THIS action was tried at the Greene circuit, in April, 1853, before Mr. Justice Weight. The plaintiff, who was a constable of the town of Goxsackie, held two executions, issued by a justice of the peace, against George Gan, and in favor of Lewis Raymond. These executions had been levied upon property sufficient to satisfy the amount due thereon, which was upwards of $300.

THIS ivas an appeal from a judgment rendered at a special term, after a trial at the Warren county circuit before Justice Willard, without a jury. No proof was given by -either party.

THIS was an action brought against the defendant for the purpose of obtaining a perpetual injunction to prevent his closing up a road through his land, from the highway known as King street, in the town of Bye in the county of Westchester, to the plaintiffs’ station house at Port Chester.

THIS action was tried at the Albany circuit, in September, 1852, before Mr. Justice Harris. The plaintiff claimed to recover upon a contract executed by the defendant’s intestate, as follows: “ Whereas it is understood that I, Gilbert Hooker, of Clyde, Wayne Co., N. Y., a pensioner of the United States, under the act of.

THIS was an appeal from a judgment entered upon the report of a referee. The action was upon a policy of insurance, bearing date the 9th of October, 1850, and executed by the defendants, whereby they agreed to insure the plaintiff, to the amount of $3000, on movable machinery contained in a mill described in the application of the plaintiff for insurance, for one year, commencing on the 28th of September.

The action was brought upon a policy of insurance executed by the defendants, on the first day of November, 1850, whereby the defendants agreed to insure Lewis Fellows and George Corps against loss by fire, to the amount of $3000 upon certain personal property described in the application for such insurance. The policy, on the 27th of February, 1851, was assigned to the plaintiffs. The defendants gave their assent to the assignment.

THIS was an appeal from a decree of the surrogate of Sullivan county, admitting to probate the last will and testament of Amos Tyler, deceased. The testator died on the 18th day of October, 1853, leaving a will, by which he gave all his property to his nine children, some of whom were alleged to be illegitimate. The appellant Paul A. Tyler, and the respondent Sylvester Mapes, a son in law, were nominated in the will as executors.

The plaintiff, Archibald McLean, sued the defendants for taking and carrying away some cattle. The defendants justified under a judgment for between $30 and $40, in favor of one Stearns, against William McLean, the father of the plaintiff, rendered before a justice in February,. 1851, and an execution issued thereon and levied upon the cattle soon after.

The facts which appeared upon the trial in the court below, were as follows: In October, 1851, the defendant, having procured a plan and specification of three buildings to be prepared, invited the plaintiff and several other builders to submit estimates for performing the work and furnishing materials.

The action was upon a promissory note, against makers and indorsers. It appeared upon the trial that the note, having become due, and having been protested for nonpayment, was placed in the hands of the attorney of the plaintiffs for collection. Before a suit was commenced, the makers enclosed in a letter, and forwarded to the plaintiffs’ cashier, a sum sufficient to pay the note and the fees of protest.

<p>The power to send a case hack, for the consideration of a second jury, on the ground that the damages awarded by the first are excessive, has been exercised as long as the courts have exercised the power of granting new trials for any cause.</p> <p>When the damages found by the jury are either so large, or so small, as to force upon the mind the conviction that, by some means, the jury have acted under the influence of a perverted judgment, it is the duty of the court, in the exercise of a sound judicial discretion, to grant a new trial.</p> <p>Where, by means of a collision which occurred upon the defendants’ rail road, the plaintiff, who was a passenger at the time, had his leg broken, between the kneé and the oncle, and he received some flesh wounds upon the head, and was in consequence confined to his house about five months, and was obliged to go on crutches for three or four months afterwards, and the injured leg was left somewhat shorter than the other, but it appeared that at the time of the trial the muscles were well developed, and the plaintiff was restored to his wonted health; it was held that a verdict for $6000 damages was excessive; and a new trial was ordered, unless the plaintiff would stipulate to reduce the verdict to $4000.</p>

grant a mandamus against the defendant. The material facts are stated in the following opinion, delivered at the special term.

<p>THREE suits in replevin (or for the delivery of personal prop-' erty) brought in February, 1852, to recover 16,000 hemlock boards, were consolidated by stipulation; and were tried before Mr. Justice Cady, at the Saratoga circuit, in October, 1852. The logs, from which the timber was sawed, came from a lot in Kayaderosseras patent, to which George W. Bancker, at the time of his death, had title, (unless it had passed by a sheriff’s sale hereafter mentioned.) One Ralph testified, that he went on to the lot in 1833, and occupied it till May, 1850, and left his “ things” there till September, 1850: That when he went into possession, he expected G. W. Bancker owned it, and supposed so until May, 1844. That when he went on to it he had & quitclaim deed from one Judson, under which he occupied until he took a contract from Bancker. That he cleared about ten acres, and there was a log house and barn on it when he left it. It was proved that on the 9th of May, 1848, he and G. W. Bancker entered into a contract by which Bancker agreed to sell the land to him upon his paying $2 per acre, and he was to pay $50 on the 15th of June, 1848. By the terms of the contract he was not to destroy or sell any timber until he had made the first payment and Bancker had ascertained the true quantity of acres, which would be as soon as Ralph made the first payment. There were over 240 acres of the land agreed to be conveyed; and after the first payment, Ralph was to pay $50 annually and interest. There was nothing in the contract in relation to possession. Ralph further testified that he never made the first payment, and in May, 1850, sold to H. N. Houghton. In May, 1844, or 5, John Brotherson came to his house on the lot, and (¿aimed to own the lot, and said he had a good deed from the Banckers. Ralph doubted, but on his coming again, gave him an agreement to pay rent one year; but he refused to pay when Brotherson came again, and Brotherson threatened to put him off; but he refused to go, and afterwards made the contract with Bancker.</p> <p>Houghton testified that he purchased the contract between Ralph and Bancker; that he took a quitclaim deed from Ralph, and his contract. That he gave a quitclaim deed to J, P. Conkling, to whom he showed the contract between Ralph and Bancker, who handed it back to him. That Conkling was the son of Col. Conkling, to whom the deed was delivered, in the presence of his son. That witness had the contract about a month in his possession. That Ralph told him where the key was and he went up and gave Conkling permission to go on to the lot. That he got $170 for the lot. That he did not offer to pay up the contract. He was told there was a lawsuit about it, and he would get no title.</p> <p>H. T. Jenkins testified that the logs (from which it appeared the lumber in question was made) were taken from this lot in the winter of 1850 and 1851, and in the spring of 1851, by said H. T. Jenkins and his brother, by order of Col. Conk-ling. That the plaintiffs were to pay Conkling for the logs, of which there were 1100, and they finished drawing in the latter part of March. That the witness and his brother were to take the logs of Col. Conkling and were to get them into a mill called Effner’s mill, and pay Conkling for them, $10 per hundred. They to have all that came from the logs except $10. That the witness and his brother sold them to the plaintiffs in the winter of 1850, and to be delivered in the river in the first place ; and the witness and his brother then consented to deliver them at Effner’s mill, at $32.50 per hundred ; $10 of which was to be paid to Conkling, and the rest to the Jenkinses, who drew their pay while at work. One Effner testified that he sawed the logs for the plaintiffs, in the winter and spring of 1851. That the agreement to saw, was made with the plaintiffs in 1850, and the logs all drawn by Jenkins by the last of March or first of April 1851, and all sawed as soon as May or June of that year; and.were drawn away in the winter of 1852. That when he made this contract for sawing, it was to saw the logs the Jenkinses were then delivering, and he understood the logs were to come from the Ralph lot. It was further proved that a large quantity of the lumber was drawn away by the defendants to Saratoga Springs, to be there shipped by rail road to Troy. Some' of it was taken by them from Effner’s mill yard, and some from a place to which the plaintiffs had drawn it. A witness also stated that the plaintiffs said “ they had the logs from Jenkins, or he got them in for them.”</p> <p>G. W. Bancker died in March 1851, and Evart A. Bancker was his heir at law; and one McGregor became the administrator of the former. In November, 1851, E. A. Bancker offered a deed to Col. Conkling, who refused to take it or make payment ; and on the 13th of November, 1851, Bancker gave a deed of the lot to the defendant Pulling; which included, in terms, all the logs and timber lying on the lot. On the 22d of November, 1851, Pulling sold an undivided moiety of the lot to the defendant Saunders. The defendants offered in evidence a memorandum of sale,. including the logs, boards, lumber &c. in question, purporting to be from E. A. Bancker, by his attorney, to the defendants, dated November 13th, 1851; but no proof of his authority was given, and the memorandum was rejected, and the defendants excepted. The defendants obtained leave to amend their answer so as to set up title to the property in the administrator of G. W. Bancker. The defendants offered in evidence a bill of sale, dated October 2d, 1852, and duly acknowledged, from said administrator to the defendants, of the logs and boards &c. made from trees taken from the land of G. W. Bancker contracted by him to be sold to Ralph. This was objected to, and rejected by the court, and defendants excepted. The plaintiffs gave in evidence a judgment for costs, against G. W. and E. A. Bancker in an ejectment suit for lands m the county of Fulton, brought by the Banckers against two persons by the name of McNiel, filed February 13th, 1845; (but there was no evidence that it was docketed in Saratoga county ;) and an execution thereon to the sheriff of the county of Saratoga ; and proved a sale of this lot in August, 1846, to one Robert Whillis ; and a deed to him by the sheriff. The defendants objected to this evidence, that the judgment had not been docketed in the county of Saratoga; that no authority to commence the suit had been shown; and that the defendants and those under whom they claimed are estopped from denying the title of the plaintiff. The court overruled the objection, and the defendants excepted. The defendants offered to show that the attorneys for the plaintiffs in that suit had no other authority, except that the father of John Brotherson, one of them, had power to commence suits, under a condition .that he should pay all costs that might be adjudged against them; and that J. Brotherson knew of the condition, and procured the execution to be issued and a sale to be made to Whillis as his agent and for his benefit; all without the knowledge of the Banckers ; and that Bancker, when he heard of it, in May 1851, commenced a suit against J. Brotherson and his father for fraud in procuring such sale ; and a decree was entered in November, 1851, setting aside the sheriff’s deed to Whillis, and requiring' J. Brotherson to release all claim to the lot. This evidence was objected to and rejected, and the defendants excepted. J. Brotherson testified that he gave a lease to Ralph, in May, 1845, and that Ralph occupied under him until May 9th, 1848. The plaintiffs offered to prove the value of the lumber in Troy, in April, 1852. The defendants objected that the value must be taken, in January 1852, when the sheriff took the property in this suit, and at Saratoga Springs where it was admitted the property was replevied. The objection was overruled and the testimony received and the defendants excepted.</p> <p>In the course of the trial, the defendants made proof of the title of Gr. W. Bancker to the land, by a descent from one of the original patentees.</p> <p>The court charged the jury that Bancker had shown title to the lot, and that all persons coming into possession under the contract between Ralph and Bancker were estopped to deny Bancker’s title, and stood in the same situation as Ralph, and that the plaintiff, dealing with Conkling and Jenkins, would stand in the same situation as if dealing with Ralph. And that if Ralph had cut the logs and sold them to the plaintiff, Gr. W. Bancker could not maintain an action against the plaintiff for boards, but must be confined to his action against Ralph, if they believed the plaintiff purchased without knowing of Ralph’s contract. That Bancker, by allowing Ralph to occupy the lot, held- him out to the world as owner; and that Ralph’s possession of the lot was evidence to all the world, except Bancker, of the true ownership ; and that Ralph’s possession was such that the plaintiffs had a right to regard him as owner; and that the plaintiffs had such right in dealing with Ralph for the logs. That the defendants could not show title out of the plaintiff; that they were not in a situation to do so. That, although the plaintiff’s title might be defective, and the administrator’s title relate back to the death of Gr. W. Bancker, still the defendants could not defend themselves against this action, because they had deprived the plaintiff of the possession of the property, and had shown no connection with the title of the administrators; that if the defendants should succeed in defeating this action, the plaintiff might be still liable to the administrators of Bancker for the value of the logs. That the defendants, having unlawfully taken the boards, must show the exact quantity taken, and it did not lie upon the plaintiff to show the quantity taken. The defendants excepted, and also asked the court to charge, that the plaintiff, in purchasing the logs, were bound to know under what title Ralph occupied; also that neither Ralph nor Conkling, or any other person, could acquire title to timber from the occupant, while the - occupant held under the contract of Bancker with Ralph; also, that if Conkling cut the timber as a willful trespasser, and sold the same to the plaintiff for Jenkins, such sale did not divest Bancker, as owner, of his title to the timber, logs or boards; and that Bancker’s title to the boards, so long as the latter could be identified as cut from the same logs, remained unimpaired; that by the production of the letters of administration the title to the boards was shown to be out of the plaintiff; and that the plaintiff, to sustain his title, was bound to show that he purchased without knowledge of Ralph’s rights, and that the burden of proof lay on the plaintiff. The court denied each of these requests as they were made respectively, and the defendants. excepted.</p> <p>The jury found a verdict for plaintiff, and assessed the value of the property at $1350, for which sum and costs the plaintiff entered up judgment, and the defendants appealed.</p> <p>.7. Sanders and J Ellsworth, for the defendants. .</p>

<p>The proprietors of land lying upon Lake Champlain, unless it is otherwise expressed in the grants, own to low water mark; subject to a servitude to the public, for the purposes of navigation, up to high water mark.</p> <p>The proprietor of land on the bank of a river, where the tide flows, owns to high watermark; but above tide water, he takes usque ad filwm aquee; except, perhaps, when the stream is a navigable boundary. This rule, however, is not applicable to our North American lakes.</p> <p>A grant of land under water, opposite and adjacent to the land of another, made by the commissioners of the land office, is void.</p> <p>Recitals in a deed are evidence against the grantee. But they work no estoppel in a deed poll; nor where the allegations in the instrument are immaterial to the contract therein contained; nor where the action is not founded on the deed, but is wholly collateral to it.</p> <p>Where a part of a lot is excepted out of a deed, the grantee is not estopped from setting up title afterwards acquired, to the excepted piece, and through a source hostile to the title of the grantor; although the clause containing the exception declares such piece “ remains vested ” in the grantor.</p> <p>Forty years’ possession is necessary to bar a suit by the people to recover real estate, where such possession commenced before 1830,'although the suit was commenced after 1850.</p> <p>And the rule is the same where the suit is brought by a grantee of the state, if, during the time relied upon, the title was in the state; and, it seems, in such cases, the statute should he pleaded.</p> <p>Ejectment will lie for land, under water, granted by the commissioners of the land office for the purpose of erecting .docks &e., for commercial purposes.</p> <p>But ejectment for entering and unlawfully withholding the possession of land, will not lie against a person who is not in possession himself or hy his servant, though he has given a lease of it, and it is occupied hy the lessee.</p>

<p>THIS was an action of ejectment for the recovery of the undivided two thirds of lot Ho. 56, of 80 acres, situated in the Canadian Refugee Tract, in the town of Champlain, Clinton county. The suit was commenced 19th December, 1851. The defendant Sarachon, who did not appear, was tenant, at the time, under the defendant Rawdon. In 1819 one Joseph Bin-don was seised in fee of the premises in question, and duly made and executed the following will. “ In the name of God, Amen. I, Joseph Bindon, of the town of Champlain, in the county of Clinton and state of Hew York, being weak in body but of sound memory,' (blessed be God,) do make and publish this my last will and testament in the manner following, that is to say: first) I give and bequeath to my sons George Bindon, Joseph Bindon, and my-faithful housekeeper Jane McCready, all that messuage or tenement in which I now live, with all the household furniture, stock of cattle and buildings, and the land known by number fifty-six, containing eighty acres, to them and their heirs’ for their use, improvement and equal emolument during their natural lives, and after their decease, to the heirs of John Bill of the city of Hew York, chairmaker. Also, I give and bequeath to my sons George Bindon and Joseph Bin-don, an equal share to- each of them forever, all the rest and residue of my real and personal estate I may be seised and in possession, and I make my friends Doctor James W. Wood, Daniel T. Taylor, Esq. and Ezra Thurber, Esq. of the town of Champlain, my executors of this my will, to take and see the same performed according to my true intent and meaning. •</p> <p>In witness whereof, I, the said Joseph Bindon, have to this, my last will and testament, set my hand and seal this fifteenth day of Oct. in the year of our Lord one thousand eight hundred and nineteen.”</p> <p>The testator died in May, 1832, and the will was duly proved as a will of real and personal estate, 31st August, 1832. The George Bindon mentioned in the will died intestate in 1825, without issue. Jane McCready also died intestate, October, 1843, without issue. Joseph Bindon jr. was still alive but without issue.. At the date of the will, the said John Bill, mentioned therein, was a resident of the city of New York. He died intestate in 1826, leaving four children, his heirs at law. The plaintiff, Mrs. Charlotte Batey, was one of his daughters ; and the plaintiffs Charlotte Ann Campbell, Mary Cook and George F. Cook, were heirs of another daughter, Almira, who married William Cook and died intestate in New York, in November, 1837. Benjamin, a son, died intestate in New York, in 1828, without issue; and Julia Ann, the 4th child, died intestate in 1848, leaving no children.</p> <p>The defendant Rawdon claimed title to the premises under a deed from Freeman Rawdon,. assignee in trust for the benefit of the creditors of Nathan Webb and Ralph Rawdon. Said Nathan Webb obtained a judgment, which was signed March 2d, 1829, for $475.26 damages and $51.31 costs, against Joseph Bindon senior, which judgment, after the death of Joseph Bindon senior, was revived by scire facias, and judgment obtained and execution issued thereon, 2d November, 1833, by virtue of which a levy was made on the premises in question, and a deed was given of them by the sheriff to said Nathan Webb, dated April, 15th, 1835, N. Webb being the purchaser. N. Webb and R. Rawdon, after several intermediate conveyances of the premises, made an assignment of all theirproperty real and personal, and the property of each of them, including these premises, to Freeman Rawdon, for the benefit of creditors. Freeman deeded to the defendant in September, 1848.</p> <p>The writ of scire facias, after reciting that Joseph Bindon had devised his lands to “his sons George Bindon (now deceased,) Joseph Bindon and Jane McCready his housekeeper and their heirs, and after their decease then to the heirs of John Bill, chairmaker, of the city of New York,” commanded the sheriff to make service upon “the said Joseph Bindon and Jane McCready, survivors of George Bindon, and the heirs of John Bill.” The return of the deputy sheriff stated that he “gave notice and made known to Joseph Bindon and Jane McCready to appear before the said justices of the supreme court of' judicature aforesaid, at the day and place in the said writ contained, to show cause as by the said writ required, and as the sheriff, is therein commanded, and served on them copies of said writ of scire facias by delivering the same personally to the said Joseph and Jane and also further returned that the said George Bindon was dead, and the heirs of John Bill had not any thing by which he could give them notice, and could not be found in his bailiwick.</p> <p>The premises were proved to be worth $150 a year.</p> <p>The cause was tried at the Clinton circuit, in July, 1852, before the Hon. C. L. Allen, a jury having been waived by the parties. The above facts appeared in evidence; and as conclusions of law from the said facts the judge found,</p> <p>1st. That by the will Joseph Bindon junior, George Bin-don and Jane McCready, were made tenants in common, for life in said lot No. 56, and that the heirs of the said John Bill were entitled to said lot in fee upon the death of the said devisees, and to the undivided share of each devisee, at the time of his or her death. That the said George Bindon having died before the testator, the life estate of the said George never took effect, and that the plaintiffs were seised in fee of and entitled to the one undivided third part of said lot No. 56, according to their respective rights and interests therein as hereafter specified, at the death of the testator on the 9th day of May, 1832, and that the said plaintiffs were seised in fee of and entitled to another undivided third part of the said lot No. 56, at the death of Jane McCready in October, 1843. 2d. That Nathan Webb acquired no title or interest in said lot No. 56, by virtue of the sheriff’s sale on the execution issued upon the judgment of revival by scire facias, other than the life estate of Joseph Bindon and Jane McCready, and the defendant under his title acquired no greater interest, but was entitled to the possession of one undivided third part of said lot during the life of the said Joseph Bindon, junior. 8d. That the plaintiffs were entitled to recover in this action the possession of two equal undivided third parts of said lot No. 56, according to their respective rights therein, to wit: the said Charlotte Batey one half of the equal undivided third part of said lot No. 56, and the remaining plaintiffs each "one equal undivided third part of one half of two equal undivided third parts of said lot No. 56, and that said plaintiffs were entitled to recover against the said defendant the sum of $600, for the use of said equal two undivided third parts of said lot No. 56, to be divided among them according to their respetivo interests above specified. From the judgment entered in accordance with the above conclusions the defendants appealed.</p>

<p>THIS was an appeal from a. judgment entered upon the report of a referee. Hugh McMasters died in Sept. 1837, leaving six children, and the children of two sons, Hugh and Thomas, who were then dead, and possessed of a farm and personal estate. By his will he gave to his wife, absolutely, all the personal property which belonged to her when he married her ; also the use of all his real and personal estate, during life ; she paying taxes and rents upon a certain lease lot. He then added “ and at her death, or as soon after as my executors shall deem best for my heirs hereinafter named, to sell and dispose of all my real and personal estate, either at public or private sale, as they shall find most beneficial, or in their discretion they shall deem proper; and to give conveyances for the same in their names as executors, to the purchaser or purchasers, by virtue of this power, which I do make expressly for that, purpose, and hereby ratify and confirm whatever they, my said executors, shall do in relation thereto. And I do further order, direct, will, devise and bequeath, that after the payment of all my just debts and funeral charges by my said executors, they purchase tombstones for myself and wife, and have them put up; they to pay for them out of the moneys arising out of the sale of the property real or personal, the first that may come into their hands as executors. They are to use their discretion as to the cost. And I do further order and direct my said executors, after the death of my wife, to sell my estate as above ordered, and to divide the same in eight equal divisions, and to be paid to their heirs and assigns by my said executors, in manner following, to wit: Unto my daughter Jane Spore, wife of Nicholas Spore, an equal eighth part; unto Isabel Clark, wife of James Clark, an equal eighth part; unto Eleanor Beverly, wife of Daniel Beverly one equal eighth part; unto Rebecca Beverly, wife of Nathaniel Beverly, an equal eighth part; unto Catharine McMasters an equal eighth part; unto Romia Van Husen, wife of Albert Van Husen, an equal eighth part; to the children of my son Thomas McMasters, deceased, one eighth part, to be equally divided between them; to the children of my son Hugh McMasters, deceased, one eighth part, to be equally divided between them.” He further directed his executors to obtain a tombstone for his first wife, and pay for it out of the money arising from the sale of his property; and also for his two sons, deceased, to be paid for out of the shares of their children. ■ And he further directed his executors as follows: “to sell my real and personal estate on credit or for cash, as they shall think best; and to pay out of the same, after paying all my just debts, within one month after any money comes into their hands, to divide the same as above directed, and to pay each one his or her proportion of the same, as above divided.” And he made Yan Husen, the defendant, and one Cady, his executors, to both of -whom letters testamentary were issued. At the death of the testator, there were living five children of his deceased son Hugh, of whom James was one. On the 12th of May, 1838, James McMasters purchased a horse of Cady and Yan Husen at an auction of the personal property of the testator, for $100.50, and gave them, as executors, a note therefor, payable "in one year with interest; and, at the time, verbally agreed with the defendant, that if he did not pay the note, Yan Husen might retain the amount of “ his share or interest in the estate ” of the testator. On the 18th of Sept. 1838, said James McMasters gave a bond to Close, the plaintiff, for the payment of $100 and interest, six months after date; and therewith, to secure the same, he and his wife gave to the plaintiff a mortgage of his undivided share and interest in the farm of which the testator died seised. At the time the plaintiff took this bond and mortgage, he was informed by the commissioner who took the acknowledgment, of the verbal agreement between Yan Husen and James McMasters at the time the latter gave the note. James McMasters died in the winter of 1839; Cady, one of the executors, previous to 1846; the widow of the testator died' in the month of June, 1846 ; and in Sept. 1846, the defendant, Yan Husen, sold the farm belonging to the testator at his death; and the share of James McMasters of the avails thereof, did not exceed the amount due on the bond and mortgage he gave to the plaintiff; and the latter demanded of Yan Husen, that he should apply whatever there was on said bond and mortgage, which Yan Husen refused to do, but claimed to retain it in payment of the note James McMasters gave for the horse; and the plaintiff filed a bill to compel him to do so; making the children of James McMasters parties. The referee found for the plaintiff, to the amount of the share of James McMasters in the proceeds of the sale of the land; on which judgment was entered, and the defendant, Yan Husen, appealed.</p>

THIS was an appeal from a judgment of the county court of Fulton county, affirming the judgment of a justice.

n order made at a special term, overruling a demurrer to the complaint. The action was brought by Calvin S. Dennis, Hiram Hutchinson, William G. Lord, Daniel Price, and John S. Fox, on behalf of themselves and the other stockholders of the association mentioned in the complaint, who might come in and contribute to the expenses of the suit.

<p>Application for taxation of costs.</p> <p>The facts are sufficiently stated in the opinion.</p>

APPEAL by the defendants from a judgment entered upon the report of a referee. The action was brought to establish the boundaries of a certain highway, in the town of Marcy; to vacate and annul certain proceedings of the defendants in relation thereto; and to obtain an injunction to restrain the removal of a certain fence and hedge erected by the plaintiff along the line of his land, which the defendants insisted was an encroachment upon the highway.

THIS was an appeal by the defendants,-from a judgment entered at a special term, after a trial at the circuit by the court without a jury. The action was brought by the attorney general, on the relation of Hunt, Taylor and Dubois. The complaint alleged that on February 10th, 1851, the people by letters patent, granted to the defendants lands under water, in and near the mouth of Bushwick inlet, in Kings county.

MOTION by the plaintiff, for a new trial, upon exceptions taken at the circuit. The plaintiff was nonsuited on the trial.

MOTION by the plaintiff for a new trial, upon exceptions taken at the trial. The complaint alleged the following facts. On the ninth day of September, 1851, a judgment was . entered in the supreme court, in favor of the defendant Levi ' Onderdonk, against the defendants William Hunt, Samuel Carpenter, Joseph D. Hunt, Daniel Carpenter, Henry PerLee and William Dodge, for $2050.42.

THIS was a motion for an injunction against the Trust Company, as receiver of the Knickerbocker Savings Institution, to prevent the prosecution of a note made by Mott to the Savings Institution. Mr. Mott, one of the directors of the Knickerbocker Bank, borrowed $10,200 of the Savings Institution, on the pledge of some shares of the Knickerbocker Bank Stock, giving his note for the amount.

<p>Where damaged cotton is sold by sample, the sample should be a fair specimen of the whole—of the bad as well as the good; and if the seller warrants that the whole corresponds with the sample, he is liable in case it turns out to be different, although it was sold as a damaged article.</p> <p>Where a broker, on a sale of cotton by sample, assures the purchaser '.that the samples are fairly and honestly drawn, and that they may depend upon the bales turning out, when opened, equal to the samples, this, if not conclusive evidence of an agreement to warrant, is enough to go to the jury, on that question.</p> <p>There may be a warranty of repacked cotton.</p> <p>If a broker has no authority to sell by sample, still the owners cannot affirm the sale made by him, and get an increased price on account of the warranty, and keep it, and say they did not authorize him to make a warranty.</p>

case, from which the following facts appeared. The plaintiffs were partners, merchants, having a house at New York and another at San Francisco. The defendants were partners transacting express business, the forwarding and care of packages for hire from the city of New York to San Francisco, in California.

<p>MOTION by the plaintiff, for judgment upon a verdict, in his favor, at the circuit.</p>

<p>APPEAL from a judgment entered at a special term, upon the report of a referee. The action was brought by the plaintiff who was the assignee of Jacob S. Platt, in trust for the creditors of the latter, against the defendants, for the recovery of a large amount of certain collateral notes and stock transferred to, and received by the defendants, in a certain transaction between Platt and the defendants, which was alleged by the plaintiff to have been corrupt and usurious. The following facts were found by the referee. On or about the 26th day of November, 1850, Jacob S. Platt obtained from the defendants a loan of $20,000 on his own note, for that amount, payable on or about the first day of March, 1851; and as security for the payment of his said note, he deposited with the defendants various other notes, and also the Shelburne Lead Mining Stock, mentioned in the pleadings. On or about the third day of January, 1851, Platt obtained from the defendants, a further loan of $10,000, on his own note for that amount, payable on or about the said first day of March, 1851; and as security for the payment of his said last mentioned note, he deposited with the defendants various other notes. On or about the first day of March, 1851, Platt, for the purpose of paying his two last mentioned notes, and for other purposes, obtained from the defendants a loan of $27,000, on his own note, for that amount, payable in sixty days, and as security for the payment thereof, he deposited with the defendants, the several notes and securities which had previously been deposited as aforesaid, and which were not then due, together with various other notes, in addition thereto. When Platt applied to the defendants for each of the aforesaid loans, he presented his own note, with a list of the notes which he proposed to deposit as a collateral security, which were laid before the board of directors of the defendants; and the said loans were made on being approved by the board, in the usual way. No specific agreement was entered into between the parties, aside from making the loans in the manner above stated. The notes deposited as collateral security, as aforesaid, on each of said loans, were numerous, and for small amounts, against various individuals; and the defendants gave notice to such individuals when their respective notes fell due, and attended to the collection of the same. A portion of the said notes became due, and some of them were paid, at various dates prior to the timé when the aforesaid principal notes for which they were security, became due ; and in such cases, the money received on said collateral notes was credited in a separate and distinct account called the cashier’s account, but was mingled with and. treated like other funds deposited in the bank of the defendants; and was applied in payment of the said principal notes of the said Platt, when the same became .due. Interest at the legal rate ivas deducted from the amount of the aforesaid loans, at the time of making the loan, in the usual way, but no interest "was allowed by the defendants upon the moneys received upon the collateral notes which were paid prior to said principal notes falling due. The said note of Platt, for $27,000, had not been paid, nor had a sufficient amount been received upon the said collateral notes to -pay the same; and the said collateral notes remaining unpaid, and also the Shelburne Lead Mining Stock, were still held by the defendants, as collateral security for the payment of the said note. The said Jacob S. Platt made and executed an assignment of the said collateral notes and stock to the plaintiff in this action, as stated and set forth in the complaint.</p> <p>The said referee found as matter of law, from the foregoing facts, that neither of the said loans to Platt was made upon a corrupt and usurious agreement, or contrary to the statutes against usury; that the plaintiff was not entitled to have the said collateral notes delivered or transferred to him, but that the defendants were entitled to retain the same until the aforesaid note of Platt should-have been paid; and that the defendants were entitled to judgment against the plaintiff for their costs in this action. Judgment was entered accordingly, and.the plaintiff appealed.</p>

<p>Under the 401st section of the code, no motion can he made in the first judicial district in an action in which the venue is laid in another district.</p>

<p>APPEAL from a decision made at a special term, confirming the. report of' commissioners, and the taxation of costs by the clerk. The objections, argued before this court, were to the costs as taxed by the clerk. Various objections were taken to the bill of costs, of which it is necessary to notice only the following : “ 1. That the bill is not made out conformably to the rules of this court, adopted at the general term, held in March, 1854, and is filled with charges for services which may not be performed and were not rendered, as admitted, at the time of such taxation; and each and every item of said bill is generally objectionable, and is objected to herefor; and that under the notice of taxation, commissioners cannot tax any other charges than those for their own attendance, at legal rates, and their own lawful expenses, and not costs or counsel fees, or charges for the services of others.” The notice was as follows:</p> <p>“ Supreme Court. In the matter of the mayor, aldermen and commonalty of the city of New York, relative to opening and extending of the Bowery, from the southerly side of Chatham square to Franklin square in said city.</p> <p>Notice is hereby given that the costs, charges and expenses incurred by reason of the proceedings in the above entitled matter will be taxed by the clerk of the supreme court, at his office in the city hall of the city of New York, on Saturday the 30th day of December, A. D. 1854, at 12 o’clock, M.</p> <p>George B. Smith,</p> <p>Wm. N. McIntyre, Bartlett Smith,</p> <p> Commissioner Si </p> <p>New York, December 6th, Í854,”</p> <p>“ Objection 2. That the usual and customary rates, charges, proofs, &c., mentioned in § 1 of the act of April, 1854, are only those fixed by the rules of this court, adopted at a general term thereof held in March, 1854. Eo custom can be sanctioned which is not legal ;■ and these general term rules are made pursuant to, and by authority of, § 12 of the act of April 20,1839, and became part thereof.”</p>

<p>ÁPPEAL from an order made at a special term, setting aside the judgment and execution, as against the defendant Bouland.</p>

<p>THIS action was brought to recover the amount of the plaintiff’s loss by fire, upon a policy executed by the defendants, dated 26th February, 1848. The cause was tried before his honor, Judge Edwards; and a jury, on the 21st March, 1851, when a verdict was rendered in favor of the plaintiff, for $4,797.98, subject to further argument upon the questions of law reserved. The defendants, being a foreign corporation, created by an act of the legislature of the state of Pennsylvania, and authorized to make insurance against loss or damage by fire, established an agency for the transaction of such business, in the city of Hew York, and in February, 1846, they appointed, as their general agent, Benjamin S. Whitney, who entered upon his duties, and advertised himself as their agent to attend to the business of insurance. He continued to be such agent until July, 1848. The course of the defendants’ dealing with their agent, Whitney, was to send to him some fifty policies at a time, signed by the president and secretary, with the corporate seal attached, to be filled up, countersigned, and delivered by him to the persons insured by the defendants through him. He was to be, and was, the judge of the propriety of the risks offered, and was not required to report, and did not report, the same to the defendants for approval, before completing the contract. If he approved of the risk, he filled up, countersigned and delivered the policy to the assured, and received and accounted for the premium therefor. In order to extend their business, Whitney, with the knowledge of the defendants, employed sub-agents, in different places, to receive' applications for insurance, and report the same to him. These sub-agents were authorized to receive applications for insurance, take risks, and make them binding upon the company, until reported to, and refused by him. If not rejected by Whitney, a policy was then filled up, according to the application, countersigned, and by him delivered to the assured. This course of business was known to, and approved of, by the defendants. In one or more instances, besides the one in question, it happened that a loss occurred before the policy was issued, which the company paid. Among other sub-agents so appointed by him, Whitney, on the 10th December, 1847, appointed as his agent the plaintiff, (who was a commission and forwarding merchant, residing at Albany,) and gave him authority to take risks, and make them binding upon the defendants, until reported to him, and notice of his rejection of the same. Under such authority, the plaintiff took risks, which he reported to Whitney, and which were uniformly approved. The defendants knew that he had been appointed agent, with these powers, and acquiesced therein, and received the premiums paid upon risks taken by him. Whitney was also the general agent for the Camden Insurance Company, and in like manner appointed agents under him for that company, amongst whom was the plaintiff. Being such agent of both companies, the plaintiff took a risk of his own for $2000, for one year, in the Camden Insurance Company, on the ' 26th February, 1848, and on the same day he took another of his own, amounting to $4000, for ■ two months, with the defendants. This latter risk for himself was taken at the usual rates of premium, and was entered in the usual form, and according to his usual course of business, in the insurance book kept by him for that purpose, and where he entered other risks. On the same day the plaintiff addressed to Whitney a letter notifying him that he had insured his stock for the coming year in the Camden office, and that he had taken $4,000 risk for two months with the defendants. This letter, which contained a copy of the entry of the risk in the insurance book, was received and read by Whitney prior to his hearing of the loss, and at about 10 A. M. of the 1st of March, at which time he duly considered and accepted the risk. About one o’clock A. M. of the same 1st March, a fire occurred in the second building from the premises in question, which extended to, and consumed the one occupied by the plaintiff; notice of which fire was communicated to Whitney by telegraph about 2 P. M. of the. same day, and after full consideration, and considering the risk to have been fairly taken on the 26th of February, he concluded that the plaintiff was entitled to a policy therefor, and accordingly on the 2d March he filled up, countersigned and delivered to the plaintiff’s agent one of the policies so sent to him by the defendants, being the one upon which this action is brought. Whitney never in any way objected to the risk, but approved of the same, and even after notice of the fire he recognized it as a valid risk. He received the premium therefor, and accounted for and paid over the same to the defendants, and offered to settle the loss by paying part cash and part in drafts.</p>

THE Knickerbocker Bank became insolvent, and application was made to one of the justices of this court; for the appointment of a receiver, under the act of 1849, ch. 226. The United States Trust Company was appointed receiver, by an order entitled as at special term.

The case showed that one Thomas G-. Tallinadge executed a bond and mortgage to Abraham Van Nest, (the plaintiff’s guardian,) upon lands of which those in controversy were a part. That when the plaintiff became of age, his guardian assigned the bond and mortgage of said Tallmadge to the plaintiff.

THIS was an appeal by the defendants from an order made at a special term, overruling a demurrer to the complaint. The following opinion was delivered at the special term.

<p>THE facts in this case are detailed m the opinion of the court.</p>

<p>A covenant to sell real estate, and convey the same by a warranty deed, is not satisfied by the delivery of a deed containing the usual covenant of warranty, so as to pass whatever estato'the grantor has in the lands, if the grantor in fact owns only a portion of the premises.</p> <p>The deed must be an operative conveyance, and pass to the grantee a perfect and complete title to the lands agreed to be conveyed.</p>

<p>Where a deed, executed by the common council of the city of Brooklyn, purports to be made upon a sale of the lands therein described, for an unpaid tax or assessment, imposed under the act to incorporate the city, and recites that all the requisites of the statute have been complied with, and that the power given to the common council has been duly executed, this will not dispense with proof, by a person claiming under such deed, that-the facts recited are true.</p> <p>Without proof of such-facts, they are'presumed not to exist; and without their existence, the conveyance is a nullity.</p> <p>The recitals in the conveyance are not evidence against the owner of the property. The facts recited must be established by'proof aliunde.</p> <p>Possession of land, under a deed from the common council of the city of Brooklyn for the term of one thousand years, executed upon a sale of the land for an unpaid tax or assessment—the tenant claiming to hold for the term therein mentioned—is not such an adverse possession as will prevent the owner of the estate in remainder from conveying his interest in the premises.</p>

<p>THIS was.an appeal from an order or decree of the surrogate of the county of Dutchess.</p>

<p>AN order was obtained for the defendant to show cause why a peremptory mandamus should not issue to compel the defendant to pay a draft of $648, which had previouslybeen given to John Post, a mill-owner on the Black river, below where the water is taken out of the river for the supply of the Black river and Erie canals, for diversion of water from said Post’s mill for the use of said canals. The draft was given by Hon. 0. Grardinier, canal commissioner, and had been duly transferred to the relator. At a special term held in the city of Albany, in June, 1854, a mandamus was directed to be issued, accordingly; and from that order the defendant appealed.</p>

<p>PPEAL from a judgment of the county court of Tioga county. The action was commenced before a justice of the peace, and was for wrongfully talcing and converting a quantity of timber which had been made into shingles by them. The complaint showed that the plaintiff was tenant in common with one Fairchild, of the property; the plaintiff owning three undivided eighths of the property. The answer denied each and every allegation in the complaint, and alleged that the defendants purchased the property of one George King, and that the said King had a good title to the property. There was no averment .in the answer in regard to the nonjoinder of Fairchild, nor any plea in abatement, or otherwise, for this'cause. On the trial before the justice the defendants moved that the plaintiff be nonsuited, for this defect of parties, which motion was overruled, and judgment given for the plaintiff, for the value of the property. That judgment was affirmed by the county court, and the defendants appealed.</p>