Volume 20 — Barbour's New York Supreme Court Reports

THIS was an action to recover the possession of a farm in the town of Rochester, in the county of Ulster. It was tried at the Ulster circuit, in November, 1852, before Mr. Justice Wright. The plaintiff gave in evidence a deed of the premises to herself from Peter Elmendorf and wife, bearing date the 26th of Ndvember, 1829. The consideration expressed in the deed was $500, paid by the grantee.

<p>Whether matter contained in a publication is libellous or not, is a question for the decision of the court; but, if libelous, it is for the jury, and not the court, to say whether it is applicable to the plaintiff.</p> <p>Thus where a libelous article did not point to any person in particular, but the plaintiff had expressly averred, in his complaint, that it was published of, and concerning himself, and he had proved some facts tending to sustain that averment ; Held, that it should have been submitted to the jury to determine whether the libel was intended to apply to the plaintiff.</p>

The action was brought to recover damages for an assault and battery alleged to have been committed upon Mrs. Hager. It was tried at the Schoharie circuit, in September, 1852, before Mr.-Justice Wright. It appeared upon the trial, that in August, 1851, a suit was pending before Henry R. Briggs, esquire, a justice of the peace, in which the defendant in this action was plaintiff and the plaintiff, Daniel J. Hager, was defendant.

THIS action was brought to recover the possession of certain real estate situate in the town of Stephentown, in the county of Rensselaer. It was tried at the Rensselaer circuit, in February, 185B, before Mr. Justice Parker. The plaintiff claimed title to the premises under a statute foreclosure of a mortgage executed by Israel A. Adams.

The action was tried at the Bensselaer circuit, in February, 1853, before Mr. Justice Parker, without a jury.

The action was brought before a justice of the peace. • The plaintiff claimed to recover the value of a horse, which had been wrongfully taken from him by the defendant. On the trial it appeared that the horse had been owned by one Bitterly, who had, on the 9th of August,-1852, mortgaged him to the plaintiff to secure forty dollars, with interest, payable in thirty days, and that the mortgage had been filed in the proper office.

The action was commenced before a justice of the peace, in April, 1843. The plaintiff claimed to recover upon two receipts, one of which was as follows: “ February1.22,1839. Received in store, Red Hook Landing, of Samuel- Nelson, by self, 50f£ bus. corn on freight. James Outwater.” The other receipt was in the same terms, and was for 27 f6 bushels corn. The declaration alleged that in consideration that the plaintiff,.

APPEAL by the plaintiff, from a judgment entered upon the report of a referee. The action was ejectment, brought for the recovery of two pieces of land lying in Preble, Cortland county. On the trial before the referee it appeared in evidence that on the 11th day of April, 1829, William Etz and Elizabeth his wife conveyed, by deed with warranty in fee, to Christian Etz (the plaintiff) and John Etz, a farm in Preble, which included the premises in question.

The action was brought before a justice of the peace. The plaintiff claimed to recover upon a promissory note for $31.52, dated July 1, 1845, made by the defendant and payable to the plaintiff, on demand. The action was commenced on the 23d of July, 1851. The defendant, by his answer, insisted that the note was barred by the statute of limitations.

THIS action was commenced before a justice of the peace, to recover the value of a quantity of corn. On the trial the plaintiff read in evidence a lease dated March 25,1852, executed by the plaintiff and one William Montgomery, by which lease the plaintiff leased to Montgomery a farm, for one year from April 1st then next, at an annual rent of $325.

THIS was an appeal by the defendants from a judgment entered at a special term of the court. The first count of the complaint alleged a contract between the parties, made on the 30th day of August, 1853, for the sale and delivery by the defendants to the plaintiffs of a boat load of flour, at the plaintiffs’ boat at the village of Jordan, for $4.93f per barrel, to be delivered during the week next following the time of making the contract.

<p>The act of April 8, 1851, relating to life insurance companies does not prohibit any citizen of this state from applying for insurance to a foreign company which has not complied with the act, on his own account; nor from doing so by his attorney; nor from receiving the policy here, by mail, when issued in another state; nor, as a consequence, from receiving it here through his attorney. But it prohibits the agent of a foreign company from making such delivery.</p> <p>The act does not attempt to prevent a foreign insurance company which has failed to deposit the security required to be given by it, from insuring our citizens; nor does it impose a penalty upon an agent of such a company for acting for it, if he acts out of this state.</p> <p>Signing a policy in Philadelphia, by an insurance company located and doing business there, and sending it to the applicant, or the attorney of the applicant, in New York, is not a violation of the statute.</p> <p>The prohibition is expressly limited to the acting witlvin this state as agent of a foreign insurance company. And the act only intended it to apply when the actual agency was in this state, and the thing done was actually done in this state.</p> <p>It is not a violation of the act for a person in this state to act as attorney for an applicant to a foreign insurance company; provided the attorney is in good faith acting only as tire attorney of the applicant, and not as the agent of the company, under cover of an attorneyship for the applicant.</p> <p>The act of April 8,1851, was not a violation of the article of the constitution of the United States by which the citizens of each state are entitled to all the privileges and immunities of citizens in the several states.</p> <p>An incorporated company is not a citizen, within the meaning of that section. (Const. art. 1, sec. 1.)</p>

<p>Mutual Life Insurance Companies, incorporated previous to the year 1849, are liable to taxation upon their accumulations, as capital.</p> <p>And where a company of that description having a fund, employed in its business, amounting to nearly three millions of dollars, was taxed by the assessors upon only $100,000, of personal property, it vjas held that the tax commissioners, on reviewing the assessment roll, had the power to add $900,000 thereto, making the amount of personal property belonging to the company, liable to taxation, one million of dollars, and that the board of supervisors was right in refusing to restore the original assessment, and in confirming the judgment of the commissioners.</p> <p>A judgment, entered at a special term, denying an application for a mandamus, to compel the board of supervisors to restore or reduce the assessment to the sum of $100,000, and to apportion or fix the tax upon that amount, instead of one million of dollars, and to correct the tax accordingly, was therefore affirmed.</p>

<p>It is a matter within the jurisdiction of the surrogate on the final settlement of an estate, to find what each executor is debited and credited for; also what they have received and paid out jointly; in order that he may determine what each is liable for.</p> <p>Where there are two executors of. an estate, one active and the other inactive, the latter will not be held accountable for the acts of the former, if he has reason to believe that his co-executor is acting prudently, and according to law. The surrogate is therefore bound to inquire whether one or both are accountable.</p> <p>And the decree made by him, upon such accounting is conclusive, between the executors, as to the amounts received and paid out by each, and cannot be contradicted by the sworn accounts of the executors, produced by them upon the accounting.</p> <p>Commissions are to be divided between executors according to the services rendered by them respectively ; and in the absence of any other proof in respect to such services, the share of each is to be determined by the amount of moneys stated in the surrogate’s decree to have been received and paid out by the executors, respectively.</p> <p>Justice requires that when an executor has done nothing, and has borne no responsibility, he shall not share in the commissions.</p> <p>The act of 1849, (Laws of 1849, ch. 160,) is in accordance with this principle.</p> <p>It requires the surrogate to apportion the commissions among the executors according to the services rendered by them, respectively.</p>

<p>A testator directed his real and personal estate to be converted into money, as soon as convenient, and the proceeds to be securely invested in the most productive manner; leaving it, however, to the discretion of his trustees to suffer such part of his personal estate as was then invested in bank stock tp remain in that state, so long as they might deem it most for the interest of the testator’s family. At the time of his death, in January, 1836, the testator held 1000 shares in the stock of'the Bank of the United States. The charter of that hank expired March i, 1836, and on the 18th of February, 1836, the state of Pennsylvania chartered “ The United States Bank,” an institution designed to take the place of the former; and by arrangement between the two banks the stock of the former national institution was transferred to the new bank. The new hank subsequently failed, involving nearly a total loss to the stockholders. Held that the administrator, cum testamento annexo, did not render himself liable for the loss upon the testator’s stock, merely by suffering such stock to remain in the state it was in at the testator’s death, and to pass, as the rest of the stock did, to the new bank; or by receiving the dividends upon the new stock.</p>

rpiIE nature of this action, and the defense thereto, appear JL concisely from the opinion of the court. The action was tried before his honor, Justice Clerke, without a jury, at the city hall in the city of New York, on the 16th of March, 1855, and a judgment rendered pro forma for the plaintiffs, for the amount claimed upon the note in suit, with interest, <fcc. The case was directed to be heard before the general term in the first instance.

ÍN EQUITY. This action was brought by Susan Higgins and Ann Higgins, an infant, now deceased, by her next friend, the said Susan Higgins, in the late court of chancery, before the chancellor, against John Hostrand, Thomas Whitson and Edmund Willetts, executors of Thomas Whitson, deceased, and Benjamin W. Strong, executor of the last will and testament of Charles P. Cornwall, late of the town of Flushing, deceased, to recover certain moneys alleged by the complainants to have…

THIS was an action in the nature of ejectment to recover the possession of the north half of Yalcour Island, situate in lake Champlain, in the county of Clinton. The cause was tried in July, 1854, and a verdict taken for the plaintiffs, subject to the opinion of the court at general term.

THIS action was brought to recover money paid by the plaintiff on a debt due from the defendant to one Baker. The complaint alleged that the defendant was indebted to one Baker in the sum of $195; that the defendant requested the plaintiff to adjust the same, and for that purpose the plaintiff sold to said Baker one yoke of oxen at $60, and paid him $134.85 in money.

THIS action was brought to recover an alleged subscription to the capital stock of the plaintiffs’ corporation. The cause was tried'in 1853, and judgment rendered for the plaintiffs for the full amount claimed.

THIS action was brought against the trustees and collector of school district Ho. 3, in Hebron, Washington county, the plaintiff claiming to recover the value of a cow seized and sold by the collector under a warrant issued by two of the three trustees. The warrant purported to have been issued on the 16th of June, 1853, and was signed by Clapp and Hathway. It was renewed July 18, thereafter, and the renewal was signed by Clapp and Chapman.

THE first of these cases came before the court on an appeal from a court of special sessions in the city of Brooklyn, and the other by certiorari to a .court of special sessions of the county of Dutchess, in which courts the defendants were severally convicted of violations of the act of the legislature entitled “An act for the prevention of intemperance, pauperism and crime,” passed April 9,1855, and usually known as the “ Prohibitory Liquor Law.” (Laws of 1855, p. 340,)

<p>CERTIORARI to a court of special sessions held by the county judge of Dutchess county, to remove a conviction of the defendant, for a violation ofa the prohibitory liquor law, in selling intoxicating liquor.</p>

THIS was an appeal from a decree of the surrogate of the county of Kings, admitting the will of James McDonough, late of the city of Brooklyn, to probate, and determining that Eugene Oassidy was not disqualified from acting and taking letters testamentary as one of the executors of the said will, and that John Loughlin and Eugene Cassidy wrere entitled to receive letters testamentary as executors of the said James McDonough.

<p>The sale of ale in less quantities than five gallons, without having a license therefor, granted according to the provisions of title 9, chapter 20, of the first part of the revised statutes, is not prohibited by the 15th section of that title, nor declared a misdemeanor by the 25th section.</p>

APPEAL by the defendant from a judgment of the Tates county court. The action was commenced before a justice of the peace for a trespass, in entering upon the plaintiff’s dock or wharf. The plaintiff was the owner of a dock and storehouse at Dresden, on the Seneca lake, used for a steamboat landing, and other purposes. The defendant was the driver of a stage, employed in carrying passengers and freight to and from the landing.

IIS’OTION by the plaintiffs for a new trial, upon a case. The JL complaint alleged that the plaintiffs were partners, doing business as merchants, at Philadelphia; that on the 17th of November, 1858, Edward W. McCabe, a, liquor merchant at Auburn, sent an order to the plaintiffs, by mail, directing them to send to him a cask of old pale brandy, of 78 gallons, and a cask of gin; and that on the 23d of November he also ordered six baskets of champagne wine; that on the 2d of…

The plaintiff’s complaint contained three counts. In the first count the plaintiff claimed to recover for goods, wares and merchandise, sold and delivered to the defendant, specifying the time, quality and value.

The action was brought to recover rent due on a lease from the plaintiffs Darius Jacques and Elizabeth his wife, to the defendant’s grantor.

The *&ction was ¿ommenced before a justice of the peace, by summons returnable May 7, 1853, and was tried on the 14th of May, before a jury; a venire being called for by the defendant. The jury did not agree, and were discharged by the justice, on the same day, Saturday.

APPEAL by the defendant from a judgment of the Livingston county court. The action was commenced* before a justice of the peace, and, after issue joined, was tried by a jury, who found a verdict in favor of the plaintiff for $100. From the judgment rendered thereon, the defendant appealed. to the county court, where the judgment of the justice was reversed.

<p>In an action against a rail road company, to recover damages for an injury sustained by a passenger by means of a collision, it is not erroneous for the court to charge the jury that, in ascertaining the amount of the plaintiff’s damages, it is proper for them to consider the bodily pain and "suffering which has occurred, or is likely to occur, in consequence of the injury, but that they cannot act upon conjecture as to the prospective condition or situation of the plaintiff; and that the jury can only consider, in respect to the future, what the evidence renders reasonably certain will necessarily and inevitably result from the original injury.</p> <p>Bodily pain and suffering which is necessarily and directly to flow from the injury, is as much a part of the injury as the continuance of a physical disability occasioned by it.</p> <p>Only one action can be maintained to recover damages for a personal injury. Yet it is not necessary for the injured person to wait until all the consequences of the injury have become fully developed. He is entitled to sue whenever he thinks proper, and to recover damages for both past and future pain of body, as well as for past and future deprivation of health, or of any of his bodily powers.</p> <p>But in respect to all the subjects of damage, it is requisite that they should be the legal, direct and necessary results of the injury, and that those which, at the time of the trial, are prospective, should not be conjectural.</p> <p>Damages arising from bodily pain and suffering need not be alleged specially in the complaint.</p> <p>Where it appeared, from the evidence, that the cars were thrown off the track of a rail road, and a collision thereby occasioned, because the rails were not right, or from some defect in the mode of securing them in their place; Held that the degree of care which the law imposed on the rail road company required them to see that the rails were in a right position, and not to trust exclusively to the lever of the switch, when the rails were in open view while moving it; and also to see that the rails were firmly secured; and that if they omitted to do so they were guilty of negligence.</p> <p>It was therefore held, further, that the question of negligence was properly submitted to the jury.</p> <p>Also held, that proof, uncontradicted, that the switch was rightly placed, did not rebut all presumption of negligence.</p> <p>Where, in an action against a rail road company to recover damages for a personal injury occasioned by a collision, there wTas evidence showing that the plaintiff had been incapacitated by the injury from labor most of the time for nearly two years, and there was also testimony tending to prove that the disability would be permanent, or at least long continued; Held, that a verdict of 4,500 was not so excessive as to indicate partiality, prejudice, passion, or any thing improper, in the jury.</p>

THIS was an action by the plaintiff to recover compensation for his services as a physician, in the year 1853.

THE nature of this action, and the material facts, are stated in the opinion of the court. This was a motion for judgment, after a trial at the circuit.

<p>Where an office is already filled, by a person who has been admitted and sworn, and is in by color of right, a mandamus is never issued to admit another person ; the proper remedy of the applicant being a quo warranto, or the action substituted in its place by the code.</p> <p>But where the relator had been, for- several years before, and was at the time when the commission to the defendant was issued, the actual occupant, claiming under color of right to hold the office, and never having at any time relinquished it; Held that if his claim was valid, neither the commission to the defendant nor the interference of the latter in the discharge of the duties, would constitute an actual expulsion from the office, inasmuch as the possession would follow the right; and that it was not a case of expulsion, but of interference by the defendant with the functions of an office actually held by another.</p> <p>In such a case the incumbent should not be required to elect to consider himself out of possession of the office, and then be obliged to resort to a tedious action to procure his restoration.</p> <p>The relator was duly elected a brigadier general, by the field officers of his brigade, in 1841. He held the office, and was in the discharge of its duties, when the act of May 13, 1846, was passed. Under that act a brigade was formed, consisting of the militia of his previous command, with a slight exception, with the addition of the militia of three other counties. The relator was, on the 9th of June, 1847, assigned to the command of the brigade thus constituted, (the 7th) pursuant to a provision contained in the 8th section, in the following words: “ The brigadier general in commission and highest in rank residing in such brigade district shall be the commanding officer of such brigade.” He held such command when the constitution of 1846 went into effect. By that instrument the provision for electing brigadier generals by the field officers of the brigade was continued. The 5th section of the 11th article is in these words: “ The commissioned officers of the militia shall be commissioned by the governor, and no commissioned officer shall be removed from office, unless by the senate, on the recommendation of the governor, stating the grounds on which such removal is recommended, or by the decision of a court martial, pursuant to law. The present officers of the militia, shall hold their commissions subject to removal as before provided.” On the 5th of May, 1855, the governor issued a commission to the defendant, as brigadier general of the 7th brigade, and on the same day issued a general order, revolting so much of the order of June 9th, 1847, as assigned the command of the brigade to the relator, and directed the defendant to assume the command of the brigade. Held that the governor was not authorized, by the act of April 17, 1854, or any other statute, to displace the relator, or to appoint the defendant; and that both the commission to the defendant and the general order accompanying it were null and void.</p> <p>A peremptory mandamus was accordingly awarded, requiring the defendant to permit the relator to exercise the office of brigadier general, without interruption or intrusion from or by the defendant.</p>

APPEAL by the defendants from an order made at a special term, reversing and setting aside a decision of the clerk of Steuben county, refusing costs to the plaintiff and allowing costs to the defendants. The order appealed from further directed that the plaintiff be allowed his costs in the action, and that the same be adjusted by the clerk, on application, and inserted in the judgment in the usual manner, as provided by statute.

ACTION to recover the two last installments, of $2500 each, of a legacy of $10,000, claimed to have been given by David Hyde, of Auburn, to the plaintiffs, by his will executed April 10,1824, and which took effect by his death on the 12th day of April in the same year. He left real estate of the value of $12,000, and personal of the value of $20,000.

THIS was an action of ejectment, brought to recover the possession'of a strip of land, sixty-six feet wide, occupied by the defendants’ rail road. The cause was tried before Justice Johnson, and a jury, at the Steuben circuit, in November, 1853, and a verdict was rendered in favor of the plaintiff. The defendants took exceptions to the rulings on the trial, and they, under an order of the court, were directed to be heard, in the first instance, at the general term.

THIS was an appeal from a judgment entered at a special term, upon demurrer to the complaint. The action was brought upon a policy of insurance for $875, issued by the defendants to 0. D. Riggs, one of the plaintiffs, upon his dwelling house, household furniture, wearing apparel, grain and provisions therein.

APPEAL, by the plaintiff, from a judgment entered at a special term of the court, after a trial at the circuit.

APPEAL by the plaintiff, from a judgment entered at a special term, upon the report of a referee. The action was trespass for taking a quantity of flour. The referee nonsuited the plaintiff, on the ground that the defendant having acted in the premises by the command of a writ of replevin, was justified thereby, and was not liable to the plaintiff in this action. The opinion of the court states all the facts that are material.

THIS was an appeal by the plaintiffs from a judgment entered upon the report of a referee. The action was brought to recover the value of a canal boat. The facts, and the legal questions arising on the trial, appear in the report of the case when it was before the court, on the appeal of the defendant. (16 Barb. 613.) On the second trial the referee reported in favor of dismissing the complaint, with costs; and judgment was entered accordingly.

APPEAL, by the plaintiff, from a judgment entered at a special term. The action was ejectment, for dower, and was tried before the Hon. Daniel Pratt, one of the justices of this court—a trial by jury being duly waived by the respective parties.

DEMURRER to the complaint. The complaint set up the recovery of a judgment in favor of the plaintiffs against the Hudson River Iron and Machine Company, a corporation duly organized, the issuing of an execution thereon to the proper county, and its return hy the sheriff unsatisfied. That the amount of the judgment remained due, and that the plaintiffs were the owners thereof.

APPEAL by the defendant from a judgment entered at a special term, upon the report of referees. The action was for work and labor, done upon the farm of the defendant from June, 1839, to November, 1844, by the plaintiff, at $12 per month.

THIS was an appeal, by the defendant, from a judgment entered at a special term.

THIS was a motion by the defendants, Gifford, Sherman <fc Innis, for a new trial, upon exceptions taken by them at the circuit, and which exceptions were directed to be heard in the first instance at a general term. The action was brought to foreclose a mortgage given by the defendants Harris &■ Water-men, on the Auburn Woolen Mill property and machinery, to the plaintiffs, dated November 8, 1853, to secure the payment of $20,000 in one year, with semi-annual interest.

THIS was an action originally tried before a justice of the peace of Saratoga county. The action was brought on an award of arbitrators, which award was in writing and produced in evidence, by which among other things, the arbitrators awarded that the defendant should pay the plaintiff $85 in sixty days and one-half' the fees of the arbitrators, the whole being $15.

THIS was an application for the appointment of commissioners to ascertain and appraise the compensation to be paid to the owners or persons interested in certain real estate which had been taken for the use of the Schenectady and Troy Rail Road Company before its consolidation with the New York Central Rail Road Company. The petition set forth the act of incorporation of the former company, and alleged that they did, pursuant to said act, construct their railway.

<p>THIS was an action brought by the plaintiff as administrator of-Phillips, deceased, to foreclose a mortgage. The defendants Haight and wife alone defended. They set up that the mortgage was subject to a condition, which was recited in it, and in the answer. The condition, among other things, stated that Haight had, on the day of the date of the mortgage, purchased of Phillips the premises described in it, being 101-2- acres of land. That from three to five acres of the land were in the possession of one Philip Ellsworth, and was claimed as the property of said Philip or the heirs of John 0. Smith. That Phillips, when he bargained and sold, promised that he would give a good title to the disputed part of the premises to Haight, and would give quiet and peaceable possession of the disputed premises free and clear of any expense. And it was agreed that if Phillips failed to give Haight a good and sufficient warranty title of the disputed part of the premises, and quiet and peaceable possession, before or at the time the first payment became due on the mortgage, Haight should have the right to keep back from the moneys due or to become due on the mortgage whatever sum or sums of money he should have to pay to obtain a good and sufficient warranty title and possession of the disputed part of the premises, with all costs and expenses. That Phillips or his heirs had not performed the conditions mentioned in the mortgage, and had not made, executed and delivered to Haight a good and sufficient warranty title deed, nor any deed, which conveyed to Haight a good and sufficient title in fee simple to said disputed lands, and had never put Haight into quiet and peaceable possession of them. That Haight had performed all the conditions on his part, and on the first of April, 1837, paid on the mortgage the sum of $280, and in April, 1839, the further sum of $140. That the dwelling houses, barns, out buildings, garden, well, &c., were all situated on the disputed land claimed by Ellsworth, and that in 1848 Ellsworth commenced an action in the supreme court against Haight to recover possesion of the last described lands and premises ; and that in January Haight was compelled to deliver up possession or pay Ellsworth $500, and $20 costs of suit; for one acre of said disputed land on which said buildings were situated. That except this one acre the whole of said disputed land had always remained in the possession of Ellsworth, who had refused to sell or deliver possession of the same. That Haight had expended a large sum of money in endeavoring to get title, amounting to $100.</p> <p>The reply denied the facts set up in the answer, and averred that Ellsworth always remained in possession of the disputed part of the premises ever since the giving of the mortgage. That if Ellsworth ever commenced any suit against Haight it was not commenced in good faith but in collusion with Haight. The action was referred to John M. Carroll, Esq. to take the testimony and report to the court. The referee reported the testimony accompanied by a map showing the location of the premises. The greater part of them, including the house and barn and well, were situated southwest of a road marked on the map “ a a.” and passing by the house. Phillips built this house and barn, while he occupied, and was in possession of all that part of the farm, until he sold to Haight, who succeeded him in possession. Phillips was in possession twenty years ago. The land on the north side of the road called the three or five acres had been a common for 20 or 25 years until Ellsworth bought the adjoining lot north of that piece, in 1834. In about two years after, Ellsworth enclosed the piece north of the road with Ms farm. It was marked on the map /;, and called the three cornered piece. The defendants produced a deed from Hiram Dye to Ellsworth, dated 12 April, 1834, covering the 51-g acres, •which the defendants claimed was the disputed land, including the house, garden, barn and well south of road a a. Ellsworth ■ after that deed, commenced an action in the supreme court, as he testified, against Haight, in good faith, to recover possession of the buildings' and land south of the road a a, (about one acre,) and afterwards sold the land to Haight for §500, being about its value, as he said. The evidence of the commencement of the suit, by parol, was objected to by the plaintiffs, as not the best evidence, and it was received subject to the objection. It appeared that the witness Ellsworth was the father-in-law of Haight. That he, (Ellsworth,) knew that Phillips lived on the land described in the mortgage, 25 or 30 years ago ; that he recollected when Phillips built the' house and barn now occupied by Haight, and dug the well south of the road a a ; and built a fence in front along, the road a a. That Haight went into possession of the same premises up to the road a ’o, and he and Byford had occupied them ever since. After Phillips came to the premises, Ellsworth occupied up to the road a. a. on the south, and Phillips up to the road on the north. It was proved that this road a a had been the dividing line between the premises in the possession of Phillips and those occupying on the other side, for 30 or 40 years, and had never been altered. Other testimony was taken, such of which as is material is alluded to in the opinion of the court. The plaintiffs, after the death of their testator, demanded on the premises, the amount due on the bond and mortgage, offering to deduct out of what was due the value of the piece of land in possession of Ellsworth from the time of the date of the mortgage ; which offer was refused. The judge at the trial, directed the referee to report the value of this piece of land, and ordered that sum to be deducted from the mortgage at its date, and judgment in favor of the plaintiffs for the balance, with interest, after allowing all payments. The referee reported the value at §65, which he deducted accordingly, from the amount of the mortgage ($1780,) at its date, on the first of Nov. 1836, and reported the balance due, after allowing payments to the amount of about $340, to be $966.54 for which judgment was entered in favor of the plaintiffs and a sale of the premises ordered. From this judgment the defendants Haight and wife appealed.</p>

THIS was an appeal from an order made at a special term, allowing a demurrer to the complaint.

THIS was an appeal from an order made at a special term, sustaining a demurrer to the complaint.

THIS was an action to recover the possession of certain lands, and also damages for the breach of certain covenants contained in a deed.

THIS was an appeal, by the defendants, from a judgment entered against them at a special term, after a trial at the circuit. The action was upon a policy of reinsurance.

<p>Where goods are consigned to joint factors the consignees are in the nature of co-obligors and each is liable for the whole.</p> <p>And although, upon a dissolution of the partnership, one retires and the other sells the goods and receives the avails, yet an action lies against both for not fulfilling their duty in selling and accounting; and they may both be held liable for not accounting.</p> <p>In an action against several defendants who are jointly and severally liable, either of them may set off promissory notes executed by the plaintiff, or may avail himself thereof by way of counter-claim.</p>

<p>Where cows, belonging to several owners, are found in the garden of an individual, committing a trespass, each owner is liable for the damage done by his own cow, and for no more.</p> <p>And in the absence of all proof as to the amount of damage done by each cow, the law will infer that the cattle did equal damage.</p>

THIS was an action brought to recover of the defendant the last two installments of rent due upon a lease under seal, executed by the defendant to the plaintiff, commencing on the 1st day of April, 1849, and ending April 1,1852. The plaintiff claimed to recover the amount of the rent and interest, and also damages, in Consequence of the non-performance by the defendant of certain covenants in the lease.

THIS action was commenced under section 206 of the code; for the.claim and delivery of personal property. The complaint averred that the defendants were a manufacturing company, formed under the act of March 22,1811. That the company became possessed of, and wrongfully detained from the plaintiffs, the goods and chattels described in the schedule annexed to it, to the value of $1500, and demanded judgment for that amount.

THIS was an action of ejectment, brought to recover a lot of land at Port Henry, in the county of Essex. The action was tried at the circuit in that county in July, 1854. The plaintiff’s counsel introduced in evidence the counterpart of the agreement, a copy of which it was admitted was contained in the answer. That agreement was dated the 9th day of April, 1848, and was executed by the parties.

The complaint alleged that the defendants, who claim to be a corporation, created by and under the act of the legislature of this state, entitled “ An act to incorporate the Ravenswood, Hallett’s Cove and Williamsburgh Turnpike and Bridge Company,” passed April 18th, 1838, and an act, entitled, “ An act to amend the charter of the Ravenswood, Hallett’s Cove and Williamsburgh Turnpike and Bridge Company,” passed April 21st, 1840, had, in the county of Kings, for the space of…

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

APPEAL by the defendants Lowry and Jarvis from a judgment entered upon the report of a referee.

01, for the costs and disbursements of the present and former plaintiffs, out of a fund in court arising from the sale of property in a partition suit.

THIS was an appeal by Edward Cavanagh, the purchaser at a foreclosure sale, from an order made at a special term, di■recting him to complete his purchase. The mortgage foreclosed was executed, on the 19th of April, 1844, by John Power, sole surviving executor of Michael Smith deceased, in pursuance of an order made by the vice chancellor of the first circuit, on the 18th of April, 1844, upon the petition of said John Power.

APPEAL by the defendant from an order made at a special term, granting a new trial. Held: and very justly, that such a purpose, entertained at the time, and carried into effect, is a fraud on the vendor, and vitiates the contract of sale.

The action was ejectment. On the trial the plaintiff, for the purpose of proving a title in himself, gave in evidence a mortgage executed by the defendant to the plaintiff on the first day of April, 1852, on the premises in controversy, to secure the payment of $325 in three annual payments.

The plaintiff in error was indicted for a violation of the “act for the prevention ■ of intemperance, pauperism and crime,” passed April 9,1855, (Laws of 1855, p. 340,) in selling brandy (not being liquor the sale of which was authorized by the laws of the United States,) to persons not authorized to sell liquor by the act above mentioned. • The facts appearing upon the trial, and the questions there raised, are stated in the opinion of the court.

THIS action was commenced before a justice of the peace of the county of Cattaraugus. The plaintiff complained in trover for five cows, converted by the defendant. The defendant, by his answer, denied the complaint, and justified the taking, under a chattel mortgage, of which he was the assignee. The plaintiff recovered a judgment for $55 damages and costs. The defendant appealed to the county court, where the judgment was affirmed. He then brought an appeal to this court.

The first count of the complaint alleged that at the several times therein mentioned, the defendant was a canal commissioner of the state of New York, and had section No. 14 of the Brie canal under his charge : and that as such commissioner, it was his duty to keep the said section in such repair that canal boats might navigate the same safely.

MOTION by the plaintiff for judgment upon a verdict in his favor, at the circuit, subject to the opinion of the court, upon a case. The action was upon a policy of insurance.

THIS was an amicable suit to vacate or correct a family settlement, alleged to have been drawn up by mistake in a form not truly expressive of the intent of the parties, and to be void as it stands, partly for uncertainty and partly for alleged illegality in the trusts created by it. The facts in the case sufficiently appear in the opinion of the court, which was rendered by,

THIS was an appeal from a judgment entered in favor of the defendants, upon the report of a referee.

On the 9th day of August, 1855, the appellant was brought before S. W. D. Moore, Esq. police justice of the city of Rochester, upon a warrant issued by said justice, charged with a violation of the act entitled “ An act for the prevention of intemperance, pauperism and crime,” passed April 9th, 1855. On being brought before the justice, he offered to give bail for his appearance at the next criminal court having cognizance of the offense.