Volume 2 — New York Reports

<p>A writ of error will not lie in behalf of the people after judgment for the defendant in a criminal case, (a)</p>

Action commenced in 1850 in the New-York common pleas, to recover for services rendered and expenses incurred by the plaintiff for and at the request of the defendants.

This is an action brought by the plaintiffs, claiming to be the owners of a certain piece of land, situate in the county of Albany, subject to the life estate of their mother,… Held: that the evidence was improperly received.” (Morehouse v. Matthews, 2 Comst. 514.) 2. So in an action between landlord and tenant: “ The opinions of witnesses as to the amount of damages a party has sustained by the deprivation or withdrawal of water from a tavern,” are inadmissible as evidence.

Action in the supreme court by Barnes and others, as trustees of the First Presbyterian Church of Glens Falls, against Perine, to recover one hundred and fifty dollars, subscribed by him for the purpose of erecting a church.

Error from the New-York common pleas, where the action was ejectment brought by the plaintiff in error to recover certain -eal estate situate in the twelfth ward of the city of New-York.

Action commenced in the supreme court, prior to 1848, ‘ in the name of Giles, to recover of the defendant Halbert, sheriff of Chenango county, a penalty of one thousand dollars, alleged to have accrued to the plaintiff by reason of the defendant’s omitting to duly advertise real estate of the plaintiff, sold by him, as sheriff, on an execution. The plaintiff was defeated in the suit, and judgment rendered therein in favor of the defendant for $193.40, costs.

This action was brought to obtain the judgment of the supreme court upon the validity and effect of the principal dispositions in the will… Held: used and managed by said executors and the survivors and survivor of them, for the benefit of such of my three younger children, viz. Rosine Everitt, (born June 7th, 1842,) Margaret Ann Everitt, (born January 18th, 1850,) and Alice Everitt, (born October 4th, 1851,) as shall be living at the time of my decease. 2. “And if I should…

Action in the New-York common pleas to recover damages for the non-delivery of one hundred and fifty casks of madder, of one ton each. The cause was tried before Mr. Justice Woodruff and a jury, in May, 1851. The plaintiffs proved and read in evidence the following instrument: “ New-York, October 23d, 1849.

Assumpsit upon a policy of insurance, tried at the Madison county circuit, before Giudley, circuit judge, in April, 1847. The case was this. The insurance was against loss or damage by fire on the plaintiffs’ tavern house, barn- and shed, situated at Durhamville, Madison county, in the sum of Si000, for the term of five years from the 12th day of December, 1838.

<p>Assumpsit commenced in 1847 to recover $3.69, as money had and received by the county of Livingston to the plaintiff’s use.</p> <p>The cause was tried in 1849, at the Livingston .county circuit, and the jury found a special verdict stating the following facts : In 1817, one Churchill and others, his associates, erected a bridge over the Genesee river, at an expense of about. §18,000, by virtue of an act of the legislature. (Laws of 1817, ch. 104.) The act required the parties erecting it to keep the bridge in repair, and authorized them to collect tolls, for the use thereof, during twenty years from the passage of the act, and declared that after the expiration of the twenty years the bridge should be “a public bridge and free of toll.” The bridge was erected on a highway, at a point where the Genesee river constituted the boundary between the towns of Avon and Caledonia, and the counties of Ontario and Genesee. In 1821, these two towns and the bridge were incorporated in the county of Livingston, which was then created. The company which built the bridge left it in good repair in 1837, when the right to take tolls expired, and from that time it became and was used as a public free bridge. In 1845 the bridge required a large expenditure for its repair ; and in November of that year the board of Supervisors of the county of Livingston, by resolution, ordered $900 to be levied upon the county for the purpose of aiding the towns of Avon and Caledonia in repairing the bridge, and directed the amount to be paid, in equal portions, to the respective commissioners of highways of these towns, to be used in mating the repairs. Neither the towns or commissioners having taken any measures for repairing the bridge, in June, 1846, the board of supervisors passed a resolution declaring that they recognized the bridge as county property, and to be built and kept in repair by the county, according to the provisions of subdivisions 1 and 2 of § 1 of ch. 314 of the Laws of 1838, and by which the sum of $1000 was ordered to be raised to repair the bridge, in addition to the amount theretofore appropriated for that purpose. They also rescinded so much of the resolution of November, 1845, as authorized the money raised under it to be paid tr« the commissioners of highways of the towns of Avon said Caledonia, and, by resolution, appointed George Smith commissioner to superintend the repairs of the bridge and the expenditure of the money thereon, and authorized him, as commissioner, to draw on the county treasurer for the $900 ordered to be levied by the resolution of November, 1845, and also for the $1000 ordered to b« levied by the resolution of June, in such sums and at such tunes as the same should be needed. The commissioner, in the summer and fall of 1846, caused the bridge to be repaired, and in so doing, drew and expended the $900, and, in addition thereto, expended a sum which, with interest, amounted to $692. This last mentioned sum the board of supervisors, in Nov., 1846, directed to be assessed and levied on the towns of Avon and Caledonia, $355 thereof on the former, and $337 thereof on the latter town; and in making out the tax roll for 1846, these sums were added, by the board of supervisors, to the amounts to be levied upon said towns, and were, in due form of law, collected of the taxable inhabitants thereof respectively. The plaintiff was a taxable inhabitant of Avon in 1846, and paid a tax in that year, including his proportion of the $692, of $36.25. If the amount of $692, levied for repairing the bridge, had been assessed on all the taxable inhabitants of the county, instead of upon the two towns named, the plaintiff would have been required to pay, as a tax, $3.69 less than he was, in fact, compelled to pay that year.</p> <p>The supreme court, sitting in the 8th district, gave judgment upon the special verdict in favor of the plaintiff for the $3.69 and costs. The defendants appealed to this court.</p> <p>I. The action cannot be maintained in the form adopted in this case. It should have been brought against the supervisors by name, with the addition of their name of office. (2 R. S., 473, §§ 95, 96 and 92; 4 Hill, 136; 5 Hill, 215.) II. All the acts of the defendants, complained of, were either legislative or judicial, and hence no action can be maintained against them, even if they erred. (11 J. R., 114; 8 Cow., 178; 8 Wend., 462; 11 ib., 545; 1 Hill, 279; 1 Denio, 589; ib., 595; 1 R. S., 524, §§ 119, 120; ib., 341, § 10; Laws of 1838, 314; 21 Wend., 552; 15 Wend., 198.) III. The bridge in question was a public bridge, subject to the general law found in 1 R. S., 501, et seq.</p> <p>By a reference to the resolution of June, it will be seen that the board did not assume the responsibility or expense of maintaining the bridge as a county charge; and to the contrary thereof, that they merely recognize the liability of the county to build and keep the same in repair, according to the provisions of the 1st and 2d subdivisions of § 1 of the act of 1838, above cited.</p> <p>In November, 1845, the board of supervisors, under the provision contained in 1 R. S., 524, § 119, raised the sum of $900 for the repair of the bridge in question.</p> <p>In June, 1846, they determined that the bridge should be repaired, and that they would raise the means for repairing the same by appropriating the $900 already in the treasury of the county, and which had been raised by a tax on the county, and by raising at their next annual meeting in November, pursuant to §1 of the act of 1838, such further sum, not exceeding $1000, as the repairs should cost over and above the $900. The $692. were directed to be levied on the towns, under the provisions of the act of 1838. The apportionment .was made according to the spirit and letter of this act. IV. The supreme court erred in deciding that the law of 1841 has been violated in this proceeding. This question was not raised on the argument in the supreme court, and it is believed has no application to any of the questions involved in this case. The act referred to (Laws of 1841, 207) does no more than define the rights and duties of certain towns, and of the commissioners of highways of the same, under the provisions of the Revised Statutes and the act of 1838; and besides, if the construction of the supreme court shall be adopted, it necessarily excludes all bridges over streams dividing towns from the provisions of the act of 1838, and also from the provisions of 1 R. S., 524, above cited.</p> <p>I. At common law, which was only affirmed by the statute (22 H. VIII), the making and repair of the bridges was a duty devolving on the county. It is so in' England now. (17 Johns., 452, 453, by the Chancellor; 7 Wend., 477, by Nelson, Justice; 2 East, 342, 356, 12—192; 5 Burr., 2595.) Unless the duty of building or repairing a bridge can be shown to rest somewhere, the county must repair. (2 W. Black., 685 ; Loft, 238; 5 Harr. Dig., 6616, and the cases above cited.)</p> <p>II. The statute books, from 1798 to 1848, show that about 30 statutes have been passed for the erection or for aiding in the erection of bridges over this very river; when erected, their repairs have been within the power of the counties, and have nowhere fallen on the towns, except by the mere exercise of arbitrary power, as in the case in 1 Hill, 50, and in this case.. The general and special statutes, and the cases.cited, show that there is a class of bridges, whose erection and repair do not belong to the towns, and which the sovereign should cause to be erected, and, until other provision is made, counties must repair.</p> <p>. III. The board of supervisors, of its own volition, repaired . the bridge in question. There can be no pretext that they acted, in so doing, under the provisions of the Revised Statutes and the law of 1838. (1 R. S., 502, § 4; Laws of 1838, 314.)</p> <p>IV. The board of supervisors having created a debt, illegally assessed the amount of it upon the towns of Avon and Caledonia, and collected it of the taxable inhabitants. The plaintiff is entitled to recover back the amount illegally collected from him. (13 J. R., 444; id., 152; 11 J. R., 444; 7 Wend., 89; 11 Pick., 396; 5 Pick., 498; 13 Mass., 272; 15 Pick., 44; 7 Conn., 550; 21 Pick., 64; 3 Greenleaf, 131; 15 Wend., 321; 4 Cowen, 454.)</p>

In May, 1845, Jonathan Bodle and James B. Bodle filed their bill in the Court of Chancery against The Chenango County Mutual Insurance Company. After the commencement of the suit the effects of the insurance company were by an order of the court of chaneery placed in the hands of Austin Hyde, as receiver, and Hyde was then by stipulation and an order of the court made a co-defendant in the cause.

<p>Eliza Crary filed her bill in the late Court of Chancery before the vice chancellor of the fifth circuit, against Silas Smith, to enforce the specific performance of a contract for the sale and purchase of a parcel of land situate in Westmoreland, Oneida* county. The case made by the bill was this: The complainant, in June, 1836, with the approbation of her children, entered into a written contract, under seal, with the defendant, whereby she agreed to convey to the defendant by deed, to be executed by herself and her children, the premises in question, anti the defendant agreed to pay to the complainant for the land the sum- of #1200, with interest from the time he should take possession. No time was mentioned in the agreement when the deed was to be executed and the money paid, but those acts were to be simultaneous, and the defendant was to take possession in the spring of the year 1837. The agreement was left with a third person for safe keeping, and was lost. The fee of the land was in the complainant’s children, she having only a dower right therein. Two of the children resided in the state of Illinois, and when the agreement was entered into, it wras understood that it would take a considerable time to procure the execution of the deed by them. The defendant took possession of the premises about the first of April, 1837, and occupied them subsequently to that time either himself or by others under him. The bill further alleged that, after the due execution of the deed by all the necessary parties, the defendant had due notice thereof, and was requested to accept such deed and pay the purchase money, which he refused to do. In April, 1842, the defendant caused to be served on the complainant a written notice that he should no longer occupy the premises, and should refuse to fulfil the contract. It was alleged in the notice that the complainant had failed to perform on her part. The bill called for an answer under oath. The grounds of defence set up in the answer and on the argument, and the result of the evidence so far as material, are sufficiently stated in the opinion of Gray, J.</p> <p>Gridley, vice chancellor, after argument upon the pleadings and proofs, decreed a specific performance of the contract, according to the prayer of the bill. And his decree, on appeal, was affirmed by the supreme court in equity sitting in the Fifth District. The defendant appealed to this court.</p>

Ejectment, brought by Samuel B. White against George C. Tallman, tried at the Onondaga circuit, before Gridlby, J. in September, 1847. The premises claimed were a part of block number twenty-nine in the city (then the village) of Syracuse. On the trial the plaintiff deduced a regular title from the state to himself, and proved that the defendant was in possession at the commencement of the suit. He then rested.

The complaint alleged that the defendant falsely and maliciously stated that the plaintiff was a thief and had stolen from the defendant. The defendant, by his answer, denied each and every allegation contained in the complaint; and for a further answer thereto, alleged that before the speaking of the words complained of, to wit, in August, 1847, at Rochester, the plaintiff did feloniously steal, take and carry away twenty-five bushels of corn, the property of the defendant.

<p>Benjamin Sweet, administrator, &c. of Elizabeth Sweet, deceased, filed his bill in the late court of chancery, against Ira Chase and Thomas Rockwell, executors of the last will and testament of John Pocock, deceased, to recover a legacy of @400, given by such will to the said Elizabeth.</p> <p>John Pocock, the testator, died in August, 1841, leaving a' will, whereby he dbected: Firstly, that all his debts and funeral charges should be paid out of his personal estate: Secondly, he gave to his wife Elizabeth, her heirs and assigns, a certain house and lot in the city of Utica: Thirdly, he gave to his said wife, all his personal estate of every description : Fourthly, he gave to his said wife, all the rents and profits of his real estate situated in the city of Utica, during her natural life, or until she should again marry. 'The foregoing provisions were declared to be in lieu of dower. The fifth' clause was in these words: “ I also give and devise unto my said beloved wife, her heirs and assigns forever, the sum of four hundred dollars, to be paid out of the avails of the sale of my real estate.” By the seventh clause, the testator directed his executors and the survivor of them, on the death of his wife, to sell and dispose of all his real estate in the city of Utica at public auction. By the eighth clause, he gave several legacies of sums of money payable out of the proceeds of the sale of his real estate, declaring that such legacies were not to become due until after the death of his wife, and until his executors should have reasonable time to sell real estate so as to pay the same. By the ninth and tenth clauses, the testator devised certain real estate, not situated in the city of Utica; and by the eleventh clause, he devised and bequeathed unto his grandchildren, in equal shares, all the rest and residue of his estate, whether real or personal, in possession, reversion, or remainder.” And lastly, he appointed his said wife Elizabeth, and the defendants, his executors and executrix. The testator died seised of considerable real estate, situated in the city of Utica, over and above what was specifically devised by the will. .</p> <p>The executors and executrix proved the will, and took upon themselves the execution thereof, in November, 1841, and before the death of Elizabeth, the widow, they had paid all the debts of the testator. Elizabeth was married to the complainant, in July, 1846, and died without issue, in February, 1847. After her death the defendants, as surviving executors, sold the real estate not specifically devised, situated in Utica, and realized from such sales, a sufficient amount to pay all the legacies, including the legacy of $400, given by the fifth clause of the will to the said Elizabeth. Before the filing of the bill, the complainant having taken out letters of administration upon the estate of his wife, the said Elizabeth, requested the defendants to pay to him the legacy in question, which they declined to do, being advised that the complainant was not entitled thereto. In their answer the defendants submitted their rights to the judgment of the court.</p> <p>Gridley, vice chancellor, before whom the cause was heard, on bill and answer, held that the legacy in question was repugnant to the other provisions of the will, and therefore void. He accordingly dismissed the bill without costs, and his decision was affirmed on appeal, by the supreme court, sitting in the fifth district. The complainant appealed to this court.</p> <p>I. The intention of the testator, John Pocock, is to be sought from the whole will, and that intention must be carried into effect if it can be without contravening some positive and settled rule of law. (Crosby v. Wendall, 6 Paige, 548; Parks v. Parks, 9 id. 117; Pond v. Bergh, 10 id. 152; Purse v. Snaplin, 1 Atkyns, 416; Minshull v. Minshull, 1 id. 412.) It is manifest that it was the testator’s intention to give his wife, besides the real estate given her in fee and his personal property, the use for life of his real estate in Utica, and an interest in its reversion to the amount of four hundred dollars. There is no other disposition of this four hundred dollars made. He may have supposed she would wish to make a testamentary disposition of it, or he may have thought that she would sell it during her life. Whatever his view was, the intention to give the $400 is unquestionable; and there is nothing inconsistent with any rule of law either in this intention or in the mode by which it is carried out in the will. (Lowther v. Condon, 2 Atkyns, 127.)</p> <p>II. The legacy of four hundred dollars to Elizabeth Pocock, vested in her immediately on the decease of the testator, the time of payment only being postponed until the sale of the real estate on her decease. The rule that a legacy charged upon real estate and payable at a future day, does not vest until that day, and lapses if the legatee die prior to it, is restricted to those cases “ where the payment is postponed on account of the age, circumstances or condition of the legateeas where the legacy is to be paid upon the marriage, full age, &c. of the legatee. (Harris v. Fly, 7 Paige, 423, and cases there cited; Lowther v. Condon, 2 Atk. 127, 130; Goodwin v. Munday, cited 1 Chit. Eq. Dig. 031, Dick, 551; King v. Wethers, Eq. Cas. Ab. 348; Sherman v. Collins, 3 Atk. 319.) Here the'postponement was with reference to the circumstances of the estate. This legacy, with the others, were to be paid when the whole was converted into money. The rule does not apply in the case of a personal legacy. There, unless the time of payment is made a condition requisite to its payment, the postponement of the payment does not prevent the legacy vesting immediately on the death of the testator. (Van v. Clark, 1 Atk. 510; Preston on Leg. 68, 75, 80, 90.) In this case, the direction in the will converted the remainder after the life estate of the widow into money and disposed of it as money. (Brograve v. Winder, 2 Vesey, Jr. 634; Fletcher v. Ashburner, 1 Bro. C. C. 497; Maberly v. Strode, 3 Vesey, 450; Brown v. Bigg, 7 id. 279; Harrison v. Naylor, 3 Bro. C. C. 108; Lorillard v. Coster, 5 Paige, 172, 186, 218; De Peyster v. Clendinning, 8 id. 295; Smith v. Claxton, 4 Mad. 484; Amphlett v. Parke, 3 Russ. 565.) And the legacy of $400 to the testator’s widow, was strictly a personal legacy. It was not of the class of legacies to be raised from real estate referred to in the cases where legacies may lapse, the legatee dying before the day of payment. Those are where the legacy is to be raised out of the land—that is, out of its income or proceeds, and not where the land is to be converted into money. (Van v. Clark, 1 Atk. 510; Hall v. Terry, id. 502; Lowther v. Condon, 2 id. 127; Sherman v. Collins, 3 id. 319; Molesworth v. Molesworth, 3 Bro. C.C. 5; S. C. on re-hearing, 4 id. 408.</p> <p>III. The position that the legacy was repugnant to the other provisions of the will, and is therefore to be rejected, is untenable. A provision in a will is not repugnant to another, when it is possible to carry both into effect.. In this will the $400 legacy can be paid, and every subsequent provision of the will carried into effect. It is repugnant to no provision or legacy. It interferes with none. (Covenhoven v. Shuler, 2 Paige, 129; Sims v. Doughty, 5 Vesey, 247; see also note 2, on p. 248, in Sumner’s ed.; Constantine v. Constantine, 6 id. 102.)</p> <p>IV. Nor is the legacy uncertain, as suggested by the vice chancellor. The intention ■ is obvious to give the legacy : a way to pay it is provided, clear and distinct. And it is a way by which the legatee might either sell it as a vested right, oi dispose of it by will. The court will not guess out a better way to pay it, and then because this was not followed by the testator, who perhaps had good reasons for the one he chose, infer either that he did not intend it should be paid, or that he had no intention in relation to it. The function of the court is to carry out the obvious intention; not to ■ infer one at war with the obvious meaning of the will.</p> <p>The alleged bequest of $400 in the testator’s will, to be paid out of the avails of his real estate, is repugnant to the other provisions and to the general scope and plan of the will, and is therefore void. (Powell on Dev. 411, 415, 417, 419; Price v. Warren, Skin. 266; S. C. 2 Eq. Ca. Ab. 357; 1 Jarman on Wills, 316.) Where there are, as in this case, tw'o clauses in a will which are irreconcilable, and cannot stand together, the clause which is posterior in local position shall prevail, and the subsequent words be considered as denoting a subsequent intention. (Co. Lit. 112, b; 2 Bl. Com. 381; 1 Jarman on Wills, 411; Sherrat v. Bentley, 2 Mylne & Keen, 149; Constantine v. Constantine, 6 Ves. 102; Lines v. Doughty, 5 id. 247; Fane v. Fane, 1 Vern. 30; Covenhoven v. Shuler, 2 Paige, 122, 129; Smith v. Bell, 6 Pet. 68; Bradstreet v. Clark, 12 Wend. 665.)</p> <p>There are no grounds on which to impute to the testator an intention to create an interest in favor of his wife, which she might dispose of in her lifetime. (1.) The words are not apt or pertinent to express such an intention. (2.) It would be an unusual and an improvident method of providing for the raising of money out of the testator’s estate, and would moreover impute to the testator a course of refined and artificial reasoning which is highly improbable. To say the least, the testatorV meaning is uncertain, and where such is the case the title of the heir or residuary devisee is to be preferred. (Powell on Devises, and Jarman on Wills, cited supra)</p> <p>A legacy is not a charge upon the real estate, unless made so by the terms of the will. In this case there was no personal estate out of which the legacy could be paid, that having been given absolutely to the wife. The charge on the real estate is unavailing, because it could not be sold in the lifetime of the legatee. (Lupton v. Lupton, 2 John. Ch. Rep. 614; Powell v. Murray, 10 Paige, 256; Harris v. Fly, 7 id. 421, 425.)</p>

In 1837, Jonathan Trotter, the plaintiff, executed to Mrs. Gertrude A. Stryker, one of the defendants, his bond and a mortgage on two lots of ground situate at the corner of Division and Sycamore streets, Brooklyn, conditioned for the payment of $1400 and interest thereon in one year.

Action commenced in the supreme court, October 28th, 1850, on a policy of insurance issued by the defendants to the plaintiff. The place of trial was Rensselaer county, and the cause was referred and tried before a referee.

<p>In debt upon recognizance, the breach complained of being the non-appearance of the accused at the criminal court where he was bound to appear, it is not a defence that no indictment was found against him at such court.</p> <p>Persons in jail or bound by recognizance to appear and answer to an indictment to be found, are not of course entitled to a discharge, although no indictment be found. Their discharge rests in the discretion of the court.</p> <p>The declaration upon a recognizance taken by a supreme court commissioner need not state the special facts giving the officer jurisdiction. ,</p> <p>A person arrested for a criminal offence may insist upon an examination before he can be compelled to enter into a recognizance. But he may waive that privilege, and if he does so, a recognizance entered into without such examination is valid.</p> <p>A recognizance therefore need not show on its face that there is probable cause for believing the accused guilty of the offence charged, or that the magistrate has made any adjudication in the matter.</p> <p>If the recognizance was extorted from the prisoner in violation of his right to a previous examination, that fact should be set up by way of defence.</p>

In December, 1846, William C. Crain sued Isaac K. Beach and Henry M. Beach in a justice’s court in Herkimer county, and declared upon a covenant contained in an instrument executed between the parties in the words following, viz.: “ For value received of Henry M. Beach and Isaac K. Beach, and Abram Van Horn, I, William C. Crain, do hereby grant, release and convey to the said Henry M. Beach, Isaac K. Beach, and Abram Van Horn, and to their heirs and assigns forever, a right…

In 1841, the Onondaga County Mutual Insurance Company recovered judgment in the common pleas of that county, against Isaac T. Minard and Clarence S. Bailey, upon a bond executed by Bailey as principal and Minard as surety, the con-' dition of which was, that Bailey should faithfully discharge his duties as travelling agent of said company, and should faithfully account for, and pay over to 1he company, all moneys which he should receive, belonging to them.

<p>Where a party is prevented hy the act of God from discharging a duty created by the law, he is excused. Per Edwards, J.</p> <p>But where he engages unconditionally by express contract to do an act, performance is not excused by inevitable accident, or other unforeseen contingency not within his control.</p> <p>Accordingly, where a party agreed to transport merchandise from New-York and deliver it at Independence in Missouri within 26 days, which he failed to accomplish within that time; Held, that the fact that a public canal, upon which the goods were intended to be transported a part of the distance, was rendered impassable by an unusual freshet, and that this occasioned the detention, was not a legal excuse therefor.</p> <p>Where a carrier, having in his possession a large amount of valuable merchandise, exacted for freight more than was due as a condition of its delivery to the owner, and the latter, to obtain possession of the property, paid the amount wrongfully demanded, under protest; Held, that it was not a voluntary payment and he could recover it hack.</p> <p>Sundry cases as to voluntary payments discussed and commented upon. Per Edwards and Ruggles, Js.</p> <p>Where a party covenants that he will transport and deliver goods within a specified time, and also that he will deduct a sum named from the freight for each day they are delayed beyond the time specified for the delivery, the covenants are not strictly alternative.</p> <p>In an action of covenant to recover damages for the non-performance of an act agreed to he done by the defendant, a plea, that if the plaintiff was damnified, it was by his oto wrong and by and through his own act, means and default, is bad on demurrer.</p>

John Steward, junior, and others, the appellants, on the 16th of June, 1845, recovered judgment in the supreme court against the respondent, for $1043,12, in an action of assumpsit upon promissory notes. The judgment not being paid, on the 25th of June, 1845, they instituted before W. H. Shumway, a supreme court commissioner, proceedings against the respondent under the act to abolish imprisonment for debt and to punish fraudulent debtors.

This action was brought in a justice’s court in the county of Orleans, to recover damages for the unlawful seizure and sale, by the defendants, of a parlor stove and pump, the property of the plaintiff, and of the value of about eleven dollars.

On error from the supreme court. On the 7th of Novem ber, 1842, Prescott McDoel obtained from a justice of the peace of the county of Oneida an attachment against the goods of Anson G. Cook and James Pierce, returnable on the 10th day of the same month.

Benjamin Ogsbury in 1842 filed his bill in chancery against John La Farge to compel the specific performance of a contract under seal, for the conveyance of lands in Jefferson county, executed in 1823. Various grounds of defence were set up in the answer and relied upon at the hearing in the courts below and in this court, one of which was, a former suit between the same parties and the decree of the court of chancery therein.

On error from the supreme court. Rose sued Copley in s justice’s court of the county of Otsego.

This action was against the defendant as the owner of the steamboat Knickerbocker, to recover the value of a span of horses belonging to the plaintiff, which were lost while being transported from Albany to New York, by the sinking of the vessel in the Hudson river.

The plaintiff claimed to recover about five hundred dollars, being the proceeds of a quantity of butter which he had forwarded to the defendants to sell on commission.

<p>A court of equity will not entertain a bill to remove a cloud from the title to real estate, or for the cancellation of a written instrument, where it is apparent from an inspection of the deed or writing that no danger to the title or interest of the complainant is to be apprehended.</p> <p>A purchaser at a sale by the Attorney General under a mortgage executed to the people of the state must claim through the advertisement and the sale, and therefore, although the deed given in pursuance of such sale, should profess to convey land embraced in the mortgage but not included in the advertisement and sale, there is no occasion for the owner of such land to resort to a court of equity to remove the cloud from his title.</p> <p>in the Attorney General’s deed the premises intended to^ be conveyed were described as the "remainder” of that part of lot No. 150, Onondaga Reservation, for which a new account was opened in the comptroller’s books, in the name of Bildad Barber, being forty-nine and a half rods wide extending across the east end of said lot, and containing sixty-two and a half acres. It appeared that the “ remainder” mentioned in the deed contained only about thirty-six acres, and that the Attorney General had in fact advertised such “ remainder” only, without any particular description. Held, that the particular description in the deed, “ forty-nine and a half rods wide, extending, &e. and containing sixty-two and a half acres” should be taken as applying to the entire part for which a new account had been opened, and not to the “ remainder” of that part, and therefore that the deed on its face did not profess to convey the whole sixty-two and a half acres.</p>

<p>Ejectment commenced in the supreme court in February, 1847, and tried at the Orange county circuit, held by Mr. Justice Edwards in October, 1848. The jury found a special verdict, from which it appeared that on the first day of July, 1836, Nicholas A. Dederer, being the owner in fee simple of a farm situate in Blooming Grove, Orange county, executed to the Hudson and Delaware Railroad Company a deed, dated that day, whereby, in consideration of the benefits and advantages to him of the railroad proposed to be made by the company, and of one dollar to him paid by the company, he granted to such company the privilege of surveying and laying out, by its agents and engineers, through his farm or tract of land, the route and site of its road ; and also granted, bargained, sold and conveyed unto the company and its successors, so much of the farm as might be selected and laid out by the company for the site of its railroad, six rods in width across the farm; provided^ always, and such grant was made upon the express condition, that the company should construct its railroad within the time prescribed by the act incorporating the same. That subsequently, and before the 27th of October, 1836, the company selected and laid out, for the site of its railroad through the farm, a strip of land sixrods wide extending through the farm. That on the first of April, 1844, the farm formerly owned by Dederer, by virtue of sundry mesne conveyances became the property of the plaintiff in fee simple, subject only to such right as the Hudson and Delaware Railroad Company then had to any portion thereof sufficient for the track of its road. That this company, on the 27th of October, 1836, commenced the construction of its railroad, but never completed or put in operation a double or single track or any part thereof. That in pursuance of an act of the legislature, entitled an act authorizing the New-York and Erie Railroad Company to construct a branch road, terminating at the village of Newburgh, passed April 8, 1845, the Hudson and Delaware Railroad Company were authorized to, and on the 14th of September, 1846, did execute to the defendant, the New-York and Erie Railroad Company, a deed, and thereby for a valuable consideration granted, bargained,' sold and conveyed to the defendant and its successors, the maps, charts, drafts, surveys and other personal property of the Hudson and Delaware Company, and all its rights, privileges, immunities and improvements, acquired under and by virtue of the original act of incorporation or of any act amending it, or in any other manner; and also all the grants, lands and real estate acquired by or ceded or conveyed to the Hudson and Delaware Company, and all its right, title and interest to the same, and particularly the right of way, granted by Dederer to the company and its successors, by the deed from him above mentioned. That when this suit was commenced, on the 25th of February, 1847, the defendant had not completed or put in operation its branch road terminating at Newburgh, or any part of it, nor had it done so when the cause was tried. That on the 2d of December, 1846, the defendant entered upon the strip of land six rods wide, mentioned in the deed from Dederer and laid out by the Hudson and Delaware Company through his farm as the site of its road, and ejected the plaintiff therefrom, and that the defendant was still in the possession thereof. Tlie suit was brought to recover possession of this strip of land from the defendant.</p> <p>The justice before whom this cause was tried ordered judgment upon the special verdict in favor of the plaintiff. The defendant appealed, and the supreme court, sitting in general term in the 3d district, reversed the judgment and gave judgment in favor of the defendant. (See 12 Barb., 460.) The plaintiff appealed to this court.</p> <p>I. The condition in the deed from Dederer to the company was a part of the contract between the parties, and was what is denominated “ condition in deed” (4 Kent's Com., 123); and it was. not competent for the legislature to enlarge the estate, or annul the condition, without consent of the parties. (1 How. U. S. Rep., 319; 8 Wheat., 85.)</p> <p>It was a condition precedent that intention of the parties is manifest: otherwise, no effect can he given to the clause allowing the railroad to enter for surveying and laying out the road ; and because the condition goes to the whole consideration. Even if the qualification is called a condition subsequent, the party who enters for breach of the condition becomes seized of his former estate (4 Kent's Com., 126); or, if the grantor continued in possession, as was the case here, no entry was necessary to restore the estate.</p> <p>Plaintiff, as Dederer’s grantee, was entitled to retain the possession, unless the defendant could show he was not rightfully in.</p> <p>II. The condition contained in the deed was not performed, and was broken before this action was brought.</p> <p>III. Independent of the grounds stated in the first point, it is insisted that if the qualification was a condition subsequent, the right of entry remaining in Dederer, the grantor, was assignable under the provisions of the Revised Statutes, as an “ expectant estate,” and at the commencement of this action was vested in the plaintiff by the mesne conveyances. (2 R. S., 3d ed., p. 9, §§ 8, 9, 10, 12; ibid., p. 12, § 35; Lawrence v. Bayard, 7 Paige, 76; 4 Kent's Com., 262, 7th ed., p. 271, note a; 20 Wend., 220; 22 Wend., 405.) Rights of entry are now alienable in England. (7 and 8 Vict., ch. 76; 8 and 9 Vict., ch. 106.)</p> <p>IV. The grantor’s contingent right of entry, being “ a possibility coupled with an interest,” was assignable in equity, independently of the Revised Statutes. (Jones v. Roe, 3 T. R., 88; Whitfield v. Fanssart, 1 Ves. Sen., 391; Wright v. Wright, id., 411; Jackson v. Waldron, 13 Wend., 192, 195.)</p> <p>V. The grant of Dederer to the Hudson and Delaware Railroad Company conveyed only an estate for years, and not in fee: (1.) Because the legal existence of that corporation was limited by its charter to fifty years. (Laws of 1835, p. 113, § 1.) (2.) Because that corporation could only take lands for the purposes specified in its charter, to be used by them for their road, which use was limited to fifty years. It follows that there was a certain vested reversion in the grantor capable of assignment. (1 R. S., 747, §§ 23, 24, 25.)</p> <p>I. The Hudson and Delaware Railroad Company took the fee under the grant from Dederer. (2 Kent, 281, 282, 283; Act of Incorporation, Session Laws of 1835, §§ 9 and 16; 1 R. S., 732, 1st ed., 600; 2 R. S., 33, 3d ed., § 1; Trustees of the Presbyterian Society in Waterloo v. The Auburn and Rochester R. R. Co., 3 Hill, 567; Kyle v. The Auburn and Rochester R. R. Co., 2 Barchan R., 489.)</p> <p>II. Corporations are capable of taking a fee simple for the purpose of alienation, though they hold only a determinable fee for the purpose of enjoyment. (2 Kent's Com., 282; 2 Preston on Estates, 50; 1 Preston on Abstracts, 271, 273; 5 Denio, 389, 401; Angell & Ames on Corporations, 128.)</p> <p>III. The plaintiff being the assignee or grantee of Dederer, the grantor of the Hudson and Delaware Railroad Company, cannot take advantage of the condition broken, or maintain this action: (1.) Conditions in deeds conveying a freehold or fee can, by the common law, only be reserved for the grantor or his heirs, and none but they can take advantage of the breach. (2 Wendell's Black. Com., 154, 155, 159; 4 Kent's Com., 122; Co. Litt., vol. 2, 214; 1 Smith's Leading Cases; Hare & Wallace's Notes, 80, 96.) (2.) The breach of the condition does not defeat the estate. There must be an entry, and this right of entry can only be reserved to the grantor and his heirs. It is a maxim of the common law, that nothing that lies in entry or re-entry can be assigned. (Greenleaf’s Cruise, vol. 1, title 13, § 15; 1 Smith's Leading Cases; Wallace & Hare's Notes, 100, 96; Co. Litt., 214, a b; 215, a; 4 Kent, 122.) (3.) Nor has the common law been altered in this respect by statute giving right of entry to an assignee in any instance not coupled with reversionary interest, as in the cases of estates for years and for life, except in cases of leases in fee reserving rent. (2 R. S., 3d ed., 32, §§ 23, 24, 25; 2 Wend. Black. Com., 155; Note, 4th Kent, 122; Co. Litt., 215, a; 1 Smith's Leading Cases, 4th Am. ed.; Wallace & Hare's Notes, 96.) (4.) And though an entry be not now necessary under the Revised Statutes, still the action can only be brought by a person having the right of entry. (1 Smith's Leading Cases, 4th Am. ed.; Wallace & Hare's Notes, 96.)</p> <p>IV. The plaintiff took no interest in the premises by the deed to him in 1844, which is the only one under which he claims.- It was given before the pretended forfeiture, as is shown by a reservation of the right of the railroad company. At that time Dederer had no assignable interest. (1 Smith's Leading Cases, 4th Am. ed.; Wallace & Hare's Notes, 99; 4th Kent, 122.) The condition was not an estate at all. It was not a present estate, nor an expectant estate, either future or in reversion, and was not assignable even under the Revised Statutes. (1 R. S., 725, § 35; 4th Kent, 261, 262.)</p> <p>V. The special verdict contains no fact from which to infer that the condition in the deed from Dederer to the Hudson and Delaware Railroad Company was broken. There is no finding by the jury of the time at which they were bound by their charter to finish their road, and the plaintiff is confined to the special verdict for facts on which to establish his right of recovery.</p> <p>VI. The sale of all their property by the Hudson and Delaware Railroad Company to the New-York and Erie Railroad Company was not such a dissolution of the corporation as would cause a reverter. The legislature had certainly power to authorize them to sell, especially for the purpose of promoting the object of their formation, (Benedict v. Gott, 3 Barb. S. C. R., 459.) The sale preceded the dissolution, and did, as intended by the legislature, vest a valid title in the purchaser. When the dissolution had taken place there was no property to revert. The grantor of the corporation was excluded from the reversion by an alienation during its existence. (1 Preston on Abstracts, 272, 273; 2 Kent, 282; 2 Preston on Estates, 50; 5 Denio, 389, 401; Angell & Ames on Corporations, 128.)</p> <p>VII. But if the plaintiff shall be permitted to prove the time provided for finishing the road, referring to the act- of incorporation it will appear that the action was commenced before the time expired. The estate in the premises was vested, liable to be defeated by the non-performance of a condition. It was therefore a condition subsequent. To prevent the forfeiture, the court will construe the statute, as to the time, strictly against the plaintiff. (4 Kent., 129, 130.)</p>

Writ of error to the supreme court: The plaintiff in error was indicted in the Kings county ' oyer and' terminer, on the 10th day of November, 1862, for the felonious lulling of one Sisgismund Fellner, on the 18th day of October, 1861. He was convicted of the crime of murder in the first degree, at a court of oyer and terminer held in that county in April, 1863.

Colvin sued Holbrook in the Onondaga common pleas in assumpsit for money had and received. On the trial, in the common pleas the case was this: On the 17th of July, 1838, the defendant, as one of the deputies of the sheriff of the county of Onondaga, received for collection an execution upon a judgment rendered in the supreme court, in favor of C. H. Brackett against O. B. Brackett, for $2115,72, docketed October 21, 1836.

Schroeppell against Richard S. Corning, for the conversion of three bonds and mortgages. The declaration was in the usual form, stating that on, &c., at, &c., the plaintiff was possessed of certain bonds and mortgages (describing them), and casually lost them, and the same, afterwards, came to the possession of the defendant by finding; yet the defendant, well knowing, &c., refused to deliver them to the plaintiff, and converted and disposed of the same to his own use.

On the trial at the Albany circuit in October, 1844, before Parker, circuit judge, the case was this:—By an indenture dated December 8th, 1813, the said Stephen Van Rensselae. conveyed unto one William Davis, his heirs and assigns, one hundred and eighty-eight acres of land, situated in Guilderland, in the county of Albany, reserving the yearly rent of eighteen bushels of wheat, four fat hens, and one day’s service with carriage and horses, which by the same indenture the…

<p>A sum assessed upon the owner of a lot for the purpose of widening a street in the city of New-York, by virtue of the “ act to reduce several laws relating particularly to the city.of New-York into one act” (2 R. L., 342), and the acts amending the same, is a lien upon the lot in respect to which the assessment is made in the nature of a mortgage.</p> <p>And where proceedings were commenced hy the corporation to collect the sum assessed hy a sale of the lot according to the provisions of the statutes in relation to the collection of assessments and taxes in the city of New-York, and the lot was sold for the sum assessed, and the money paid to the corporation hy the purchaser, hut owing to a defect in the proceedings the sale never became operative, nor was the owner affected by it, and the money received from the purchaser was retured to him; Held, that the lien was not discharged, and that such defective proceedings were not a bar to an action against the owner of the lot to enforce payment of the sum assessed. It requires the same length of time to bar an action to enforce payment of the sum assessed as is required to bar an action on a mortgage or judgment.</p>

On error from the supreme court, where the action was brought by Van Rensselaer, wh s the devisee in respect to the premises in question of Stephen Van Rensselaer, deceased, against Jewett. The case is stated in the opinion of the court.

On the 9th May, 1848, William H. Payne, the plaintiff's testator delivered to the firm of Slate, Gardiner & Howell, whose place of business was in the city of New York, $1,000; which they received and credited to him on their books, and delivered to Payne a paper signed by them in the words following: “New York, 2th 1848. “ Eeceived from Capt. William H. Payne, one thousand dollars, which is to his credit on our books, at six per cent, interest. $1,000.

The plaintiffs claimed’to recover upon a contract in the words following, viz: “1 agree to take all the wheat that Norton, Baker and Hall have at the storehouse of S. H. Cook, in Camillus, and also… Held: and on that ground nonsuited the plaintiffs. The plaintiffs excepted, and moved in the supreme court for a new trial, which was granted by that court sitting in the Seventh District.

The action was commenced in the New-York superior court, on the 26th of September, 1850. The complaint was upon a judgment for $612.93, recovered in that court m April, 1846, in favor of one Olney against Pearce, the defendant in this suit, alleging an assignment thereof from Olney to Dobson, the plaintiff, just previous to the commencement of the action.

Eldridge brought assumpsit in the supreme court, against Mather, upon a promissory note of five hundred dollars. Plea, the general issue. On the trial, before Gridley, circuit judge, in March, 1846, the defendant proved that the note was given for part of the consideration on the sale to him by the plaintiff of two patents for different machines.

<p>The right of the owner of lands to the enjoyment thereof is qualified by the rights of others. Thus, he may pursue any lawful trade, but he cannot create a nuisance to the premises of another. So he may dig a canal, but in so doing he has no right to blast rocks so as to cast them upon the premises of another.</p> <p>The defendants, a Corporation, diig a canal upon their own land for the purposes authorized by their charter. In so doing it was necessary to blast rocks with gunpowder, and the fragments were thrown against and injured the plaintiff’s dwelling upon lands adjoining. Held, that the defendants were liable for the injury, although no negligence or want of skill in executing the work was alleged or proved.</p>

Teemain sued the Cohoes Company in the common pleas of Albany county. The pleadings and evidence were substantially like those in Hay v. The Cohoes Co. (ante, p. 159). After the plaintiff had closed his evidence, the defendants offered to prove “ that the work of excavating their canal was done in the most careful manner.” This evidence was objected to by the plaintiff and the objection sustained by the court of common pleas, and the defendants excepted.

This was an action on the case brought in the supreme court by Cunliff against the Mayor, Aldermen and Commonalty of the city of Albany, tried at the Albany circuit in February, 1847. On the trial it was proved that in August 1840, the plaintiff was passing over the bridge leading across the basin from the foot of State-street, in the city of Albany, to the pier in the Hudson river, when the bridge fell and he was severely injured.

James Thom, the sculptor, being the owner of a farm situate in the county of Rockland, in the year 1842 executed a mortgage upon it to one Crum. Subsequently he erected upon it a dwelling-house of red stone, in the Gothic style, and at the same time erected a sun-dial, and prepared a base in the lawn in front of the house and placed upon the latter a colossal statue of Washington.

Action in the supreme court by Davis and Clarke to recover damages of Tallcot and Canfield. The complaint alleged that on the 27th of March, 1850, an agreement in writing was made between the parties, whereby the defendants agreed to manufacture and put up in the plaintiffs’ mill, machinery of a specified kind and quality for the price of $900, to be paid by the latter.

■ On the 28th December, 1854, the defendant insured the. plaintiff for one year, to the amount of two thousand dollars, on his stock, fixtures, &c., “ contained in the premises occupied by him in the westerly end of the brick building known as the City Central Hall, situate on the corner of Fulton avenue and Elm place, city of Brooklyn.” The policy provided that the conditions annexed were “to be used and resorted to, in order to explain the rights and obligations of the…

This case was before the supreme court, and is reported in 6 Hill, 540, (see also 4 Hill, 200,) when a new trial was ordered on the ground that there had not been a compliance with the terms of the guaranty, and consequently the defendant was not bound by it. The cause was afterwards tried, and the plaintiff was nonsuited, on the ground upon which the new trial had been ordered.

Motion to dismiss the appeal. The cause was pending in the late court of chancery, and the bill taken as confessed in that court in March, 1847. Upon an ex parte hearing the chancellor granted a final decree, which was duly entered in May, 1847. In September, 1847, the supreme court, at a special term, on motion made by the defendants, set aside the order taking the bill as confessed and all subsequent proceedings, for irregularity.

The plaintiff had a verdict in the' New-York superior court on which judgment was duly entered. The defendant appealed to this court. No case or bill of exceptions had been made, nor any motion in the superior court to set aside the verdict. moved to dismiss the appeal, and cited sections 11 and 282 of the code of 1848.

<p>The code of procedure of 1848 does not authorize this court to review a judgment of the supreme court upon a case. There should be a bill of exceptions or special verdict presenting questions of law only.</p>

<p>The bill was filed in the supreme court in equity to foreclose a mortgage. The cause was heard before Justice Pratt, holding a special term, and a decree made by him in favor of the plaintiff. The defendant applied in due form under the judiciary act of 1847, to the general term of the supreme court, for a rehearing; and that court in May, 1848, refused the application. The order denying the motion expressed, on its face, that the merits of the case had been considered. The defendant appealed to this court.</p> <p>for the appellant, insisted that a reheating was a matter of right. (Gracie v. Freeland, 1 Comst. 228.)</p>

The action was trespass, for breaking and entering the plaintiffs close, situate in Westchester county.

<p>One who is without fault himself, when attacked by another, may kill his assailant, if the circumstances be such as to furnish reasonable ground for apprehending a design to take away his life of do him some great bodily harm, and there is also reasonable ground for believing the danger imminent that such design will be accomplished; although it may afterwards turn out that the appearances were false and there was in fact no such design nor any danger that it would be accomplished. The revised statutes (2 JR. S. 660, $ 3, sub. 2,) have not changed the law on this subject.</p> <p>But this principle will not justify one in returning blows with a dangerous weapon when he is struck with the naked hand, and there is 'no reason to apprehend a design to do him great bodily harm.</p> <p>Nor will it justify homicide when the combat can be avoided, or where, after it is commenced, the party can withdraw from it in safety before he kills his adversary.</p> <p>A verdict will not be set aside on bill of exceptions, although there was error on ' the trialjjf the error was such that it could do no legal injury: and the rule in this respect is the same in criminal as in civil cases.</p> <p>And the rule applied in a capital case where there was an error in the charge to the jury respecting the law of homicide, but the facts of the case did not call for a charge upon the point.</p>

. The action was to restrain the defendants from collecting, out of the real estate of the plaintiffs, a second assessment made for the construction of a sewer in one of the streets of the city.

<p>Prior to September, 1840, Harman Westervelt died, leaving a last will, by which he gave a legacy of $5000 to his daughter Elizabeth, then the wife of William Gregg, the respondent. Isaac Y. Westervelt, the appellant, was named as executor, and the will was duly proved before the surrogate of New-York, and letters testamentary issued to him in September, 1840. In September, 1846, the respondent presented to the surrogate a petition, verified by him, and in which he and his wife were named as petitioners, praying that the executor account and that an order be made directing him to pay the amount of the legacy to Mrs. Gregg to the petitioners. Various proceedings were had in the matter until September, 1849, when the surrogate made an order settling the accounts of the executor, declaring that there were moneys in his hands sufficient to pay the legacy, and reserving the question, as to whether the amount of the legacy should be paid to Mrs. Gregg or her husband, for further consideration. This question was argued before the surrogate, and in November, 1849, a decree was made declaring that the husband was entitled to receive the amount of the legacy, and directing the executor to pay it to him. On an appeal taken by the executor, the decree was affirmed by the supreme court, sitting in the first district. The executor appealed to this court.</p> <p>1. The legacy was the property of Mrs. Gregg when the act of 1848 was passed, her husband having omitted to reduce it to possession; It therefore remained hers. (Laws of 1848, pp. 307, 8, § 2; 1 Harris R., 480, 1, 2; 12 Smedes Marsh. R., 347; 2 Kent's Com., 135, 4th ed.; 10 Barr's R., 432; 9 New Hamp. R., 321, and cases cited.; 2 Brock. R., 286, 7, Marshall, Ch. J.; 15 New Hamp. R., 564; 1 Missouri R., 568.)</p> <p>II. The husband’s interest was a mere authority to collect the legacy, but until obtained by him he had no vested estate or property in it. The act, therefore, was not unconstitutional. (2 Ashm. R., 455; 5 Johns. Ch. R., 209, 110; 7 Dana's R., 183, 4. See also cases cited onfirst point.)</p> <p>III. The husband’s act in petitioning that the legacy should be paid, did not make it his; especially as he did not proceed in his own name alone, and agreed to leave the question open. (5 Johns. Ch. R., supra; 1 Barb. Sup. Ct. R., 9; 1 Barb. Ch., 624, 628; 9 Paige's R., 283; 2 Rich. Eq. R., 273.)</p> <p>I. The husband, as such, is entitled to reduce to his possession a legacy bequeathed to his wife during coverture. (2 Kent. Com., 5th ed., 135 to 143, and notes; Fry v. Fry, 7 Paige R., 462.)</p> <p>II. The act for the more effectual protection of' the property of married women, passed April 7,1848, does not affect the right of Dr. Gregg, the husband, to the legacy in question. 1. Before the act was passed, his right to reduce the same into possession had not only become vested, but he had taken proceedings before the surrogate to reduce it into his possession. (Dash v. Van Kleeck, 7 John., 477; Snyder v. Snyder, 3 Barb. S. C. R., 621; Holmes v. Holmes, 4 id., 295; Hurd v. Cass., 9 id., 366.) 2. The legislature could not pass a law divesting him of this right to the legacy. (Const. of 1821, art. 7, sec. 7; Const, of 1846, art. 1, sec. 6; Taylor v. Porter, 4 Hill, 140.) 3. The law is void as to all personal property that married women had or were entitled to at the time of the passage of the act; for by the marital contract made between the husband and wife, the husband was then the owner of all the wife’s personal estate, and entitled to reduce the same into possession ; and the law is void as “ impairing the obligation of a contract.” It cannot have a retrospective effect. (Const. U. S., art. 1, § 10, sub. 1; Danks v. Quackenbush, 1 Denio, 128, affirmed by court of ap., 1 Comst., 129.)</p>

This was an action on the case, tried at the Chenango circuit, before Gray, circuit judge, in August, 1846. On the trial the case was this : In the spring of 1844, the plaintiffs were the owners of the canal boat Jay, and .were engaged in transporting goods thereon, on the Hudson river, and on the Erie and Chenango canals, from New-York to Norwich, in the county of Chenango. Tucker, one of the plaintiffs, was also the master of the boat.

The property insured was a grist mill, and the amount of risk $3000, to continue five years. At the trial, before Edmonds, circuit judge, in August, 1845, it was admitted that the mill was wholly destroyed by fire on the 26th of October, 1842.

On the tenth of April, 1852, a judgment was entered in the supreme court in favor of,the plaintiff against the defendant for $1088 debt, and $6 costs.

This action was brought in the superior court of the city of New York, in December, 1861, to recover from the defendant the possession of two bonds, being first-mortgage bonds of the Toledo, Norwalk & Cleveland Bailroad Company, each dated September 1, 1851, payable August 1, 1863, for one thousand dollars each, with interest at 7 per cent, payable semi-annually, and each with twenty-four coupons for the interest annexed—said bonds and coupons being numbered respectively…

The complaint was upon a promissory note made by James Stewart, and endorsed by the defendants John and Thomas Hymers, to whose order it was payable. The note was dated January 22, 1849, and was for the payment of $5000, ninety days after date, at the Delaware Bank in Delhi.

On error from the supreme court, where the action was assumpsit upon a guaranty, brought by Curtiss against Chester Brown, tried at the Columbia circuit, before Edmonds, circuit judge, in September, 1845. On the trial the plaintiff gave in evidence a promissory note as follows: “ For value received I promise to pay Chester Brown or bearer fifty dollars, six months from date, with use. Canaan, April 2, 1838.

The American Mutual Insurance Company, on the 3d of May, 1845, insured Messrs. Hackenrath & Van Damme against loss by fire, to the amount of $22,000, on merchandise in a store in Broadway, in the city of New-York. On the 7th of May, 1845, the said company caused themselves to be reinsured by The Mutual Safety Insurance Company, to the amount of ten thousand dollars, against loss by fire, on the same merchandise, for one year from the 4th of May in that year.

<p>Action to recover damages for an injury sustained by Mrs. Holbrook while a passenger in the- cars of the defendant. The. complaint- alleged that in. May, 1849, Mrs.. Holbrook was a passenger on the defendant’s cars between Utica and Schenectady, and when within three or four miles, of Little Falls, as the train was going east, the car in which she was riding, by the carelessness of the defendant, came partly in contact with another car of the defendant, which was standing on the railroad track of the defendant, north of that upon which she-was riding, and a board or stick or ' other hard substance, by and through the carelessness and negligence of the defendant, was projecting from and in some manner connected with the car so standing on the north track; and as the car in which Mrs. Holbrook was riding was passing the car standing on the north track, the board, stick or other hard substance came violently in contact with her elbow and severely fractured it. The answer put in issue all the material allegations of the complaint. The cause was tried in March, 1852, at the Albany county circuit, before Justice Wright.</p> <p>The plaintiffs proved that while Mrs. Holbrook was a passenger riding in the - defendant’s car in a train passing-easterly, at a point a few miles west of Little Falls, and was sitting on- the northerly side of the car with her elbow resting on the sill of the window, which was raised, something struck with violence against the side of the car in which she was riding, striking and seriously injuring her elbow. It- was proved that this- collision occurred directly opposite where some cars were standing on the north track of the road, a few feet from the track on which the train was passing east. These stationary cars were then used to board and lodge workmen employed'by the defendant-in 'repairing the north "track of the road; a family occupied one, another-was used as a store room, and a third for cooking the meals of the workmen; the door of one of the cars opened outside towards the track upon which the train was passing. There were found, immediately after the accident, a horizontal mark and several indentations .upon the north side of the car in which Mrs. Holbrook was riding, as though some hard substance had struck-against it; one of these indentations was upon the side of the car at the window where she was- sitting,- and' the mark- extended across the lower casing of the window to near the inside of it. It was further proved that whatever it was which came in contact with the car, struck and brushed against other passengers sitting at two other windows in the north side of the same car in which Mrs. Holbrook "was riding. There was no other evidence as to what caused the injury to Mrs. Holbrook or what it was that came in .contact with the car, when the plaintiff rested.</p> <p>Thereupon the counsel for the defendant moved the court to nonsuit the plaintiffs on the grounds: 1. That to sustain the action the plaintiffs were bound to prove that the injury happened by the fault or negligence of the defendant or its agents; 2. That the evidence given did not show that the negligence or fault of the defendant or its agents had in any way caused or contributed to the injury complained of, and that the defendant was in no way connected with the injury to Mrs. Holbrook. The justice refused to nonsuit the plaintiffs and the counsel for the defendant excepted.</p> <p>The engineer in charge of the train in which Mrs. Holbrook was riding was sworn as a witness on behalf of the defendant, and testified that he saw nothing projecting from the boarding cars when he passed them, nor was there anything which he saw upon the road which did or could come in contact with the train; that the boarding cars had been standing there several weeks. Other witnesses were examined, whose evidence showed that the door of one of the stationary cars opened out towards the south track and was not kept fastened, but tended to prove that it was shut when the passenger train passed. There was also evidence given on the part of the defendant tending to show that Mrs. Holbrook’s elbow, at the time of the injury, was not resting on the sill of the car window but that' it then projected outside of the car.</p> <p>At the close of the evidence the counsel for the defendant renewed his motion that the plaintiffs be nonsuited on the same grounds above stated; the motion was denied and he excepted. He also requested the justice to rule and decide that there was not sufficient evidence, tending to prove that the injury complained of was occasioned by any negligence or omission on the part of the defendant, to be submitted to the jury, and that for this reason the plaintiffs were not entitled to recover; the justice declined to so rule and decide and the defendant’s counsel excepted. The justice charged the jury that to entitle the plaintiffs to recover they must be satisfied by the evidence that Mrs. Holbrook was injured through the negligence of the defendant or its servants ; that if negligence or want of ordinary care on the part of Mrs. Holbrook contributed in any degree to the result, the plaintiffs could not recover ; that to entitle them to recover, the jury must be satisfied from the evidence, not by speculation, that the negligence of the defendant or its servants alone caused the injury; that the defendant only contracted to carry her safely when she kept within the car: and that it was a question for the jury to decide, upon the evidence, whether or not her elbow was outside of the car when it was injured, and if it was, then it was a fact from which they might infer negligence or want of ordinary care on her part.</p> <p>The counsel for the defendant requested the justice to charge the jury as matter of law that if they found that Mrs. Holbrook’s arm or elbow was outside of the window of the car when the injury was received, it was an act of negligence on her part and the plaintiffs could not recover; the justice refused to so charge and defendant’s counsel excepted. There was a verdict and judgment in favor of the plaintiffs for $800 damages. This judgment was affirmed by the supreme court sitting in the 3d district. The defendant appealed to this court.</p> <p>I. It was not shown how the injury was occasioned, further than that it was caused by something proceeding from the outside of the car, with which the defendant was not proved to have been in any way connected. Nor was it shown what thing it was that produced the injury.</p> <p>II. Negligence cannot be inferred, except from wrongful or unauthorized or negligent acts; and none such in this case were proved. (1 Cow. & Hill's Notes, 306; Best on Ev., 189 (66 Eng. Ch.); 1 Hill, 273; 7 Hill, 544.) There was not evidence on the question of the negligence of the defendant sufficient to be submitted to the jury. The jury were not authorized to find a verdict for the plaintiffs on that evidence, and a nonsuit should have been granted. (Haring v. The N. Y. and Erie R. R. Co., 13 Barb., 9; Spencer v. The N. Y. and Erie R. R. Co., 5 Barb., 337.)</p> <p>III. The onus of proof on the question of negligence was upon the plaintiffs. The defendant had nothing to prove or answer for, until by some evidence, and not mere speculation, it was shown to have been in fault, and that the fault proved had contributed to the injury. 1. The rule casting the onus probandi on the carrier in case of accidents happening by a defect of track, or by breaking off, or some imperfection of a vehicle, cannot be applied to this case, so that from the fact of the injunj alone, upon the road of the defendant, negligence will be presumed. 2. That rule is applicable only to cases where the accident and injury are shown to be directly connected with something exclusively within the control of the defendant; such as the breaking of a car, defect in the road, or something of that description. That rule does not properly apply to a case like this, where the injury to the plaintiff is shown to have been occasioned from something outside of the car, not shown to have been connected with the road, and with which the defendant has no concern. 3. The reason assigned for casting the onus on the carrier, in the cases referred to, has no application to such a case as this, because the plaintiff’s means of knowledge as to what caused the injury is as great as that of the defendant—neither being able to show how it happened.</p> <p>IV. The refusal of the judge to instruct the jury, as a matter of law, that if they found that if the plaintiif’s elbow or arm was outside of the window of the car when the injury was received, it was an act of negligence, and she could not recover, was manifestly erroneous.</p> <p>There was evidence which would have authorized the jury to find that fact; and if found, the law pronounced it an act of negligence, which contributed to the injury. (Laing v. Colder, 8 Barr, 479.</p> <p>I. The testimony clearly proved that the negligence of the company caused the injury. The proof showed that the injury was caused by the car coming in contact with some obstruction from the boarding cars that were standing on the adjoining track. Whether it was some part'of the door swinging open, not fastened, that came in contact with the passenger car, or some projecting board from the boarding car, is not material to inquire. There was evidence from which the jury were authorized to find that the injury was caused by a door of the boarding cars standing open, or something else left carelessly projecting from them.</p> <p>II. The defendant is responsible for negligence in the management of these boarding cars. (Angell on Carriers, 523, 535, 566, 546.)</p> <p>III. The respondents having proved that Mrs. Holbrook was injured while sitting in the ordinary way in the car, from a concussion with some external force, the onus of proving the particular cause, and that the appellant was free from negligence, rested on it, and not on the respondents. 1. That this is the well settled rule in regard to stages, cannot be denied. (Christie v. Griggs, 2 Camp, 19; Stokes v. Saltonstall, 13 Peters, 181; McKinney v. Neil, 1 McLean, 540; Angell on Carr., § 569; ib. 566; 2 Greenleaf’s Ev., § 222; Story on Carr., § 601.) 2. The reason of the rule applies with far greater force to railroads than to stages. (Angell on Carriers, § 538.) The former are under the exclusive and absolute control of the company; their machinery and their management are far less understood by the public; their power and speed far greater; their slightest mismanagement far more dangerous and fatal. They should be held, then, more strictly to explain the cause of the injury and their freedom from negligence. (Carpue v. The London and Brighton Railroad Co., 5 Ad. & Ellis, N. S., 747.)</p>

This was an action of covenant, brought in the superior court of the city of New-York, to recover rent of Certain demised premises situated in that city. The case was this : In 1799 the plaintiff intermarried with Isaac Lawrence in the city of New-York. He died in-1841, seized of real estate, of which the premises in question are a part.

Action to recover damages for alleged negligence of the defendant in not transporting to and. delivering at the city of New-York a quantity of butter in a reasonable time. The cause was twice tried before a referee; on the first trial the plaintiffs had judgment in their favor. This judgment was reversed by the supreme court sitting in the 8th district and a new trial ordered.

Appeal by the defendant from a judgment of the Supreme Court rendered in the Third District in favor of the plaintiff. Held: in actions of this description, that the recovery must be confined to losses of a strictly pecuniary character, although in the statute giving the action the words “ pecuniary injury!) have not been employed. (Blake v. The Midland Railway Co. 18 Adolph. & Ellis, N. S. 93; Dalton v. The South Eastern Railway Co. 4 Com.

Sylvester Crofoot sued Bennett in the supreme court in trespass for taking a quantity of brick.

<p>The action was brought in the supreme court to recover upon a policy of insurance, dated the 11th day of October, 1849, at Le Roy, in the State of New-York, whereby the defendant agreed with Russell & Granger, described in the policy as of Bellville, Canada West, to insrne them against loss and damage by fire to personal property described, to the amount of $1500, during two years from the date of the policy. The action was tried before a referee. It was proved on the trial that the defendant was a mutual .insurance company, incorporated by the Legislature of New-York by chapter 241 of the laws of 1836, and that its office and place of business were at Le Roy, Genesee county; that on the 11th of October, 1849, Russell & Granger, the insured, were and thenceforth continued to be residents of Bellville, Canada West, and that on the day last named they executed and delivered at that place to one Patterson residing there, who was an agent for the defendant, an application for insurance on the property described in the policy, which consisted of stock, machinery and tools owned by them, situate in a shop at Bellville; and also at the same time and place paid to the agent the cash premium on the proposed insurance, and delivered to him their premium note payable to the defendant; that the application, premium note and money were immediately forwarded by the agent to the defendant at Le Roy, where the application was approved, and the policy upon which the action was brought executed by the defendant, to take effect and be of force from the 11th of October, and forwarded to the agent at Bellville who there delivered it to the assured. The application contained á provision, that if it was approved the policy should bear date and take effect from the date of the application.</p> <p>In May, 1851, the property insured was destroyed by fire, it being at the time in the shop at Bellville, and of the value of over $2000. Notice and proof of loss were duly made to the defendant by the assured, who subsequently assigned the policy and their demand upon it to the plaintiff. The defendant read in evidence opinions delivered by two of the judges of the court of queen’s bench of the Province of Canada, in the case of The Genesee Mutual Insurance Co. v. Wcstman. These opinions were read by virtue of a stipulation that they might be received as evidence, tending to prove what the law of the Province of Canada West was' at the time the contract of insurance was made. These opinions were delivered in a suit prosecuted by the defendant in'this action, in the court of queen’s bench, to recover the amount of a premium note executed in Canada by a resident of that province in consideration of an insurance by the company of buildings there situate , and they tended to prove that the law of Canada did not permit mutual insurance companies, incorporated by the laws of this state, to make valid contracts of insurance upon property situate in that province with the owners residing there.</p> <p>The referee found,</p> <p>1. That the contract of insurance in this case was made and entered into by the defendant at its place of business at Le Roy, in the county of Genesee within this state ;</p> <p>2. That the same was to be performed by it within this state and not in the Province of Canada;</p> <p>3. That it was made and entered into with reference to, and in view of the laws of this state, and to be executed in subordination to such laws ;</p> <p>4. That the premium note of the insured was valid and executed upon a good consideration, and that the contract of the defendant was entered into upon a good and valid consideration," to wit, the payment of the cash premium and the note;</p> <p>5. That the insurance was within the legitimate power of the defendant under the act of incorporation and the laws of this state, and is legal and obligatory by such laws;</p> <p>6. That the same is not contrary, to the laws or any usage or custom of the Province of Canada, and is a valid contract by the laws of that province ; ' .</p> <p>7. That the contract of insurance, if made and entered into within the. Province of Canada, was and is within the legitimate scope of the power of defendant, and valid as well by the laws of Canada as the laws of this state. The referee directed judgment in favor of the plaintiff for the amount insured. The defendant excepted to the decisions of the referee, and appealed to the supreme court, sitting at general term in the 5th district,'where the judgment was affirmed. The defendant appealed to this court. The cause was submitted on printed briefs.</p>

<p>Sylvester Crofoot sued Bennett in the supreme, court 'in trespass for taking a quantity of brick. On the trial before Willard, J., at the Washington circuit in 1847, it appeared that Horace Crofoot, on the 2d of September, 1846, in considera^ tiori of a previous indebtedness to and a new advance by the defendant, transferred to him by writing all the brick in two kilns previously burnt in Crofoot’s yard, supposed to be 45,000, and 43,000 to be taken out of a new kiln which' he was then putting up. It was stated in the writing that the defendant had paid for the brick, and that they were to be good merchantable brick. On the next day the defendant went to.the yard for the purpose of having all the brick delivered to him, and on that occasion the brick already burnt, as well as those unburnt, were pointed out to the defendant by Horace Crofoot, and .the defendant took possession of the premises where .the brick were' and gave directions about them; but none of those in the unburnt kiln 2D ere counted out or marked, or set apart from the residue. Horace Crofoot agreed with th'l defendant to burn the unfinished Min, which he accordingly did. On the 6th of October following Horace Crofoot executed to the plaintiff, who was his brother, a bill of sale of all the bricks in such new kiln. On (he 8th of the same month the defendant opened the kiln and took therefrom and carried away the quantity which had been purchased by him out of that kiln, and for that taking the plaintiff brought this action. Justice Willard held that these facts made out a good delivery to the defendant on the 2d and 3d days of September, of the bricks in question; that as against him the plaintiff had no title, and "that the defence was made .out. The defendant had a verdict, which the supreme court refhsed to set aside on bill of exceptions, and the plaintiff, after judgment in the defendant’s favor, appealed to this court.</p>

<p>Scherder sued Miller and Becker in the supreme court to recover damages for a false imprisonment. . On the trial, before Parker, circuit judge, at the Schoharie circuit in 1844, the case was this : In 1837, Scherder brought a suit in a justice’s court against Becker, and declared in the following form : “ The plaintiff complains of the defendant in a plea of trespass on the case, for that the defendant, in the month of December last past, sold to the plaintiff 132 pounds of beef, which said beef was unfit for man to eat, and was so unwholesome that it occasioned the plaintiff and his family great illness, damage, and expense. Also for that the defendant sold to the plaintiff one other certain quantity of beef, which was impure, unwholesome, and which the defendant knew so to be. Also for that the defendant, intending to produce the ruin and destruction of the plaintiff’s health, .sold to him, as provision, a certain quantity of beef which was unfit for man to eat, whereby the plaintiff sustained great loss. All to the plaintiff’s damage of $50.” On the trial of the suit in the justice’s court the plaintiff had a verdict for $25 damages, on which the justice rendered judgment in his favor. The defendant removed the cause by certiorari into the common pleas of Schoharie county, where the judgment was reversed, and the defendant had judgment for $25, costs of prosecuting the writ of certiorari. For the collection of those costs, Miller, one of the defendants in this suit, as attorney for Becker, the other defendant, issued a writ of capias ad satisfaciendum, against Scherder, on which the latter was arrested and taken to jail, where he was imprisoned about four weeks; and for that arrest and imprisonment this action was brought. The return of the justice to the certiorari did not set forth any of the evidence before him, nor was it shown on the trial of the present suit wjbat that evidence was. Upon these facts the question at the circuit was, whether the plaintiff was exempted from such arrest and imprisonment by virtue of the act to abolish imprisonment for debt, and to punish fraudulent debtors. (Laws of 1831, p. 396.) The circuit judge held that under the exemption declared by that act, the plaintiff was not liable to the imprisonment in question, and directed the jury to find such damages as should be just. The defendants excepted. The plaintiff had a verdict for $100, which the supreme court, on bill of exceptions, refused to set aside, and after judgment on the verdict, the defendants brought error to this court.</p> <p>Unless it clearly appears that the ca. sa. upon Avhich the defendant in error Avas imprisoned, was issued in a suit instituted for the recovery of .money due upon a contract, or for the recovery of damages for the non-performance of a contract, it is not a case Avithin the statute abolishing imprisonment for debt; and the imprisonment upon that process was laAvful. (Laws of 1831, p. 396; Rogers v. Dibble, 8 Paige, 11.) Statutes like the one in question, designed to destroy a common law remedy, are not to be extended to cases which are not plainly Avithin them. (Bac. Ab. tit. Stat. (I), 6; 12 Mod. Rep. 513.) The suit in the common pleas in Avhich the ca. sa. was issued, Avas an original suit, commenced in that court by.the present plaintiffs in error, against the defendant in error, to reverse a judgment which the defendant in error had obtained against them in a justice’s court. It was not a suit or proceeding .instituted for the recovery of money at all. It did not partake of the nature of the suit before the justice. In this respect a certiorari to a justice, which is in the nature of a writ of error, differs from an appeal. In an appeal the cause is tried de novo—-it is the same cause—the same plaintiffs and defendants.. No new suit is instituted. A writ of error is a new suit. The parties and attorneys may be, and frequently are, different from those in the judgment sought to be reversed. It is commenced by original writ. (Jaques v. Cesar, 2 Saund. Rep. 100, note (1); 1 Archb. Pr. 207; 6 Jac. Law Dic. tit. Writ, 458; 2 Saund. Rep. 101, (G), 6th ed. latter part of note (n); Batchellor v. Ellis, 7 D. & E. 333; Blunt v. Greenwood, 1 Cowen, 18, 19; Lessee of Taylor v. Boyd, 3 Hammond’s Rep. 354.) The decision of the supreme court in Phelps v. Barton, (13 Wend. 68,) cannot be sustained .upon principle.</p> <p>But if the suit on the writ of certiorari in the common pleas is to be affected by the cause. of action in the suit before the justice, then we submit it does not appear that that suit was instituted for the recovery of money due on a contract, or for the recovery of damages for the non-performance of a contract. The whole declaration in the suit before the justice, according to any reasonable mode of interpreting it, shows that the gravamen of the action was tort. The first count alleges no warranty or assumpsit of any kind; the gravamen, so far as any is stated, was fraud, the plaintiff in that suit relying upon the scienter presumed from the circumstances set forth. (12 John. 468; 1 Denio, 387, 8.) The injury which is alleged in that count to have been sustained by the plaintiff, clearly indicates the cause of complaint to be a tort. Conceding this count to be defective ás a count in tort, it. is equally so as a count in assumpsit. The court should, therefore, look to the other counts as defining the nature of the action. Even if the count is equivocal, the same course should be adopted to ascertain its character ; for if the other counts are in tort, the plaintiff shall not be presumed to have intended a misjoinder; and besides, every equivocal pleading is to be construed most strongly against the party who interposes it. (2 H. Black. Rep. 530; 1 Saund. 259, note 8.) The second and third counts are clearly in tort. (2 John. 550; 6 East, 333; 5 Pick. 425.) They contain, in substance, every thing necessary to be averred in an indictment for a misdemeanor at common law, for selling unwholesome provisions. (2 East’s P. C. 822.) The only general issue applicable to such a declaration, would be not guilty, inasmuch as a plea of non-assumpsit would not deny any thing alleged in the declaration.</p> <p>» But if the first count of the declaration should be deemed to be in assumpsit, it is insisted that the court cannot, from that fact, judicially determine and adjudge that the suit before the justice was instituted to recover money due on a contract, or damages for the breach of a contract. The character of the action must be determined from the whole declaration, and if the plaintiff has clearly set up two causes of action, one in tort and one in assumpsit, how can it be said that the action was brought for one cause., more than the other 1 And when there is a general verdict for the plaintiff on all the counts, how can it be determined from the record for which cause of action the plaintiff recovered ? In such case it cannot be legitimately said that the suit was instituted to recover money due on a contract, or damages for the breach of a contract. If the suit be in fact instituted for both causes of action, it is not the kind of a suit or proceeding mentioned in the first section of the act to abolish imprisonment for debt. The case of Brown v. Treat, (1 Hill, 225,) is not sustainable upon principle. It allows a plaintiff to take the chance of convicting the defendant of a fraud, and after he is defeated to insist that his action was on contract (7 Hill, 578.)</p>

Action to recover possession of a parcel of land situate in Cattaraugus county, commenced in December, 1848. The cause was tried in January, 1850, before Mr. Justice Hoyt. The plaintiff proved that he had the legal title to the premises in controversy.

On the 29th of March, 1844, the complainant recovered judgment against the defendant Russell Lord, for $1142,90 damages and costs. This judgment was obtained upon a demand which existed anterior to the judgments hereafter mentioned.

The plaintiffs in error, being canal commissioners of the state, were in May, 1853, indicted in the mayor’s court of the city of Albany for neglecting to repair a bridge, extending from the-foot of Columbia-street in Albany over the Albany basin to the pier constructed in the Hudson river.

On the 29th of March, 1844, the complainant recovered judgment against the defendant Russell Lord, for $1142,90 damages and costs. This judgment was obtained upon a demand which existed anterior to the judgments hereafter mentioned.

<p>Where the plaintiff on a purchase of land from the defendant, for which he was to pay in six years, at the request of the latter executed his bond and a mortgage on the premises to a third person for the amount of the price, payable the one-half in three and the other in six years, and the defendant covenanted to pay the first installment on the mortgage, and to indemnify the plaintiff against all damages, costs and expenses by reason of its enforcement before the expiration of six years; and the defendant omitted to pay the first installment when due, and the plaintiff, being notified that if it was not paid the mortgage would be foreclosed, and not having the money, was compelled to and did pay a person $60 for his services in procuring a party to advance the amount secured by the mortgage, upon its being assigned to him; Held, that .the plaintiff could not recover the sixty dollars on the covenant of the defendant.</p> <p>The terms, damages, costs and expenses, in a covenant of indemnity against the payment of a demand, do not cover a premium or bonus which the party is compelled to pay to raise the amount of the demand.</p>

<p>Where an assignee takes a chose in action by assignment, made with the debtor’s assent, and on the faith of what is said by him at the time, the debtor is estopped from impeaching it by any defence inconsistent with his declaration. Per Ruggles, J.</p> <p>A. holding a bond against B. and being indebted to C. in a like amount, assigned the bond to secure the debt, C. at the same time making a further advance to A., to which he was induced by the security thus" obtained for the existing debt. This assignment was accompanied by an agreement on the part of the assignee that the obligor should have time for payment beyond the condition of the bond. An equitable defence existed against the bond, which was known to the assignee; but the obligor, before the assignment was made, assented thereto, at the request of the assignee, on being informed of the arrangement about the time. Held, on bill filed to restrain a prosecution' at law, and to have the bond cancelled, that the obligor was estopped from setting up such defence.</p>

Nichols brought replevin .in the cepit in the superior court of the city of New-York, against Dusenbury and Bailey, for the taking of certain goods, the property of the plaintiff. Bailey pleaded non cepit. Dusenbury put in to the declaration two avowries.

Action in the New-York common pleas against Platt Rogers, Hiram Rogers and Thomas Rogers, to recover of them eleven hundred and seventy-five dollars and forty-two cents, for goods sold and delivered by the plaintiffs to the firm of Rogers & Co., at different times between the 2-5th of January, 1849, and April, 1850. On the trial it appeared on the part of the plaintiffs, that since, prior to 1847, they had been engaged in business as copartners in the city of New-York.

Philip T. Roe contracted with Isaac Roe to purchase from him a vacant lot of land in the village of Elmira, known as “Mock 66,” by written agreement, dated. April 17, 1841, for $800, payable, half on or before June 1st, 1844, and the other half on or before June 1st, 1845, with annual interest.

York. The action was on a policy of insurance issued by the defendants to Carston Hennings, who, after the loss, assigned the claim to the plaintiff. The insurance was against loss by fire to groceries and store fixtures, in a store in Christopher-street, in the city of Hew-York, to the amount of $1000, and. a premium of, $10 was in the policy stated to have, been paid.

The parties agreed in writing to submit certain matters in difference between them to three arbitrators, and provided in the agreement that the award should be made in writing under the hands of the arbitrators, or any two of them, and be ready for delivery on or before the second day of April, 1860. On the 13th of March, 1860, the three arbitrators met,- took and subscribed the oath as arbitrators, and-appointed the hearing for the 22d of the same month.

Error from the New-York common pleas, where Robinson sued Hall in trover for the conversion of a gold watch and chain worth $ 120.

Action in the supreme court by Dolph against Samuel White. The complainant alleged that on the 7th of April, 1851, Jeremiah White and N. R. Stevison made their promissory note for one hundred dollars, payable to one Gilbert or bearer, on the first of April then next, and that the note was transferred to the plaintiff; that in December, 1851,-Stevison, one of the makers of the note, in consideration that White, the other maker, then leased unto him and one Wallace a mill and…

Ejectment for a lot of land in the city of New-York, brought in the superior coirrt of that city, and tried in December, 1846. Both par-ties claimed title to the premises in question, under the will of Gerardus Post, deceased, made in the year 1833.

The action was brought to recover the damages caused by the breaking down of a highway bridge in the town of Hume, in the county of Allegany, of which town the defendants were at the time commissioners of highways.

Action commenced in the supreme court in 1851, to recover damages for trespasses alleged to have been committed by the defendants and their workmen upon lands of the plaintiffs, situate in the county of Columbia.

Action to recover from the defendant $235, paid to him as collector of taxes for the town of South East in the county of Putnam. The cause was tried at the Putnam county circuit, before Mr. Justice Brown, in May, 1852.

Action commenced in the superior court of the city of New-York in March, 1850, by Decker against Mathews and Gardner.

The action was brought to recover for. the death of the plaintiff’s intestate, who was- her husband, caused by the alleged negligence of the defendant’s servants. Held: after due consideration upon substantially the same facts, that the plaintiff ought to be non-suited for want of evidence to show that the defendant was guilty of any negligence, and because the evidence did show that the want of care, or negligence of the plaintiff’s intestate, contributed to the injury.

On the morning of the 17th of January, 1848, between six and seven o’clock, the plaintiffs caused a judgment to be perfected in their favor in the supreme court, against one McKnight, on a bond and warrant of attorney theretofore executed by him to them, and on the same day, at eight o’clock A. M., they made a demand of McKnight that lie should apply any money or choses in action belonging to him, or so much thereof as should be sufficient, to the payment of the judgment;…

The Herkimer Manufacturing and Hydraulic Company sued William Small in the supreme court, and declared in assumpsit on his subscription for twenty-one shares of the capital stock of the company.

Action commenced in the supreme court m March, 1851, by John and Lewis Marquat against Peter Marquat and Elizabeth his wife.

<p> Writ of Error to review a Judgment of the Supreme Court. </p> <p>The plaintiff in error was indicted in the oyer and terminer of Delaware county for the offense of receiving usury, contrary to the statute. (Laws of 1837, chap. 430, § 6.) The indictment was sent to the court of sessions, where the trial took place on the 7th of December, 1859. The prosecutor and principal witness was John B. Burdick. It appeared that he was the owner of a farm which was subject to a mortgage held by the defendant (the plaintiff in error), which had been executed by a former owner, from whom Burdick acquired title. ' It was executed in 1851 to secure $800, payable by installments with annual interest, and the whole principal became payable on the first of January, 1856, and B.urdick had paid the interest, but no part . of the principal. On the 30th of November, 1857, Burdick applied to the defendant to obtain time for the payment of the principal—not having been able to raise the money as he expected to have done. After some conversation between them, Burdick signed an agreement in these words: “ If I do not pay N. Sumner the $800 I owe him by Decernher 5, 1857, I will give him sixteen dollars extra. Nov. 30, 1857.” There was endorsed upon this paper, when given in evidence, in the handwriting of the defendant, as follows: “ Eeceived the within sixteen dollars.” Burdick was examined and cross-examined as to the circumstances, at considerable length. He swore that he paid $400 of principal and lawful interest on the $800 about February 1, 1858, and the remaining $400 and all the lawful interest about the 1st of February, 1859; and that in addition to this he paid the $16 mentioned in the paper, but it was not clear at what precise time the latter was paid. It seems, however, to have been at or .shortly after signing that paper. The district attorney endeavored to show by him that at the time of signing the writing the defendant agreed to wait one year for the payment of the debt, and in some of his answers the witness stated that this was so; while in other answers he said, “ I think he spoke about waiting one year,” and “ there might have been something said about his waiting one year.” His testimony was somewhat confused, but he was clear as to his having paid the sixteen dollars; and as to the time of paying the principal and lawful interest, and upon these points there was.no contradiction. The only other witness was a brother óf John B. Burdick, who testified to an admission of the defendant that John had paid him two per cent-extra besides the interest. The defendant’s counsel moved that the court direct a verdict for,the defendant, for the reason that the sixteen dollars extra was taken on a contract for a penalty for the non-performance thereof, and not for 'a loan or forbearance of money. The motion was denied, but the court deóided that there was evidence sufficient to submit the case to the jury. The defendant excepted. The counsel also requested the court to charge, that if the sixteen dollars extra was paid to the defendant by J. B. Burdick, “ on the happening of any contingency over which the said Burdick had a control, it was not usury.” The court declined to so charge. and the defendant’s counsel again excepted. It is stated generally that the court charged the jury, but the charge is not set out. The jury found the defendant guilty, and the court sentenced him to pay a fine of $100. The judgment was affirmed by the supreme court.</p>

Action commenced in the supreme court in 1841. The declaration contained two counts; the one alleging that the defendants Clarke, Redfield & Buckley were common carriers of goods from Oswego to Lower Sandusky, by a vessel called the Hercules, and that Oreen, the plaintiff, in July, 1836, at Oswego, delivered to them on board this vessel six hundred and twenty-five barrels of salt, to be transported to and delivered at Lower Sandusky for a reasonable reward therefor, and that…

Peter Hynds, the plaintiff’s testator, death and for many-years prior thereto, at the time of his was the owner in fee of certain lands situate in the town of Sharon, in the county of Schoharie, lying on both sides of a small stream called West creek.

<p>Assumpsit brought in the court of common pleas of the city of New-York, against Charles Pitt and William Pitt, as the endorsers of certain promissory notes made by John S. Lawrence and payable to the defendants’ order. The suit was brought for the benefit of one Hillsburgh, between whom and the defendants there had been extensive dealings, and to whom the dmendants had transferred the notes for value in the usual course of business. After Hillsburgh became the holder of the notes, Lawrence, the maker, "executed to him a bond and mortgage as collateral security for the payment thereof. The mortgage was never recorded, and subsequently, in January, 1846, was surrendered by Hillsburgh to Lawrence, and Lawrence sold the property on which it was a lien for more than enough to pay the notes. There was no understanding or agreement of any sort between Lawrence or Hillsburgh and the defendants in reference to taking the mortgage, keeping it on foot, or its surrender. The defendants were told by Lawrence, after its execution, that he had given such a mortgage, but there was no communication between them and Hillsburgh. No evidence was offered as to the circumstances of Lawrence other than that above mentioned. Nor was it claimed that Plillsburgh acted in bad faith in surrendering the securities. The plaintiff made the necessary proof to charge the defendants as endorsers.</p> <p>Upon proof of the matters above stated, the defendants moved for a nonsuit, which was denied, and they excepted. They then requested the judge to charge the jury, that Hills-burgh took the bond and mortgage not .only for his own, but for the benefit of the defendants; and, that having surrendered the same without payment, the defendants were thereby discharged from their liability. The judge refused so to charge, and they excepted. The jury rendered a verdict for the amount of the notes, and after judgment the defendants brought error to this court.</p> <p>cited Capel v. Butler, (2 Sim. & Stu. 457;) Hayes v. Ward, (4 John. Ch. 130;) Parsons v. Briddock, (2 Vernon, 608;) Mayhew v. Crickett, (2 Swanst. 185;) Eq. Cases Abr. 193; 2 Cox’s Rep. 86; Pitman on Pr. and Surety, 175; 9 Cowen, 194 ; Law v. The East India Co. (4 Vesey, 804.)</p> <p>cited Trimble v. Thorne, (16 John. 152;) Beardsley v. Warner, (6 Wend. 610, 613; Story on Prom. Notes, 411, 416, 419; Theobald on Sureties, 184.</p>

<p>A testator, by his will, which took effect in 1801, devised his real estate to his four sons and the heirs of their bodies, share and share alike; if any one of them should die without issue, his share was to go to the survivors, to be equally divided among them; and if all the sons should die without issue, the estate was to go to the children of the daughters. Held, 1. That by the primary devise to the sons they took estates tail, with contingent cross-remainders, which, by the statute of 1786 abolishing entails, were converted into absolute estates. 2. That the limitations over to the survivors among the sons, and to the children of the daughters, were cut off by that statute.</p>

The action was commenced on the 23d September, 1858. The plaintiffs alleged in their complaint that on the 10th September, 1856, at Cicero, in the county of Onondaga, in consideration that the plaintiffs did then and there agree to purchase of the defendant a certain crop of tobacco there growing, being owned and raised by the defendant, and to pay the defendant therefor at the rate of ten cents a pound on the delivery thereof, well cured and boxed, and in good condition, he…

The defendant was tried in September, 1853, before the Dutchess county oyer and terminer, Mr. .Justice Barculo presiding, for murder in killing the woman with whom he cohabited as his wife. The defence relied upon was that the prisoner was insane at the time of the killing.

In October, 1821, Reuben Ferguson and wife executed to James Ferguson a bond and mortgage on real estate in Oneida county, conditioned, among other things, to support and maintain the said James and Martha his wife, during their respective lives. James Ferguson died in 1828, and James G. Ferguson, in 1833, took out letters óf administration upon his estate.

Action in the supreme court commenced m the .spring of 3.848. The declaration was in assumpsit, containing the common counts, for real estate and contracts therefor sold and conveyedto the defendant. The plea was non-assumpsit. The cause was tried at the Steuben county circuit, in May, 1851.

<p>Appeal from the late court of chancery. Hiram Barney filed his bill in the first circuit against Francis Griffin, William C. Wetmore, Charles G. Havens and others, stating, among other things, that on the 5th of April, 1844, one Lewis recovered judgment in the supreme court against Hamilton H. Jackson and others, for the sum of $1013,90, on which execution was duly issued and returned unsatisfied in September of the same year; that on the 16th day of September, 1846, the complainant became the assignee and owner of the said judgment which remained unpaid at the filing of the bill; that on the 28th day of March, 1844, the said Hamilton H. Jackson, being insolvent, but possessed of a large and valuable real estate situated in the city of Brooklyn and elsewhere, and having no personal property liable to execution, for the purpose of hindering, delaying and defrauding his creditors, executed to the defendants, Griffin, Wetmore and Havens, a conveyance and assignment of all his real estate in said city and elsewhere, for the purposes and upon the trusts therein expressed as follows yiz: (1.) To sell the said real estate, or so much thereof as should be necessary, to satisfy the trust therein declared, at public or private sale, for cash or upon credit, or partly for cash and partly upon credit, and generally upon such terms as the said assignees should think most advantageous. (2.) Out ol the proceeds of such sales to reimburse themselves for all costs, charges and expenses incurred in the execution of the trusts, and to retain a commission of six per cent, on the gross amount of moneys received and paid out by them. (3.) To pay all taxes and assessments against the estate, and to relieve the estate from all sales which had been or should thereafter be made for. taxes and assessments. (4.) To pay certain judgment creditors of the assignor named in a schedule thereto annexed, in the order of their legal priority. (5.) To pay another creditor named, the balance of his account against the assignor for money advanced, being $11,138,59. (6.) To pay the holders of certain promissory notes made by the assignor and endorsed by other persons, amounting to over $30,000, and in case there should be a deficiency then to pay them pro rata. (7,) To pay to two other persons the sum of $20,000, due them for money lent and advanced: “ and finally, upon the further trust to reconvey to the assignor, his heirs or assigns, after the trusts before mentioned should be duly executed and performed, so much of the said real estate as should be left undisposed of.”</p> <p>The bill charged that the said conveyance was illegal, fraudulent and void, and prayed, among other things, that the same might be set aside; that the trustees might be.directed to convey the property to a receiver, and the complainant paid the ,amount of his debt, &c.</p> <p>The assignees answered, admitting the assignment as set forth in the bill, but denying all fraud in fact, or in intention, and insisting that the conveyance was legal and valid. In regard to the final trust to reconvey to the assignor, the answer stated, that it was inserted in the instrument in good faith, and without any intention to impair or prejudice," in any way, the rights of the complainant, or any of the creditors of the assignor, and (as the defendants believed and insisted,) without having any such effect; that the clause was so inserted merely in accord-dance with approved forms, and for greater caution, to express what it was deemed .the assignor would be entitled to upon the performance of the trusts, and so as to remove the cloud from the title to such part of the real estate as should remain unsold after the debts’ should be paid.</p> <p>The answer also denied, in substance, that the proceeds of the estate assigned would go farther than to pay the debts provided for in the assignment; and it alleged that if provision had been made therein for all the creditors of the assignor, including the complainant, none of them, other than those actually provided for, would have received any sum whatever from the property assigned. The answer also alleged, that the estate assigned consisted chiefly of vacant and unproductive -lots in the suburbs of the city of Brooklyn ; that the property was heavily encumbered in various forms; and that, but for the assignment, it would have turned out insufficient to pay the incumbrances, so that no creditor, who had not obtained a lien, would have received anything upon his demand; and that the assignment, as the defendants believed, was executed with the bona fide design of making the estate available in the utmost degree, for the benefit of creditors who had not obtained such liens.</p> <p>The pleadings contained other allegations not necessary to be here stated.</p> <p>The complainant moved before the vice chancellor that a re-" ceiver be appointed of the property mentioned in the trust deed, and of the proceeds thereof in the hands of the defendants. The defendants made at the same time a cross-motion to dissolve the injunction which had been issued on the filing of the Bill. Both motions were founded on the hill and answer, and upon the argument thereof, the question was submitted whether the assignment was fraudulent and void as to the complainant. The vice chancellor granted the complainant’s motion for a receiver, and denied the motion to dissolve the injunction. He also declared the assignment fraudulent and void. The assignees appealed to the chancellor, who affirmed the order, and they then appealed to this court.</p> <p>I. The assignment executed by H. H. Jackson to the appellants was valid, under the provisions of the revised statutes authorizing express trusts, “ to sell lands for the benefit of creditors,” (1 R. S. 728, § 55, sub. 1,) or “for the purpose of satisfying ány charge thereon.” (Sub. 2.) The law permits preferences among creditors; (Reviser’s notes to § 55, 3 R. S. 2d ed. p. 585; Murray v. Riggs, 15 John. 583, and cases there cited; Hendricks v. Robinson, 2 John. Ch. R. 290, 303, 306, &c.; 4 id. 685; 5 John. 427; Mackie v. Cairns, 5 Cowen’s R. 548; Waterbury v. Sturtevant, 18 Wend. 364, 5;) and does not require all creditors to be provided for. (Wilkes v. Ferris, 5 John. 335; U. S. v. Hooe, 3 Cranch, 73; Tompkins v. Wheeler, 16 Pet. 107, 116, 117.). The principle that the giving even of unauthorized powers to such trustees, (without intentional fraud,) will not vitiate an assignment, was fully established in Darling v. Rogers, (22 Wend. 483 to 498; 7 Paige, 273.) The appellants, as trustees, took a legal estate; but only to the extent of satisfying the valid trusts to pay debts. Beyond that, the legal estate- remained in the assignor, and might be sold by other creditors under judgment and execution. It is not true, therefore, that the residuary interest of the assignor was placed beyond their reach. The residuary clause in the assignment is unimportant, the. legal effect being the same as if omitted. (1 R. S. 728, §§ 47, 49, 60; 61, 62, 67; 2 id 367, § 27; 4 Kent’s Com. 310, note a.) Such a clause, in respect to personal property, is not always objectionable; Wilkes v. Ferris, 5 John. 335, 345;) although a residuary interest in personal property cannot be reached by execution, (Pickstock v. Lyster, 3 Maule & Sel. 371; 8 Wend. 347; 1 Comst. 20 and 295,) and one of real estate can. (4 Wend. 462; 13 John. 340.).</p> <p>A' trust of personal property, for the use of the assignor, is declared void, as against creditors, by statute. (2 R. S. 135, § 1.) Not so of real estate. An attempt to create one of real estate is simply ineffectual. (1 R. S. 728, § 49.) It cannot, by any thing on the face of a deed, place the debtor’s interest, whatever it is, beyond the reach of an execution. Only intentional fraud vitiates. A mortgage, with a power of sale, generally contains such a residuary clause; and a trustee, to pay debts, is like a mortgagee in possession. His estate ends when the debts are paid. (Phyfe v. Riley, 15 Wend. 248.) Doubtless, the same right to redeem exists. (2 Sumner, 490, 533, 540, 542.) A trust deed is the common form of security in some of the other states. (Hogan v. Lepetre, 1 Port. Ala. R. 392; Wiswall v. Ross, 4 id. 321; Sims v. Huntly, 2 How Miss. R. 896.</p> <p>II. There was no actual or intentional fraud. The charges of the bill, in this respect, are upon belief only, not verified, and must be disregarded. (15 John. 582; 7 Paige, 157; 9 id. 305.) The denials of the answer are ample, and all the circumstan ces are consistent with the utmost fairness.</p> <p>I. The assignment of Hamilton H. Jackson is void, because it authorizes the sale of the assigned property at private sale, on credit, and “ generally upon such terms as the assignees shall deem most advantageous.” (1.) The assignment embraces a large amount of real estate, (being in terms all that the assignor possessed, and in fact all his property,) in which the assignor had a legal estate, and which, therefore, creditors had a right to seize upon and sell in satisfaction of their debts. An assignment, therefore, which takes from them this right, can only be tolerated upon the ground that it devotes the property immediately and uncondi tionally to the payment of those debts. (Grover v. Wakeman, 11 Wend. 189, 195, 200, 201, 202; 5 Cowen’s Rep. 547; 6 Hill, 438.) (2.) But this assignment, while it withdraws all the assignor’s property from the reach of legal process, does not leave it where the creditors can reach it in any other manner, except in the unlimited discretion of the assignees. The assignees can place the creditors at defiance until they shall have converted the property into the means of payment, at private sale, on credit, on such terms as they shall deem advantageous. The power to sell at private sale, on the most advantageous terms, involves a right to delay the sale as long as the assignees think proper. The sale may then be made on any terms of credit which they think best, and thus the creditors may be indefinitely “hindered and delayed.” (Grover v. Wakeman, sup.; Meacham v. Sternes, 9 Paige, 406.</p> <p>II. The assignment is void because it conveys all the real estate of the assignee in trust to pay certain creditors named, and to reconvey so much of the property as shall remain unsold by the assignees, to the assignor, leaving the complainant and other creditors not named in the assignment wholly unprovided for. (Grover v. Wakeman, supra; Goodrich v. Downs, 6 Hill, 438, and cases there cited; Boardman v. Halliday, 10 Paige, 229, 230.) (1.) The assignment, by its express provis ions, withdraws all the property from a portion of his creditors, until the assignees, in their own time and discretion, shall have performed all the specific trusts, and reconveyed the residue of the property to the assignor. (2.) There is, in the mean time, no legal or equitable estate left in the assignor which the creditors can reach. (1 R. 8. 729, § 60.) Nor can they proceed against the assignees for the enforcement of the trusts, because the trusts are not created for their benefit. The necessary result is, therefore, an indefinite postponement of all remedies as to creditors not provided for in the assignment. (3.) The trust to hold a property for an indefinite period, and then to reconvey a portion of it to the assignor, is a trust for the benefit of the assignor and not of creditors, and is therefore fraudulent and void. (4.) Such a trust is also in direct contravention of the statute permitting only certain specified trusts in real estate. (1 R. S. 728, §§ 45, 55.) The statute only allows a simple trust “ to sell lands for the benefit of creditors ” not to sell a portion of the land for the benefit of one class of creditors, and to reconvey to the assignor another portion in fraud of another class of creditors.</p> <p>III. Another objection to the assignment is, that it provides for the payment of all .costs, charges, disbursements and expenses for which the assignees shall or may become liable, and a commission of six per cent on the gross amount of the moneys received and paid out by them.</p>

Ejectment for a lot of land in the town of Constantia, Oswego county, tried at the Oswego circuit, before Gridley, circuit judge, in December, 1846. To show title in himself, the plaintiff proved the Towanda Bank to have been a corporation duly created according to the laws of Pennsylvania, where its business was transacted.

The plaintiff recovered a verdict for $7060.88, for which and costs judgment was entered. The defendant made a bill of exceptions, and on appeal the judgment was affirmed by the supreme court at a general term in the 8th district. The defendant appealed to this court. The questions presented are stated in the opinion delivered in this court.

The action was brought upon a promissory note, given by the defendant to the intestate for $400, dated July 3, 1856, payable three months after date; and also to recover… Held: as matter of law, that the giving and receiving of the note in question operated as a modification of the contract to the extent of the amount thereof, in respect to the terms of payment; and was, in effect, an agreement to ,pay according to the terms of the note, instead of the terms of the contract.

In 1844, James Wadsworth, of Geneseo, in the county of Livingston in this state, died, leaving a will duly executed by him to pass real, estate.

The case was this: Clark & Co. (the plaintiffs,) in the spring of 1845, were stock and exchange brokers in the city of Philadelphia, and for four or five years had corresponded and transacted a large business with John T. Smith & Co. exchange brokers in the city of New-York. The course of business between the two houses was as follows : Clark & Co. transmitted to Smith & Co. funds to be credited and drawn against, or held subject to their order.

The plaintiffs, Townsend and others, filed their bill of complaint in the court of chancery, in 1846 ; the general object of the bill was to enjoin the defendant perpetually from continuing a bulk-head, which he had then recently erected upon a certain mill lot, number one, owned by him, whereby the water in a certain artificial channel was, as alleged, set back upon and thereby obstructed the use of a water-wheel of the plaintiffs, appertaining to their' flouring mill…

This action was brought by the administratrix of John Newson, who, it is alleged, was tilled by the negligence of the defendant, to recover damages for such negligence. It appeared on the trial that the firm of Adams, Hastings & McYean, of Rochester, employed the railroad company to transport from Charlotte to Rochester á quantity of gravel in dpen or platform cars, and to be taken from the cars after its arrival in Rochester by Adams, Hastings & MoYean.

Ejectment for a lot of land in the town of Stanford, county of Dutchess, tried before Babculo, circuit judge, in November, 1846.

George Pearce and Henry Smith brought an action of debt in the New-York common pleas, against Andrew H. Hitchcock and others.

<p>Appeal from, a judgment of the General Term,' of the ' - Supreme Court in the Fifth District, affirming the judgment of a Special Term.</p> <p>The action was in the nature of trespass for an entry by the defendant upon the plaintiff’s land. It was proved that the defendant had been seen walking upon the locus in quo. It appeared from the evidence that the parties had been adjoining owners for several years. Some question had been raised as to the true line and the location of the corner between plaintiff and defendant. The defendant had caused a survey to be made, and the surveyor, in the presence of both parties, stuck a stake as the true corner and boundary line according to that survey. Something was said at the time about a mistake as to the number of chains having been made by the chain bearers, but they, on being referred to, said they had not made any mistake. The plaintiff’s evidence tended to show that the stake so stuck by the surveyor was agreed upon between the plaintiff and defendant as the corner and boundary line, and that it was agreed a fence should be built upon that line. It also appeared that the plaintiff did, within a short tiine thereafter, build a temporary fence from the stake, for a few rods, along that line. There had been no fence previously at that point.</p> <p>The defendant’s evidence tended to show that both parties were disappointed at the result of the survey and measurement, but that the-stake was stuck and acquiesced in by the defendant in the belief that the chaining had been accurately made, and that there had been no mistake in the number of chains measured. It also tended to show that another survey was made, within two or three weeks after the first, and the ground measured by the same surveyor and one of the former chain men, when it was discovered that a mistake had been made as to the number of chains in the first survey, and that by correcting the mistake the plaintiff’s premises would not embrace the lands upon which the trespass was alleged to have been committed. It was also shown by the plaintiff’s witness, from whom he derived his title, on his cross-examination, that if there was a mistake of one chain in the first survey the locus in quo would not come within the lines of the plaintiff’s farm. It also appeared from the evidence that a fence had stood as a line fence between the two farms, on the line claimed by the defendant as the true line, for over twenty years previous to the survey when the stake was stuck for the new corner. There was also evidence tending to show that the plaintiff, at the time the new corner and line were claimed to have been established, knew there had been a mistake in counting the number of chains actually measured. The plaintiff objected to the evidence offered by the defendant to show the mistake in the first survey and measurement, which objection was overruled and he, by his counsel, duly excepted. The case turned upon the question whether the defendant ivas bound by the new corner agreed upon, notwithstanding the mistake of fact upon which such agreement was founded, if there was in truth any such mistake.</p> <p>The justice charged the jury that if there waste mistake iii the measurement of the line of the defendant’s land, and the location of the corner was thereupon assented- to in ignorance of the mistake, the party injured by the mistake might have it rectified. He further charged that if there was. in fact a mistake, and the place where the trespass was alleged to have been committed would be on the defendant’s land according to true measurement,' and not on the plaintiff’s, the plaintiff could not recover. The plaintiff, by his counsel, excepted to each of these propositions separately. The jury found a verdict for the defendant. Judgment was rendered upon the verdict, and the plaintiff appealed to the general term, where the judgment was affirmed, and he then brought his appeal to this court. The case was submitted upon the printed case, and the points and briefs -of the counsel for the respective parties.</p>

In 1799, John Watts demised to John Ellis certain premises situated in the city of New York, for the term of twenty-one years, and by another agreement, made in June, 1821, the lease was continued for twenty years longer. In the lease Ellis covenanted to pay all rates, taxes and assessments, for which the premises should be liable, rated, or assessed.

On the 29th of October, 1849, August Belmont, being the owner in fee of certain real estate, situate in the city of New-York, executed, as party of the first part, a conveyance thereof to Jeremiah Larocque, as party of the second part.

Delapaine, surviving executor of Isaac Clason, deceased. The cause was heard on pleadings and proofs before the assistant vice chancellor of the first circuit, who sustained the bill. From his decree the defendant appealed to the supreme court, where the decree of the vice chancellor was reversed and the bill dismissed with costs. The complainant then appealed to this court. The case is stated in the opinion of the court.

The action before the justice was on a note made by one Swinerton, to the order of the defendant Winnie, bearing date the 21st January, 1856, and was for the sum of $50, payable with interest on the 1st day of April then next. The complaint alleged that, after said note was made as aforesaid, it was delivered to said Winnie, and that after-wards,' and on, or about the 1st October, 1856, said Winnie applied to the plaintiff .to let him (Winnie) have the money on it.

Jacob Sisson brought assumpsit in the supreme court, against Caleb D. Barrett and Edward L. Barrett, for money paid to their use. Caleb D. Barrett pleaded the general issue, and the case was tried before Barculo, J. at the Dutchess county circuit, in December, 1848. Trial by jury was waived,1 and the judge found the following facts: On the 1st of January, 1842, the plaintiff and defendants gave their note to William Davis, as follows: “ $2000.

Motion to dismiss an appeal taken to this court from an. order of the supreme court, confirming certain reports of commissioners of estimate and assessment, made in proceedings for the extension of Canal and the widening of Walker streets, in the city of New-York.

Stevenson against Maxwell, and the heirs, devisees, and legal representatives of Thomas Stevenson, deceased. The case, so far as necessary to be stated, was as follows : On the 14th of November, 1828, the complainant and Maxwell became the purchasers from one Bradshaw of a lease of a lot of land on Cedar-street, Néw-York, and of adjoining lands.

<p> Appeal from a judgment of the Supreme Court reversing a judgment entered at a Special Term on the report of a Referee. </p> <p>The action was brought by the plaintiff as assignee of Toynbee and Hopkins, under an assignment in trust for the benefit of creditors, against the sheriff of Kings county and various' creditors of the assignors, under whose several executions the sheriff had levied upon and sold the property of .the assignors. The referee found the following facts: That Thomas Toynbee and Josiah Hopkins, with the' plaintiff, on the Mth day of April, 1865, executed, and the said Toynbee and Hopkins delivered to the plaintiff, the instrument of assignment mentioned in the complaint; that at the time of the execution of the said assignment, and for a considerable time prior thereto, the said Toynbee and Hopkins were and had been the keepers, as co-partners, of a hotel and restaurant, in the city of Brooklyn; that at the time of ■ executing said assignment, the debts of the assignors exceeded the value of their property, and they were embarrassed in them circumstances and threatened with suits; that immediately after the execution of the said assignment, and on the same day, the plaintiff entered into and took possession of all of the assigned property, and continued in the possession thereof until the same was taken away from him by the defendants, as hereinafter mentioned; that the plaintiff, after he so took possession, kept the place open, continued the business, and advertised in the New York Herald for a purchaser of the establishment; that he employed one of the assignors, Mi*. Toynbee, to keep the books; and that the other, Mr. Hopkins, remained upon the premises, with his wife, assisted the assignee, and, with her, boarded at the house, without being charged for board; that the creditors of the assignors knew of, and assented to, the course pursued by the assignee in so keeping the said place open, and continuing the said business; that subsequent to the execution and delivery of the said assignment, and at and before the time of the talcing of the said goods and chattels, as hereinafter mentioned, the defendant, Lott, as sheriff of the county of Kings, held the executions mentioned in the several answers in this action against the said Thomas Toynbee and Josiah Hopkins; and that the defendant Hegeman was a deputy sheriff of the said county; and that the judgments • and executions mentioned in .the defendants’ answer were obtained and issued as therein stated; that the defendant Hegeman, deputy sheriff, and acting under the direction of the defendant Lott, sheriff, forcibly took from the possession of the plaintiff, and sold the goods, chattels, and property mentioned in the complaint, which had been assigned to the plaintiff, claiming to levy upon and sell the same by virtue of said executions, as the property of said Toynbee & Hopkins; and that the other defendants directed the said taking and sale, and indemnified the said Lott, the sheriff, from all loss or liability by reason of the said taking and sale. The referee further found, that the value of the said goods, chattels, and property, at the time of the taking away of the same by the defendants, was $3,300; and that the said assignment was not made with intent to hinder, delay, or defraud-the creditors of the said Toynbee & Hopkins, the assignors; and the referee found, as a conclusion of law, that the said assignment was not invalid, insufficient, illegal, or void, but that the same was and is valid. - He further found, as a conclusion of law, that the defendants wrongfully took and carried away the said goods-and chattels, and that they were guilty of the trespass laid to their charge in the complaint; and that the plaintiff was entitled to recover from the defendants the said sum of $3,300, with interest thereon, together with his costs. Judgment being entered upon this report at a special term, the defendants appealed to the general term, which reversed the judgment</p>

Wadhams, deceased. On the 28th of May, 1838, the said Elizabeth, then a widow, and Jonathan Wadhams, one of the appellants, entered into articles of agreement under their respective hands and seals, whereby, after reciting a contemplated marriage between them, and that the said Elizabeth was the owner of a large real and personal estate which the parties contemplated should continue to be enjoyed, controlled and disposed of by the said Elizabeth as her separate property,…

Nelson Sage brought assumpsit in the supreme court against Watts Sherman, John L. Graham, Erastus Corning, James Vanderpool, Edwin Croswell and James Porter. The declaration contained a count, among others, for real estate, situated in the state of Michigan, sold to the defendants, and at their request conveyed by the plaintiff to the defendant, Watts Sherman.

This action was brought to recover a large amount of toll for property transported over the road of the defendant, and to obtain an adjudication declaring the act of the legislature, releasing railroads from the payment of tolls, unconstitutional and void.

Actios on the case to recover damages caused by the defendants’ steamboat Chesapeake running against the plaintiffs’ steam propeller “ Ontario,” tried at the Monroe county circuit, in 1849, before Justice Thos. A. Johnson. The plaintiffs proved that the Ontario, on her voyage from Detroit to- Buffalo, entered the harbor of Cleveland about 11 o’clock on the night of the 27th of October, 1846.

<p>In an action in the nature of a quo warranto brought by the attorney-general on the relation of a person claiming the office against a party who has usurped it, the claimant is interested in the question and should be joined with the people as a party plaintiff.</p> <p>To authorize the claimant to be a party plaintiff in such a case, the complaint should state facts showing that he is entitled to the office from which the defendant is sought to be ousted.</p> <p>And where the complaint alleged that at an election legally held in a county named, pursuant to the statute for the election, among other officers, of a county judge for such county, for the term of four years from the first day of January, 1852, the relator, who was a party plaintiff with the people, received a majority of the votes given for the office of county judge, and was legally elected to such office for such term; Held, on demurrer to the complaint, that it stated sufficient facts to show that the relator was entitled ' to the office and properly made a party.</p> <p>If the time when the election was held is not sufficiently stated by this allegation, the remedy was by motion to have it made more definite, and. the objection is not available on demurrer.</p> <p>The rules of pleading under the Code, and in what eases the time when a material fact occurred should be stated to render a pleading good on demurrer, discussed by Marvin, J.</p>

On error from the superior court of the city of New-York, where Christopher Wolfe and others brought ejectment against Harriet Van Nostrand, for a lot of land on Cherry-street in that city. ' The questions in the case arose under the will of Stephen Crossfield, through which both parties claimed title.

The action was commenced in June, 1846, in the court of chancery by the plaintiff, in his own name, but really for “The proprietors of the United Vineyards of La Eochelle,” in France, an association or partnership, formed ■under the laws of France, against the defendant, who was their agent in the United States, for an account of his agency.

<p>A party who objects to the reading of an instrument in evidence, because the certificate of its proof or acknowledgment is defective, should specify this as a ground of objection.</p> <p>Where at the trial he makes only a general objection to an instrument being received in evidence, a defect in the proof or acknowledgment of its execution is not available on a review.</p> <p>One partner has authority to sell and transfer all the copartnership effects directly to a creditor of the firm in payment of a debt, without the knowledge or consent of his copartner, although the latter is at the place of business of the firm and might be consulted. Denio and Johnson, Js., dissented.</p> <p>Nor is such transfer invalid although the firm is insolvent, and thereby the one creditor acquires a preference over the other creditors of the firm. Denio and Johnson, Js., dissented.</p>

The cause was tried before Sandeord, J. in December, 1847, and the plaintiff had a verdict for $4000 damages, subject to the opinion of the court on a case to be made, with liberty to either party to turn the case into a bill of exceptions. The amount of the verdict, if the plaintiff was entitled to recover, was also subject to. adjustment by the court.

The action was brought to recover several penalties alleged to have been incurred by the defendant in refusing to remove a fence erected by him, which was claimed by the plaintiffs to be an encroachment upon the principal road or highway in the village of East Hampton, in the county of Suffolk. The penalty is given by the “ Act regulating highways and bridges in the counties of Suffolk, Kings, and Queens,” usually called the Long Island road act.

Drought trover against William Tiffany, for the taking of a quantity of hay, oats, and other personal property. On the trial before Shankland, J. at the Chenango circuit, in April, 1848, the plaintiff proved that he owned the property in question, that it was levied upon and sold by direction of the defendant, and then, after proving its value, rested.

John Schneider, Joseph Schneider, and Hannah Schneider, brought ejectment in the supreme court, against Mary McFarland and others, for a farm in the town of Springport, Cayuga county. The case was this: John Adam Schneider, formerly a resident of the state of Pennsylvania, died there in 1818, seized of the premises in question, leaving the plaintiffs his children and heirs at law. John was then seven years, Jo seph five, and Hannah one year old.

<p>In an action brought to establish the right of the plaintiff to have an alleged stream of water, running, as claimed, over the land of both parties, to run and flow as it had been accustomed to do time out of mind, and to recover damages for an alleged obstruction of the stream made by the defendant on his own land, the judge found as facts that there never had been, since the plaintiff and defendant owned, co-terminous lots of land, any natural stream or channel of water which had been accustomed to flow over the lands of the parties; and that the defendant had not placed or maintained any obstruction to the flow of water in any such natural stream.</p> <p>Held, that a judgment in favor of the defendant, dismissing the complaint, was properly directed to be entered.</p> <p>A judgment for the plaintiff, in an action brought in a justices court “for obstructing the passage ofwatyr over the defendant’s lot,” no such claim as the existence of a water course being referred to in the complaint, will not estop the defendant from denying the existence of an alleged watercourse over the land of both parties, in a subsequent action brought by the same plaintiff against" him to establish the right of the plaintiff to have an alleged stream of water, running, as claimed, over the plaintiff's and defendant's lots, continue to run and flow as it had been accustomed to do, and to recover damages for an obstruction.</p> <p>The principles which apply to the obstruction of running streams do not govern in the case of waters running under the soil.</p> <p>One is not obliged to excavate ditches, or construct sewers, on his own land, for the purpose of draining the low or marshy lands of an adjoining proprietor. Per Denio, Ch. J.</p> <p>And in respect to the running off of surface water, caused by rain or snow, there is no principle which will prevent the owner of land from filling up the wet and marshy places on his own soil for its amelioration and his own advantage, because his neighbor’s land is so situated as to be incommoded by it. Per Dknio, Ch. J.</p> <p>A recovery upon no title -alleged, but which is based wholly upon a misunderstanding of the law, though it will be binding in the particular case, will not estop a party from asserting any right of which he can avail himself, in a subsequent litigation.</p>

<p>Appeal from a judgment of the supreme court of the 1st district. In the year 1840, John Leyden was elected collector of taxes of the sixth ward of the city of New-York, He executed the usual bond to the corporation with Felix O’Neil, Edward J. McGloin and five other persons as his sureties. It was in the penalty, of over one hundred thousand dollars, and the qbligors were jointly and severally bound. The condition, after reciting the election of Leyden as collector, stated that the obligation was to be void in case Leyden should, duly and faithfully in all respects, execute the duties of his said office according to law Leyden became a defaulter in a sum, which, with interest, amounted to $4228.95 and was insolvent. Afterwards O’Neil, one of the sureties died, and the appellant, Maria Ransom, j became his administratrix. Two of the other sureties also died. Barry, a creditor of Felix O’Neil, filed a bill in the late court of chancery in behalf of himself and the other creditors against the administratrix and the heirs of O’Neil, to subject his real and personal estate to the payment of his debts. The corporation of the city of New-York and the surviving sureties on the' collector’s bond were also made parties defendants, for the purpose of settling the liability of the sureties"in this bond to contribution among themselves. By virtue of decrees and other proceedings in the cause, which was transferred to the supreme court by the constitution, the corporation was paid the amount of Leyden’s defalcation out of the proceeds of the sale of O’Neil’s estate, and it was ascertained that all the other sureties I; were insolvent except the defendant, Edward J. McGloin. Mr. L. Robinson, a referee appointed to ascertain and report the share of the above mentioned defalcation properly chargeable against each of the solvent sureties, as among themselves, reported that McGloin became a surety on the bond of Leyden at the special instance and request of Felix O’Neil now deceased, and upon the express promise df the ,áftid O’Neil that he would indemnify and save the said McGloin from any loss in consequence of his becoming such surety on said bond, and therefore that McGloin was not bound to contribute' anything to the estate of O’Neil on account of the payment made from said estate on said bond. By the testimony and proceedings, reported by the referee, it appeared that the request and promise referred to, were by parol, and were made on the occasion of McGloin becoming surety on the bond, and that the counsel for the administratrix objected on the hearing before the referee to the reception of that evidence, and that the referee overruled the objection. The report was excepted to by the administratrix of O’Neil, but was confirmed at the special term and the order of confirmation was affirmed on appeal to the general term; and by the decree in the cause the estate of O’Neil was ultimately left to bear the whole liability arising out of the bond. The administratrix appealed to this court.</p>

On error from the supreme court. Seymour sued Judd, in a justice’s court of the county of Madison, upon an instrument executed by the defendant as security for costs, in a suit commenced by short summons before a justice, against Seymour in favor of one Dewey. Seymour recovered judgment in the justice’s court for $64,32, damages and costs.

Nathaniel Pearce brought assumpsit in the superior court of the city of New York, against Gilbert A. Wilkins, George B. Rollins and James B. Glentworth, for money paid to their use. Glentworth suffered a default. Wilkins and Rollins pleaded to the action, and the cause was tried in February, 1844. The plaintiff had a verdict and judgment was rendered thereon, which the supreme court affirmed on error brought The defendants Wilkins and Rollins then appealed to this court.

This action was brought by the plaintiffs who were partners, residing and doing business as dry-goods merchants in the city of Troy, to recover the value of… Held: that a note given to a deputy sheriff by a judgment debtor for the amount of an execution held by the former against the latter after the sheriff had been attached, and the deputy had paid the execution, was valid. It was supported, upon the idea of a moral obligation, connected with the prior legal liability.

<p>Amariah Hammond died the 5th of Nov., 1850. His will was proved and letters testamentary issued to the executors, therein named, by the surrogate of Livingston county, on the 31st of December, 1850. By the first and second clauses of the will he devised to his daughter, Mrs. Minerva Faulkner, certain real estate, stated in the will to be valued and estimated by the testator at the sum of 815,060.00. The third clause is as follows: “I do also give and bequeath to my said daughter Minerva, the sum of $16,000.00, to be paid to her by my executors out of my personal estate, as soon as the same can be collected after my decease; it being my will and intention to give to her, in the devises and bequests aforesaid, according to my estimate and valuation, the sum of $31,060.00.” By the fourth clause of the will he devised to his daughter, Mrs. Fanny Bradner, a farm, in the language of the will “ estimated and valued,” by the testator, “ at the sum of $31,060.00.” In and by the fifth clause he bequeathed unto one Gould his support and maintenance during life, “to be furnished and paid by his said two daughters in equal shares or portions,” and he charged the same upon the lands devised to them. The sixth clause of the will is as follows : “ It is my will and intent, in the disposition of my property, to give my said daughters in all respects equal benefits and advantages of the same, so far as my judgment will enable me to do; and as I have advanced to them and their husbands large sums of money, which are charged to them on my books, or for which I hold obligations of their husbands, respectively; now, therefore, for the intent and purpose aforesaid, I do hereby release, acquit and discharge my said daughters and their husbands, respectively, of and from all debts due to me or demands I have against them, respectively, for or by reason of advances made to them at any time prior to the first day of January, 1845.” All the rest and residue of his estate he devised and bequeathed to his said two daughters in equal shares; and he appointed their husbands executors of the will. It appeared from an inventory, made and sworn to by the executors in March and April, 1851, that the testator left a large personal estate, and amply sufficient to pay the legacy to Mrs. Faulkner.</p> <p>* In January, 1852, Mrs. Faulkner presented her petition to the surrogate of Livingston county, stating the above facts, and praying that the executors be decreed to pay her the legacy of $16,000.00, with interest thereon from the decease of the testator. In April, 1852, the surrogate made a decree adjudging that Mrs. Faulkner was entitled to demand and receive interest on the legacy from the death of the testator, and directing the executors to pay her the amount of the legacy and interest from such time. On appeal by Bradner and wife, this decree was affirmed by the supreme court, sitting in the 7th district, at a general term. Bradner and wife appealed to this court.</p>

John Sheldon sued Lawrence Van Buskirk in a justice’s court of the county of Cortland, in trespass for entering his close and taking and selling a number of sheep.

<p>A member of a mutual insurance company, the charter of which is similar to that of the Jefferson County Mutual Insurance Company (chapter 41 of the Laws of 1886), is liable upon his deposit note for losses in the proportion woten the amount of his note bears to the aggregate of deposit notes which are collectable and legally subject to assessments for such losses.</p> <p>His liability is not limited to the proportion which the amount of his note bears to the whole amount of deposit notes legally assessable for the loss, whether too latter are collectable or not.</p> <p>He is bound to pay an assessment made upon his note to meet a deficiency in funds to pay losses arising from the inability of other members to pay the proportion of such losses assessed upon their notes.</p>

<p>A principal, who neither authorizes nor ratifies a wilful trespass committed by his agent, is not liable therefor.</p> <p>Nor is a corporation liable for a wilful trespass of a person employed by it, although the act be authorized and sanctioned by the president and general agent thereof.</p> <p>The plaintiffs boat was run into and damaged- by the wilful act of the captain of the defendant’s boat. The trespass was also sanctioned and approved by one who was the president of the defendants’ corporation, and the general agent and manager of its business. Held, that the corporation was not liable for the collision.</p>

The case was this: There were seven judgments against Daniel Hart and others, which were docketed in the following order: 1, in favor of Burnham; 2, in favor of Dana; 3, in favor of Biddle; 4, in favor of the same ; 5, 6, and 7, in favor of the Bank of Ithaca. Executions were- issued upon the judgments 1, 2, and 4, and the lands were sold by the sheriff on the 15th of January, 1842, to Isaac S. Kellum.

Action to recover damages arising from the overflowing of plaintiffs’ land.

court, where the proceeding was by mandamus issued on the relation of Post, to compel the execution of a deed to the relator of' land sold under execution. The case was substantially this : On the 30th of Nov. 1841, the lands of Samuel Hart were sold by the defendant, then sheriff oi Tioga, on a judgment of the supreme court against Hart and others, in favor of John Hollenback, docketed in 1838.

The action was commenced by service of a summons on the, defendant, Marshall, 26th May, 1856f The defendant, Steckel, was not served and did not appear. The pleadings were amended during the trial. The following is an abstract thereof as so amended: The complaint alleges that the plaintiff was and is the owner of certain articles of furniture, specifically described, of the value of $1,200. That they composed the furniture of a hotel called the Jefferson County House.

<p>Appeal from a judgment of the supreme court in the 8th circuit. Bard and Wetmore filed their bill of complaint in the late court of chancery, before the vice-chancellor of the 8th circuit, against Poole and others, to foreclose a mortgage alleged to have been executed by Oliver Gr. Steele and his wife and Rushmore Poole, to Seth C. Hawley, and by the latter assigned to the American Life Insurance and Trust Company. The complainants claimed as assignees of that company. The mortgagors and a number of other persons were made defendants, the latter being stated to claim an interest in the equity of redemption. Answers were put in on behalf of Poole and Steele, and of several of the other defendants, setting up the several defences hereinafter mentioned. A replication was filed and proofs taken, and the cause was heard before the vice-chancellor upon pleadings and proofs.</p> <p>The material facts were as follows: The American Life Insurance and Trust Company was a corporation created by the legislature of the State of Maryland, in December, 1833, with authority, in addition to the usual corporate powers, “ to receive endowments of personal or mixed property for a term of years, in trust; to grant annuities ; to contract for reversionary payments; to receive from any free person any deposit or deposits of money in trust; to make all kinds of contracts in which the casualties of life and interest of money are involved, and to provide for the investment of the funds of the company in such stocks and mortgages, other than mere dioses in action, in such manner as they shall deem most safe and beneficial.” (§ 4.) After conferring on the company some other powers, not material to be stated, the section contained the following proviso: “ provided, that nothing in this act shall be construed to authorize the said company to issue or put in circulation any negotiable notes, or notes payable to bearer, or notes in the nature of bank notes; or to authorize them to make any contract which by the existing laws amounts to usury ; or to guaranty in any manner the payment of any chose in action.” The act was declared to be perpetual, with power, however, in the legislature to amend it or repeal any of its provisions, after 1853. The rate of interest in Maryland was six per cent per annum; and all securities by which a greater rate was received or secured were declared, by a statute of that state which was set up m the answers and admitted by stipulation, to be void. In March, 1835, an act was passed amending the charter, which was accepted by the corporation and the stockholders. By this act the corporate authority was to be exercised by a president and eleven trustees. Two hundred thousand dollars of capital were required to be paid in before the company could grant annuities, &c., and the capital might be increased to one million of dollars. The company was authorized to invest its profits and the moneys received in trust in such stock, real and personal securities as it might deem safe and proper. There was a further supplementary act passed in December, 1835, after the principal transaction in this case had taken place; by one of the provisions of which the company was authorized to receive, upon its loans made in any other state than Maryland, the rate of interest allowed in such other state. Immediately after the passage of the act of incorporation, the company elected its officers and established its place of business in Baltimore.</p> <p>. In July, 1835, the company established an agency in the city of New-York, having an office with a sign containing the name of the company upon the door. The vice-president and a majority of the trustees resided in that city, the business there being immediately conducted by the vice-president and. an assistant secretary and two or three clerks, the trustees meeting occasionally on the call of the vice-president. The business transacted was insuring lives, receiving moneys on deposit, making loans on mortgages, notes and bills of exchange and other securities, dealing in exchange, foreign and domestic, and purchasing state and other stocks. They also issued evidences of indebtedness in the form, of bonds, having twenty years to run and drawing interest at the rate of five per cent per annum, which they loaned as money. The assistant secretary testified that the largest amount of all the business of the company was transacted in New-York.</p> <p>In the autumn of 1835, 0. Gr. Steele, in behalf of himself and. the defendant Poole, applied to the officers of the company in New-York for a loan, to be secured by a mortgage on their real estate at Buffalo, where Steele and Poole resided. The proposal was entertained, and the officers in New-York, after it had been referred to and considered by their loan committee, wrote to Mr. Fillmore, at Buffalo, to prepare the papers, and referred Steele to that gentleman. Subsequently Steele was informed by Mr. Fillmore or one of his law partners, that the loan would not be made upon a mortgage taken directly to the company, but that they would purchase an existing mortgage of $4000, the amount which it had been understood they would loan them. The mortgage sought to be foreclosed with the accompanying bond was accordingly prepared and executed. They were dated October 9th, 1835, and were conditioned for the payment of $4000 on the 1st December, 1840, with interest at the rate of seven per cent per annum, payable half yearly, the principal and interest to be paid at the Bank of Buffalo. Hawley, the mortgagee, on the twenty-sixth day of the same month, assigned the bond and mortgage to the American Life Insurance and Trust Company, and guarantied the payment of the amount secured by them. One of the questions earnestly litigated in the case was whether the bond and mortgage had an inception and were operative securities in the hands of Hawley; the defendants maintaining that the form of a mortgage to Hawley and an assignment by him to the company was adopted as a cover for a direct loan to Steele and Poole, on account of an apprehension on the part of those acting on behalf of the company that it could not make a direct loan at seven per cent interest; and that there was in reality no consideration for the mortgage as between Steele and Poole and Hawley. From the view taken of the case by the court, it is not necessary to state this evidence. The amount secured by the mortgage was actually advanced by Mr. Robinson, the financial officer of the company in New-York. In point of form it was paid to Hawley, but it went immediately into the hands of Steele, who paid one-half of it to Poole, the other mortgagor.</p> <p>The evidence to show the title of the complainants to the bond and mortgage was as follows: On the 31st December, 1841, the American Life Insurance and Trust Company were indebted to Messrs. Morrison & Sons & Co., of London, in 105,500 pounds sterling, and contemplated incurring a further indebtedness to them; in consideration whereof they entered into an agreement with the complainants and Richard Alsop, since deceased, acting on behalf of Messrs. Morrison, whereby they agreed to assign and transfer this bond and mortgage, with other similar securities, to the complainants and Alsop (and they were thereupon delivered to them), to be had, taken, held and received by them as security for the payment of the then existing and contemplated indebtedness to said Messrs. Morrison, the amount of the said bonds and mortgages to be received and applied to that purpose so far as the same might be needed; and in case of default by the company in paying that debt, Messrs. Morrison were entitled to raise money on said securities as well by pledging and mortgaging as by collecting the same; and on request, after such default, the complainants and Alsop were to assign said securities to Messrs. Morrison; and the company had the right to withdraw any of said securities by substituting others as good. Afterwards, on the 6th July, 1842, the American Life Insurance and Trust Company executed a general assignment of all its property to Patrick Macauley and two other persons, as trustees for the creditors of the company, and recited therein that it had assigned this bond and mortgage to the complainants and Alsop, in trust for the purposes aforesaid, and declared that said assignment (to said complainants and Alsop) was thereby ratified and confirmed, and that the said general assignment was made subject to the same, and that full power and authority were thereby given to the general assignees to make such arrangements with regard to- the said bonds and mortgages so specifically assigned in trust as to them should seem most for the interest of all concerned; and said general assignees were authorized, should it be necessary to do any further act, to confirm the special assignment. After the trusts mentioned in the general assignment were executed, the trustees were to convey the residue of the property to the company. A large amount of' the debts intended to be secured by that assignment remain unpaid. On the 15th November, 1842, the American Life Insurance and Trust Company, under its corporate seal, executed an assignment of the bond and mortgage, absolute in its terms, to the complainants, Mr. Alsop having before that died; and this is the assignment set out in the bill, which does not allude to the other assignments which have been mentioned. The answers state the general assignment to Macauley and others, and insist that these assignees ought to have been made parties.</p> <p>The vice-chancellor, in June, 1847, made a decree overruling the defence and declaring the complainants entitled to foreclose, and referring the case to a master to compute, &c. The case was heard on appeal before the general term of the supreme court in equity, in March, 1849, when the decree of the vice-chancellor was affirmed with costs. The order of reference having been executed, a final decree of foreclosure was entered in the supreme court. Poole and several of the other defendants appealed to this court.</p>

<p>Appeal from ihe late court of chancery, where the bill was filed in the year 1828, by James B. Clarke and Eleanor his wife, Peter Clarke and Maria his wife, for the purpose of annulling the will of the late John Fisher, deceased, of the village oí Brooklyn. The said Eleanor and Maria were the heirs at law of the decedent, and the defendants to the bill, or some of them, were devisees of the real estate whereof he died seized. The same will was declared void by the chancellor as a will of personal estate, on appeal from the surrogate of the county of Kings, who had admitted it to probate. The chancellor’s decision proceeded upon the ground of the decedent’s imbecility of mind, and the undue influence to which he was subjected. (See Clarke v. Fisher, 1 Paige, 171.) The present suit was brought to a hearing upon- the same testimony which had been taken before the surrogate, and used before the chancellor on that occasion. The assistant vice chancellor of the first circuit, to whom the cause was referred for hearing in the first instance, held the will to be good and valid as a disposition of the testator’s real estate, and he dismissed the bill. (See 3 Sandf. Ch. Rep. 351.) The complainants appealed to the chancellor, who reversed the decree of the assistant vice chancollor, and directed a decree to be entered declaring the will void, and that it was obtained by fraud and imposition. The defendants, or some of them, then appealed to this court. The case will be found stated at large in the reports above mentioned.</p>

<p>Appeal from chancery. The bill was filed in 1838, to recover a legacy given to the complainant Charlotte, by the will of her father, Nathaniel Coles. The testator died in 1825, leaving a will whereby he devised all his real and personal estate to his sons, Nathaniel and Butler, on condition of paying debts and legacies, and appointed them his executors. He gave certain legacies and charged them expressly upon the real estate, among which was one to his daughter Charlotte, of $1500. In April, 1836, the devisees, Nathaniel and Butler, sold and conveyed to Henry M. Western all the real estate devised to them which at that time remained unsold. The devisees, together with Western, were made defendants to the bill, and the prayer was that the said Nathaniel and Butler might be decreed to pay the legacy and interest thereon, ahd in default thereof that the real estate conveyed to Western might be sold for that purpose. The defendants, Nathaniel and Butler Coles, answered together, and Western answered separately. One ground of defence set up in both answers was that the legacy had been paid ; the allegation on this subject being that Charlotte had lived with her brothers, the devisees, for more than nine years, during which period they had furnished her with board, clothing and money to an amount exceeding the legacy. Another ground of defence set up in the answers was, that on or about the first of .May, 1830, the said Charlotte, then being of full .age, executed and delivered to the said Nathaniel and Butler an instrument in these words:</p> <p>“ Know all men by these presents, that whereas Nathaniel Coles, of the township of Oyster Bay, county of Queens, by his' last will and testament, did give and bequeath unto me, his daughter, the sum or legacy of fifteen hundred dollars. Now know ye, that I, Charlotte Coles, do hereby acknowledge that I have this day received from my brothers Nathaniel Coles and Butler Coles an obligation dated the 30th day of April, 1830, in full of all demands whatsoever, which I or my executors or administrators may have against my said brothers, their executors or administrators, by virtue of the. said last will and testament of my late father. In witness, dec.</p> <p>Charlotte Coles, [l. s.]”</p> <p>The answers nowhere averred that the said Charlotte had in fact received from Nathaniel and Butler the obligation mentioned in the above instrument. Replications were filed to the answers.</p> <p>In May, 1841, the defendant Butler Coles having died since the answers were put in, an order was made, upon the consent of the solicitors for the other defendants,' that the suit proceed against Nathaniel Coles as surviving executor, and against the defendant Western.</p> <p>The cause was heard, without any proof having been taken, before Hoffman, assistant vice chancellor, in 1842, who made a decree that the surviving executor pay the legacy with interest and costs, and after the remedy by execution should be exhausted against him, then that the real estate conveyed to the defendant Western be sold for the purpose of payment. He however gave to the defendants at their election a reference to a master to ascertain and report what amount, if any thing, had been paid, or ought to be allowed towards the legacy, since the said Charlotte became of age, and what advances had been made, to her during her minority by the devisees for her necessary support, &c. but without prejudice to any question respecting her liability for the same. He also gave the defendants liberty to make proof before the master of the above written instrument set forth in the answers, and of the obligation therein mentioned. All further directions were reserved.</p> <p>The defendant Western appealed from this decree to the chancellor, and pending the appeal in October, 1843, Nathaniel Coles having also died, a motion was made that the cause proceed . against Western alone; which motion, after hearing him in opposition thereto, was granted. The appeal afterwards was heard before the chancellor, who, in March, 1845, affirmed the decree of the assistant vice chancellor.</p> <p>After the decision of the appeal the reference provided for in '.he decree was proceeded with, and on the reference the written instrument executed by Charlotte above mentioned was duly proved. The obligation mentioned in that instrument was also proved. It was in the form of a bond, in the penalty of $3000, executed by the said Nathaniel and Butler Coles, and the condition thereof was that they should pay to said Charlotte the “just and full sum of money which might be found due hei from the estate of her late father.” Proof was also taken re- ' specting payments, &c. which ought to be credited against the legacy, and the master reported that there was due upon the legacy, including interest, the sum of $2811 67. The defendant Western took several exceptions to the report, and the cause came on again to be heard upon the report and exceptions and questions reserved, before Robertson, assistant vice chancellor, who, in January, 1847, made a decree, in which he overruled the exceptions of Western, but dismissed the bill on the ground that the said Charlotte had taken the bond above mentioned cf Nathaniel and Butler Coles in full' satisfaction of the legacy, and thereby discharged the real estate from the payment thereof. The complainants appealed to the supreme court in equity from so much of the decree as dismissed the bill, but Western did not appeal from that part of the decree which overruled his exceptions. The supreme court reversed the decree so far as appealed from, and decreed further that the legacy was a charge upon the real estate conveyed to Western, and directing it to be sold, unless within thirty days he' should pay the amount reported due by the master. Mr. Western then appealed to this court.</p>

This action was commenced in 1857, by Amos Terpening, .and Almira Terpening, Ms wife, against John SMnner (since deceased), who was the execiitor of the will of Gershom SMnner, the father of said John and the grandfather of the said Almira.

<p>Action commenced in the supreme court in 1849 against the defendant as a common earner to recover for his omission to transport to and deliver at Albany merchandise, shipped by the plaintiffs on board the defendant’s boat at New-York, consigned to Albany whereby, as the plaintiffs alleged, the property, being of the value of three hundred and twenty-four dollars, became lost to them, and they also lost the benefit of the sale of the same to one Greenman, to the damage of one hundred dollars; the plaintiffs demanded judgment for four hundred and twenty-four dollars, being the amount of the value of the merchandise and the damages alleged to have been sustained by not selling it.</p> <p>The cause was tried in the city of New-York, before Mr. Justice Edwards and a jury. It appeared that on and prior to the 24th of May, 1849, the defendant was the owner of a line of barges, known as “ Griffith’s New-York and Troy Line,” employed in transporting goods and merchandise on the Hudson river; that the plaintiffs were merchants in the city of New-York; that prior to the delivery of the property in question on board the defendant’s boat, the plaintiffs had contracted to sell it to one Greenman, they to deliver it at the store of Ainsworth & Northrop, in Albany, when it was to become his. A witness on the part of the plaintiffs testified that on the 23d of May, the defendant agreed with the plaintiffs to transport all the merchandise they might desire to send to Troy or Albany at six cents a package; that the defendant, on this occasion, informed the plaintiffs that his boats did not go to Albany, but that when they wished the goods to go to Albany, to send the car-man with them to his office, and he would give directions as to the boat they should be delivered upon. White, a carman, sworn on behalf of the plaintiffs, testified that on the 24th of May he, at the plaintiffs’ request, delivered nine packages of medicine on board the barge McCoun, then lying at one of the piers in New-York, she being one of the boats belonging to the defendant’s line, to be transported and delivered at Albany; that when he received the packages he took with him the plaintiffs’ receipt book with the receipt hereinafter set out written therein, except the name of the boat and the signature thereto ; that he called with the goods at the office of the defendant’s line to get directions as to the boat upon which they should be delivered ; that he showed the receipt written in the book to a person in the office, who directed him to deliver the packages on board the McCoun; that on going to the boat the captain, Wilson, when he saw the goods were marked for Albany, refused to receive them, saying the boat did not go there; but upon being informed by the witness that there was an understanding with the defendant that they should be taken on the boat, he received them, inserted the name of the boat in the receipt and signed it. The receipt was as follows:</p> <p>“ New-York, May 24, 1849.</p> <p>“Received from A. L. Scovill & Co., in good order, on board the Griffith’s line, bound for Albany, marked S., S. H. Greenman.</p> <p>“Care of Ainsworth & Northrop,) McCoun,</p> <p>“No. 15 State-street, Albany. ) 9 boxes Mdse.</p> <p>“ Wilson.”</p> <p>This witness further testified: That when the captain saw the packages marked, as stated in the above receipt, he said they should be marked Troy instead of Albany, and that he, the witness, replied that they were correctly marked, and showed him the above receipt prepared for signature, and also informed him that he was directed at the office to deliver them on that boat; that the captain still declining to receive and receipt them, he commenced reloading them on his cart, when the captain told him that his boat did not go to Albany, but to leave the goods and lie would take them; that thereupon they were delivered on board and the receipt signed. The plaintiffs further proved, that the usual time for transporting merchandise from New-York to Albany was twenty-four hours; that Greenman, who resided in the western part of the state, advised Ainsworth & Northrop that the property would be delivered there for him about the 26th of May, and that he called and sent there for it several times soon after that date, and that, it not arriving, he gave them no further directions in reference to it. The plaintiffs further proved that the packages were taken by the boat to Troy, where they remained in the defendant’s warehouse until the 7th of July, 1849, when they were delivered by the defendant to a carrier to be taken to Albany and delivered to Ainsworth 5c Northrop; and that the carrier on that day took them to the latter firm at Albany and offered to deliver them, subject to the payment of five shillings, his charge foz bringing them from Troy; but the latter firm refused to receive the goods because, as they stated, the time for delivery had passed and they had orders not to receive-the property; and that thereupon the carrier stored tin packages in Albany, where they remained at the time on the trial. The plaintiff proved the value of the property to be $324.</p> <p>Wilson, the captain of the McCoun, was sworn on the part of the defendant, and after testifying that she was one of the boats in defendant’s line, and that its business was to transport property between New-York and Troy, and that the McCoun was not accustomed to take goods to Albany, he was asked by the defendant’s counsel to state the circumstances under which the receipt above set out was signed by him. To this the counsel for the plaintiffs objected, and excepted to the ruling of the justice permitting Mm to do so. The witness then testified, that when the caiman came with the property he told him that the boat did not take goods to Albany and refused to sign the receipt, and directed him to take the packages to the Albany and canal line that ran to Albany, the boats of which were in the same slip with the McCoun; that the carman stated that he thought Greenman could receive the property as well at Troy as at Albany; that he took the packages to Troy, and they were placed in the defendant’s warehouse there. On his cross-examination, he testified that he signed the receipt; that they were not accustomed to receive merchandise for points below Troy; that he, the witness, had no authority to make contracts for the transportation of property. The defendant gave further evidence tending to disprove the alleged contract between the plaintiffs and defendant as to transporting merchandise to Albany, and also tending to prove that when the carman called at defendant’s office with the packages in question, he was not directed to deliver them to the McCoun or any of the boats of the defendant’s line, but that he was then told that defendant’s, boats did not run to Albany and he had better deliver the property -to an Albany line; and that the carman insisted that the goods were to go by defendant’s line, and they were received with the understanding that they should be taken to Troy. It further appeared that the packages arrived at Troy on the 26th or 27th of May.</p> <p>The court, among other things, charged the jury that if, from the testimony, they should'find that there was an agreement by the defendant, or those whose acts would bind him, to carry the property in question to Albany, yhen a question arose as to the rule of damages. That mere delay, although unreasonable, did not make the defendant chargeable for the value of the goods. That in this case there was no claim that the property was injured or deteriorated by the delay. That if they had been materially injured or deteriorated, this might authorize an abandonment of them by the owner, and give the plaintiffs a right to charge the defendant for their value; but as it was, the rule would be the difference between the highest market price of the goods, when or after they should have been delivered, and when they were actually tendered, and the expense the plaintiffs were put to by the delay. To this portion of the charge there was no exception.</p> <p>The plaintiffs’ counsel requested the judge to charge, that if there was an agreement to carry the goods to Albany, that unreasonable delay in the delivery of goods made the defendant liable to account for their full value; that the law imposed this liability upon common carriers, as a penalty for delay, although it might not b.e so with, other bailees. The court refused to so charge, and the counsel for the plaintiffs excepted. . The jury rendered a verdict in favor of the plaintiffs for $10; and a judgment was rendered in favor of defendants for the amount of their costs, less the $10. This judgment was affirmed by the supreme court at a general term in the 1st district. The plaintiffs appealed to this court.</p>

Assumpsit in the supreme court, where the action was brought to recover the amount of a note of which the following is a copy: • “By the first day of May next, for value received, we jointly and severally promise to pay Sylvester Lewis or bearer, one buggy wagon, to be worth one hundred dollars, to be made in the most fashionable style. Azel Woodworth. Norwich, Oct. 4th, 1843.

Morehouse sued Mathews in a justice’s court, in the county of Allegany, to recover damages alleged to have been sustained by him in consequence of the defendant’s breach of contract, in not feeding to the plaintiff’s cattle hay of as good quality as he had agreed to do.

Action on a promissory note, dated February 6, 1858, for $300, made by the defendant Schenck to the order of, and endorsed by the defendant Briggs, and endorsed also by the other defendants; payable at the Auburn Exchange Bank, two months after date. The defendants set up the defense of usury. On the trial, before Judge Welles and a jury, the plaintiff produced the note and read the same in evidence, its execution and the-endorsements having been admitted by the answers.

Coats sued Darby in the common pleas 'of Otsego county, for an assault and battery and false imprisonment. The defendant pleaded the general issue. On the trial, the plaintiff proved, that while he was sitting in a chair the defendant directed a constable who was present to arrest and take him to jail. The constable thereupon took the plaintiff, put him into a wagon and carried him to the county jail, where he was im prisoned.

<p>The action was commenced in the supreme court in July, 1850, to restrain the defendant from foreclosing a mortgage executed by Artemas L. Freeman to Daniel Kellogg, and to compel satisfaction of the same or a release of the portion of the premises covered thereby, and owned by the plaintiff, from its lien. The defendant appeared and answered the complaint, and the cause was referred to a referee to hear and determine. The material facts found by the referee were as follows: On the 4th of March, 1835, Freeman, being the owner of two hundred and eighty acres of land, situated in the county of Onondaga, executed with his wife to Daniel Kellogg the mortgage in question upon the same, conditioned for the payment of $2500 and interest on the first day of March then next; he at the same time executed to Kellogg his bond, conditioned for the payment of the same amount at the same time: The mortgage was duly recorded on the 9th of March, 1835, and contained the usual power of sale. Kellogg died in May, 1836, leaving a will, in which George F. Leitch, John Kellogg and David A. Comstock, were named as executors; and the will was proved and letters testamentary issued to them soon after. On the 12th of September ensuing, Freeman, being still the owner of 280 acres subject to the first mortgage which was held by the executors, executed to them his bond conditioned for the payment of $2800 and interest in two years; and at the same time he and his wife executed to them, as such executors, a mortgage upon the same premises, conditioned for the payment of the amount mentioned in the bond. The mortgage was recorded on the 16th of November following. This bond and mortgage were for a different debt than that secured by the bond and mortgage executed to Kellogg. Early in the year 1840, Leitch and the other executors, as such, instituted a suit in chancery against Freeman and others to foreclose the mortgage executed by Freeman to them for $2800. By virtue of a decree made in this suit, the mortgaged premises were sold by a master on the 10th of October, 1840, at auction, and purchased by Leitch, one of the executors, in his individual capacity, at the price of $500. The master on the same day executed a deed to Leitch, conveying the premises, which was duly recorded in April, 1841. At the time of this sale and conveyance, Leitch and the other executors, as such, held and owned the bond and mortgage executed by Freeman to Kellogg. On the first of April, 1841, Leitch, by deed executed by himself and wife, and containing covenants of warranty of title in the usual form, conveyed one hundred and thirteen acres of the land to one Taylor in fee. This deed . was duly recorded the following July. The consideration was $5228, and its payment was secured to Leitch by a mortgage executed to him by Taylor upon the premises conveyed and other lands. In January, 1842, Leitch, by warranty deed executed by himself and wife, conveyed twenty-three acres of the premises purchased by him at the master’s sale to one Caton. This deed was recorded in August, 1847; the consideration acknowledged in this deed was $1162. Leitch, on the 26th of February, 1842, by deed executed by himself and wife, containing covenants of warranty, conveyed one hundred and twenty-three acres of the land to one Lawrence for the consideration of $5547.17. This conveyance contained a clause that the premises were conveyed to Lawrence, subject to a mortgage executed to Kellogg by Freeman (the mortgage in controversy); and the referee found that $2527.05, the amount stated to be due on this mortgage, were allowed to Lawrence and assumed to be paid by him as a part of the purchase price; that a j udgment, then held by Lawrence against Freeman for $950, was allowed as so much of the purchase price, and that the residue was secured by a bond and mortgage upon the premises, executed by Lawrence to Leitch simultaneously with the delivery of the deed to the former. This mortgage was duly recorded on the day it was executed ; but the deed from Leitch to Lawrence was never recorded.</p> <p>In May, 1842, Leitch, by deed with covenants ot warvanty, conveyed two acres of the premises purchased by him at the master’s sale to one Baker, for the consideration of $500 ; and in June, 1845, he, by a similar deed, conveyed the residue thereof, being about 15 acres, for the consideration of $500 to one Clarke. These two deeds were duly recorded; the former in July, 1842, and the latter in January, 1845.</p> <p>It appeared that Leitch, soon after he purchased the premises at the master’s sale, and in October, 1840, paid to the estate of Kellogg the full amount of the mortgage executed by Freeman to the executors, and by virtue of which that sale Avas made. The referee found that in the fall of 1840 after the purchase by Leitch, and early in 1841 he declared to one Howlit, a creditor of Freeman, that if the land, could be sold for $40 per acre it would pay him and most of the creditors of Freeman; that he would not sell it for that price because it was worth more; that he intended to sell it for enough to pay all Freeman’s debts; and that if they, Howlit and Freeman, would aid in selling the land, the debt of the former should be paid; that afterwards, How-it and Freeman negotiated the contracts of sale to Taylor, Baker and Catón of the portions of the premises conveyed to them respectively.</p> <p>The bond and mortgage executed by Lawrence to Leitch. were by the latter transferred to third persons who, in April, 1843, instituted a suit in chancery to foreclose the mortgage; and by virtue of a decree in that suit, the premises were sold by á master on the 15th of February, 1845, and purchased by Leitch at the price of $305; and a deed was then executed to him by the master, conveying the premises for this consideration. The master at this sale read written conditions, by which it was stated and required that the purchaser at the sale should take the premises subject to the payment by him of a mortgage thereon, which had been assigned to the comptroller of the State of New-York, on which there was due for principal and interest, on the previous 1st of January, $3025. The master’s deed to Leitch contained nothing in reference to this mortgage, and it was duly recorded in June, 1845. Leitch, in April, 1845, by deed executed by himself and wife and duly recorded in May of that year, conveyed the one hundred and twenty-three acres, previously conveyed by him to Lawrence and. reacquired by him by the sale and master’s deed last above mentioned, to the plaintiffs in this suit.</p> <p>On the 30th of July, 1841, Leitch and Daniel Kellogg, two of the executors, as such, executed and acknowledged. an assignment, by which they transferred the bond and mortgage, executed by Freeman to Kellogg, to John Wilkinson, president of the • Bank of Syracuse. This transfer purported to be in consideration of $2500, and the assign ment contained a covenant that this sum was due on the mortgage, and that it would be paid in one year after it should be demanded. The referee found that this assignment was not delivered to Wilkinson until after the 25th of February, 1843; and it was recorded on the 26th of May in that year. On the back of this mortgage there was an instrument dated the 25th of February, 1843, signed by Freeman, by which he admitted notice of the assignment of the bond and mortgage to Wilkinson, as president, &c., and that $2500 and interest from the 1st of January, then last past, were due thereon. Wilkinson, as president of the bank, assigned the bond and mortgage to the comptroller, for the purpose of procuring circulating notes, immediately after they were transferred to him.</p> <p>In April, 1850, the comptroller reassigned the bond and mortgage executed by Freeman to Kellogg, to Wilkinson, as president, &c.; and during the same month the latter transferred them to White, the defendant, who commenced foreclosing the same by advertisement, claiming that there was due thereon the sum of $2726.00. The referee found some other facts, and the" case contained evidence given on the trial before him which it is not deemed important to , state; but he did not find as matter of fact whether Leitch elected or intended that the mortgage interest held by Min and his co-executors, should be merged or extinguished in the estate in fee in the premises acquired by him by the master’s deed. He ordered a judgment, perpetually restraining the defendant from enforcing the mortgage against the premises owned by the plaintiffs. This judgment was affirmed by the supreme court sitting in the 5th district. For a report of the case in that court, see 15 Barbour, 70. The defendant appealed to this court.</p>

James M. Van Keuren brought assumpsit in the supreme court against Richard W. Parmelee, William H. Calkins, and John Van Keuren. The defendants, Parmelee and Calkins, pleaded the general issue, and the statute of limitations.

The plaintiff in error was convicted, at the court of oyer and terminer for Erie county, for advising and procuring one Susanna Guyer, a pregnant woman, to take a certain medicine called Dr. Johnson's French Female Fills, with intent thereby to procure her miscarriage.

On error from the supreme court. Manrow sued Durham and Moulthrop before a justice, and recovered judgment. The defendant appealed to the common pleas of Oneida county, and on the trial in that court, the plaintiff gave in evidence a promissory note as follows: • * - “ Verona,' July 1, 1839. On the first day of January next, I promise to pay 0. P. Durham or bearer, forty dollars, value received, with interest.

John Buckley, the relator, was appointed an assistant collector of canal tolls, for the office at Rochester, by a resolution of the canal board, passed June 9, 1859, and his salary fixed at thirty-five dollars per month. He performed the duties of his office until the close of navigation, and on the 30th December the canal board adopted a resolution directing the auditor to draw a warrant in his favor for the sum of $224.04 as compensation for his services.

<p> Appeal from a judgment of the Supreme Oourt, rendered in an action for obstructing a private road or highway. </p>

<p>The legislature has power to enact that a deed executed by the comptroller, of lands sold by him for unpaid taxes imposed thereon, shall be presumptive evidence that the proceedings required by law to authorize the sale and conveyance were had.</p> <p>Where land sold for unpaid taxes is occupied when the deed thereof is executed by the comptroller, the occupant is entitled to the notice to redeem within six months prescribed by the Revised Statutes (1 R. S., 412, § 83), notwithstanding the land was unoccupied when the two years allowed by the statute to redeem expired and the purchaser became entitled to a deed. (1 R. S., 409, § 66, and 411, § 80).</p> <p>In such a case, the comptroller’s deed does not vest title in the purchaser until the rrtitice has been served and the six months for' redemption have elapsed.</p> <p>Chapter 108 of the Laws of 1830 provides for cases where the land is occupied at the expiration of the two years given for redemption, and it is not a substitute for, nor does it repeal the provisions of the Revised Statutes to notice, where the land is occupied when the comptroller’s deed is executed.</p>

This is an appeal from a judgment of the superior court of the city of New York, rendered in favor of plaintiff, at special term, November 25, 1858, upon a verdict of $2,000 damages, and affirmed at general term, July 15, 1859.

Action upon a note made by Bell & Goodman, dated at Rochester, July 4th, 1851, whereby three months after date they promised to pay to the order of the defendant Lee one thousand dollars, at the American Exchange Bank, in the city of New-York. Lee, the endorser, defended. The action was tried at the Monroe county circuit, before Mr. Justice Welles.

Assumpsit in the supreme court, tried before Willard, Circuit Judge, at the Herkimer circuit, in September, 1847. The declaration contained the common money counts and special counts on a guaranty. On the trial the plaintiff gave in evidence a promissory note, and an instrument endorsed thereon, and signed by the defendants, as follows.: “ $715,88.

New York. The action was brought on two bills -of exchange of $10,000 each endorsed by the defendant, and two other bills of $5,000 each accepted by him. These bills bore date in August and September, 1854. The defendant denied his indebtedness, and also denied that the plaintiffs were the lawful holders and owners of said bills, and alleged that the bills belonged to the Bank of Akron, in the state of Ohio, or to its legal representative, the State Bank of Ohio.

<p>Where a suit commenced in the late court of chancery was pending in the supremo court when the Code of Procedure took effect, and was heard at a special term on pleadings and proofs in April, 1850, and reheard by the same court at a general term in May, 1851, pursuant to an order for that purpose; on appeal, Held, that the cause was reviewable in this court upon the whole evidence, without there being a statement of the facts found by the supreme court, or any exception to its decision.</p> <p>In such a case, this court has authority to reverse the decision of the court below on a question of fact.</p> <p>But where in a suit at law or in equity commenced prior to the enactment of the Code of Procedure, the trial is had after the act of July 10, 1851, took effect (Laws of 1851, pp. 876, 903, § 459), the review in this court is confined to questions of law.</p>

I, 1848. The appellant did not serve printed copies of.the case, and on the 14th of August, 1849, the respondent entered an order dismissing the appeal for want of prosecution, with costs, pursuant to the 7th rule of the court; and the case was remitted to the court below where execution was issued on the judgment, with costs of the appeal, amounting to $85,13-; of which $25 was for costs before argument, and $50 for argument.

Action in the superior court of the city of New-York, to recover upon a special agreement relative to the chartering of a vessel.

Notice of the appeal was given to the respondent, who was plaintiff in the court below, on the 2d day of November last; and on the 5th day of that month notice of the appeal was served on the clerk, and the proper undertaking was filed.

Bill filed in April, 1844, to set aside two deeds of real estate on the ground that they had either been forged, or had been obtained by force or fraud. After answer and replication, the chancellor, in April, 1845, ordered several issues to be tried at law, touching the matters of fact in dispute between the parties. A trial was had at the Dutchess circuit, in November, 1845, when the jury found a verdict for the defendants on all the issues.

<p>Under § II, sub. I. of the code, authorizing an appeal to this court from a judgment of the supreme court, in an action “ brought there from another court,” an appeal will lie from a decree made by that court in a suit which was pending in the court of chancery when the new constitution took effect, and'whieh, by force of the constitution, became vested in the supreme court.</p> <p>In equity suits commenced before the code of procedure was adopted, the return to an appeal will be sufficient, if it contain a copy of the notice of appeal and of the decree according to the former practice, without the pleadings or proofs.</p> <p>In equity suits which were pending when the code was adopted; an appeal may be brought (in accordance with the former practice,) without an enrolment of the decree.</p> <p>In cases where the suit was commenecd before the code, and determined after-wards, parties seeking a review must conform to the new practice as far as practicable ; but where that cannot be followed, they may resort to the former practice. -</p> <p>An appeal will not be dismissed for a formal omission to insert in the printed case the certificate of the clerk of the court below, verifying the papers returned by him to the appeal. •</p>

- Smith brought replevin against Lynes and three others, in the superior court of the city of New-York: Lynes appeared by one attorney, and' the three other defendants by another; the two attorneys having no connection in business. Judgment was rendered that Lynes recover $2008,78 against the plaintiff, and that the three other defendants recover against the plaintiff $412,93. There was but one judgment record.

Action commenced in the supreme court in July, 1851. The complaint alleged that the plaintiff was incorporated in 1845, by an act of the legislature of the State of New Jersey, entitled “ An act to incorporate the Mutual Benefit Life Insurance Company,” and that in addition to the usual powers of succession and of suing and being sued, it was “ authorized to insure the respective lives of the corporators, and to make all and every insurance appertaining to, or connected with…

Wol'fe and others brought ejectment in the, superior court of the city of New-York, where judgment passed for the defendant. The plaintiff then brought a writ of error to this court, after July 1, 1848, and in September last the judgment was affirmed. now moved for an additional allowance, pursuant to the 308th section of the code. He said a writ of error was a new suit; and there has been a trial in this court within the definition of a trial as given by the code.

in person, moved to dismiss the appeal,' on the ground that the decree appealed from was not final. The suit was pending in the court of chancery before either of the codes were passed, and the decree or order appealed from was made by the supreme court in November, 1-848. The other facts are sufficiently stated in the opinion of the court. He cited Harris v. Clark, (4 How. P. R. 78.) cited 9 Paige’s R. 638 ; 6 Howard, 203.

<p>A deed of land to a railroad company, after describing one parcel, by metes, and bounds, and stating that it was to be for the uses and purposes of the road proper, and contained an area of sixty square rods, proceeded as follows: “Also, in addition to which said sixty square rods, the Long Island Railroad Company may be further entitled to an extra additional width of seventy feet on the south side of said railroad, for the use's and purposes of a side track, engine house, depot,” &c., “provided such buildings may be used for purposes of railroad only, and which-additional land, contains an area of sixty-four rods,” &c., “ to have and to hold all and singular the above mentioned and described premises, together with the appurtenances, unto the said parties of the second part, their successors and assigns •forever,” concluding with the usual covenant for the quiet and peaceable possession of “the said premises” by the grantors, theii successors and assigns forever:</p> <p>Held, that the deed was sufficient to pass to the grantees the title to both the parcels of land described therein.</p> <p>That the meaning of the deed was this: “ In consideration of one dollar, we have granfed, bargained and sold to the railroad company sixty-four square rods of land for their road proper; also seventy rods, in addition, which they may be entitled to for a side track, engine house,” &c.</p> <p>Held, also, that if any doubt existed in regard to the construction and effect of the deed, the covenant for quiet enjoyment of the property by tho grantees, estopped the covenantor, and those claiming under him, from interfering with such enjoyment.</p>

Action commenced in the supreme court in 1852, upon a judgment recovered in that court against the defendant on the 11th of February, 1843, for $601.12 in favor of George W. Stanton, George W. Stanton, Jr., and Charles Stanton. In 1845, Charles Stanton transferred his interest in the judgment to his co-plaintiffs therein.

<p>Where, in an action against four defendants to recover possession of land, the complaint stated that one of them unjustly claimed title to the premises, and the others were in possession under him, and that the defendants unjustly withheld the possession from the plaintiff; the answer merely denied the allegation as to withholding possession, and alleged that the one was the owner of and entitled to the premises; on the trial it was proved by the defendants, subject to objection, that they occupied severally distinct parcels of the premises, Sold, that under the pleadings the plaintiff was entitled to recover against all the defendants.</p> <p>If there was an improper joinder of parties, the objection should have been raised by demurrer or the answer.</p>

The action was commenced in April, 1852, by the plaintiff to recover against the corporation of the city of New-York for his services as the agent of the board of health of that city, in examining persons supposed to be affected with contagious or infectious diseases, with a view to determine whether they were proper persons to be sent to the marine hospital.

<p>For a personal injury occasioned by the negligence of several persons, there is a separate liability as well as a joint one, and the person injured may, at his election, sue both or either of the wrong-doers.</p> <p>There is no rule which makes all the tort-feasors necessary parties to an action of that character.</p> <p>£n an action for an injury to the person, caused by the negligence of the defendant, the court is warranted in dismissing the complaint because of the plaintiff's own negligence, only where such negligence is clearly proved. Persons contracting with the 5w5er"ofTots to buildnTblock of houses thereon, who make a sub-contract with another to make all the necessary excavations, by digging the ground, blasting the rock, &c.—the latter stipulating to guard against accidents by proper precautions, and to make good all damages—are liable for an injury sustained by an individual who falls into an excavation in the side-walk, through the negligence of the sub-contractor or his servants, in not having the same properly protected.</p> <p>The rule laid down in Congreve v. Smith (18 N. Y. Rep. 79) applies in such a case.</p> <p>If there is no evidence of any express license to the contractor to make the excavation, or of any circumstances from which a license may be inferred, the work itself is wrongful, and the right of action does not depend upon any negligence on the part of the contractor. Per Ssidbn, J.</p>

<p>A judgment, to lie reviewable in this court, must be a final judgment of the court below in the action.</p> <p>Accordingly, where the plaintiff demurred to portions of the defendant's answer, and judgment was rendered thereon against the defendant in the court below, leaving issues of fact in the cause undecided; Held, that the judgment on the demurrer was not reviewable in this court until the issues of fact were disposed of and final judgment given in the action.</p>

<p>Action to recover damages commenced in the county court of Monroe county in February, 1853. The complaint alleged that on the 2d day of January previous, the defendants, at the city of Rochester, assaulted and beat the plaintiff, whereby he sustained damage to the amount of five hundred dollars, for which sum and costs he demanded judgment. The defendants appeared in the action and answered the complaint. The answer denied the complaint, and as a further defence alleged that the defendants were engaged in retaining the possession of a church in Rochester, and in preventing improper and disorderly persons from entering it and that the plaintiff unlawfully attempted to enter the church and assaulted the defendants, and that they committed the wrongs complained of in resisting him. It did net appear from the complaint or answer that the defendants or either of them were residents of the county of Monroe, or where they resided.</p> <p>The record showed that the action was tried in the county court in September, 1853, and a verdict rendered against the defendants for fifty dollars damages; and that, judgment for this sum, with the costs of the suit, was perfected in that court. The defendants appealed from the judgment to the supreme court. The appeal was heard at a general term of that court sitting in the 7th district, and the judgment of the county court was affirmed. (See 17 Barb., 506.) The record contained nothing but the complaint and answer, and the judgment in the county court which recited the verdict, with the notice of appeal to the supreme court and the judgment of affirmance therein. The defendants appealed to this court.</p> <p>1. That the statute (Code, § 30), conferring jurisdiction upon county courts in actions for assault and battery, was unconstitutional. (Constitution of New-York, art. 6, § 14.) 2. That if the statute was valid, then the county court was as to these actions a court of special and limited jurisdiction; and as the record did not show that the defendants were residents of Monroe county at the time the action was commenced, the judgment was void and should be reversed on" this ground. (Code, § 30, subd. 1; Frees v. Ford, 2 Selden, 176.)</p> <p>That an action of assault and battery for damages to a limited amount, against persons only who resided in the county where the action was brought, was a special case within the meaning of the constitution. As to the second point made for the appellants, he insisted upon the same points relied upon by the respondents in the supreme court, which will be found in 17 Barb., 507.</p>

The case is reported in 33 Barb. B. 9. The premises •which are the subject of this action were conveyed to George F. H. Youngs by Frederick W. Weiss, by an absolute deed on the 17th March, 1847. The price of the property was $2,000. $1,000 of the purchase money was handed to George H. Siemon by his wife, the mother of the plaintiff.

<p>Under the constitution of 1821 (art. 7, § 10), the legislature was prohibited from authorizing any sale or disposition of the lands owned by the state, which were contiguous to its salt springs and might be necessary or convenient for their use.</p> <p>A person to whom portions of these lands were set apart by the commissioners of the land office, pursuant-to the Revised Statutes (vol. 1 p. 267, § 98), for the purpose of his erecting works thereon for the manufacture of coarse salt, and who entered and made the expenditures and erections for that purpose required by the statute (1 R. S., 267, § 94), has no inheritable estate or interest in the premises</p> <p>Accordingly, where parcels of the Onondaga salt springs reservation were set apart to an individual, pursuant to said statute, and he made expensive erections thereon of a permanent character for the manufacture of coarse salt, and died in possession, intestate; Meld, in an action for partition by his heirs against the widow, who was also his administratrix, that they took no estate or interest in the premises by descent.</p>

The action was brought to recover damages alleged by the plaintiff to have been sustained by him, by reason of the improper construction of the railroad through Ins farm, whereby a stream of water—convenient and useful for watering the plaintiff’s horses, cattle, &c.—was diverted from his lands, to his injury. Other causes of action were specified in the complaint, but no question arises as to any of them.

The action was brought against the defendants as endorsers of a bill of exchange as follows: “No. 1,305. Held: that the liability of the Farmers’ Branch Bank depended on the facts, other than the mere fact that the person who endorsed the paper was the cashier of that bank, then they decided that the mere proof of the latter fact did not create such liability.

Action commenced in the supreme court the 28th of July, 1851.

<p>Action in the supreme court. The complaint alleged that the defendant was a railroad corporation, organized under the laws of this state, and that during the six months previous to the commencement of the suit, it was engaged in constructing its road through the county of Cayuga, by its contractors, agents and engineers; that Messrs. Midler and Brintnall contracted with the defendant to perform the work in building the road between Syracuse and Weedsport; that one Bull, by agreement with Midler and Brintnall, contracted to do a portion of the work and that he, under this agreement, proceeded to perform the same ; that Bull employed the plaintiff, who labored, in performing the portion of the work which Bull had agreed to do, during thirty days at the price of two dollars per day; and that Bull was indebted to him in this amount for such labor. The mplaint further stated that McFarland and Stone sevelly worked for Bull on his said job, thirty days each, and that he was indebted to the former in the sum of thirty and to the latter in the sum of fifty dollars therefor; that within twenty days after the labor was performed by each of the parties, they severally caused a written notice to be served on the engineer of the defendant, pursuant to the requirements of § 12 of the general railroad act (Laws of 1850, p. 211); and that the action was commenced within thirty days after such notices were served. The complaint further alleged an assignment and transfer by McFarland and Stone of their respective demands and claims to the plaintiff, and demanded judgment against the defendant for one hundred and forty dollars.</p> <p>The defendant demurred to the complaint and assigned the following grounds of demurrer:</p> <p>1. That the plaintiff is not a laborer within the meaning of § 12 of the act, entitled “ An act to authorize the formation of railroad corporations, and to regulate the same,” passed April 2, 1850 ;</p> <p>2. That Willard Stone is not a laborer within the meaning of § 12 of the act aforesaid ;</p> <p>3. That Peter McFarland was not a laborer for Philip Midler and Josiah Brintnall within the meaning of § 12 of the act aforesaid;</p> <p>4. That Platt Bull is not a contractor within the meaning of § 12 of the act aforesaid;</p> <p>5. That it appears by the plaintiff’s complaint that the said Willard Stone, Peter McFarland and the plaintiff worked and performed labor for Platt Bull and were in his employ, and not for Philip Midler nor Josiah Brintnall nor for the defendants;</p> <p>6. That it does not appear in and by said complaint that the said Stone, McFarland or the plaintiff did or performed any work or labor for the defendants at their request;</p> <p>7. That it appears by the plaintiff’s complaint that the defendants were not liable to the plaintiff for any work done or performed by the said Willard Stone, Peter McFarland or the plaintiff;</p> <p>8. That the plaintiff does not state facts in his complaint sufficient to constitute a cause of action in his favor against the defendants.</p> <p>The cause was heard at a special term held by Justice T. E. Strong in Wayne county, in 1854, and judgment rendered in favor of the defendant. On appeal, this judgment was affirmed,at a general term of the supreme court held in the 7th district. The plaintiff appealed to this court. The cause was submitted on printed briefs.</p>

This action was commenced by David Selden in the year 1854, to recover damages for. lands alleged to have been taken by the defendants in the enlargement of their canal, after the year 1846, and for injuries to other lands belonging to the plaintiff adjoining those thus taken, by water which soaked through the banks in consequence of raising the banks and increasing the depth of water in the canal.

The action was commenced on the 30th of April, 1851. The complaint alleged that the defendant executed to the plaintiff a note which was set out in terms. It bore date June 29, 1841; and thereby the defendant promised on demand to pay the plaintiff or bearer one hundred and twenty-five dollars and sixty-three cents with interest. The complaint further averred that the defendant, although requested to do so, had not paid the note, and demanded judgment for its amount.

<p>After a claim against a county has been presented to the hoard of supervisors for allowance, and has been examined and passed upon by that body, the amount determined to he actually and justly due 'declared, and its payment provided for in the mode prescribed by law, no action will lie against the county, to recover the same claim, upon the ground that the decision of the board was erroneous in respect to the amount actually and legally due to the plaintiff.</p>

The action was brought upon nine several notes or instruments1 in writing, of which the following are copies: $700. Albany, Jan. 10, 1852. Held: in the case of Fairchild v. Ogdensburgh R. R. Co., that an order of the president of a company, on its treasurer, for the payment of a specific sum to the plaintiffs—“being the amount due them for work on section number eighteen, according to the engineer’s estimate for January, 1855, thereto prefixed,”—was in effect a promissory…

The action was brought to enforce a lien against a building in the city of New. York, belonging to the defendant, Coe, for materials furnished by the plaintiffs to Joseph Naylor, the contractor, who erected the building and used the materials in constructing the same.

<p>Where the case, in this court, contains no statement of the facts found by the court which tried the action, as required by section 267 of the code, but only a statement of facts, signed by the presiding justice of the general term which heard the cause on appeal, the appeal should be dismissed</p> <p>Such a statement is not a compliance with the requirements of section 267 of the code, and" cannot be regarded as a substitute for the statement of facts required by that section.</p> <p>The only instance in which a general term is authorized to make a statement of facts is that mentioned in section 333 of the code, viz: when it renders a judgment upon a verdict taken subject to the opinion of the court.</p> <p>A promissory note for $800 was made by R and endorsed by F. & A. for his accommodation, to retire a previous note of like amount, made and endorsed by the same parties, at the Bank of W. The bank refused to discount the new note, or to receive it for the old one; whereupon W., .without the knowledge of the endorsers, put the note into the hands of C. to get the same discounted and remit the proceeds to the Bank of W. to retire the prior note. C. presented the note to the plaintiffs’ cashier, who discounted the note, giving C. for the proceeds a note for $500, made by B., which, though good and collectable, was past due and protested, and $285.93 in cash. No part of the proceeds of the discount were sent to the Bank of W., or ever came to the hands of the maker and endorsers, or either of them:</p> <p>deld, that notwithstanding the diversion of the note, the plaintiffs were bona fide holders and entitled to recover the amount, it not having been received under such circumstances as called upon the plaintiffs to institute any inquiries as to C.'s right to the possession of the note, or to procure its discount.</p>