Volume 2 — Sandford's Superior Court Reports

<p>This was an action of assumpsit, brought to recover back money paid to the defendants, under the following circumstances :—</p> <p>On the 27th day of January, 1847, T. J. Stewart, a cotton broker, negotiated a sale of cotton by the defendants to the plaintiffs, upon which bought and sold notes were signed by or in behalf of the parties respectively. The following was the sold note delivered to the plaintiffs:—</p> <p>“New York, January 27th, 1847.</p> <p> Messrs. Joyce Sp Murphy, </p> <p>Bought of Messrs. Adams &p Hawthorn, South Street.</p> <p>259 bales of Cotton, viz., at 13 J c.</p> <p>A. P. L. 100 □ bales Charleston, at 13|- c.</p> <p>S. Hunt, 64 « “ “• “</p> <p>B. B. 95 “ “ Mobile, “</p> <p>And buyers to pay seven cents per bale storage.</p> <p>“ “ insurance.</p> <p>“ “ interest after ten days.</p> <p>“ “ deposit five dollars per bale.</p> <p>Deliverable thirty days from date. Cash on delivery..</p> <p>Thomas J. Stewart, Cotton Broker A</p> <p>The defendants gave a receipt for the deposit, in these words: 11 Rec’d from Messrs. Joyce & Murphy, twelve hundred and ninety-five dollars, being deposit of f 5 per bale on 259 bales cotton.”</p> <p>The purchase note delivered to the defendants, differed from the preceding in one particular only; the cotton was to be delivered within thirty days.</p> <p>The two lots of 100 bales and 64 bales, were destroyed by fire on the 23rd of February, 1847, before the expiration of the thirty days, and the suit was brought to recover the five dollars per bale paid as a deposit on those lots. The residue of the cotton was delivered and accepted, without prejudice to the claims of the parties in respect of the 164 bales ; and the questions in dispute were limited to the latter.</p> <p>The 164 bales remained in store, subject to the order of the defendant, until it was destroyed. The plaintiffs had procured it to be re-sampled, shortly before the fire, with a view to offer it for sale, and the same broker offered it for sale in their behalf.</p> <p>The defendants insured the cotton in their own names after the sale, but the insurance on the lot delivered was paid to them by the purchasers, in accordance with the contract of salé: as was also the storage.</p> <p>There was a change in the market, between January 27th and February 23rd, and the price of cotton generally declined about two cents a pound. The value of the cotton as appraised, for adjusting the loss after the fire, was for the 100 bales, 12-s-cents per pound, and for the 64 bales, 13 cents per pound. Evidence of the quantity was given by the weighers who weighed it before the sale to the plaintiffs. The insurance covering only the value, the defendants were left uncovered for the fall in price, except by the deposit in question. They received the insurance money, after this suit was commenced, and offered to return to the plaintiffs the surplus after making themselves whole, according to the terms of the sale. The plaintiffs objected to the testimony offered to show the weight of the cotton which was destroyed. The price of cotton at the end of the thirty days, was no more favorable to the plaintiffs, than it was on the 23rd of February.</p> <p>It appeared that the 164 bales were stored in such a manner, that any one going to examine them might see nearly all the bales, and the 164 bales sold constituted all of those respective marks which the defendants had in store. The defendants had not procured these two lots to be weighed for the plaintiffs prior to the fire.</p> <p>Mr. Stewart testified for the plaintiffs, that the course and practice of the trade in effecting a delivery of cotton, is as follows : When the contract matures, the buyer gives an order upon the seller to turn it out. The seller then employs a sworn weigher, of his own selection, and at his own expense, to weigh the cotton, and sends a bill for the price to the buyer, with the weigher’s certificate attached—naming parcels, weights and price. The seller is always to weigh the cotton on delivery, and to deliver it in good order. If the bales want ropes, or need mending, he supplies the ropes and has them mended, and he has the ragged parcels of cotton picked off. These are done before weighing.</p> <p>None of these things had been done in respect of the 164 bales before the fire. On the 2d March, the plaintiffs drew an order on the defendants for the 95 bales, and another for the 164 bales, offering to pay the price on receipt of the bill of the same.</p> <p>A verdict was taken for the plaintiffs, subject to the opinion of the court on a case, with leave to either party to turn it into a bill of exceptions or special verdict.</p>

This was an action of debt on a bond executed by the defendants to the plaintiff, in the penalty of $44,985 78, dated January 10,1838.

<p>Motion by the plaintiff for a new trial, on a case. The action was trover, brought to recover certain certificates of indebtedness issued by the defendants, commonly called bonds, which the plaintiff owned on the second day of January, 1846.</p> <p>Upon the trial of the cause, the following matters appeared in evidence. The defendants were incorporated by an act of the legislature, passed April 24, 1832, with a capital of ten millions of dollars, in shares of one hundred dollars each, (which were to be deemed personal property, and transferable as its by-laws should direct,) with power to construct and maintain a railway, with one, two, or three tracks, from the city of New York, or its vicinity, to Lake Erie, through the southern tier of counties in this state. By the fourth section of the act, a large number of persons were designated as commissioners, and it was made their duty to open books to receive subscriptions to the capital stock of the company, giving twenty days notice thereof, by advertisement in the newspapers, and to keep the books open three days. As soon as the stock was subscribed, directors were to be elected, under the inspection of the commissioners. By the fifth section, if there were an excess of subscription to the stock, the commissioners were to apportion the stock among the subscribers; “And if the full amount of capital be not subscribed within three days as aforesaid, then it shall be the duty of the commissioners to open the subscription books from time to time until the whole amount shall have been subscribed: the commissioners shall receive no subscriptions, unless five dollars on each share subscribed be paid at the time of subscription.” By the sixteenth section, the directors were authorized to require payment of the sums to be subscribed to the capital stock, at such times, in such proportions, and on such conditions, as they should deem fit; giving public notice of the calls respectively. (Laws of 1832, ch. 224, p. 402.)</p> <p>The charter was amended on the nineteenth day of April, 1833, by an act which directed the commissioners to open the books on the second Tuesday of July ensuing. If in three days the whole amount of the capital were not subscribed, the commissioners were to ascertain how much had been applied for. If one million should have been subscribed, or as soon thereafter as a million should be subscribed, the commissioners were to proceed and organize the company. The third section was as follows:</p> <p>“ If the directors shall be chosen, and the company organized by virtue of the preceding section, it shall be the duty of the directors so chosen, or their successors, from time to time, to cause the books' for the subscriptions of stock to be opened until a sum sufficient to complete the work from Hudson River to Lake Erie shall be subscribed, but the time for the completion of said road shall not be deemed to be extended by this act.” (Laws of 1833, ch. 182, p. 229.)</p> <p>Under this act, the requisite amount of stock was subscribed, and the company was organized by the choice of a board of directors, the usual officers were appointed, and the rail road was commenced. Various acts of the legislature were subsequently passed, in aid of the corporation, and. recognizing its proceedings in different forms.</p> <p>On the 10th of May, 1843, the board of directors adopted a series of resolutions, authorizing the executive committee to settle with creditors of the company, and' pay them in the general stock of the corporation; also, to issue certificates of indebtedness of the company to the amount of $300,000, at not less than five years, bearing interest at six per cent, per annum, and chargeable on the revenues of the eastern division of the rail road ; and to issue a further amount of certificates to the extent of $300,000, at not less than five years, and bearing interest at seven per cent., which should be receivable at par in payment of subscriptions to the capital stock.</p> <p>On the 8th of November, 1844, a statement-was made and a resolution adopted by the board of directors, in these words, viz. :•—•</p> <p>“ The president stated propositions had been made by holders of the certificates of the company which fall due on the 1st of January, 1849, to exchange the same, with the addition of interest to the time of maturity, for the stock of the’company.</p> <p>“ Mr. Griswold moved that all such propositions' be accepted, and that the treasurer and secretary be authorized to carry the same into effect, which motion was adopted.”</p> <p>On the 7th day of October, 1845, the directors adopted a resolution, referring the subject of receiving the seven per cent, certificates of the company in payment of its full stock, to the president and treasurer with power.</p> <p>The minutes of the board of directors, exhibit the following proceeding as having occurred on the 1st day of December, 1845, viz.:—•</p> <p>“ On motion of Mr. Brown, the following resolution was adopted:</p> <p>“ Resolved, that the resolution passed the 8th day of November, 1844, authorizing the secretary and treasurer to receive the certificates of the company in payment for stock, with the addition of five years interest to the same, be, and is hereby, repealed.”</p> <p>Mr. Brown, who offered this resolution, was also the treasurer of the corporation, and he testified as a witness on the trial, that its object was to repeal no part of the resolution of November 8th, 1844, except that which allowed stock to be issued for the unearned interest on the certificates of indebtedness. He also testified, that for two years and a half prior to January, 1846, the officers of the company had been in the practice of issuing stock for the corporation, both the president and treasurer, and also the treasurer and secretary. They had thus issued from five hundred to seven hundred shares. . The treasurer had the principal management of the issues of stock, and made the agreements with the creditors in New York to issue stock for ■ debts, and the agent made like agreements with the creditors on the line of the road. In eight instances, the issue of stock had been arranged by agents of the executive committee, and by the officers of the company. The president and secretary signed all the certificates of capital stock, and all were regularly entered on the books of the company. Between the first of December, 1845, and the second day of January, 1846, there' were several instances of stock issued for indebtedness.</p> <p>It further appeared on the trial, that by an act in relation to The New York and Erie Rail Road Company, passed May 14th, 1845, a fresh subscription of stock, to the amount of three millions of dollars, one-fourth payable on subscribing, was directed to be made, on which being done, the state of New York, by the terms of the act, would relinquish to the like extent its lien on the road, for a loan made to the corporation in 1838; but the old stockholders were not to participate in the benefits of the provisions made by this act, unless they would surrender to the company their stock certificates, and receive therefor for every two shares of stock theretofore issued, one share of stock to be thereupon issued. (Laws of 1845, ch. 325, p. 352.)</p> <p>Under this act, $3,400,000 of new stock was subscribed in October and November, 1845. The stock issued pursuant to the act of 1845, for the outstanding shares surrendered, was denominated in the company’s office, and was known among share-brokers and dealers, as “ consolidated" stock.</p> <p>The company kept a transfer book in which were entered the transfers of the consolidated stock; and another old transfer book, on which werey entered fractional shares. In issuing stock for indebtedness after the passage of the act of 1845, the transfer clerk usually wrote across the face of the scrip the words, “ equal to consolidated,” and the transfers of such stock were made on the transfer book of consolidated stock, although the certificates issued to the transferee were marked f< equal to consolidated,” like those surrendered. The object of this, was to distinguish the stock so issued for debt, from the old consolidated stock.</p> <p>The plaintiff was the holder of twenty-three certificates of indebtedness of the defendants, issued November 1st, 1843, and January 1st, 1844, bearing interest at six per cent.; payable half-yearly, and the principal payable January 1,1849 ; amounting in the aggregate, to $6000. Six of these bonds of the earlier date, and amounting to three thousand dollars, were signed by the president and treasurer. Nine of the same date, signed by the treasurer and an agent, amounted to about $2575. The residue were signed by the officers last named, and were dated January 1st, 1844.</p> <p>On the 2d day of January, 1846, the plaintiff applied to the treasurer of the company to exchange them for stock. While at the office negotiating, he asked the transfer clerk, if the stock he should take, could be transferred on the transfer book of consolidated stock, and was informed it could be so transferred. He told the clerk he wanted to sell it, and transfer it on that book. Thereupon the exchange was made, the certificates of indebtedness surrendered to the company, and the plaintiff received a certificate for sixty shares of the capital stock of the company, in the usual form, signed by the president and secretary. Across its face was written “ equal to consolidated stock,” with the secretary’s signature. The plaintiff signed a receipt for the stock, in the margin of the scrip book. The negotiation and arrangement were made by the treasurer and secretary of the company. The bargain was for stock, “ equal to consolidated.” The plaintiff stipulated for the privilege of rescinding his contract, at or before two o’clock of the succeeding day. The treasurer assented to this, and the stipulation was reduced to writing, and signed by the transfer clerk, in these words:—</p> <p>11N. Y. and Erie R. R. Office,</p> <p>“ New Yor/c, January 2, 1846.</p> <p>“ Mr. Chas. Lohman having this day exchanged with the N. Y. and Erie R. R. Co. six per cent, certificates to the amount of six thousand dollars, for the same amount of stock of the company 1 equal to consolidatedit is hereby understood and agreed, that in case he should wish to re-exchange the same, he. has the privilege of doing so any time previous to 2 o’clock Saturday, 3d January, 1846.”</p> <p>At this time, there was a great excitement among the dealers in stocks,' growing out of what they technically termed, “a corner” in the stock of this company ; large contracts to deliver the,stock on time, maturing on the 3d day of January, and the quantity deliverable not being procurable in the market. A large amount of the company’s certificates of indebtedness was offered to the company in exchange for stock on the 2d of January, after the issue to the plaintiff; so large, that the officers at first hesitated to issue the stock, but finally they issued it the next day. Mean time, and early in the morning of the 3d day of January, the president instructed the transfer cleric, to permit no more stock “ equal to consolidated,” to be transferred on the book of consolidated stock, but to enter the transfers in the old stock book, used for fractions, &c.; still marking it, “ equal to consolidated.” The stock brokers refused to receive the stock so transferred, on contracts for stock of the company, and on the afternoon of January 2d, they designated it as “ converted stock.” During that afternoon, the “ converted stock” sold at the board of brokers at 55 per cent., and the “ consolidated” at 85 per cent. In the morning, sales of the latter were made at par. The prices on the 3d day of January, were about the same as in the afternoon of the second. After the 2d of January, the stock previously issued for debt, and marked “ equal to consolidated,” was all called by the brokers “ converted stock.”</p> <p>The plaintiff might have sold his stock at par on the 2d of January, if it had been of the scrip transferable on the consolidated book. He did not, however, make any contract for its sale, nor apply to transfer it. On the 3d day of January, but not till after 3 o’clock, P. M., the plaintiff called at the office of the company, and demanded a return of his certificates of indebtedness, and offered to deliver up his certificate of stock. The officers declined to re-exchange, because it was after the time stipulated in the agreement for that purpose. The plaintiff thereupon brought this suit.</p> <p>At the trial, he contended, and requested the judge to charge, that the directors of the company had no authority to issue the capital stock, and take pay therefor in the certificates delivered to them by the plaintiff. That the treasurer and secretary had not, on the 2d day of January, 1846, authority to issue the stock to the plaintiff in exchange for the six per cent, certificates ; and when the plaintiff demanded them back, and offered to give up the stock, the agreement for the exchange was not binding on the corporation, and the latter had the right to dissent from it; and as it was not binding on the corporation, no valid contract existed. That on the 3d of January, the directors had the right to disavow and repudiate the agreement made by those officers with the plaintiff, and therefore the latter could tender back the stock and demand the bonds at any time before the corporation had adopted the contract. That if the contract was made under a belief by those officers, that they had the authority to issue the stock and make it transferable on the consolidated book, when in fact they had no such authority, then the agreement being founded on mutual mistake, was voidable, and the plaintiff had the right to demand a return of his bonds. If he acted under such mistake, and the officers knew it, and knew they had no authority to bind the corporation without the assent of the directors, then it was a fraud on the plaintiff, and he could rescind the contract.</p> <p>That if the agreement for the exchange was that the stock was to be transferable on the regular consolidated transfer book, and the plaintiff would not have entered into it except on that understanding ; and if on the morning of January 3d, the transfer clerk was ordered not to allow the stock issued to the plaintiff to be transferred on that book; 'then the corporation had not ratified the agreement made by the treasurer and secretary, and the plaintiff on discovering that fact, had the right to demand back his bonds and return the stock. The not recognizing and the repudiation of that part of the agreement, authorized the plaintiff to treat the whole contract as at an end. That if the plaintiff, on learning of the orders not to permit a transfer on the consolidated book, would have returned the stock and taken his bonds before 2 o’clock, P. M., of January 3d, then it was the defendants duty to have notified him of those orders; and he had a right, whenever he ascertained them, though after that hour, to rescind the contract. And that he had the same right, if it were a material inducement without which he would not have contracted, that the stock to be issued to him should be transferable on that book; and if on the morning of January 3d, the company determined not to permit the stock to be transferred on that book. Also, that under the circumstances last supposed, and those given in evidence, the plaintiff had the right to rescind, whenever he discovered that the corporation had determined not to allow his stock to be transferred on the regular transfer book of consolidated stock. And that if the jury found that the agreement between the plaintiff and the treasurer and secretary, was made by the former on the faith of representations made by those two officers, which were untrue ; he had the right to demand back his bonds, whether they made such representations fraudulently or ignorantly.</p> <p>The defendants asked the court to instruct the jury, that the defendants had authority on the 2d January, 1846, to take new subscriptions to their stock, and in such form and' manner as their board of directors should think proper. That their officers, viz.: their president, secretary and treasurer, being their general agents, and charged with the taking of additional subscriptions to the stock, were authorized on that day to take the plaintiff’s subscription for sixty shares, and take pay for them in the bonds of the defendants. That there has been no conversion of the bonds of the plaintiffs. Time being the essence of the contract, and no offer to re-exchange until after the time specified in the contract, the cancelling and retaining of the bonds by the defendants were legal and right. If the plaintiff had any claim against the defendants, having given him a certificate unauthorized by law, and on that account of no value, his remedy is not in trover, as he voluntarily parted with his title, and without any fraud or fault on the part of the defendants. That the conversation and engagement, if any, respecting transferring the plaintiff’s stock in the book for transferring consolidated stock, was anterior to the completion of the arrangement to exchange the bonds for stock, and that agreement being reduced to writing, the writing is the sole and only evidence of' the agreement between the parties. That the transfer clerk had no authority to negotiate for or agree upon terms for the exchange of the bonds for stock, and the defendants are not bound for any thing he said on that subject, or relating to it. That the book on which the transfer of the stock was to be made, was not one of the conditions or terms of the purchase ; all those are embraced in the written agreement. If any thing, the arrangement on that subject is collateral to the exchange, and a breach of it only furnishes ground for an action for damages.</p> <p>The judge charged the jury, that under the circumstances proved, and the acts relative to the defendants, the stock issued to the plaintiff was valid as against the company. That if it were a part of the agreement between the plaintiff and the company, that the stock was to be transferable on the consolidated transfer book, (and such appears to be the evidence,) and the company next day directed that a transfer on that book should not be permitted ; then the refusal of the company to allow such a transfer, was a violation of the agreement, and entitled the plaintiff to sue for damages. He has not, however, brought a suit for a breach of contract, but has brought one founded upon the position that the contract was rescinded. Instead of claiming damages, he repudiates the whole agreement, and demands a return of the bonds.</p> <p>To sustain this suit, a violation of the agreement by the company, is not sufficient. The plaintiff must prove that the contract was not fair on their part, and that there was a deceptive and fraudulent intent in making it. It is not enough that there may have been mistake or misapprehension on his part. A deception must have been practised upon him.</p> <p>Though by determining not to permit a transfer of this stock on the consolidated transfer book, and omitting to notify the plaintiff thereof before two o’clock on the 3d of January; the defendants may have exposed themselves to an action for damages; yet as matter of law, they did not thereby rescind the whole agreement, so as to entitle the plaintiff to maintain this suit. The whole, therefore, results in this, that unless the jury find that an intention to defraud him existed at the time the conti'act was made, the plaintiff cannot recover.</p> <p>The plaintiff excepted to the judge’s charge, and to his omission to charge as requested. The jury found a verdict for the defendants.</p>

<p>Assumpsit for average on a cargo of turpentine, tried before the Chief Justice, in October, 1847. ■</p> <p>The plaintiffs proved the shipment of 1150 barrels, on board of their schooner, the Cornelia, at Swansborough, North Carolina, on the 16th September, 1845, consigned to the defendant at New York. The vessel sailed, September 22d. The next day, about three hours after they crossed the bar, in a gale of wind, she sprung a leak,, and it became necessary to put back. She did not succeed in getting into S., and finally, on the 25th, went into the port of Beaufort, There the cargo was discharged, and the vessel hauled up : a survey was had, and repairs made to the amount of $368. She was then taken to the wharf, and reloaded. While lying there in October, a gale of wind and heavy sea drove her upon an old wharf under water, where she pouiided, and again leaked, so that the tide ebbed and flowed in her. Another survey was called, and the master wrote to his owners in New York for advice. They advised him to go on with repairs, and while so doing, an agent of the underwriters came on, took charge of the vessel, and completed her repairs.</p> <p>The cargo was again taken on board, and the Cornelia sailed for New York in December, 1845. Had bad weather, and in a heavy gale on the 12th of December, off Cape Hatteras, the vessel was so far disabled, that she had to go back to Beaufort. She lost some of her deck load, her small boats, and one anchor in crossing the bar ; and some of the load was thrown overboard to ease the vessel. Another survey was called, when extensive repairs were advised. The master wrote to his owners for advice, and came himself to New York directly afterwards.</p> <p>While the Cornelia was lying at Beaufort in October and November, there was no suitable vessel to be had there to bring on the cargo. She was ultimately repaired, and came on to New York in the spring of 1846. Mean time, the defendant, by agreement with the owners, sent a vessel to Beaufort in January, 1846, which there received 999 barrels of the turpentine originally shipped on the Cornelia, and brought it to him at New York.</p> <p>The freight payable by the bill of lading, signed by the master of the Cornelia, was thirty-five cents per barrel, with primage and average accustomed. On the adjustment of the average, made by a broker, the amount of the special charges against the cargo, was $87 90, and of the general average, $643 71. The defendant furnished the broker with the valuation of the cargo, and examined the statement. He refused to pay the general average charged to the cargo. The statement was sent to the underwriters. The plaintiffs then proved, (the evidence being objected to,) to show defendant’s acquiescence in the ¡results of the adjustment of average, that he received from the underwriters, the amount of his loss and general average on the cargo of the Cornelia, in August, 1846.</p> <p>The defendant claimed that the vessel was unseaworthy, and that there was unreasonable delay in the port of Beaufort, to his great loss in the value of the cargo.</p> <p>The judge, in charging the jury, said, the first ground of defence is, that the 1150 barrels of turpentine composing the cargo, were not delivered to the defendant according to his contract with the plaintiffs. But there is abundant evidence to show that this property did come into defendant’s possession. It is shown that he sent a vessel for it, and it appears from his statement to Mr. Johnson, that he sold it at two dollars and seventy-five cents per barrel. The second ground of defence is, that there was unreasonable and unnecessary delay on the part of the captain in the port of Beaufort; that this delay was unauthorized, and such as the captain had no right to make. But it is not the rule of law, that the captain is bound to proceed immediately to repair the effects of a storm, without waiting to communicate with his owners. If he can do so in a reasonable time, it is his right and his duty to communicate with them, and to wait for advice. If the jury find in this ease, a fair exercise of that right, this ground of defence fails.</p> <p>But the main ground of defence is, that the vessel was unseaworthy. This is a matter of fact to be decided by the jury, on the evidence. The defendant’s counsel has relied upon the log-book, protests, and surveys made at the time. These, though not evidence, have been admitted, because not objected to by the other side. If she was not fit for this voyage, and therefore loss occurred, the defendant is not responsible in this action.</p> <p>Defendant’s counsel excepted to the charge of the Chief Justice respecting the right of the captain to wait and communicate with his owners; and requested him to charge the jury, that from the vessel leaking two hours after she sailed, she must be presumed unseaworthy, unless an adequate cause for that leak is shown by the plaintiffs; and that no such cause has been shown, and that the fact of such leak has been proved by legal and competent evidence. The judge assented to the general principle of law laid down by defendant’s counsel; but stated that the question whether an adequate cause had been shown, was one for the decision of the jury.</p> <p>The jury rendered a verdict for the plaintiffs; and the defendant moved for a new trial.</p>

<p>Where an agent, entrusted with a negotiable note for the purpose of procuring, it to be discounted, pledged it with a stranger for money loaned to him for his own use, at usurious interest; Held, that the transaction being illegal, for usury, the lender could not retain the note against the true owner, on the ground that he had received the same in good faith, in the usual course of trade.</p> <p>Held also, that the disposal of the note by the agent, was tortious.</p> <p>The agent in such a case, is a competent witness for his principal in an action brought against the stranger for the recovery of the note.</p> <p>The record of the principal’s recovery, will not be evidence for the agent in a subsequent suit; nor will he be liable to the principal for the costs, if the suit be unsuccessful. His interest is balanced, and the usury in the loan to him, doe» not alter the case.</p> <p>Where a party who received a note, on a tortious misappropriation by an agent, but without notice of the owner’s rights, sold it, and received the proceeds ; and the owner subsequently demanded the note of him without effect; it was held to be sufficient evidence of a conversion.</p> <p>An agent on receiving sundry notes to procure them to be discounted, furnished his post dated checks to his principal, intending to meet them with the proceeds of the notes when discounted. Before the date of the checks arrived, he pledged the notes for his own use; and the checks were not paid. He subsequently paid the principal, a small sum, on account. In an action by the principal against the pledgee, for one of the notes; held, that the agent, on tortiously disposing of the notes, extinguished any lien he may have had for his checks, and that no lien therefore passed to the pledgee ; and that the pledgee had no lien upon the note for the payment made by the agent.</p> <p>A party calling a witness, may satisfy the jury from facts and circumstances stated by the witness himself, that he is mistaken in some of his statements and conclusions, while in others he is correct.</p>

Replevin in the detinet, for two hundred and twenty-one bales of cotton, and for the bills of lading issued for the same cotton ; one set being for 136, and the other for 85 bales ; tried before Sandford, J., June 8th, 1848. On the trial, it appeared that the plaintiff, a Swedish merchant in New York, in December, 1846, departed for South America, leaving his affairs generally in charge of F. Wissman, a German merchant, in whose counting room the plaintiff kept his office.

<p>Assumpsit, on a policy of insurance on the cargo of the whaling ship Galen. The ship sailed from Warren, Rhode Island, in December, 1842. On her return home, in February, 1846, she was stranded at Fox Bay, in the Falkland Islands, and was totally lost. At that time she had on board 327 barrels of sperm oil, 1400 barrels of whale oil, and 8 barrels of black fish oil. The cargo was almost all saved, subject to various expenses, and was shipped to Rio Janeiro, where it arrived previous to September 17th, 1846.</p> <p>On the 19th of September, 1846, the plaintiffs having received a report of the stranding of the Galen, addressed from Warren, R. I., to the defendants and the other underwriters on the vessel and cargo, a letter stating the report, that there was no probability of her being got off, and thereby abandoning the vessel and cargo to the insurers, claimed for a total loss as insured.</p> <p>Prior to November 16th, 1846, the plaintiffs received from their agents at Rio Janeiro, Maxwell, Wright &. Co., a letter, stating the arrival there of the captain of the Galen, that he had shipped to Rio some 350 casks of whale and sperm oil, which had arrived to the consignment of a grocer there, and were sold conformably to the U. S. Consul’s instructions, at the fair rate of 1250 reals per gallon. That the captain would have the proceeds paid over to M., W. & Co., but as the oil was subject to very heavy charges, they could not as yet make any correct estimate of its probable amount. That the captain had to consign to the grocer, in order to procure the vessel in which it came. And that M., W. & Co. would have made the necessary documents for the underwriters, and keep the plaintiffs advised of the business.</p> <p>On receiving this communication, the plaintiff’s at Warren, wrote another letter to all the insurers of the Galen and cargo, dated November. 16th, 1846, in these words:</p> <p>“ Since our letter of the 19th Sept., advising of the abandonment of the ship Galen and her cargo to the insurers, we have received intelligence confirming the rumor of the loss of said ship, upon the strength of which said abandonment was made.</p> <p>“ We have now to advise the entire loss of the Galen, at Fox Bay, Falkland Islands, in February last, and the shipment of the portion of the cargo which was saved, to Rio Janeiro, where it had arrived previous to Sept, last, and 300 barrels sperm oil has been re-shipped to N. York, and the balance, whale oil, having been sold at Rio, (at a very fair rate,) the proceeds (amount unknown,) will be remitted in coffee to N. Y., consigned to us.</p> <p>“We desire to know what disposition you will have madé of this property, and unless advised to the contrary, we shall immediately, upon its arrival in this country, dispose of it for the benefit of all concerned.</p> <p>“ The sperm oil comes forward in the brig Camilla, and the coffee in the brig Louisa Beaton, both which vessels Would probably sail about the first October, from Rio, as we are advised by Messrs. Maxwell,Wright & Co., of that city, and presuming you will prefer risking your interest in the property, we shall not effect insurance upon it, unless requested so to do.</p> <p>“ N. B.—The protest has not yet come to hand.”</p> <p>All the oil, except the sperm, was sold at Rio, and the proceeds paid by the master, to Maxwell, Wright & Co., who invested the same in 12521- hags of coffee, and shipped the coffee to New York and Boston, on the 5th and 20th of October, 1846, consigned to the plaintiffs. They forwarded to the latter, their account current with the captain for the ship’s owners, and an invoice of the coffee. The plaintiffs received the coffee, sold it, and retained the proceeds. There was a profit on the sale of the coffee. The sperm oil saved, being about 300 barrels, was shipped to New York, and also came to the hands of the plaintiffs.</p> <p>On the 2d of January, 1847, the plaintiffs delivered to the defendants, the preliminary proofs of interest and loss. On the 20th of July, 1847, at New York, they addressed a letter to the - defendants, as follows :</p> <p>“ To avoid misunderstanding on the subject of the prelimi- ■ nary proofs in the case of the Galen cargo policy, we beg leave to draw your attention to the proofs of interest and of loss' delivered to you, namely, a copy of the register lately delivered, a protest and survey delivered in January last, copies from the captain’s journal of the cargo on board, bills of lading from the Fox Islands, by the Dispatch, July 23, 1846, of 173 casks oil; by the Manney, July 31, 1846, of 265 casks oil, to Rio de Janeiro ; and the bills of lading of coffee, proceeds of said oil, by the Louisa Beaton, October 6, 1846, for 474 bags ; by the Pil-' grim, for 778J bags, October 20, 1846; together with all the bills, accounts, sales and invoices, with the statement of loss, by Welbaskie & Graham, of our claim.</p> <p>“ These were all delivered in February last, at your office, and to them we shall refer as preliminary proofs of interest and of loss, as far as they may be material, of which please to take notice. The papers are left with our attorney, D. Lord, where they may be consulted, if need be.”</p> <p>The various documents relating to the adventure being laid before despecheurs by the plaintiffs, they made a statement of the plaintiff’s claim, by which it. appeared, on the fifth February, 1847, to be $2,135 87.</p> <p>If the insurers were entitled to the benefit of the profit on the sale of the coffee, in which the proceeds of the oil sold at Rio, were invested, it was agreed that this statement of the loss was incorrect. Otherwise, it was admitted, for the purposes of the trial, that the statement was correct, subject, however, to adjustment.</p> <p>There was no proof of any express assent of the defendants to the abandonment, nor of any act indicating their acceptance of the same.</p> <p>The defendants insisted that the plaintiffs having abandoned the cargo to them, they, from that time, became substituted in the plaintiff’s right to the property, or its proceeds, or reinvestments, according to the proportion covered by their policy.</p> <p>The plaintiffs insisted that the letters of 19th September, and 16th November, 1846, respectively, did not show a valid right to abandon, and also, that at each of those dates, the property insured had been relieved from the peril on which the attempt to abandon was predicated, so that the letters of abandonment were not effectual, and therefore the underwriters were not entitled to the substitution by them claimed.</p> <p>A verdict was taken subject to the opinion of the court.</p>

Demurrer by the sureties, in an action of debt on an administrators bond..

Assumpsit against the defendant, as the indorser of a promissory note made by Edwin Wilcox, payable to and indorsed by F. Whittlesey, for $1297 45, dated January 11, 1844. At the trial, before the Chief Justice, in November, 1847, the defendant proved that this note, and one of $3000, were given by the maker to C. G. Smedberg, about the 30th January, 1844, in settlement of two notes for $2000 each, then held by Smedberg.

<p>On a sale of goods by sample, there is an implied warranty that the bulk of the goods is equal to the sample in quality and soundness.</p> <p>This is an exception to the principle of caveat emptor, which is the governing rule as to sales in general.</p> <p>In order to warrant a jury in finding that a sale was a sale by sample, it must appear that the parties contracted solely in reference to the sample or article exhibited, and that both seller and buyer mutually understood they were dealing with the sample, and with an understanding that the bulk was like it.</p> <p>An opportunity for a personal examination of the bulk, is a strong circumstance against considering the sale to have been made by sample.</p> <p>A general and uniform usage in a particular trade, in goods so packed or situated that examination of the bulk is inconvenient and difficult, or calculated to expose the gotids to injury, to the effect that the goods in that trade are sold by the production and examination of samples; is competent in connection with other evidence, to prove in respect of a sale of such goods, that a personal examination of the bulk was not contemplated by either party, and that both intended to contract upon the sample only.</p> <p>Such usage is not admissible to prove the contract of itself, or as of itself forming a part of the contract.</p> <p>And it is not made out by proof of a custom to exhibit a specimen, but it must go to the extent of a mutual understanding that the bulk should be like the specimen in all respects.</p> <p>Proof that a like usage prevails in respect of all goods sold in bales, boxes, and original packages, is not admissible to repel or destroy the force of a usage proved in respect of the particular article in question at the trial.</p> <p>Evidence of allowances made in conformity to the usage set up, on sales made by exhibiting samples, is proper to establish such usage.</p>

Ejectment, for a piece of ground at the North-West corner of Nassau and Ann streets, in the city of New York, being seventy feet and seven inches long on Ann street, nine feet and nine inches wide on Nassau street, seventy feet on its northerly side, and nineteen feet and one inch wide in the rear.

Replevin.—Upon the trial, it was admitted that on the 17th of August, 1847, Thomas B. Wheeler was the owner and in possession of the property in question, at his store, number 88 Bowery; and that on the 20th of the same month, he executed and delivered to the plaintiffs an assignment of the same, for the benefit of his creditors. On the 2lst day of September, 1847, the plaintiffs demanded the property from the defendant, and he refused to deliver the same.

<p>Case, subject to the opinion of the court.</p> <p>The action was covenant on a writing under seal, indorsed upon a bond executed by James Conner to the plaintiffs. This bond of Conner was dated July 23d, 1835, and the condition was for the payment of $1500, in one year, with interest at six per cent per annum, half-yearly. The defendant’s covenant was dated July 1, 1837, and was in these words, viz. :</p> <p>“ For and in consideration of one dollar to me in hand paid by The Bowery Savings Bank, obligees in the annexed bond named, the receipt whereof is hereby acknowledged, I, Charles A. Clinton, do for myself, my heirs, executors and administrators, covenant and agree to and with the said The Bowery Savings Bank, their successors or assigns, an additional one per centum per annum interest, making in all seven per centum per annum on the principal sum, secured thereby from the date hereof, until said principal sum shall be fully paid, the interest to be paid at the time and in the manner mentioned in the condition of said bond.”</p> <p>The plaintiffs proved that the defendant, for some time prior to the making of this agreement, had paid the interest on Conner’s bond, at the rate of six per cent per annum, and from that time " had paid interest on the bond to the first day of August, 1846, at the rate of seven per cent per annum, on the principal sum mentioned in the bond. It was admitted by the plaintiffs, at the request of the defend - ant, and given in .evidence subject to the plaintiffs objection thereto, that Conner, since the making of the bond and agreement, and prior to the accruing of the plaintiffs demand against the defendant, was discharged from his debts in bankruptcy, in the district court of the United States for the southern district of New York.</p>

<p>Where a negotiable note is lent by the maker to the payee, or given for the latter’s accommodation, without restriction as to the mode of using it, it is valid in the hands of any person to whom it has been transferred for value before maturity, although such value consists in its application to the discharge of a precedent debt due from the payee to such holder.</p> <p>An accommodation bill or note, when negotiated to a third party, imports a consideration as between him and the prior parties.</p>

Covenant for one quarter’s rent, $150, reserved in a lease of a dwelling house. Plea, non est factum, and notice of set-off, and other special matter, as hereafter stated. At the trial, before Oakley, Ch. J., in April last, the plaintiff proved and read in evidence, a lease of the house from him to the defendant, dated March 13th, 1844, for one year from May 1st, 1844, at the yearly rent of $550.

<p>Assumpsit, on the guaranty of a contract, with the money counts, tried before Oakley, Ch. J., May 12th, 1848. The contract was in writing, and with the guaranty, were in these words:</p> <p>“ For value received, we have this day sold, and agree to deliver to Messrs. Roderick Terry & Co., in the city of New York, two thousand barrels superfine flour, ‘City Mills, Rochester,’ at six dollars per barrel, payable cash on delivery of each parcel; to be delivered at our option, in all the month of Jupe next, in parcels of not less than 200 barrels each. Any variation from superfine, to be settled at the usual rates of difference.</p> <p>“Clark & Coleman.</p> <p>“New York, March 26th, 1847.”</p> <p>[Endorsed,]</p> <p>“ Messrs. Clark fy Coleman, will please deliver to H. C. Beals <fc Co. the within flour, as per contract—they paying you for same as received..</p> <p>“ Roderick Terry & Co.”</p> <p>“ For a valuable consideration, we do hereby guarantee the fulfilment of the contract, as within specified.</p> <p>“ Roderick Terry & Co.”</p> <p>“New York, May 25th, 1847.”</p> <p>On the 30th June, 1847, the plaintiffs presented the contract to Clark & Coleman, tendered to them $12,010, for the price of the flour and half inspection, and demanded a delivery of the flour specified in the contract. They replied that they had not the flour, and could not deliver it. They offered to deliver flour, other than “ Rochester City Mills,” on the contract. The plaintiffs immediately advised the defendants of Clark & Coleman’s default. The market value of “ Rochester City Mills” flour at the end of June, 1847, was variously estimated by .witnesses, at from $8 75 to $7 25 per barrel. It appeared that there was none of that brand of flour in the market, after June 21, 1847; that there was a considerable decline in the price of flour generally, between that date and June 30th, so that flour equally as good as “ Rochester City Mills,” was selling on the 30th, at $7 25 per barrel. Particular brands of flour, which are highly esteemed, frequently maintain their price in the face of a general fall in the market, to the extent of a dollar per barrel: especially, when the supply of such brand is small.</p> <p>The plaintiffs proved that they paid the defendants $4500, for an assignment of Clark & Coleman’s contract.</p> <p>The defendants offered to prove, that there was no other kind of Rochester City Mills flour, than superfine Rochester City Mills flour ; which was objected to and' excluded. They also offered to prove, that on the 30th of June, 1847, Clark & Coleman offered to deliver to the plaintiffs, on the contract, flour of a quality equal to or better than the “ Rochester City Mills” flour ; of - the brands, “ Hopeton,” “ Allen’s Creek,” “ Le Roy Mills Extra,” and “ M. Holmes, Rochesterwhich evidence was objected to by the plaintiffs, and excluded by the judge.</p> <p>The defendants also offered to prove, that by the usage of the trade in flour in the city of New York, it was customary on contracts for the delivery of particular brands of flour at a future day, to deliver other brands of flour of equal quality in fulfilment of such contracts. This evidence was objected to by the plaintiffs, and excluded by the judge.</p> <p>The judge charged the jury, that the rule of damages in the case, was the difference between the market value of the flour in question on the 30th June, and the contract price, with interest. The jury found a verdict for the plaintiffs, for $4246 15 damages; and the defendants move for a new trial.</p>

<p>Cetiorari to one of the assistant justices courts. The facts are sufficiently stated in the opinion.</p>

Assumpsit, to recover the difference on a contract of the defendants to purchase flour, which not being performed, the flour was re-sold at their risk. The cause was tried before the Chief Justice, on the 14th of April, 1848. The plaintiffs called W. L. Roberts, who testified that he was a produce broker in this city, and made the sale and purchase of the flour between the parties.

This was an action of assumpsit commenced by declaration, which contained the money counts and a count upon an account stated, and on which was indorsed a copy of a promissory note with a notice that the same was the only cause of action on which the plaintiffs relied. The plea was the general issue. The cause was tried before Chief Justice Oaklet, without a jury, on the tenth day of May, 1848.

Frazer sued Satterlee in the court below, and declared against him, “ That the defendant is an attorney at law, and as such received for and on behalf of the plaintiff, a large sum, viz. $60, which he undertook and promised to pay the plaintiff. Nevertheless the defendant, though often requested so to do, has and does wholly refuse.

Assumpsit for money had and received, and on an account slated. It was proved on the trial, that on the 28th of October, 1846, the defendant, a jobbing merchant in New York, sold to the plaintiff, residing in Southport, Wisconsin, a bill of goods amounting to $256 48, and received the plaintiff’s note at six months. On the 29th October, 1846, he sold to the plaintiff for cash, to be paid within thirty days, another bill of goods of $95 36.

■ Assumpsit, on a promissory note for $1178 24, made by the defendant, dated August 17th, 1842, payable on demand to the order of Williams & Ferguson, and by them indorsed in blank. The cause was tried June 15th, 1848. The note and indorsement were proved, upon which the plaintiff rested. The defendant then called as a witness, George Ferguson, Jr., who testified that he was one of the firm of Williams & Ferguson, in 1842.

Case subject to the opinion of the court. The action was assumpsit on two promissory notes made by the defendant, payable six months after date, to E. W. Pemberton, and indorsed by him; one for $471 18, dated December 6, 1845, the other ■ for $396 48, dated January 20, 1846. The following facts appeared on the trial.

The declaration in this cause, contained two counts in trespass for taking certain hats of the plaintiff in the city of Philadelphia, and one count in trover for the same hats. The defendants pleaded not guilty.

Assumpsit against the indorser of a hill of exchange for £230, dated at New York, August 14, 1847, drawn by W. Russell to the order of the defendant, and payable sixty days after sight. It was addressed to H. 0. Collard, as mentioned in the opinion, and was accepted by him on the 28th of August, 1847.

This was an action of assumpsit, brought by the payee of a bill of exchange, against the drawer. The bill was as follows: “ $295 32. “ Washington City, March 10th, 1845. “ At three days sight, please pay to the order of Mr. Thos. Carroll, the sum of two hundred and ninety-five dollars and thirty-two cents, and charge the same as advised to Clayton Tiffin. And oblige your ob’t. serv’t, “ Francis H. Upton. “ To 1.

Case subject to the opinion of the court. The cause was by consent argued before the Chief Justice alone, in whose opinion the facts are sufficiently stated.

. This was an action of assumpsit, brought to recover the amount of a promissory note for $3698 40, dated May 1st, 1846, payable twelve months after date, made by the defendant to the order of The Alliance Mutual Insurance Company, and alleged to have been indorsed by the company to Howland & Aspinwall, the plaintiffs.

Assumpsit on a bill of exchange for £1000, drawn by the defendant on Major & Wallace, of London, in favor of the plaintiffs, dated November 6th, 1845, and payable sixty days after sight. The bill was accepted by Major & Wallace, November 26th, 1845; and when due was protested for non-payment, and notice thereof regularly given to the defendant.

This was an an action for a libel, in charging the plaintiff with having committed perjury.

This was an action of assumpsit for money paid, which was tried before Oaklet, Ch. J., in February, 1848. The plaintiff read in evidence articles of copartnership, dated July 1st, 1845, made between the defendant, Jacob Le Roy, of the first part, and the plaintiff and Thomas Otis Le Roy of the second part; by which the two latter became general partners under the name of Lowber & Le Roy, and the former, as special partner, contributed $25,000 as capital.

<p>Appeal from a judgment rendered against the defendants in the marine court. The matters involved appear sufficiently in the opinion of the court.</p>

This was an appeal by the plaintiff from a judgment rendered by an assistant justice of the city of New York. The action was brought by the plaintiff, who was the captain of the “ Union Rifle Company,” against the defendants, who were members of the company, to recover the sum of $24 32, being moneys paid by the plaintiff for the use of the company.

The defendants appealed from a judgment of the marine court taken against them by default, they not having appeared before that court. The questions raised are stated in the opinion of the court.

Appeal by the defendant from a judgment rendered against him in one of the assistant justice’s courts. The questions decided are stated in the opinion of the court.

Demurrer to a complaint, in the nature of a bill under the former practice, by a judgment and execution creditor, to reach the debtor’s equitable interests, things in action, and effects. The defendant demurred to the complaint on the grounds, 1. That the court had no jurisdiction, it being an action on a judgment, brought without leave of the court. 2.

<p>■ This was an action of ejectment brought to recover the possession of certain premises in the 16th ward of the city of New York, being the northerly part of a certain strip of land formerly known as Burling’s Lane. The cause was tried before Chief Justice Oakley,qn May, 1848.</p> <p>On the trial of the cause, it appeared in evidence that the defendant was in possession of the premises in question. The plaintiff’s counsel then read in evidence a conveyance from Thomas Burling and wife, and Samuel Burling and wife, to Benjamin F. Haskins, which deed was dated April 23d, 1806, and was duly acknowledged and recorded, and conveyed “all that certain piece or parcel of land, situate, lying and being in the 16th ward of the city of New York, bounded westerly by land late of John Thornton, northerly partly by land of James R. Smith, and partly by land belonging to Isaac Varían, easterly by land now in the possession of the said Benjamin F. Haskins, and southerly by a lane 20/eei in width, belonging to the said Thomas Burling and Samuel Burling, leading to the Bowery Road, containing twenty-nine lots of land of 25 feet by 100 each, be the same more or less; together with the use and privilege of the said lane, until the Mayor, Aldermen and Commonalty of the city of New York, shall cause streets to be opened,” &c. The plaintiff’s counsel then read in evidence, a mortgage executed by Haskin and wife to Thomas Burling and Samuel Burling, upon the same premises, to secure a part of the purchase money; also, an assignment of the said mortgage from the mortgagee to Thomas Nixon, dated June 23d, 1807, duly acknowledged and recorded. The plaintiff’s counsel then read in evidence a bill of foreclosure of the mortgage, filed by the executor of the assignee of the said mortgage, under which a decree was obtained May 21, 1842, and the premises sold under the direction of Thomas Addis Emmet, master in chancery. Upon the sale, the master conveyed by deed, dated July 9, 1832, to Alfred Lowe, “ all that certain lot, piece, or parcel of land, situate, lying, and being in the 12th ward of. the said city of New York, and known and distinguished on a map of land in the 12th ward of the city of New York, under mortgage to the estate of Thomas Nixon, deceased, dated.New York, February 1, 1831, drawn by Geo. B. Smith, city surveyor, as lot No. 21, bounded and contained as follows: northwesterly, in front by the southeasterly line or side of the Fifth Avenue, 23 feet. Northeasterly, by lot No. 22, on said map, 100 feet. Southeasterly, in the rear by lot No. 25, on said map, 14 feet, 3 inches. Southerly, by the northerly line or side of Thomas Burling'1 s lane, 36 feet, 9 inches. And southwesterly, by the northeásterly •line or side of Seventeenth street, 64 feet, 2 inches; as by said map will more fully appear.” Next, a deed from Alfred Lowe and Sarah his wife, to Henderson P. Lowe, dated March 27, 1834, duly acknowledged and recorded, and conveying the same premises by the same description. Next, a deed from Henderson P. Lowe and Mary his wife, to Benjamin F. Howe, dated Nov. 11, 1834, duly acknowledged and recorded, conveying the same premises by the same description. Next, a deed from Benjamin F. Howe and wife, to Robert Steele, dated June 29, 1835, conveying the same premises by the same description, Next, a deed from Robert Steele and wife, to Isaac Brown, dated October 20, 1845, duly acknowledged and recorded, conveying the same premises, and also lot No. 22, with a similar description, and in which the southerly bound is described as being by the northerly line or side of Thomas Burling’s lane, &c. Next, a deed from Isaac Brown and wife, to the plaintiff, dated May 5, 1836, conveying the same premises by the same description as in the deed to Isaac Brown, and in the deed of Thomas Addis Emmet to Alfred Lowe. The map of the premises, referred to in the master’s deed, was then produced in evidence. This map exhibited the premises, and lots Nos. 22 and 25 referred to in the deed, as laid out in precise measure of feet and inches, not including any part of Burling’s lane, nor any part of Fifth Avenue or Seventeenth street, which were proved to have been opened. The map contained a great number of lots', all protracted' and bounded in the same manner.</p> <p>The plaintiffs then called John Randall, who testified that he laid out and surveyed the streets and avenues as laid out by the commissioners, under the act of April, 1807. The counsel then offered to prove, that for more than twenty years previous to the opening of Seventeenth street, and the streets adjacent, Burling’s lane, as laid down on the map, was an open, public, and travelled road or highway j to which testimony the defendant’s counsel objected. The court excluded the testimony, and the plaintiff excepted.</p> <p>The court charged, that whether the road or lane called Bur-ling’s lane Was a public, travelled road, was immaterial under the construction wjiich should be given to the deed. That by those deeds, the' plaintiff was bounded by the northerly side or line of Burling’s lane, and therefore was not entitled to any of the land included within the boundaries of the lane. The plaintiff excepted to the charge. The jury found a verdict for the defendant.</p>

Assumpsit for the price of one hundred barrels of cider, delivered by the plaintiff to the defendant, on or about March 25th, 1847.

This was an action of assumpsit, tried in June, 1848. The object of the suit was to recover the amount of a forged draft paid to the defendants, by the plaintiffs, supra protest, for the honor of the alleged drawers. The draft was for $1000, dated Cleveland, Ohio, August 28, 1847, and purported to be drawn by S. H. Mann, cashier of the Canal Bank, upon the American Exchange Bank of New York, payable to the order of E. S. Moore.

The corporation of the city of New York sued Vandewater for a penalty of $25, incurred hy him as master of a barge, in so placing the same as to obstruct a pier (No. 17) in the Hudson river, which pier had been assigned by the common council to the exclusive use of two steamboats. The ordinance under which the penalty was claimed, is stated in the opinion of the court.

Assumpsit for a quantity of Gartsherie pig iron sold and de livered. The defendants pleaded the general issue, and gave notice that they would claim a recoupment of damages in respect of a part of the iron delivered, because of its not being No. 1, as called for by the contract, but of inferior quality. Also for damages for the plaintiffs non-performance of the same contract.

<p>In an action for slander of title, the truth of the words may be given in evidence under the general issue.</p> <p>Three things are necessary to maintain an action for slander of title. The words spoken must be false ; they must work an injury to the plaintiff in respect to his title ; and they must be malicious; not malicious in the worst sense, but with intent to injure the plaintiff.</p> <p>A person who utters words in the Iona fide assertion and maintenance of his own title, is regarded as standing in a more favorable position, in an action for slander of title, than he who attacks the title of another without such cause, it seems.</p> <p>In an action for slander of title, it is proper for the judge to charge the jury that the question for them to determine is, whether the defendant made the statements respecting the plaintiff’s title Iona fide, and under an honest impression of their being true : or whether he made them maliciously, and for the purpose of slandering the plaintiff’s title ; and that the question whether the words were spoken maliciously or bona fide, depends very much upon their truth or falsity, and the circumstances under which they were spoken ; whether honestly, to caution purchasers, or to alarm them with unfounded charges.</p> <p>Where the evidence proves the speaking of words by the defendant, derogatory to the plaintiff’s title, and that the person to whom they were spoken forebore, in consequence thereof, to complete a contemplated purchase of the property from the plaintiff, sufficient words, and a consequence from them sufficiently detrimental to the plaintiff, are shown to sustain an action ; provided malice in the defendant be also established.</p> <p>Malice, in such an action, is a question of fact, and should be submitted to the jury.</p> <p>Proof of conversations of the defendant, other than those laid in the declaration, respecting the same title and subject, are admissible for the purpose of proving the malice of the defendant.</p> <p>Though a witness can only testify to such facts as are within his own knowledge and recollection, yet he may refresh his memory by the use of a written memorandum. But where the witness neither recollects the fact, nor remembers to have recognized the written statement as true, and the memorandum was not made by him, his testimony, so far as it is founded on the memorandum, is but hearsay.</p> <p>In actions of tort, the jury are the proper judges of the weight and effect of the evidence ; and the court will not interfere with the damages found by them, unless they appear to be grossly disproportionate to the injury sustained.</p> <p>In an action for slander of title, the judge is justifiable in charging the jury that they may give exemplary damages; and in refusing to charge that they can only give compensatory, as distinguished from exemplary, damages.</p>

The suit was commenced before him by Mooney against Murphy and Kavanagh, (by a summons having seven days to run,) for services rendered. The summons was served by copy on K. and personally on M. The defendants below made default, and on proof of Mooney’s demand, the justice rendered a judgment in his favor.

Appeal by the defendant, from a judgment rendered in October, 1848, by the assistant justice of the first district in the city of New York, which district embraces the first, second, third, and fifth wards of the city. The plaintiffs below declared for freight of goods. The defendant pleaded a claim for goods of his which they had lost, and a tender of the balance.

<p>Under the section of the revised statutes forbidding any person to charge more than half of one per cent, for brokerage, soliciting or procuring the loan or forbearance of money, the broker or other person negotiating a loan, is entitled to only one Half of one per cent., whether the loan be for a year, or for a term of years.</p>

<p>Every trustee of real estate is presumed to take as large an estate as is necessary for the purpose of the trust, and no more.</p> <p>Where before the revised statutes, a husband conveyed to a trustee his title to his wife’s land, in trust to dispose of it for her, and to manage it and collect the rents for her benefit; it was held, that the trustee took an estate for the wife’s life only, with a power in trust to dispose of the husband’s life interest; and the power not having been executed, the trust ceased on the wife’s death, leaving the husband surviving.</p> <p>If the deed had conveyed to the trustee the whole life estate-of the husband, the wife’s interest being a mere equitable estate for the life of another, on her death it would go to her administrator, and to her husband as entitled to her personal property subject to her debts; and the trust, if outstanding, would thereupon, by the revised statutes, be converted into a legal estate.</p>

This cause was submitted on a case made under the 372d section of the Amended Code. The facts are these; On the 22d day of June, 1846, one Ambrose Cormier made and executed to the plaintiff, a mortgage upon his goods and chattels, then being on the premises occupied by him as a residence and place of business, in Walker street in the city of New York, to secure to the plaintiff $643 50, due to him for arrears of rent upon the same premises, on the 21st day of June, 1845.

This was an appeal from the assistant justices’ court of the city of New York.

<p>Appeal from the marine court, where Winslow & Morris sued Kierski for services as attorneys and counsellors. They filed their complaint in writing, stating among other things, their retainer by the defendant K. in October, 1848, to prosecute two suits in his behalf in the supreme court, specifying the same ; that they prosecuted the same until K. settled them with the parties by a compromise ; and that the services of W. &. M. in those suits were worth $84, on account of which they had been paid $34. Also, that W. & M. had paid for K., $3 34, for serving the complaint in one of those suits. On the complaint being filed in the marine court, the defendant demanded a bill of particulars of the items of W. & M.’s demand; and the court directed such bill to be given. The plaintiffs, W. & M., declined to furnish a bill of particulars, whereupon the defendant refused to answer the complaint. W. & M. then demanded judgment for want of an answer, which the court refused to grant; and on the contrary, entered a judgment non pros against W. & M., for omitting to furnish a bill of particulars.</p>

<p>This cause came before the court on demurrers to the plaintiff’s replications. Several grounds of demurrer to each were specified. The action was against the husband, and his sureties on an attachment bond given to discharge a foreign attachment issued against him and his wife. The breaches assigned in the declaration were on promises made by the wife before marriage. Among other pleas, the defendants pleaded that the wife was an infant when the promises were made. The third breach or sub-count in the declaration was in the form of an indebitatus assumpsit for money lent and advanced, money paid, laid out, and expended, and money had and received, by the wife; all combined in a single count, with a single promise. There were other sub-counts for goods, &c. sold, and an account stated. The plea of infancy applied to all these sub-counts.</p> <p>The replication, professing to answer all the plea except as to the money had and received, and the account stated, (and as to those, nolle prosequi,) alleged that the goods, &c., were necessaries, and the money paid, &c., was paid, &c., for necessaries; and as to the money lent, it averred that the same was so lent and advanced by the plaintiff in and about, and for the purchase of, and was by his directions at the time applied in purchasing and supplying the infant with necessaries, fit and suitable to her then degree, estate and condition.</p> <p>There was a series of sub-counts, founded on promises made by the husband after marriage, to pay these demands against the wife. As to these, the plaintiff discontinued his suit after the defendants pleaded.</p>

This was an appeal by the defendant from the marine court. The plaintiff’s complaint against the defendant was for $52 05 due him for goods, wares and merchandise, together with interest from May 27, 1846. The defendant answered, that at the time of the alleged sale and delivery of the goods, she was the wife of David P. Halstead, who was alone liable for the payment thereof.

<p>Covenant on an agreement to pay the rent of the house and lot No. 832 Broadway, if default should be made in payment by the tenant, Julia A. Wetmore. The demise was for three years from May 1, 1847, at $700 per annum, payable quarterly, and the rent claimed was for the quarter ending Nov. 1, 1847. The defence was an eviction of the tenant by the plaintiff, prior to November 1, 1847, in several modes set up in the plea.</p> <p>At the trial before Sandford, J., in June, 1848, the proof of eviction was rested on two grounds, only one of which it is deemed necessary to mention.</p> <p>It was shown, that the plaintiff owned several vacant lots of ground on Fourteenth street, the most westerly of which adjoined the east end of the lot demised to Miss Wetmore, and extended a considerable distance both to the north and the south, beyond the north-east and south-east corners of that lot. In the summer of 1847, the plaintiff commenced the erection of a large hotel on his Fourteenth street lots, the western wall of which was built on the line of the lot so bounding the demised premises on the east. This wall was from fifteen to eighteen feet distant from the rear of the house demised, and as it advanced in height, obstructed the light entering the rear windows of the latter. When the wall reached two stories in height, it darkened the kitchen so that lamps were requisite there in the day time; and it interfered with the free circulation of air. The hotel wall was finally carried to the height of six stories. The windows in it opened upon the back yard of the house in question. Miss Wetmore abandoned the demised premises, about the middle of October, 1847.</p> <p>The defendant claimed that the evidence established an eviction of the tenant by the acts of the plaintiff, in respect of light and air, and as to the value of the premises as a boarding house, for which she had hired them.</p> <p>The judge charged the jury, that the testimony in regard to light, was not to be taken into consideration. That the plaintiff had a right to erect any building he chose on the adjoining lot. The mere fact that the demised premises had less light in consequence of the hotel building, was not sufficient to constitute an eviction. The jury rendered a verdict for the plaintiff; and the defendant moved for a new trial.</p>

<p>This was an action of assumpsit brought by the plaintiff, to recover compensation for services performed by him on Sundays, as one of the special justices of the city of New York.</p> <p>Upon the trial, the following facts appeared in evidence: On the 1st of October, 1834, the plaintiff was appointed one of the special justices for the city of New York. His commission expired in 1838, and he was then re-appointed, and continued in office until May 30, 1842. The salary attached to the office was $1600 per year. On the 3d of August, 1836, before his reappointment, a resolution was approved by the mayor, having previously passed both branches of the common council, as follows : “ Resolved, That the Police Magistrates be requested to attend, one or more of them, during the Sabbath.” In consequence of this resolution, the plaintiff was in attendance every Sabbath during his continuance in office, and for the services thus rendered, instituted this action. It appeared, that at the end of each quarter subsequent to his appointment, the plaintiff submitted an account to the defendants, made out against the city of New York, as follows : “ Salary as Special Justice for preserving the peace, &c., for the quarter ending this date, $400.” These accounts were paid from time to time, by the comptroller’s drafts upon the city treasurer, payable to and indorsed by the plaintiff.</p> <p>It was contended, on the part of the plaintiff, that the statute did not require the performance of this duty upon the Sabbath, and that the resolution of the common council was in the nature of a special retainer.</p> <p>It was contended in opposition to this, that the defendant had rendered no other services than such as were called for by the office, and that he therefore was not entitled to extra compensation ; and in addition to this, that the plaintiff had accepted the office a second time, after the passage of the resolution of the common council, and was therefore well aware of the duties he would be called on to perform ; that the plaintiff was precluded by his accounts rendered, from setting up the claim in suit; and that, at all events, the statute of limitations was a bar to his claim for the services preceding his last appointment.</p> <p>A verdict was taken for the plaintiff for $1,835 48, being the amount claimed and interest, subject to the opinion of the court.</p>

<p>Under the act for loaning the United States deposit fund, (Laws of 1837, eh. 150,) on the failure of the borrower to pay the annual interest at the time prescribed, the loan commissioners become seised of the lands mortgaged, so that the mortgagor (not having paid the debt and costs after the default and before the sale,) cannot maintain ejectment to obtain possession.</p> <p>The production Of the mortgage having no entry upon it of the payment of interest, and the efflux of time, are sufficient to establish presumptively the default in the payment of the annual interest.</p> <p>The loan commissioners having assumed to sell on such a default, and conveyed, to a purchaser who entered into possession, it was held, that if the sale were irregular, the deed transferred the mortgage to the purchaser, who thus being a mortgagee in possession, could retain the possession until redemption.</p>

<p>In order to test the credibility of a witness called to prove the plaintiff’s demand, it is competent to show by him that a transfer of the establishment in which the demand arose, made by him to the plaintiff, was a sham and fraudulent sale, and thus that the witness is really interested in the demand in question.</p> <p>The evidence is admitted to impeach the witness, not to impeach the plaintiff’s title to the demand.</p> <p>An order drawn at the foot of a bill rendered for services done, expressing a sum certain as due by the debtor in such bill, on a third person, requesting him to pay the bill, and charge it to such debtor, is a bill of exchange, which, by the statute, must be accepted in writing.</p>

This was an action of assumpsit brought to recover of the defendant the amount of a bill of clothes, which had been sold by the plaintiff, a merchant tailor, to Clement Smith, a brother of the defendant, on the 37th day of July, 1844. The bill amounted to $44 75. The declaration contained the common counts. The plea was the general issue. The cause came on for trial before Sandford, J., and a jury, on the 13th of June, 1848.

Lay Grae sued Peterson and wife for money lent to the latter while sole. The only evidence in support of his claim, was the admission of the fact by the wife, after her marriage. The defendants objected to the evidence, but it was received by the court, and a judgment thereupon rendered in favor of' the plaintiff. The defendants appealed.

At the trial, Erwin called the wife of Smaller as a witness, who was objected to by S. as incompetent, and she refused to be sworn. • Erwin then moved to strike out S.’s defence. The justice decided that she could not be compelled to testify against her husband; denied the motion to strike out, and gave judgment in favor of Smaller.

<p>This was an action of trover, for an iron safe and other articles of office furniture. At the trial on the 4th of January, 1849, the following facts appeared.</p> <p>The defendant on the 22d of May, 1848, levied on the goods in question in possession of the plaintiff, at his office, in the building No. 4, South William-street, in the city of New York. He gave written notice that he had levied, and would sell on the 1st of June, unless the amount demanded was previously paid with costs. On the 31st May, he went to remove the property, and as he was about to remove it, the plaintiff paid him the amount claimed and costs, to prevent the sale of the property. The levy was made by virtue of a warrant issued to the defendant, dated April 19th, 1848, under the hands and seals of the mayor and four aldermen of the city of New York, commanding him to demand and receive from the several persons named in the annexed list, or return, or who may occupy the premises, the sums of money set opposite their names; being the money assessed to them, for building a sewer in South William-street, to the sewer in Broad-street, which sum they have neglected or refused to pay, together with the interest and expenses thereon. And upon neglect or refusal of payment, the warrant authorized and required him to levy these sums of money with interest and expenses, by distress and sale, of the goods and chattels of the persons so assessed, and named in the annexed list: or those who may occupy the premises, and neglecting or refusing to pay the same; returning the overplus money (if any there should be) after deducting the sum or sums so assessed, with such interest and expenses, and the charges of distress and sale to the person, so assessed, or to his or their legal representatives.</p> <p>It further appeared that an ordinance of the corporation of the city of New York, was enacted August 5th, 1847, that a sewer be constructed in South William-street, from the sewer in Broad-street to William-street, under such directions as shall be given to the street commissioner, and one of the city surveyors. And that three persons named be, and they were thereby appointed to make an estimate of the expense of conforming to the provisions of the ordinance, to make a just and equitable assessment thereof among the owners or occupants of all the houses and lots intended to be benefited thereby, in proportion as nearly as might be, to the advantage which each might be deemed to acquire.</p> <p>The street commissioner thereupon entered into a contract on behalf of the corporation, for the construction of the sewer, dated October 7, 1847, by which it was to be completed by the 7th day of November ensuing ; and it was stipulated that the contractor should not be entitled to demand or receive payment for any portion of the work or materials for the sewer, until the money should be collected on the assessment to be laid for that purpose.</p> <p>The assessors took their oath as such on the 17th of December, 1847. Their estimate .and assessment were made subsequently, and was confirmed by the two boards of the common council, Feb. 1, and approved by the mayor, Feb. 2, 1848. It was in the form of an estimate of the expense, specifying contract, surveying, inspecting, collecting and advertising, with, a gross sum inserted against each head, and thereupon assessing the same on the property benefited. The store and lot No. 4 South William-street, were assessed in these words: —“ Description of property, store and lot; Map No., 13 ; Ward No., 1614 ; Owner, J. Brown ; Occupant, E. L. Bolles; Feet front, 18 f. 6 in.; Area square, 966—$77 88.”</p> <p>From the inspector’s certificate, it appeared the work was completed on or before the 24th Dec, 1847.</p> <p>The estimate and assessment were made by taking the contract price and the expenses incurred. The course of the street commissioner, under such an ordinance is, first, to advertise for proposals to build the sewer. These are examined by him with the committee of the common council on roads, &c., and the contract given to the lowest responsible bidder. Then the contract is made out, and signed by the street commissioner and the contractor, in conformity to the proposal. The assessment on lot No. 4, South William-street was regularly demanded of the agent of the owner before the warrant issued, and from the plaintiff before the levy.</p> <p>A verdict was taken for the plaintiff, subject to the opinion of the court.</p>

This was an action of assumpsit upon the money counts and an account stated: the plea was the general issue. At the trial, the evidence for the plaintiff was as follows:— At a general election in the state of New York, at which certain officers were to be elected for the city and county of New ,-York, held on the 3rd of November, 1846, the plaintiff was elected clerk of the city and county of New York, for the period of three years, from the 1st day of January, 1847.

The complaint in this cause was exhibited by Abdoolah Cashmere, of Bombay in Hindoostan, against Thomas Crowell and Thomas L. De Wolf. It stated, that in May, 1847, the plaintiff shipped on board a British ship, the Lady Kennaway, one case, containing six long and eleven square cashmere shawls, belonging to him, of the value of $3500 to $4000, to be delivered at the port of London to Forbes, Forbes & Co., as his factors.

<p>Motion by the plaintiffs to set aside report of referee. This was an action brought by the plaintiff upon a bond executed by the defendants as the owners of the steamboat Alida, on the 13th October 1847, the conditions of which was, that the defendants would pay the amount of all such claims and demands as had been exhibited, which should be established to have been subsisting liens upon the Alida, at the time the bond was executed. The bond was given to obtain a discharge of the vessel from an attachment issued against her at the instance of the plaintiffs, upon an account amounting to about $270, for work, labor and materials furnished and done by the plaintiffs to the vessel during the summer and fall of 1847.</p> <p>Upon the trial, it appeared that the plaintiffs were partners in trade, as painters; that in May or June, 1847, they were employed by the agent of the Alida to do work upon the boat, and were authorized by him to do from time to time whatever they should be directed to do by the pilot, éngineer, or any one on board the boat. They did work upon the vessel at various times during the summer, until about the 20th of September. The work was mainly done on Sundays, that being the only day when the vessel was in port. The plaintiffs were in the habit of sending some one every Saturday to see what work was wanted, and they did what they could between that day and Monday. It was shown by the testimony of the witnesses, that the workmen were in the habit of doing as much as they could on each occasion, and then completing their work the next time the vessel ran into port, and that the work was not finished at any one time. There was some conflict as to whether the job was a continuous one or not.</p> <p>It was shown on the part of the defence that the painting of the boat was done at different times; that whenever the painting became worn, they would have it re-painted.</p> <p>A bill of particulars of the plaintiffs’ charges were given in evidence.</p> <p>It also appeared that the steamboat was owned from May 1847 to the 20th of September of that year, by W. R. M'Cullough, and was a passenger boat running in the day time, on alternate days, between New York and Albany. On the 21st of September, M'Cullough conveyed the boat to E. Stevenson, who, on the 27th of the same month, conveyed to the defendants. It was shown that the vessel left New York on the 17th September, 1847, for Albany, and that on the 29th day of December, 1847, a legal tender was made by the defendants to the plaintiffs’ attorneys, of the sum of $70, in full for any lien which the plaintiffs’ had on the 2d of October, 1847, (the time of taking out the attachment,) for work, labor, and materials done or used in the Alida, and also the costs of the proceedings on the attachment, and of this suit up to the time of the tender. The amount of work, labor, and materials, as set forth in the bill of particulars, subsequent to the 1 7th of September, on which day the vessel left New York, was less than $70.</p> <p>It was contended on the part of the plaintiffs, that the job being a continuous one, there was no debt until the work was finished, and therefore there was no such departure of the steamboat within the meaning of the statute, as avoided th e lien at the expiration of 12 days after the debt was contracted.</p> <p>The defendants contended that the lien for each separate charge embraced in the bill of particulars, ceased within 12 days after the departure of the vessel, and they tendered all that accrued within the twelve days preceding the attachment.</p> <p>The referee reported that the sailing between New York and Albany was each time a departure such as is contemplated by the statute, and that the lien for whatever was then due, would cease in 12 days; that although the work performed by the plaintiffs might have been a continuous or running account, yet that payment could have been required at any time for the work which had been done; and that, therefore, the work performed constituted a debt by itself; that the lien for the charges in the account of the plaintiffs, was lost within twelve days after the vessel sailed from New York, subsequent to the accruing of such charges respectively. The referee reported that there was due to the plaintiffs the sum of $70, being the amount as tendered.</p>

<p>Where a defendant, on the trial of a cause, called the plaintiff as a witness, under the 349th section of the Code, and in reply to a question put to him by the court, the plaintiff testified to new matter, going beyond the point to which he was examined by his adversary : Held, that the defendant was entitled to offer himself as a witness for the purpose of answering the new matter.</p>

'Phis was an appeal from one of the assistant justice’s courts, rvhere M'Guire, in October, 1848, sued Gallagher, upon a judgment, for $33 25, recovered by him before an assistant justice, on the 6th day of November, 1846.

<p>This was an action commenced since the adoption of the code, to vacate and annul a trust-deed, executed by the plaintiff, in and by which she had, prior to her marriage, conveyed and transferred all her estate, real and personal, to the defendant, Bonney, as trustee. The facts, as they appeared in the complaint, are briefly these. ■ On the 19th of May, 1846, an instrument in writing, in the nature of a trust-deed, was made and executed between the plaintiff, then a widow, of the first part, Benjamin W. Bonney of the second part, and Alexander T. Watson of the third part, by which the plaintiff, in contemplation of marriage with Watson, transferred all her real and personal estate to Bonney, as trustee, under certain trusts and provisions therein contained. By the deed, the plaintiff reserved to herself the entire control of the income for her separate use during life.; also, the direction of the investment and re--investment of the capital by the trustee, in case of a sale or exchange of any part of the estate, the power of disposing of the estate by an instrument in the nature of a will,- and the full restoration of the property in case she survived her husband. Subject to these trusts, the conveyance was in fee and absolute. So long as the coverture continued, the settlement gave her no interest in the capital; and she possessed no power to dispose of the estates,, by any conveyance,- which could take effect during her life. It was also provided in the trust-deed, that in case of the decease of the plaintiff, without making a disposition of the property, then; that the trustee should pay over and transfer the legal estate to such persons as would be the legal representatives of the plaintiff, by the statute for the distribution of in-testates estates. Alexander T. Watson assented to the provisions of the trust-deed, and covenanted not to interfere with the trust-estate, otherwise than in conformity to the provisions of the same. The instrument was executed and acknowledged in due form, and delivered and recorded in the office of the register of the city and county of New York. The marriage between -the plaintiff and Watson took place May 00th, 1846. The trustee immediately took possession of the trust estate, and has ever since continued in possession, receiving and collecting the income of the same, and paying it over to the plaintiff. The plaintiff sought to vacate the trust-deed, on the ground that, by the act entitled, 16 an act for the more effectual protection of the property of married Women,” passed April 7, 1848, she may now take and hold the estate, without the intervention of a trustee, in her own name and-right,- and not subject to the disposal of her husband. The complaint prayed that the trustee under the deed, might account, pay over, and transfer to the plaintiff, all the trust estate which had come to his hands, and the income thereof not previously paid over, and that she might hold the same in her .own name and right, as if she were a single female.</p> <p>The trustee and the three infants, children of the plaintiff, were made parties defendant, as having, or claiming to have, some interest in the estate, Watson was not made a party. The defendant, Bonney, demurred to the complaint, on the grounds, that the plaintiff had no legal capacity to sue, and that the complaint did not state facts sufficient to constitute a cause of action.</p> <p>The three infant defendants appeared, by Orsamus Bushnell, their guardian ad litem, and answered that they were infants under the age of 14 years, and submitting their interests in the matter in controversy, to the protection of the court.</p>

This was an action brought by the plaintiff, to recover from the defendant the possession of an iron safe, alleged to be the property of the plaintiff, or the value of the same, which was claimed to be. the sum of one hundred and sixty dollars. The pleadings consisted of a complaint and an answer.

This was an action of trespass on the case. The declaration set forth that, in the month of March, 1847, the defendants applied to the plaintiffs to purchase from them a quantity of tobacco, and offered in payment a promissory note of Barstow Emanuel, & Co., dated New York, January 15, 1847, for the sum of $274 80, payable in six months; that the defendants represented the note to be good, and the makers in good credit, and that the plaintiffs relying upon the…

This was a case agreed upon between the parties for submission, without action, pursuant to the code of procedure.

This was an action brought under the statute, to recover the sum of $250, being the amount of a bet made by the plaintiff with one Darragh, in the month of December, 1847, the money being deposited with the defendant, as stakeholder. The declaration contained the common counts, and a special count under the statute.

This was an action of debt, brought to recover the amount of a judgment recovered in the court of common pleas for the city of New York, in the year 1828, for the sum of $222 30. The declaration set forth the judgment, to which the defendant pleaded nul tiel record. Annexed to this plea, was a notice of special matter, viz.: that on the first day of July, 1828, the defendant fully paid and satisfied the sum claimed in the declaration.

This was an action on the case for use and occupation of the premises No. 166 Front street, in the city of New York, for one quarter due May 1, 1847.

This was an action of assumpsit brought by the plaintiff, as survivor of Jacob Harvey, upon two promissory notes made by Samuel Leggett, deceased, dated December 12,1845, one for the sum of $579 37, payable in six months, and the other for the sum of $586 41, payable in nine months. The defendants are the executors of the last will and testament of Samuel Leggett. Upon the trial, the notes were read in evidence, and proved.

Motion to set aside report of referees. The action was brought by the plaintiff to recover compensation for professional services rendered to the defendants during the years 1845, 1846, and 1847, while the plaintiff was counsel to the corporation. The declaration contained a special count adapted to the case, and also the common counts for work and labor. The plea was the general issue.

Motions to set aside report of referee. The first of these causes was an action of assumpsit, brought to recover the sum of $2527 22, paid by Fleetwood, the plaintiff, to the defendants, Feb. 27, 1845, to redeem several lots of ground belonging to him, from a sale thereof, made by the defendants on the 13th of June, 1843, under an alleged assessment for filling the lots.

This was an action of assumpsit upon a policy of insurance for $6000, on the barque Childe Harold, tried in June, 1848. -The policy of insurance bore date November 18, 1845, and was for twelve months, upon a voyage from New York to a port or ports in the Pacific ocean not north of Guayaquil, from thence to any part of the world which the owners or their agents might direct.

Demurrer to declaration on a policy of insurance. The declaration contained five counts. The first set forth that on the 21st July, 1847, the defendants executed to the plaintiff, a policy of insurance in the sum of $5000, upon the cargo of the G. B. Webster, on her voyage from New York to Buffalo.

<p>Assumpsit on a policy of insurance, tried before Sandford, J. in February term, 1849. The policy was dated August 20th, 1847, and thereby the defendants insured the plaintiff for one year, “ against loss or damage by fire, to the amount of(here followed the written portion of the policy, which was in the original, thus expressed and arranged, viz.)</p> <p>“ Six thousand, three hundred dollars, viz. ■</p> <p>“ $3500 on his stock of ship timber, including planks, futtocks, knees, locust, standards, and stageings.</p> <p>300 on his moulds and patterns.</p> <p>500 on tree nails.</p> <p>500 on blocks, falls, clamps, screws, augers and tools, contained in the yard and buildings therein, bounded by Sixth and Seventh streets, and Lewis street, and East river.</p> <p>500 on his two story frame building, known as his office, situate in said yard. •</p> <p>500 on his draughts, books, papers, moulds and models, contained in said office.</p> <p>500 on his stock of iron and tools, contained in the blacksmith’s shop, situate No. 302 Lewis street.</p> <p>$6300 one year, a 1-| p. c. - - - - $94 50</p> <p>It was admitted on the trial, that a fire occurred on the 8th of April, 1848, by which the property alleged to have been covered by the policy, was" damaged; and that on the company being notified, the parties appointed Joseph Bishop and William . Mackay, to appraise such damage. The appraisements made by them as after mentioned, were delivered to the company, and were received by the latter as preliminary proofs, and also as evidence of the loss occasioned by the fire.</p> <p>■ The first appraisement was produced and read to the jury, in these words, viz.</p> <p>“ We estimate the damage by fire which occurred on the night of the 8th inst., to the property of Mr. Wm. H. Webb, at his ship yard, situated at the corner of Lewis and Seventh streets, . as follows:</p> <p>On timber lying in Seventh and Lewis streets, adjoining the buildings, at.....$1160 00</p> <p>“ timber and plank lying in the yard, - - 1210 00</p> <p>“ moulds and patterns,...... 300 00</p> <p>“ treenails,....... 500 00</p> <p>“ blocks, falls, tools, &c.,..... 500 00</p> <p>“ draughts, books, papers, models, &c., contained in</p> <p>the office,....... 500 00</p> <p>Joseph Bishop,</p> <p>William Mackay.</p> <p>New York, April 11th, 1848-.”</p> <p>Mr. Bishop, as a witness for the plaintiff, testified :</p> <p>“We were requested by the parties, or by one of them, I cannot say which, to make a separate estimate of the plank and timber that was prepared for the two steamships then building by Mr. Webb, for Howland & Aspinwall, we accordingly made an appraisement of this portion of the damaged property. This is the original.”</p> <p>It was then read to the jury as follows :</p> <p>“ We estimate the damage by fire to the timber, &c., prepared for the vessels now building in the yard of Wm. H. Webb, at six hundred and fifty dollars.</p> <p>(Signed as before.)</p> <p>New York, April 12th, 1848.”</p> <p>The witness further testified :</p> <p>“ It was also requested to appraise the damage to six capstans that were in Mr. Webb’s building in his yard. These capstans were partly made, and Mr. Mackay and myself appraised them at $215.”</p> <p>This last appraisement was then read in evidence as follows :</p> <p>■ “ In addition to the estimate furnished 11th inst., there was in the building six capstans partly finished, valued at two hundred and fifteen dollars.</p> <p>(Signed as before.)</p> <p>New York, April 12th, 1848.”</p> <p>The witness further testified, that ship builders have been in the practice of having their stock of timber in the street in the vicinity of the ship yards, as much so as in the yard. Such has always been the practice since the witness has known anything of ship building in this city, and that has been for about twenty-five years.</p> <p>This evidence of practice was objected to in due season by the counsel for the defendants as incompetent. The objection was overruled by the court.</p> <p>The witness further testified : Capstans are made of locust, sometimes they are made partly of mahogany, but the capstans in the plaintiffs yard that were damaged by the fire were of locust. The stock specified in our appraisement consisted of what was wrought and prepared by the workmen as timber and stock; and also of what was unworked. It was usual to store or keep in the yard and on the street, timber and plank indiscriminately. We keep the stock just where it is most convenient to place it; we frequently have the heaviest of the timber in the street; Mr. Webb’s ship yard was not enclosed by any fence or enclosure. It had been enclosed at some period, but was not so then.</p> <p>Ship yards are not usually enclosed. Mr. Webb’s yard at some former period of time probably had been fenced in, because here and there were a few feet of old fence still standing. All of the timber that was burned, (and which is in dispute,) was on the side walks adjoining the yard on Lewis and Sixth streets.</p> <p>William Mackay, on the part of the plaintiff, testified, that he was one of the firm of Westervelt & Mackay, ship builders of this city, and made the several appraisements with Mr. Bishop: that he has been engaged in the business of ship building for some twenty-five years past, and is acquainted with the course of business in this city. It is the practice of ship builders to keep their stock in their yards, and on the side walks, and in the street in the vicinity. Such has been the practice as long as the witness can remember.</p> <p>(This evidence of practice was objected to as before.)</p> <p>Being cross-examined, he testified: the timbers, the damage to which is valued at $1160, lay on the sidewalk in seventh street, and the ends of some of the timber laid in the yard and some projected over the side walk, part projected inside and part outside of the fence, (was partly in the yard.) Cannot now say what proportion of it did project in the yard. There was no fence; the timber that projected and which was on the side walk, did not form a fence or enclosure. It was part of the plaintiff’s stock. The yard was not enclosed; there might have been a few boards nailed to posts here and there at intervals.</p> <p>William E. Kellogg, the secretary of the company, on the part of the defendants, testified, that Mr. Webb and the president of the company, adjusted the loss on the office which was burnt at $400. That Webb signed a paper indorsed by the witness on the first appraisement, in these words, viz.:</p> <p>“ I hereby limit the loss under my policy for lumber in the yard, to five hundred and sixty dollars, having received from another source the difference between that amount and the twelve hundred and ten dollars claimed as loss for lumber in the yard as per the within appraisement.</p> <p>New York, May 18th, 1848.”</p> <p>That witness was present at the conversation between Mr. Webb and the president respecting this deduction of $650. Mr. Webb stated, that Howland & Aspinwall had received payment from one of the Fire Insurance Companies damage claimed by them upon policies upon their two steam-ships which was then building for them, and that they had given to him a part of the amount so received by them; and he stated that the money so received from another source, and witness believed it was under or from Howland <fc Aspinwall, had been to cover part of the items composing the sum of $1210. That of the damage of stock in the yard amounting to $1210, he had received $650 from Howland & Aspinwall, and that he would only claim for the balance of that item, viz., $560. He withdrew his claims for the six capstans contained in that schedule. The only subject of dispute was the timber in the street; the other matters were all settled.</p> <p>Being cross-examined, the witness says : My impression was that Mr. Webb had procured payment for the damage to the six capstans from Howland <fc Aspinwall, or the parties for whom he was building the steamers. I understood that the claim for the capstans was included in the $650, and that it was withdrawn by Mr. Webb. The president agreed to pay him for all his claim except the lumber in the street.</p> <p>Being shown the endorsement upon the appraisement by which the plaintiff limited his claim to $560 he says: My recollection is that the six capstans were included in the amount therein referred to as having been received from another source. I so understood it, and that it was a part of the $650, withdrawn from the claim of $1210.</p> <p>Thomas W. Thorn, the president of the company, testified, on the part of the defendants, that Mr. Webb and he agreed upon the appraisers. After the appraisements were handed to witness, he had another conversation with Mr. Webb, who in the course of it said he had received from Howland <fc Aspinwall a sum of money on account of the damage to their two steamers. Witness cannot say what the amount was, but it strikes him it was over $2000 from them. The result of the conversation was, that he agreed to deduct from the claim of $1210, the sum of $650. Witness understood he had received his pay from H. <fc A. for the capstans and all the manufactured timber for those ships. He limited his claim for the balance to $560. He gave up the claim for the capstans. The only thing about which we differed was the timber on the street. He understood that the $650 covered all the work upon timber or lumber for the ships then building for H. & A. After they had adjusted the other claims, witness told Webb that he would not pay him for the timber on the side walks in the street. Witness offered to pay Webb the sum of $2760, viz. for timber in the yard, $560; moulds and patterns, $300 ; treenails, $500 ; blocks, falls and tools, $500; office, $400; on his draughts, &c., $500.</p> <p>It was then shown that the defendants tendered to the plaintiff the $2760, with interest, and the costs of suit, in September, 1848; and the plaintiff received the same on account.</p> <p>Joseph Bishop, being re-called by the plaintiff, testified (the counsel for the defendant objecting, and the objection being overruled,) that he and Mackay made a separate estimate of the various items of the damage forming the sum of $650, included in the $1210. He identified a paper shown to him as the original, made by him and Mackay at the time, and it was read to the jury as follows ;</p> <p> </p> <p>That Webb was then building the steam ships Panama and California, at the foot of Sixth and Seventh streets, for How-land & Aspinwall, and was also building the steam ship Cherokee, at the foot of Third street.</p> <p>The court charged the jury that the principal question between the parties was whether the damage to the stock lying outside of the yard, and amounting to $1160, was covered by the policy, and for the purpose of the trial, the court instructed them that the policy did extend to and cover the damage to such stock.</p> <p>The other question in dispute relates to the damage to the six capstans. The defendants insist that the capstans are not covered by the policy, and if they be, that the damage thereto was included in the sums received by Mr. Webb from other sources. The court instructed the jury that the policy did extend to and protect the capstans, and submitted to the jury the questions of fact, whether the damage to the capstans had been made good to the plaintiffs as insisted by the defendants. He directed the jury in case they found the question in favor of the plaintiff to find a verdict for the sum of $1500, otherwise to find a verdict for the sum of $1250. (The counsel on both sides having agreed to adjust the precise amount of the claim after the construction of the policy had been settled by the court.) The court further, at the request of the defendant’s counsel, charged the jury that if, on the evidence, they believed the plaintiff withdrew his claim for the capstans, having received the value thereof under the policies effected by the owners of the vessels, though they were not included in the items making up the amount of $650, the plaintiff was not entitled to reassert his claim or to recover for them.</p> <p>The jury found a verdict for the plaintiff for $1500 damages.</p> <p>The defendants moved for a new trial.</p>

<p>The first of the above suits was an action brought by the plaintiffs against the defendants, who were commissioners of estimate and assessments, in the matter of widening and opening William street, to recover damages for an alleged illegal levy upon and sale of their property. The second suit was brought against Evans the collector, who executed the warrant issued by the commissioners for the collection of the assessment.</p> <p>The action was commenced under the code, and the pleadings consisted of a complaint, answer and reply. The causes were heard upon the pleadings. The facts are as follows: The plaintiffs were the occupants of certain premises in John street, in the city of New York, which had been assessed by the defendants for the benefit and advantage of the widening and opening of William street, to the amount of $123. The reports of the commissioners of estimate and assessments contained a description of the premises in question, together with an allegation that the same were owned by Isaac Adriance, and were occupied by the plaintiffs, and had been assessed for benefit and advantage. The report of the commissioners was confirmed by the supreme court, May 14th, 1847.</p> <p>The assessment remaining unpaid, on the 16th of August, 1848, the defendants in the first suit issued their warrant to the defendant Evans, the collector appointed for that purpose by the corporation, which warrant was signed and sealed by them, and was as follows:</p> <p>“By William F. Havemeyer, Esq., Mayor, C. Crolius, Morris Franklin, Theo. R. De Forest and Edward Fitzgerald, Esq., aldermen of the city of New York, to Lemuel G. Evans of the fifth ward of said city. You are hereby commanded and required to demand and receive from the several persons named in the annexed list of return, or who may occupy the premises the sums of money set opposite their names, being the money assessed to them for widening and extending William street, which sum they have hitherto neglected or refused to pay, together with the interest and expenses thereon, and upon neglect or refusal of payment, you are hereby authorized and required to levy the said sums of money, with such interest and expenses, by distress and sale of the goods and chattels of the persons so assessed and named in said annexed list, or those who may occupy the premises and neglecting or refusing to pay the same, returning the overplus money (if any there should be) after deducting the sum or sums so assessed, with such interest and expenses and the charges of distress and sale, to the person so assessed, or to his or their legal representative. Given under our hands and seals, this 16th day of August, 1848.”</p> <p>Under the warrant thus issued, on the 4th October, 1848, the collector levied upon the merchandize of the plaintiffs, to the amount of $138 94, and took possession of the same, which was sold for the assessment in question.</p>

Ejectment for a lot of land at the comer of Amity and Greene streets, in the city of New York. The cause was tried in June, 1848, before Oakley, Ch. J., without a jury, when a verdict was found for the defendants. The facts are sufficiently stated in the opinion of the court.

Murtha sued Walters for use and occupation. Walters thereupon prepared an affidavit, setting forth that the justice before whom the suit was pending, was a necessary and material witness for him, and that he could not safely proceed to trial without the testimony of the justice; that the same cause of action had been tried between the same parties a few days previous, and submitted to the same justice upon the merits; who after deliberation gave judgment for the defendant in…

This was an action of assumpsit, by the indorsee, against the drawers of a bill of exchange. The defendant, G. Babcock, appeared and pleaded. The case came before the court on demurrers. The pleadings are sufficiently stated in the opinion of the court.

<p>A plea to a bill to set aside a settled account on the ground of fraud, is not rendered double by setting up that the cause of action arose more than ten years, and the fraud, if any, was discovered more than six years, before the bill was exhibited. Both averments are necessary to constitute a bar, under the limitation in the statute relied upon as a defence.</p> <p>In such a case, the plea need not deny the fraud charged in the bill.</p> <p>An answer, admitting certain facts charged as those from which the plaintiff claims to have first derived notice of the alleged fraud, denying that he did thereby first acquire such notice, and setting up facts showing a notice at a much earlier period, which latter were not inconsistent with the facts admitted ; is a sufficient answer in support of such a plea of the statute.</p>

The bill in this cause was filed on the following state of facts: On the 14th of January, 1839, John S. Provoost, and his mother, Mary T. Provoost, since deceased, executed their joint (but not several) bond to Charles Carpenter, for the sum of fifteen hundred dollars, and to secure its payment, they executed a mortgage which conveyed the interest of John S. Provoost in certain real estate in the county of Westchester, of which his father had died seised.

<p>The bill was filed by the complainant as a creditor of the estate of Isaac Lawrence, deceased, in behalf of himself and such other creditors as should choose to come in and contribute to the expenses of the suit. The object of the bill was to recover back a sum of money received by the defendant, out of a fund in the hands of the surrogate of the county of New York, created by the sale of I. Lawrence’s real estate, and to restrain any further receipts. The bill charged that the order of the surrogate declaring the defendant a creditor, under which he received the money claimed, was obtained by him by a variety of fraudulent representations and suppressions—that there was nothing due to the defendant, but that he owed the estate; and that the estate was insufficient to pay all the just debts. Some other matters are stated in the opinion of the court.</p> <p>The defendant interposed a plea in bar, setting forth the proceedings before the surrogate, upon his claim against the estate. That it was referred by the defendant and the administrator of I. Lawrence to three referees approved by the surrogate, and the reference made a rule of the supreme court. That the referees reported nearly 114,000 due to the defendant, and their report was confirmed by the supreme court, and a judgment rendered thereon. That the surrogate afterwards, on due notice &c. to all interested, proceeded to ascertain the debts against I. Lawrence, and decreed the defendant’s to be a valid and subsisting debt to the amount of the judgment, and directed distribution to be made rateably, under which decree the defendant received the money in question.</p>

This was a suit in equity, commenced in the late court of chancery, to set aside a compromise and settlement, made by the complainant in the latter part of April, 1843, with the defendant, William Steele.

<p>The bill in this cause stated that the defendants, on the 1st of August, 1810, by deed under their corporate seal, granted to John Jacob Astor, now deceased, and to his heirs and assigns, two water lots, one of them, (in relation to which the controversy in this cause has arisen,) situate between King and Hamersley streets, in the city of New York, and extending westerly in breadth from high water mark on the Hudson River, four hundred and twenty-eight feet, to the line established as the permanent line of West street, and in length, from north to south, one hundred and fifty feet, saving and reserving however out of such water lot and soil under water, so much of the same as would be necessary to make Washington street sixty feet wide, and West street seventy feet wide; the streets to be extended and continued through the premises as the same should be directed by the corporation of the city, agreeably to a map annexed to the deed.</p> <p>The deed contained a covenant by the grantee, that he, his heirs, or assigns, would build, on the requisition of the corporation, such wharves and streets on that portion of Washington and West streets which passed through the premises, as should be necessary to make them respectively of the width stipulated for, and would also keep them at all times thereafter, in good order and repair, and that the same should always be used as public wharves and streets ; and also a covenant on the part of the corporation that the party of the second part, his heirs and assigns, keeping and performing the covenant &c. on his and their part to be performed, should and might at all times thereafter, have and enjoy the wharfage and benefits and advantages growing or arising from the wharves to be erected on the west end of the premises.</p> <p>The bill then alleged that Mr. Astor had erected the wharf on the west end of the premises, as contemplated by the grant, and that the same had at all times since its erection, been used and occupied as a public street or wharf. That Mr. Astor had for several years past been assessed by the assessors of the eighth ward, (in which the premises are situated,) as the owner of the bulkhead, being parcel of the wharf so built by him, and taxes had been imposed on the bulkhead accordingly, and that such taxes not having been paid, the corporation had sold the bulkhead wharf or street, for the non-payment of some of the taxes, to one John L. Brower for the term of five years, and were about to give him a lease therefor, pursuant to such sale; and also that they intend to sell the bulkhead for other taxes which had been assessed thereon.</p> <p>The bill then stated the death of Mr. Astor, and that the complainants have succeded to his rights in the premises by devise from him, and that they are advised that the interest secured to Mr. Astor, his heirs and assigns, in or out of the wharf; was not, and is not now, the subject of taxation by the laws of the state. .The bill prayed that the corporation of the city might be enjoined from granting a lease to Brown under the sale heretofore made, and from selling the bulkhead for the remaining taxes imposed thereon, and from assessing any taxes thereon in future, and for other and further relief.</p> <p>To this bill the defendants demurred for want of equity.</p> <p>Willis Hall, for the defendants, argued the following proposition :—</p> <p>The bulkhead of the complainants, between King and Hammersley streets, is a proper subject of taxation—</p> <p>1. If the fee of the land belong to them, then the bulkhead is properly taxed as real estate.</p> <p>2. If the fee belong to the corporation, then the franchise transferred to them to take wharfages on the bulkhead, is “ a chattel,” and properly taxed as personal estate. 1 R. S. 387. (The argument of Mr. Hall is noticed m the opinion of the court.)</p>

<p>To constitute real estate partnership properly, which is purchased with partnership funds, it must be bought or used for partnership purposes.</p> <p>Where land was thus purchased in the name of A. one of two partners, not intended or used for the purposes of the partnership; it was held, that T. the other partner, who survived A., took no estate or interest in it as survivor, and no interest in the same passed to his assignee in bankruptcy.</p> <p>So far as T.’s money may be deemed to have gone to the purchase in A.’s name, there would be no use or trust for T.; but his then creditors could reach his proportion of it, under the statute of trusts.</p> <p>An equity of redemption belonging to an intestate, does not pass to his administrator on its being converted into a surplus by foreclosure and sale.</p> <p>Such surplus will not be awarded to a grantee of the mortgagor, the grant to whom was made with the intent to defraud creditors.</p>

This cause came on to be heard on the bill, answers and replications. The bill was filed February 25, 1847, by David Selden, against Thomas Vermilya, William Curtis Noyes, Richard H. Ogden, John J. Boyd, Alexander H. Dana, the executors of Samuel Stevens, Samuel Lent and several other parties. The bill was filed in behalf of all interested, who might choose to come in and contribute. All the defendants above named put in answers.

This was a judgment creditor’s bill after the return of an execution unsatisfied. It was originally filed against George W. Day, the judgment debtor, and contained the allegation usual in such cases.

<p>Where one not a party to a lease, is shown to be in possession of demised premises, in subordination to such lease, without more; the law presumes, in favor of the lessor, that he is an assignee of the lessee.</p> <p>This presumption is rebutted by proof that during the possession of the third party, the lessor received from the lessee a surrender of the term.</p> <p>Such surrender, if produced by the lessor, is an admission that the lessee, and not the occupant was at its date, the tenant of the lessor.</p>

This was a motion to dissolve or modify an injunction, which had been granted ex parte on giving security. The plaintiffs are a corporation in the state of New Hampshire, engaged in manufacturing cotton goods at or near Amoskeag Falls, since 1831.

Motion before a justice of the court at chambers, to discharge a defendant from arrest upon a warrant issued under the act of 1831, to abolish imprisonment for debt in certain cases. The summons and complaint were delivered to the sheriff to be served on the defendant, before application was made for the warrant, but the warrant was issued, before either the summons or complaint were served. In fact the sheriff served all three at the same time.

The suit was upon a guaranty dated April 27, 1847, by which the defendants became liable for all sums of money which might be received by Robins & Allen, of Boston, the plaintiffs agents, as the net proceeds of shot or other property which might be consigned to that firm for sale, by the plaintiffs. The agency terminated January 25,1848, and the plaintiffs claimed that there was due to them a balance of $414 51, for shot sold and unaccounted for by Robins & Allen.

The affidavits disclosed these facts: On the 29th of November, 1848, the plaintiff issued an alias fieri facias on the judgment in this cause, to the sheriff of the county of Putnam, by virtue of which the sheriff levied on certain household furniture, and other chattels, formerly belonging to the defendant, but which he had some years before transferred to F. L. Warner, in whose possession they were.

' This was a motion to discharge the defendant Emeric from arrest, &c., under an order made by Sandford, J., on the 10th day of August last, in the nature of a writ of ne exeat. After •the defendant was arrested, and on the 17th of August the same justice made an order discharging Emerie from custody, on his executing an undertaking, in $2000, with surety, conditioned as provided in respect of bail in the code of procedure. The defendant gave an undertaking accordingly.

<p>On an appeal from an order made by a justice at chambers, it is not necessary to execute an undertaking under the code of procedure.</p>

<p>The allowance in addition to the costs, under section 263 and 264 of the code of procedure of 1848, will be what the court deem a reasonable and moderate counsel fee in the cause.</p>

These were motions for security for costs, heard at bar. In Ahsbahs v. Coussin, the case was pending on a certiorari to the marine court The plaintiff in error resided in the city of Brooklyn.

<p>An appellant from a justice’s court, must in his affidavit, point out specifically, on what point or ground, he alleges the judgment to be erroneous.</p>

<p>On an appeal from a justice’s court, the judgment will be reversed by default, if the respondent do not appear to argue the appeal.</p>

There were issues of law and of fact in this case. Both parties noticed the cause for trial at the trial term, and it was tried on the issue of fact, without objection. It was now contended that this was irregular, and that the verdict should be set aside, because the issue of law was not first disposed of, pursuant to section 206 of the cede of procedure. (Laws of 1848.)

<p>An action in the nature of the former creditor's suit, may be maintained, where an execution was issued and returned unsatisfied before July 1, 1848, when the code of procedure took effect.</p> <p>Such a suit is not an action on the judgment, within the meaning of the prohibition in the code.</p> <p>A frivolous answer in such a suit, stricken out on motion, and an order for judgment made, with a direction for the examination of the defendant touching his property.</p>

<p>On an appeal from a justice’s court, the court below must make a return of all the testimony and proceedings, where a return is ordered. It is not sufficient to make a return as to the particulars in which the affidavits are conflicting.</p>

<p>On a motion to set off one judgment against another, the effect of which will be to deprive the attorney of one of the parties of his costs, the court will dispose of the motion according to its views of what is right, under the circumstances.</p> <p>Where the judgment sought to be extinguished in such a case, was for costs only, the court refused to order a set-off.</p>

<p>The defendant obtained an order that the plaintiff file his reply within ten days, or that it be deemed abandoned. The plaintiff inadvertently filed a copy, instead of the original reply, and the defendant thereupon applied for an order that the reply be deemed abandoned. The plaintiff asked leave to file the original reply. The defendant contended that the court had no power to relieve the plaintiff, and that the statute was imperative.</p>

Motion by the defendant, for a commission to examine the plaintiff as a witness; the latter residing in the state of Pennsylvania, more than one hundred miles from this city. It was contended that the code does not authorise such a commission.

<p>Appeal by the defendants from a judgment in one of the assistant justices courts ; where the plaintiff recovered in an action upon a previous judgment. The amount of the latter was set forth in the complaint below. The defendants pleaded three pleas, which the justice on a subsequent day, struck out as frivolous on the plaintiff’s motion, and thereupon without any testimony or proof being given or offered, rendered a judgment for the amount of the plaintiff’s claim.</p>

Motion to set aside report of referees, the judgment and the judgment roll, and the execution issued thereon. The suit was commenced in July, 1848, for an account and payment of a balance claimed by the plaintiff from the defendant as his late co-partner. The answer set up various defences, and a replication was filed, taking' issue. The cause was referred by an order of the court appointing two referees; one selected by each of the parties.

<p>The party verifying a pleading under the code, must subscribe his name to such pleading or to the affidavit appended.</p> <p>An answer, regular in all respects except in the omission of the signature of the party to its verification, should not be disregarded, until notice is given of the defect and an opportunity afforded to correct it.</p>

<p>Motion to set aside a precept in the nature of a fieri facias against goods. On the 19th of May, 1849, the general term, of this court, made an order overruling the defendants demurrer to the bill in equity of the plaintiff, (filed in the supreme court, and transferred to this court under the act of April, 1849,) with costs, and permitting the defendants to answer in twenty days, on payment of costs. The time to answer was afterwards extended. On the 6th of June, the plaintiff taxed his costs of the demurrer at $56 73 5 but he never filed his taxed bill of costs. On the 11th of June, he issued to the sheriff of New York, a precept under the seal of the court, commanding him to levy those costs of the goods and chattels of the defendants. The sheriff levied on personal property by virtue of the precept. There was no order of the court directing or allowing a precept to issue, and no notice of applying for it, was given to the defendants.</p>

After a trial in this cause and a verdict for the plaintiff, the defendants on the 26th of April last, obtained and served a judge’s order staying the proceedings, and granting them thirty days in which to prepare a case or bill of exceptions.

<p>A defendant cannot treat an amended complaint as a new suit, although it wholly change the nature of the action. His remedy, if any, is by a motion to set it aside.</p>

<p>Motion by Woods to set aside the judgment entered against him in this suit, as irregular. The plaintiff served a summons and complaint on three defendants. Woods suffered the matter to go by default. The other two defendants demurred to the complaint. Some months afterwards, the plaintiffs amended their complaint, in a substantial matter, and not in mere form. No copy was served on Woods, or notice given to him. Subsequently the plaintiffs proceeded to assess their damages against Woods and the others, and perfected judgment.</p>

The plaintiffs were non-resident. The condition of the bond filed was, that if the plaintiffs should pay to the defendant the costs which he might recover in the suit, the bond should be void.

Motion to set aside a judgment entered by default. The defendant served notice of his appearance, with an order extending the time to answer. The latter being irregularly served, was disregarded, and the plaintiff immediately entered judgment, without giving any notice of the adjustment of the costs.

This was an order to show cause why the judgment entered by confession in this action and all subsequent proceedings, should not be set aside.

<p>In the first suit- above, an application for an attachment was made to Mason, J., at chambers, under the fourth chapter of title seventh of the amended code. (§ 227.) The defendant, was not a resident of the city and county of New York, and had not been served with the summons issued in the action.</p>

<p>The provision of the amended code of procedure, for the inspection and taking copies of books, papers, &c , does not repeal the provision of the revised statutes relative to the production of books and papers.</p> <p>To obtain an order for a discovery under the latter, to aid in preparing an answer, the petition must show the nature of the document and its necessity for that purpose.</p>

<p>Trial of an equity suit before a jury under the code, where the defendants rights Were distinct, &c.</p>

Order in the first case for the examination of the defendants as witnesses for the plaintiff. The cause was at issue and ready for trial. The defendants attended and objected to the order, as not warranted by the code. That the party cannot be examined as a witness before the trial, except on a commission, where he resides out of the state, or conditionally on the grounds prescribed for taking testimony conditionally in the revised statutes.

<p>The complaint may be amended in the amount claimed by the plaintiff, in an action on contract for the recovery of money only, even after a reply repeating the original claim, and both pleadings verified.</p>

Taxation of costs.—The suit was trespass, against Beau-ville, Samanos, and W. Jones, sheriff. The latter appeared by his attorneys, Messrs. Brown & Matthews, and put in a plea. Beauville and Samanos appeared, and put in a joint plea by W. Skidmore, their attorney. The defence of B. and S. was jointly conducted until the second trial, when Samanos was-acquitted.

This was an application by the plaintiff, for an order on the defendant, to discover a certain receipt. The affidavit of the plaintiff, made in support of the application, averred positively, that he had made and signed the receipt in question, and had delivered it to the defendant.

<p>Where a defendant moves to dissolve an injunction on his answer only, without replying upon affidavits in addition thereto; the plaintiff cannot read in opposition to* the motion, his reply Verified, or any affidavits other than those upon which the-injunction was granted.</p>

<p>On a motion to show cause why an injunction should not issue, the defendant may read in opposition to the motion, the affidavits of third persons, although he has put in his answer denying the whole merits of the complaint. The answer in such case is only used as an affidavit.</p> <p>The rule adopted in Maryland, and some other states, that on a motion to dissolve an injunction, if the equity of the-case made by the bill is not denied, but new matter is set up in avoidance which is a complete defence to the action, the court cannot regard such new matter, but must continue the injunction to the hearing, has not been adopted in this state. Semble.</p> <p>St is also contrary to the practice in England, where a defendant is entitled to a dissolution of the injunction as a matter of course, upon the allowance of a plea to the whole bill. Semble.</p>

The defendant appeared pursuant to an order of one of the justices of the court, issued upon a proceeding supplementary to the return of an execution unsatisfied. The affidavit on which the order was obtained, stated that the sheriff had returned the execution. It was shown, however, that it had not been filed when the order was made. On this and several other grounds, the defendant moved to dismiss the proceedings with costs.

<p>A motion to strike irrelevant or redundant matter out of a pleading, will not be granted, where the party before moving, answers or replies to such pleading.</p>

In two days after a verdict for the defendants, they proceeded to enter and perfect judgment. The plaintiff desiring to move to set aside the verdict as against evidence, obtained an order to stay proceedings on the second day, but after the entry of judgment, and subsequently prepared a case.

<p>The issuing of a commission to take the testimony of a witness out of the state, though usually directed, is not a matter of strict Tight.</p> <p>Where a commission is likely to produce great injury to the adverse party, terms •will be imposed, and in extreme cases it may be wholly refused.</p>

<p>Where an answer to the allegations of the complaint or some of them, might subject the defendant to a criminal prosecution, he need not admit or deny such allegations on oath. He must put in a sworn answer, in which he may state, that by answering on oath the particular allegations specified, he may subject himself to a criminal prosecution; and as to- the residue of the complaint, he will answer in the usual manner. Such an answer will be deemed to put in issue the allegations of the complaint which the defendant excuses himself from answering.</p>

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

<p>The facts appear in the decision, which was made by the Chief Justice, after advising with two of his associates.</p>

Dickerson recovered a judgment against Cook by confession, •and execution was issued and levied. Thereupon this complaint was filed to set aside the judgment and execution, on the ground of fraud, in this, that there was an agreement by D. that if C. would confess the judgment he, D., would cancel a certain mortgage held by him, and deliver up certain other securities to Geok.

<p>A court of equity will not open a default, or relieve a party from the consequences of his own neglect, in order to enable him to set up an unconscientious or a dishonest defence.</p> <p>So held, where after a decree by default for the foreclosure of a mortgage executed to secure bonds of a corporation, the consideration of which was money advanced to and used by the corporation for the purposes of its creation ; the corporation sought to be let in to defend, on the ground that it had no power to execute such bonds and mortgage.</p>

<p>The facts appear in the opinion of the court.</p>

<p>The plaintiff can demur to an answer, only for defects in respect of the new matter set up therein by way of avoidance.</p> <p>Irrelevant or redundant matter in an answer, may be stricken out on motion, and in like manner uncertain or indefinite matter may be made more definite.</p> <p>Immaterial matter cannot be demurred to.</p> <p>The defendant’s omission to answer ah alldghtion Of the complaiht, id no ground of demurrer.</p>

This case was tried by a jury before the chief justice, and a verdict rendered for the plaintiff on the 22d of December, 1849.

<p>Where in a suit against three, for the recovery of money, two suffer judgment by default, and the third defends the suit and has a verdict in his favor, he is entititled to costs against the plaintiff under section 305 of the code.</p>

The plaintiffs purchased and shipped in their own names, a cargo of corn on board the brig Selma for Sligo, under an agreement with the defendants, who had chartered the vessel; and took a bill of lading from the master in the ordinary way. The vessel put in at St. Thomas in distress, and the com being damaged,, was sold and the proceeds received by the defendants. This suit was brought to recover these proceeds.

<p>Demurrer to an answer. The complaint stated the marriage of the plaintiff to Benjamin Townsend in 1839, his death in August, 1848, and that during her coverture he was seized of various lands in the city of New York, particularly described. That her husband devised the lands to the defendant, some for life and some in fee, who is in possession of the lands described, either personally or by his tenants, and in the receipt of the rents and profits; and that the plaintiff is entitled to dower therein. The complaint prayed judgment for one equal undivided third of the premises as and for her dower, and that it might be admeasured and set off to her by commissioners.</p> <p>The defendant, by his guardian ad litem, answered, among other things, that a large part of the premises lie vacant and unoccupied, and are wholly unproductive; a portion of them were let to and possessed by tenants at B. Townsend’s death, and the rents were collected for the defendant’s use and benefit, but he is not personally in the actual occupation or possession of any part of the premises. The answer then set up an indenture executed between B: Townsend, the plaintiff, and a trustee on her part, in 1845, for the expressed purpose of assuring to each of the former, their separate lands, free from any claim of the other for dower or curtesy, by which the plaintiff was to be at liberty to receive the rents of her own lands during her life, to sell or mortgage the same, and to devise the same, and in all these acts B. Townsend agreed to execute all necessary instruments. The trustee, with her assent, agreed she should never claim dower in B. T.’s lands, but would, whenever required, release the same. The indenture was duly acknowledged. The answer stated that the plaintiff, after its execution, enjoyed all the fruits of her separate property, as if she were sole ; and it submitted that she was not entitled to dower in any of the lands claimed by her.</p> <p>To this answer the plaintiff demurred, and stated the following causes of demurrer, viz:</p> <p>1. That the indenture in the answer alleged did not release the plaintiff’s right of dower in and to the premises mentioned and described in the complaint.</p> <p>2. That it appears that the plaintiff and Benjamin Townsend, before its execution, had been lawfully married, and were at the time of such execution cohabiting together as husband and wife, and therefore such indenture was, as to the plaintiff, void, and the alleged covenant or agreement therein contained was of no binding force or effect upon her.</p> <p>3. That it does not appear that there was any sufficient valid or legal consideration for the indenture.</p> <p>4. That the answer does not set forth facts sufficient to form a defence.</p>

<p>The material facts appear in the judgment pronounced.</p>

<p>This court will not sanction any attempt by fraud or misrepresentation, to bring a party within its jurisdiction.</p> <p>Where a party having been induced by a false statement, to come within the jurisdiction of the court, for the purpose, was then served with a summons and complaint in an action in this court, the service was, on motion, set aside.</p>

<p>Where at the trial, documentary evidence which proves itself, and on which no question can arise in the cause, except such as is apparent on its face, is unadvisedly omitted, and an objection taken thereupon ; the court will nevertheless permit the document to be produced upon the argument of the case ; and if there be no surprise apparent, or any point in which the defence was prejudiced by the omission at the trial, the court will regard it as having been produced at the trial.</p> <p>A co-defendant, who is primarily liable for the debt claimed, is, under the code, a competent witness for the plaintiff.</p>

<p>A judge under section 302 of the code, has power to punish as for a contempt, alf disobedience of orders made by him in “ proceedings supplementary to the execution.” . An attachment issued by him for such contempt, may therefore properly be made returnable before him, at his office.</p> <p>Although the code gives the power of punishing disobedience of his orders to the judge, reference must be had to the revised statutes as to the mode in which th aS power is to- be exercised. (2 R. S 535.)</p> <p>Under this statute a judge, upon due proof, may, in his discretion, issue an attach- • ment in the first instance, against the party accused, to1 appear and answer, or he m'ay grant an order to show cause. In either case', copies of the affidavits-upon which the application is founded, should be served with the' attachment or order. It is not necessary that the party accused should first have an opportunity of being heard upon an order to show cause before an attachment can issue. The attachment is not issued in such instances, for the purposes of punishment, after a final adjudication. It is only1 a mode- of bringing the party before the court.</p> <p>It seems, that in the first judicial district, the ordinary practice is, to give notice' of motion for an attachment, or obtain an order to show cause.</p> <p>Whether the affidavits upon which an attachment is issued, are sufficient to warrant its issuing, is a matter that cannot be reviewed on habeas corpus.</p>

<p>This was an action brought to recover the possession of personal property wrongfully detained. Part of the property claimed, viz. a rosewood piano, has been concealed or removed, and disposed of by the defendant, so that it could not be found by the sheriff. On due proof of these facts, the plaintiff obtained an order of arrest, under which the defendant has been actually arrested. A motion is now made in her behalf to discharge her, upon the ground, among others, that this is not a case in which a female can be arrested.</p>

This was an action against a stockholder, to recover calls on his shares made by order of the board of directors. On the trial, Morris Ketchum was called as a witness for the plaintiffs, and it being admitted that he was then a stockholder of the company, the defendant objected to his competency, the objection was overruled, and the defendant excepted. After the plaintiffs rested, the defendant moved for a non-suit, which was denied, and an exception taken.

<p>This case came before the court by way of appeal from the adjustment of costs by the clerk. There had been an appeal to the general term, from a judgment entered on verdict at the special term; and the judgment below was affirmed. The appellant claimed that the respondent was not entitled to costs, on the ground that costs were expressly excluded by the latter clause in the sixth subdivision of section 307 of the code.</p>

<p>At the June term in 1849, on this cause being called for trial in its order on the calendar, it was postponed to the next trial term on the plaintiff’s application, on payment of costs. The costs were not paid during the term, nor subsequently. The defendants, who appeared separately, afterwards, without any motion or direction of the court, entered an order in favor of each, requiring the plaintiff to pay to each the costs of the term. At the December term 1849, the cause was tried and the plaintiff recovered a verdict against all of the defendants. The defendants claimed on adjusting the costs, to have their costs of June term deducted from the plaintiff’s bill, or to have them set off; while the plaintiff contended that the orders entered for the payment of those costs, were irregular and void.</p>

<p>The facts appear in the opinion of the court.</p>

<p>An injunction was granted in this casé, restraining the defendants from using certain names and designations on their1 carriages. They appealed to the general term from the order of the justice granting the injunction, and pending the appeal, continued to use the prohibited names. An order was thereupon made, requiring them to show cause why an attachment should not issue.</p>

Motion to correct the adjustment of costs made by the clerk, on two appeals taken by Kanouse, to the court of appeals, from a judgment of this court. The circumstances appear in the opinion. The clerk taxed on the first appeal, twenty-five dollars, besides disbursements.

Application by the plaintiff for leave to discontinue her hurt, on receiving her debt, interest and costs, without paying Costs to the defendants, all of Whom had appeared in the cause. The suit was for the foreclosure of a mortgage. The defendants, Power, Egan and Cassidy, were the mortgagors, personally liable for the debt, who had subsequently Conveyed the premises to the defendant Sandford, who assumed the payment ‘of the mortgage.