Volume 21 — New York Reports

<p>Article 8, section 7 of the Constitution of 1846, subjecting the stockholders of banks to personal liability, applies as well to banking corporations then existing, as to those created afterwards.</p> <p>The rule of interpretation by which that construction of a statute is to be avoided, which gives it a retrospective operation, has little if any application in construing the organic law.</p> <p>The provision of the general banking law reserving to the Legislature the power to alter or repeal it, forms a part of the contract with every association formed under that act, and the State may modify it, prospectively or retrospectively, without infringing the provision- of the Federal Constitution against laws impairing the validity of contracts.</p> <p>Such modification may he made, it seems, as well by a change of the State Constitution as by an act of the Legislature.</p> <p>The articles of association of a corporation formed in 1844, under the general banking act of 1838, provided that the shareholders should not be individually liable for any contract of the association. It issued circulating notes after 1850 as before: Séld¡ that the stockholders are personally liable under the Constitution, and ch. 226 of 1849.</p> <p>Although the issuing of circulating hills after 1850, by which the liability is incurred, he the act of the corporation as such, and not of the stockholders, and although a stockholder be unable to prevent it, the liability attaches in consequence of the exercise of a power which he has conferred upon „ the corporation, and is therefore within his contract.</p>

Action to set aside an assignment. The trial was before Mr. Justice Emott, without jury.

Action for an assault and battery, alleged to have been committed by the defendant upon the plaintiff, on the 12j;h of November, 1852. The defendant was the brother of the plaintiff, and the assault was averred to have 'taken place at the house of the. plaintiff, to which the defendant went, on the morning of the 12th of November, and when no one was in or about the house, except the parties.

. Appeal from the Superior Court of the city of New York. The action was against the defendant, as the owner of certain specie for its proportion on general average of losses, expenses and damages incurred by the vessel on which it was shipped and the rest of the cargo. Upon the trial these facts were proved: The ship Galena sailed from Hew Orleans for Havre, having on board a cargo of cotton, and $30,853 in specie belonging to the defendant.

Action upon a policy of insurance against fire, The trial was before a referee, who found all the facts necessary to charge the defendant if it had authority to make the contract, which was in consideration of the payment of a definite cash premium without any provision for further contribution or liability on the part of the insured. The defendant was organized under the general act of 1849, to provide for the incorporation of insurance companies.

Action upon a policy of insurance ■ against lire. The cause was tried before the Hon. Daniel Pratt, as referee, who *found all the facts necessary to enable the plaintiff to recover; but determined that the policy was void, having bedn issued without authority, and this, on the ground, that the defendants were incorporated as a mutual insurance company, under the act of 1849, c. 308, and had no power to issue a policy on the receipt of a cash premium. *The facts are fully…

Aepeae, from, the Supreme Court. Certiorari to review the proceedings of the commissioners of highways of the town of Dover in discontinuing a highway. After the commissioners had made their return to the writ, they certified, in obedience to a requisition from the Supreme Court, that one of them who had acted throughout the proceedings was a brother of the person upon whose application they had been instituted.

<p>Appeal from the Supreme Court. Action upon a bond reciting that one Gold had been appointed assistant book-keeper of the Rochester City Bank, and conditioned that he' should “faithfully discharge the trust reposed in him as such assistant book-keeper.” Breach, that Gold on the 5th of'January, 1853, “while in said plaintiff’s employment as such assistant 'bookkeeper, wrongfully took and appropriated to his own use of the moneys of the plaintiff in the plaintiff’s banking office, the sum of $1,000; and then and there made false and fraudulent .entries, in the books of the plaintiff for the purpose of concealing from observation and detection such appropriation.” Upon the trial it was. proved that from the organization of the bank until several months after Gold entered into its service a certain credit journal was uniformly kept by the teller in which entries were made by him of the deposits in the bank. Gold had' nothing to do with the keeping of this book, which was called the Teller’s Credit Journal, until- December 1851, when, in consequence of the teller’s duties being made more onerous by the absence of the cashier, Gold was required by the officers of the bank to assist the teller in keeping it He did SO' until January 8th, 1853, when he left-the bank. On the 5th January, 1853, the sum of $1,000 was abstracted from the funds of the bank. There was evidence tending to show that Gold entered in the journal a credit to a depositor of $625, instead of $1,625 actually deposited by him, and that the cash had been counted at the closing of the bank for the day and found to agree with the balance as shown by the books. Gold then changed the entry in the credit journal and in the account with the customer from $625 to $1,625, so that detection would not ensue on production of his pass-book. The loss was not discovered till February. The judge nonsuited the plaintiff on the ground that no breach of the bond had been shown. The judgment upon the nonsuit was affirmed at general term in the seventh district, upon the ground that although a technical breach of the bond had been shown, in the making of the false entry, yet that the plaintiff was only entitled to nominal damages, and that a new trial ought not to he granted to correct an error by which he was deprived of them. The plaintiff appealed to this court.</p>

<p>Whether a judgment recovered against a corporation is any evidence of its indebtedness.in an action against a stockholder to enforce his individual liability, quere.</p> <p>A recovery against the stockholder, sustained upon a referee’s finding of the fact that the judgment against the corporation was upon a bill of exchange drawn by its agent upon and accepted by the corporation.</p>

<p>The plaintiff brought replevin against the master of a vessel lying at a pier in New York for her cargo of coal The sheriff declining to deliver the coal to the plaintiff till his sureties should justify, put a keeper in charge of the coal with the consent of the master. The vessel sunk at the wharf, and the plaintiff brought this action to recover the damages sustained by the coal, and the expense of raising it: Held,</p> <p>The sheriff did not, under the circumstances, become an insurer of the coal by not removing it from the vessel Whether he was guilty of negligence in not taking proper precautions for the security of the vessel, was, under the circumstances, a question for the jury.</p> <p>It seems that a sheriff having in his custody property which is the subject of litigation, is responsible for more than ordinary diligence.</p> <p>A bill of lading, executed by the master of the vessel, is not admissible as any evidence of the quantity of coal on board the vessel</p>

the city of Hew York. Action to recover money abstracted from the plaintiff’s trunk while a guest of the defendants. On the trial it was proved that the defendants were proprietors and keepers of an inn or hotel in the city of Hew York. On the 23d of January, 1856, they received the plaintiff as a guest. He was assigned a room in the house, and was escorted to it, with his baggage, by a waiter or porter of the defendants, in the early part of the day.

(Reported below, 23 Barb. 473.) This was an action to recover damages for overflowing the plaintiff's lands, by means of a dam erected by the defendant across the Canaserega creek, in the towns of Sparta and West Sparta, Livingston county. On the trial before Welles, J., the plaintiff proved his title to and possession of the locus in quo, and the setting back of the water upon the same, by means of the defendant’s mill-dam.

Action to recover damages for flowing lands of the plaintiff, by means of a dam erected by the defendant across the Canaseraga creek, in the county of Livingston.

The case came up from a second trial ordered by this court (17 IT. Y., 28). The trial was by the court without jury, and the judge held that there was no fraud in fact in the' assignment which the plaintiff sought to impeach. He dismissed the complaint, and the judgment was affirmed at general term in the second district.

(Reported on a former trial, in 24 Barb. 375. The general term in the 4th district subsequently decided the other way.) The defendants, a manufacturing corporation, organized under the act of 1848, for the purpose of manufacturing linen goods, &c., having a store of goods which they have been engaged in retailing to customers, and particularly to their employees, on the 28th January 1853, agreed to sell the same to the plaintiff for the sum of $3445; of which $1000 was to be…

The complaint was that in January, 1853, the defendant, a manufacturing corporation organized under chapter 40 of 1848, having its place of business at Mechanicville, Saratoga county, owned goods and merchandise in a brick store at that place suitable for retailing and worth about $2,500.

The plaintiffs, judgment creditors whose execution had been returned unsatisfied, of Hare and Pugh, brought an action in the nature of a creditor's bill against them and one Whitehead, to whom Hare and Pugh had assigned all their property.

Action for libel. On the trial the first juror called Vas challenged by the plaintiff to the favor. It was agreed that the challenge should be tried by the judge in the same manner as if triors were duly appointed for that purpose. The juror being sworn, testified that he was not acquainted with either of the parties.

Action to recover the amount of a promissory note made by the defendant. Held: under-exceptian by the defendant, that he continued liable to contribute to the losses happening after the burning of his own property and the payment of the insurance money mentioned in his policy, and judgment was rendered against him for the balance of the note.

<p>Appeal from the Supreme Court. Action on an award made pursuant to a submission under seal. The award required the defendant to pay the plaintiff $56.50 within three days after its date. By the submission the parties agreed that a judgment in the County Court of the county of Otsego might be rendered upon the award. The. defence set up was that the action was brought before any term of the Otsego County Court had been held, subsequent to the making of the award, and that no judgment of that court had been obtained or sought for by the plaintiff. The judge before whom the case was tried overruled this defence, and the plaintiff had judgment, which was ■affirmed at a general term in the sixth district. The defendant appealed to this court. The case was submitted on printed briefs,</p>

' Appeal from the Supreme Court. Ejectment for the north half of Yalcour Island in Lake Champlain. Upon the trial the plaintiff made title under a sale upon execution on Wednesday the 8th day of May, 1850, and the question was whether sufficient publication had been made of the sheriff’s notice of the time and place of making such sale. Notice was given by the sheriff as follows: 1.

(Reported below, 4 Bos. 240.) This action was brought by Mortimer Livingston, as receiver of the General Mutual Insurance Company against William Nelson and William Nelson, Jr., upon six promissory notes given to the company for premiums of insurance. On the decease of Mr. Livingston, Alexander M. Lawrence was appointed receiver in his stead, and the action was continued in the name of the latter, as plaintiff.

Action to recover the amount of six promissory notes. The trial was before a referee, who found these faots: In 1853, the General Mutual Insurance Company issued to the defendants policies upon six of their vessels. Instead of paying the premiums for insurance in cash, they gave to the company their promissory notes, payable twelve months after date. These notes amounted in the aggregate to the sum of $2,422.50.

Action to set aside a conveyance of certain real estate and to subject it to the payment of a judgment recovered by the plaintiff against the defendant Hulse. The title sought to he impeached rested upon the validity of an assignment made by Hulse to one Gott in trust for the benefit of creditors. Upon the trial thé court held that the assignment was fraudulent upon its face by reason of a provision contained therein.

Submission without action, under section 372 of the Code of Procedure.

Action for an accounting. The trial was before a referee, by whom these facts were found: The plaintiffs are assignees of the claim of certain persons who will be designated the Ewings. Held: as collateral security, four treasury warrants or certificates for annuities payable to the Pottawatomie Indians, amounting to $22,162.58, the title to which had been derived from the Ewings.

The action was a judgment creditor’s suit, in which the plaintiff sought to obtain satisfaction of the amount of two judgments which had been recovered against A. V. Hasten, and which he alleged were liens upon a lot of ground in the village of Penn Yan.

Action to foreclose a mortgage, made by Joseph W. Savage to the plaintiff. The defendant McKay by his answer set up this state of facts: In June, 1847, the plaintiff, in consideration of $10,000, conveyed the premises in question to one Savage, by deed with covenants of seizin, quiet possession, against incumbrances* and for further assurance, and with a covenant of general warranty.

.Appeal from the Supreme Court. Action for extra materials furnished by the plaintiff in paving a street under a contract with the defendant. The trial was before a referee, who found these facts : The city contracted with the plaintiff to sand and pave Clim ton street. The grading of the street was to be done by the city.

This was an action in the nature of an ejectment to recover two and a half acres of land, in Scio, Alleghany county. Both parties claimed under Daniel Tuttle, the common source of title. In February 1884, Daniel Tuttle acquired the title in fefe of a piece of land described as lot four, in Wellsville, Alleghany county, containing 131tsu3ó- acres,- and soon 1afterwards conveyed small portions thereof to Theodore Brewster, John B. Church and George B. Jones.

Ejectment to recover two and a half acres of land in possession of the defendant, who claimed to hold them as purchaser by contract from Martin Grover, who derived title through several mesne conveyances from Daniel Tuttle, the common source of title. In January, 1835, the plaintiff recovered a judgment against Tuttle for some $147.

Ejectment for land in Herkimer county described as being part of Susanna Johnson’s three thousand acre tract, in the fourth allotment of the Royal Grant. Upon the trial before Mr. Justice Pratt and a jury, the plaintiffs read in evidence an exemplified copy of the will of Sir William Johnson, dated January, 27, 1774, and which was proved before the surrogate of Tryon county in July, 1774.

Action on a promissory note. Defence, usury. On the trial before the court a jury having been waived, these facts appeared: The plaintiff resided in the State of New Jersey, and the defendants at Newark in Wayne county. The plaintiff placed in the hands of S. K. Williams, an attorney and counsellor at law, also residing at Newark, the sum of $400, to invest for her at lawful interest.

Action to recover the amount of a subscription for erecting a chtitch.

Complaint that the defendant, for the purpose of effecting a sale to the plaintiff of certain lands in the States of Indiana and Illinois, made false and fraudulent representations in respect to their location, proximity to a river and railroad, their agricultural qualities, &c.; that the plaintiff, confiding in such representations, bought the land, paid for it and incurred expenses in removing his family to the same and bringing them back after he discovered that the…

<p>Appeal from the Supreme Court. Action for diverting the water of a stream called Trout run, in Arcadia, Wayne county, by means of a mill dam, whereby the plaintiff, as he alleged, was deprived of the use of the water for the supply of his brick-yard situated on his land at a point lower down the stream. The defendant erected a grist mill on the stream in the year 1836. To obtain the necessary water power he built a dam across the stream, discharging the water, after it had passed through his works, by the tail-race, at a lower level than the bottom of the original channel, and conducting it, by means of an artificial ditch running across the natural channel, in such a direction as to divert it from the plaintiff’s premises on which the brick-yard was situated. If the diversion had been entire, the channel where it passed through the plaintiff’s premises would have been dry; but at the place where the ditch crossed the former channel, four or five feet below its bottom, the plaintiff constructed an aqueduct which continued the former waterway, so that the surplus water which wasted from the dam and sontinued to run in the old channel, and that which was brought down by floods, would still flow past the point where the ditch crossed the channel, and would be available to the plaintiff for the use of his brick-yard lower down; and it was sufficient for Ms purpose, except in the dry portions of each summer, for about three years before the trial, when the plaintiff’s supply of water was deficient. On these occasions the plaintiff was accustomed to apply to the defendant’s miller to let more water run down the old channel, which request was sometimes complied with and sometimes refused. In March, 1852, which was sometime before the commencement of the action, .the banks of the stream at each end of the aqueduct were washed away, and the stream passed entirely into the ditch, and all the water was conducted away from the plaintiff’s premises. The plaintiff, at some expense, afterwards procured water by means of pumps which were used to raise it from the ditch into the old channel in which it came down to the brick-yard. The plaintiff’s claim was to recover for the diminished supply prior to this occurrence, and for the entire lack of water afterwards, and the expense of the pumps.</p> <p>It appeared that the brick-yard was formed in 1832 or 1833, and had been used for the manufacturing of bricks since that time; and that the plaintiff went into possession of it five or six years before the trial. The nature of his title, and his connection, if any, with the former possessor, was not shown. The stream passed on to and run upon the land which was in possession of the plaintiff at a convenient distance from the brickyard, and the latter had been supplied with water from the channel. In order to accumulate and retain the water for convenient use opposite the brick-yard, the plaintiff had excavated a sort of basin in' his channel, and had thrown a slight dam across it a short distance below, and upon the top of the dam had built a fence. The defendant gave evidence tending to show that the carrying off the aqueduct, in the spring of 1852, was caused by the operation of the plaintiff’s dam in hindering the natural flow of the water, and setting it back upon the aqueduct and the adjacent banks, by means of which, as it was claimed, they gave way, and the water was thereby turned into the ditch. This was answered by evidence on the part of the plaintiff tending to show that his dam had been carried away by high water the preceding autumn, and consequently was not existing when the aqueduct went off; and also to show that the timber of the aqueduct had become impaired by age, and that its destruction arose from that cause, and also from the fault of the defendant in permitting rubbish from above to float down against it. It appeared that the defendant had remonstrated against the continuance of the dam as likely to injure the defendant and carry off the aqueduct, and that the plaintiff had sometimes taken his dam down on occasions of high water. After the aqueduct was carried -away, the defendant at first promised the plaintiff to repair it; but upon being afterwards applied to by the plaintiff, he declined to do it.</p> <p>The judge charged the jury, in effect, that the plaintiff had a right to the use of the waters of the stream in their natural channel upon the premises occupied by him as a brick-yard, and was entitled to recover any damages he had sustained by being deprived of them by any act of the defendant in diverting the stream, by means of the ditch mentioned in the evidence; and that there was no proof in the case upon which to raise the presumption of a grant or license to the defendant to divert the water in the manner he had done, nor that the plaintiff entered into the possession of the briclc-yard premises in subordination to a right in the defendant to use the water in the manner mentioned. He also charged them that if the plaintiff’s dam caused or contributed to the carrying away of the aqueduct, that circumstance constituted no defence unless it also appeared that his dam was maintained at so high an elevation that if the stream had remained in its natural state some injury would have been occasioned to the banks on account thereof. The defendant’s counsel excepted to the several propositions of the charge. The jury gave a verdict for the plaintiff for $200. ' After an affirmance of the judgment at the general term, the defendant appealed here.</p>

Action to stay the foreclosure of a mortgage by advertisement and to compel the holder to receive a sum which had been tendered him by the plaintiff in full and to discharge it. The trial was before a referee, who found as facts that the plaintiff Foster executed the mortgage to one Boyce on the 23d May, 1851. It was conditioned for the payment of $2,983 with interest on or before April 1, 1854.

Action to recover $2,000 as liquidated damages for the non-performance by the defendant of a contract to convey certain land to the plaintiff. The defence was that the plaintiff had failed to assign certain mortgages, the assignment whereof was a condition precedent to a conveyance by the defendant.

Action against the trustees of the Rochester Novelty Works, a manufacturing corporation organized under the general act (ch. 40 of 1848). The complaint showed that Boody, Bitter and Huntington, were trustees of the corporation from January 1,1857, to some time in March. From and after that time Boody, Otis and Palmer became and continued trustees until December following.

Ejectment for a church. The answer denied that the plaintiffs were the trustees of the religious corporation to which the church belonged, and averred that the defendants were such trustees, and in that character possessed and were entitled to retain the custody of the church edifice.

<p>Appeal .from the Supreme Court. The action was in the nature of replevin for the taking of three hundred and twenty sheep. The answer set forth that the defendants, and several Other persons named, were possessed of a certain close upon the Shinpecock hills, ip the town of Southampton, in the county of Suffolk, and that the sheep mentioned in the complaint were wrongfully upon the said close, eating and destroying the corn there and doing damage, wherefore the defendants, and the other persons, took them as a distress, as they lawfully might, &c.</p> <p>The parties entered into a stipulation by which it was assumed that thp sheep came upon the bous. in quo by reason of a defect of fences, and agreed that the only questions to be litigated on the trial should be whether the defendants had a fight to plant corn on the premises, and whether, if they did, they were obliged Bto protect the crops by fences to be maintained by themselves.</p> <p>On the trial, the plaintiffs gave in evidence a conveyance in fee from certain Indian sachems of the Shinnecock tribe, in behalf of themselves and their people, to the trustees of the town of Southampton, of a considerable tract of land, embracing the premises in question, dated August 16, 1703; and also an instrument called a lease from the grantees in the first mentioned conveyance to the grantors, “ and their people ” of the same premises. By the last mentioned instrument, the trustees of Southampton assumed to demise, grant and let to farm the premises aforesaid to the lessees, upon the conditions and provisos afterwards expressed, for a term of one thousand years from the. date; the lessees yielding and paying the lessors annually one,ear of Indian corn.. At the end of the description of the premises, the instrument proceeded; “ meadows, marshes, grass, herbage, feeding and' pasturage, timber, stone and convenient highways only excepted; with all and singular the privileges and advantages of plowing and planting, and timber fat firing and fencing, and all other- conveniences and advantages whatsoever excepting what before is excepted, to the only use and behoof of said Indians, théir heirs'and successors, &c., provided always the said Indians do not keep nor cause to bo kept any part or parcel of the land within fence or enclosed from the last day of October to the first of April, from year to year, during the whole time aforesaid.”</p> <p>Certain paroi evidence was introduced to show the practice of the Indians and those having interests under them; from which it appeared that the premises included in the conveyances consisted in part of salt marshes or meadows, and in part of hills susceptible of cultivation, and that the Indians, and the white people who hired of them, had been accustomed to plant these hills, and sometimes to fence their cornfields and sometimes not to do it. During the season in which the sheep were distrained, the Indians, for the first time in about ten years, planted corn on the premises in several detached parcels, separate from each other, none of which were fenced. They were interspersed among the pasture land. The parcels thus planted were nineteen in all, and of different sizes. The white people have always been in the habit of pasturing the hills with cattle and sheep. It was proved by an aged witness, that they had been accustomed to do so seventy years, to his knowledge. When fences had been heretofore made around the cultivated portions, these inclosures were thrown open on the first day of November.</p> <p>At the close of the evidence the parties agreed that the jury should be dismissed, and that the judge should decide the case in the same manner as though it had been tried by him without a jury. He subsequently decided the case in favor of the plaintiff; and the judgment thereupon entered was affirmed at a general term in the second district. The defendants appealed. The case was submitted on printed arguments.</p>

Action for money had and received to the use of the plaintiffs, devisees in remainder of real estate in Buffalo under the will of Bela D. Coe deceased. Mr. Coe died seised of the Mansion House, occupied as a hotel with stores in the basement, in the city of Buffalo and other premises, having in his lifetime executed leases of the hotel and stores to various persons, which by their terms were to expire May 1,1855; the rents upon such leases being payable quarterly.

Action to enforce a liability against the defendant, under the 44th section of the act of 1847, providing for the construction of plank-roads. The trial was before a referee, who found that the defendant became, in 1850, a stockholder of the Moravia Plank-road Company, which became insolvent in September, 1852, and was dissolved in November of that year; and continued such stockholder until the dissolution.

The action was brought against the appellants and Minor C. Story.

The complaint was that on June 20, 1850, the defendant advertised for proposals for grading a portion of its railroad: that the plaintiffs made proposals, in writing, for performing the work and furnishing the requisite materials, at certain prices ( which are stated), for' the various descriptions of work and materials: that on July 6, 1850, the proposal of the plaintiffs was accepted by the defendant’s directors, and notice thereof, and that section number 67 of the road…

Action upon a written guaranty. The referee, before whom the cause was tried, found these facts: The plaintiffs, on the 1st day of July, 1852, made a contract with one White, which was reduced to writing and signed by the parties, by which the plaintiffs agreed, during one year, to sell to White such articles of hardware, from their store, as he might desire, upon a credit of one year, with interest after six months-from the time of purchase.

Action, on a verbal undertaking, that a chattel note was good and collectable, which had been delivered by the defendant to the plaintiff, in part payment for a horse, and by which the maker, one Cornell, promised to pay $125, “in a top buggy, worth the amount above stated, to be paid on the 29th day of June next; dated May 5th, 1854,” and that the same would be paid when due.

Action to foreclose a mortgage. The defendant Cady was a subsequent grantee of the equity of redemption. He averted in his answer, and-proved on the trial, that, after the money secured by the mortgage had become due and the stipulated day for payment had passed, he tendered to the plaintiff the amount due for. princi-' pal and interest.

<p>Where the actual navigation and discipline of a vessel are entrusted by the owner to a competent sailing master, the implied Warranty oí seaworthiness, in this respect, is satisfied, although another person, having no nautical skill, and who, in fact, acted only as supercargo, is named in the ship’s register as master.</p> <p>The authority of master is vested in that person to whom it has been actually delegated by the owner. The registry is prima facie evidence on that subject, but not conclusive.</p> <p>The effect of the act of Congress in relation to the registry of vessels is only to confine the benefits of an authenticated national character to such vessels as are registered in conformity to its terms. It has, of itself, no effect upon a contract of insurance, or the question of seaworthiness arising under it.</p>

The action was commenced in 1847, to recover damages against the defendants for alleged misconduct in selling a cargo of five thousand barrels of flour, which the plaintiffs had consigned to them as factors for sale at Liverpool. The plaintiffs were merchants in New York, having also a house in New Orleans; and the defendants transacted business in Liverpool, and likewise had a house in the city of New York.

Action to recover for brick sold and delivered. The trial was before a referee, .who received paroi evidence of a contract for the sale of the brick. It subsequently appearing that the contract was put in writing, the defendant moved that the paroi evidence of its tenor should be stricken out. To the referee’s refusal' to strike out the evidence, and to his refusal to nonsuit* the plaintiff, the defendant took exceptions.

Action by the assignee of one Adison Gardner for damages from the non-performance of a contract to sell and deliver a thousand bushels of barley, at forty-four cents per bushel. The barley was to be delivered at the storehouse of one Dunham, who was Gardner’s agent for the purpose of receiving and paying for the same, and was to be paid for as fast as it should be delivered.

Action by the receiver of the Hollister Bank of Buffalo, an insolvent corporation, organized under the general banking law, to recover the value of certain promissory notes transferred to the defendant by the Hollister Bank.

The complaint was, that the plaintiff, at the request of one Haines, had taken upon his dry-dock the canal boat Metropolis, and put upon it repairs to the value of $125.

Action, against the assessors of the city of Oswego, for an alleged illegal and excessive taxation of the capital stock of the plaintiff upon the tax-rolls of the city and county of Oswego, in consequence of which it had been subjected to taxes amounting to over $9,000, for the non-payment of which its property, to the value of $15,000, was sold by the collector.

Action for damages from the non-performance by the defendant of a contract for the sale and delivery of grain. Upon the trial, before Mr. Justice Watson, the plaintiffs proved these facts: On the 20th of January, 1847, the defendant sold to the plaintiffs 2,500 bushels of grain, consisting of rye, oats and corn: 800 bushels of rye at 67 cents a bushel, 600 bushels of corn at 64 cents, and 1,600 bushels of oats at 82-J- cents.

Action for diverting' a water-courge. The pleacfings are sufficiently stated in the following opinions. There was a trial, and a verdict for .the plaintiff for $25. The clerk, upon the adjustment of costs, did not allow them to the' plaintiff, but allowed costs to the defendants. This decision was reversed at special term, but, on appeal, this judgment was reversed at general term in the seventh district, and costs awarded to the .defendants.

Action to restrain the Trustees of Cold Spring from removing a fence, gateposts and ■ columns, erected by the plaintiff, across' the intersection of Northern avenue, and a contemplated extension through the plaintiff's land of Morris avenue, and from exercising any control or authority oVer such contemplated extension as a public street or highway. The defendants claimed that the grantors of the plaintiff had dedicated the land for an extension of Morris avenue.

<p>Appeal from the Supreme Court. The action was commenced in the City Court of Brooklyn against the late sheriff of Kings county, for not returning an execution which had been issued to him on a judgment for $161.23, in favor of the plaintiff against one Jenkins. The defendant levied upon sufficient property to satisfy the execution, but it was claimed by Mary Turner under an alleged sale to her by Jenkins, the judgment debtor. Upon this, the plaintiff executed to the defendant a bond of indemnity, in the penalty of $500, conditioned to indemnify and save him harmless from all actions, costs, damages, expenses, &c., in consequence of levying upon and selling the property. Mrs. Turner brought an action against the defendant, in the nature of replevin, and procured the property to be delivered to her; she executing to the coroner an undertaking with sureties, as required by the Code. The defendant excepted to the sureties, upon which others were added, who justified. The suit of Mary Turner resulted in a verdict and judgment for the defendant. The jury assessed the value of the property at $500, and the defendant’s costs were adjusted at $136.82. The judgment was for a return of the property and for the costs. The plaintiff’s attorney in'the original judgment had notice of the replevin suit, and repeatedly consulted with the attorney employed by the defendant in that suit, and advised with him as to excepting to the sureties and as to the evidence to be given on the trial. The defendant'issued an execution against Mary Turner in the replevin suit, which was returned by the coroner to the effect that he could not find the property adjudged to be returned, and that Mary Turner had not any goods, &c., whereof he could make the moneys, &c. The judgment was perfected October 27, 1854, and the return to the execution was filed on the 20th December thereafter. The present suit was commenced in February, 1856. It did not appear that any action had been commenced on the undertaking. The defendant’s counsel desired to have the jury instructed, that the suit of Mary Turner was a sufficient excuse for not .returning the execution, and that the defendant was under no obligation to prosecute the undertaking, and that the bond of indemnity rendered the parties to it liable to the defendant for the costs and expenses of the replevin suit, and these he sought to recover by way of counterclaim—that claim having been set up in the answer. The City Court declined to give these instructions, but, on the contrary, charged, the jury that, as the defendant had levied on ■sufficient property to satisfy the execution, it was for him to show a sufficient excuse for not having returned it; that the .return of the execution against Mary Turner unsatisfied did not, of itself, furnish such an excuse, inasmuch as the defend- , ant had failed to show what, if anything, he had done towards enforcing the undertaking which was an equivalent for the property levied on. The defendant’s counsel excepted to the refusal to charge, and to the charge as given. Verdict for the plaintiff, for the amount of the unpaid judgment, with interest. Upon an appeal to the Supreme Court, the judgment of the City Court was reversed, and a new trial awarded. The plaintiff appealed here, giving the stipulation required by the Code.</p>

Action by indorsee against indorser on a promissory note. It was dated New York, October 24, 1854, and was -for $1,300, payable at the Broadway Bank, at three months, to the order of the defendant. The only question was, whether the defendant had been regularly charged as indorser. The note matured January 27, 1855, which was Saturday.

For the purpose of a review in this court, a statement of facts was prepared and filed with the judgment roll, according to the requirement of the Code of Practice (Code of 1858, § 388). The following principal facts appeared from that statement; The plaintiff and defendant were banks doing business in the city of Utica, the former under a special charter passed in 1836, and the latter having been organized as an association under the general banking law of 1838.

<p>Appeal from the Supreme Court. Action for changing the course of a stream, and flooding the plaintiff’s land. Upon the trial, at the Otsego Circuit, before Mr. Justice Crippen, a jury having been waived, these facts appeared: On the 27th March, 1850, Ovid Chesebro owned forty acres of land on Elk creek, through which there was a small brook running. In its natural course it would have run over half an acre of low ground, which Chesebro on that day conveyed to the plaintiff for a building lot, and upon which the plaintiff immediately thereafter erected a house and barn. Some ten years previously, the owner of the forty acres had diverted the stream through an artificial channel, carrying it into Elk creek in such a manner as not to flow over the plaintiff’s land. On the 1st of April, 1850, Chesebro conveyed the residue of the forty acres to the grantor of the defendant. In 1854 the defendant dammed up the entrance to the artificial channel, so as to cause the stream to run in its original bed and to overflow the plaintiff’s yard, which was the injury complained of. The judge ordered judgment for the defendant, which having been affirmed at general term in the sixth district, the plaintiff appealed to this court. The cause was submitted on printed arguments,</p>

Action in the nature of quo loarranto against the defendants for assuming to be, and acting as, a corporation, without authority of law.

<p>^Appeal from the general tferm of the Supreme Qour^ j[n the fourth -district, where a judgment upon a verdict in favor of the plaintiffs had been affirmed. This was an action upon a promissory note, dated the 17th August 1855, whereby the defendant promised to -pay to the plaintiffs, the sum of $467.88, five months after date, at the Washington County Bank. The defence was a failure of consideration.</p> <p>The answer averred that the defendant purchased of the plaintiffs a quantity of circular saws, for the price of which the note in question was given; .that the plaintiffs warranted them to bo “ good saws and of good quality and a breach of the warranty. On the trial, the defendant offered to prove that he ordered the saws for a special purpose, which was communicated to the plaintiffs; that one of the saws ivas unsound and worthless, by reason of softness, and otherwise defective; and was returned to the defendant. *Tlie learned judge admitted the evidence, except so far as it was proposed to prove that the saw was manufactured for a special purpose. Evidence was then given that one of the saws ivas soft and worthless, either from defects in the material, or from want of being properly tempered; and the defendant's counsel claimed to go to the jury upon this evidence. The judge, however, directed them to find a verdict for the plaintiffs; and the judgment entered thereon having been affirmed at general term, the defendant took this appeal.</p>

Action on a bill of exchange by indorsee against acceptor. The bill purported to be drawn by H. L. Webb, on, and to have been accepted’by, the defendants, under the name of O. B. Howe & Co.; and it was made payable to the drawer’s order, and was indorsed by him and by James L. Dewey and Adon Smith. It was for $1,200, at ninety days, and was dated June 9, 1855. The defendants took issue on the drawing and accepting of the bill, and also set up the defence of usury.

Action in the nature of quo ivarranto, to try the defendant’s title to the office of trustee of common schools, for the twentieth ward of the city of'New York. Upon the trial, it was conceded, the question turned upon the number of votes received by the relator in the third election district.

Upon the trial, the defendant moved for a nonsuit, on the ground that the plaintiff had not proved its incorporation, upon which an express issue had been made by the pleadings. The specific point of the objection was, that there was no evidence that the Governor of Ohio had issued his proclamation declaring it a corporation, as required by the laws of that State. The nonsuit was denied, and the defendant excepted.

On the trial, the plaintiff proved these facts: Frederick Warhus, the appellant’s intestate, on the 20th December, 1852, opened an account, by a deposit with the respondent, a bank for savings in the city of New York.

* Appeal from the general term of the Superior Court of the city of New York, where a judgment of nonsuit had been affirmed. (Reported below, on a former trial, 5 Duer 67.) This was an action by Henry F. Warhus, administrator of Frederick Warhus, deceased, to recover a balance of $198.68, which appeared on the books of the Bowery Savings Bank to have been due to the intestate, at the time of his decease.

Action upon a promissory note, set out in the complaint as follows: “ $500. Po’keepsie, Aug. 20, 1853.

The complaint was upon a promissory note for $467.88, payable to the plaintiffs, at the Washington County Bank, five months from date. •The defendant, in his answer, alleged that, in 1855, he pur chased of the plaintiffs a quantity of circular saws, for toe purchase price of which the note set forth in the complaint was given; that, at the time of the purchase, the plaintiffs “warranted said saws to be good saws, and of good quality,’’' and he averred that the saws were “…

The answer purported to set up the defence of usury in this manner:- It stated that “about six months” prior to the date of the note in suit, Eaynor made a note for the same amount payable in three months: procured Tyler to indorse it for his accommodation, “which said note Was got rip for the purpose of enabling said Eaynor to raise the money thereon;” that Eaynor “ thereupon applied to the plaintiff to loan him the money on said note for said three months, and the said…

<p>Where there is a valid trust for the sale of land, the party creating the trust and those holding derivative titles under him, have no rights legal or equitable until the purposes of the trust are satisfied.</p> <p>Their interests are subject to the execution of the trust absolutely; so that a subsequent grantee, from the creator of a trust to sell for the payment of debts, acquires no right to redeem the land.</p> <p>The decision in this case (20 N. Y., 16) corrected accordingly.</p>

<p>Writ of Error to the Supreme Court. The defendant below was convicted of arson in firing ,a barn, at the . Greene Circuit; and the judgment having been affirmed at general term, he removed the case to this court for review. The facts are sufficiently stated in the opinion of the court.</p>

Indictment for arson in tiring a barn, tried at the Greene Circuit, where the prisoner was convicted. The judgment having been affirmed at general term in the third district, the defendant appealed to thi court.

<p>Upon receiving a grant of land the grantee "executed an agreement, not under seal, to support and maintain the grantor, pledging for that purpose the produce of the land, and should that prove insufficient, appropriating the entire fee. This agreement being the consideration of the grant, toked effect as an equitable mortgage of the land.</p> <p>The grantee becoming insolvent and unable to perform his contract to maintain the grantor, reconveyed the land partly for the purpose of thus providing for the support of the grantor and partly to hinder and delay creditors: Held, that a judgment creditor purchasing the land, upon sale on execution, took subject to the equitable mortgage.</p> <p>Under the practice established by the Code, the equitable mortgagee is entitled to prevail against an action to recover the possession of the land by the purchaser; the remedy of the latter is by suit to redeem from the mortgage and for an accounting if necessary.</p>

The plaintiffs brought their action, as judgment creditors of the firm of Crocker & Staples (consisting of the defendants, Jonathan D. Crocker and Abraham Staples), to have set aside, as fraudulent and void, an assignment in trust for creditors, giving preferences, executed on the 17th June, I860, by said firm to the defendants William P. Bobertson and John S. Crocker.

The relators sued out a certiorari, for the purpose of reviewing an order of the County Judge of Suffolk County, whereby he reversed an order of the commissioners of highways of the town of River-head—refusing to lay out a highway in that town, pursuant to a petition of twelve'freeholders—and proceeded to lay out such highway.