Volume 22 — Barbour's New York Supreme Court Reports

THIS cause was tried before Mr. Justice Wright, at the Albany circuit in November, 1852. The acti^p was upon a policy of insurance in the sum of $10,000, effected on his own life by Conrad Schumacher, late a liquor mérchant of the city of Albany.

<p>On the 10th of September, 1850, B. executed a mortgage to C. to secure the payment of $4,500 and interest, on four blocks of land in the village of Yonkers, bounded and described by the outer limits of the whole together, and also as lots 1, 2, 33, 34. This mortgage became due, according to its condition, by a default iu the payment of interest. On the 23d of September, 1853, B. the mortgagor, and his wife, conveyed to Gr. B. by deed dated August 30th, but not acknowledged until September 22d, 1853, four lots, Nos. 95, 96, 97 and 98, part of the original lot No. 33 included and described in the mortgage previously given to 0. By this deed these four lots were to he subject to $640 ■ of the 0. mortgage. This deed, though actually delivered about the time of its acknowledgment, was not recorded until February 27, 1854. On the 25th of Jammy, 1854, B. and wife executed two mortgages to the plaintiffs, both dated December 2,1853, and recorded January 27,1864. One of these was given for $6000 upon the original lots 1 and 2, embracing 14 of the small lots, Nos. 81 to 94 inclusive. The other was for $4000, and was upon all of the original lots 33 and 34 to which B. then held title; i. e. all of those lots except the subdivision lots Nos. 95, 96, 97 and 98, which had been sold and conveyed to Gr. B. In March, 1854, B. and wife executed a mortgage to McK. for $2000, upon these lots Nos. 95, 96, 97 and 98, and also upon another lot. The plaintiffs took an assignment of B.’s first mortgage to C., and brought a suit for the foreclosure of all three of the mortgages executed by B. The amount due on these mortgages not being disputed, the only question was as to the order in which the various lots should be sold, or their proceeds applied to satisfy the incumbrances.</p> <p>Held, 1. That the plaintiffs became purchasers of an equitable interest in all the residue of the lands mortgaged by B. to C., including lots 95, 96, 97 and 98, and as to that interest, viz: the right to have the first mortgage charged on those lots, that the conveyance to G. B. was void because it was not recorded.</p> <p>2. That the mortgagee 0. and his subsequent grantees, or persons standing in that relation—as G. B. and his mortgagee McK.—were entitled to the benefit of any probable or possible surplus after applying the proceeds of that portion of lots 95,. 96, 97 and 98 included in the mortgages to the plaintiffs, to satisfy those mortgages.</p> <p>The decree therefore provided for the sale, first, of the land embraced in the mortgage from B. to C., except the lots 95, 96, 97 and 98, and for the sale of this in two separate divisions, according to the two second mortgages held by the plaintiffs. After reserving the amount of these two second mortgages, each out of the proceeds of its own parcel of these lands, the residue was directed to he applied to the satisfaction of the original 0. mortgage. And if the residue of such proceeds, after deducting the amount of the second mortgages, should not be enough for that purpose, then, and before applying the amount reserved for the two second mortgages, the lots Nos. 95, 96, 97 and 98 wero ordered next to be sold and the proceeds applied, and then the proceeds of the other parcels retained were to be applied ratably, to satisfy the 0. mortgage. If any thing should remain, after this was paid, each parcel was to be charged with its own mortgage. And if there should be a surplus, after satisfying the three mortgages held by the plaintiffs, in the order and manner of applying the proceeds of the various parcels, as before directed, it was ordered to be brought into court for a proper distribution.</p> <p>The right which a grantee with warranty of a portion of mortgaged premises has, to have the mortgage satisfied first out of the part remaining unsold, is an equitable and not a legal right; and therefore, any rights which the holder of the first mortgage on the whole premises may have, are not affected, nor are any obligations imposed on him, unless he has notice of the subsequent partial alienation.</p> <p>The holder of the first mortgage has two funds for the payment of his debt—the portion of the mortgaged premises sold and conveyed, and the residue remaining in the mortgagor—to either of which he may resort.</p> <p>The mortgagor having aliened a part, covenanting to protect his grantee against the mortgage, the grantee becomes a surety for the mortgage, as to the portion of the premises conveyed to him. He has a right, therefore, as against the mortgagee, to insist that he shall not deal with the lands not aliened, which are by the covenant of the mortgagor with him the primary fund for the payment of the debt, so as to increase his own liability, or diminish that fund; provided however, the mortgagee have notice of the facts out of which these equities arise.</p> <p>An insurance company, taking mortgages subsequent in date to an unrecorded deed of the same premises embraced in the mortgages, will not be charged with constructive notice of such deed, bj7 the fact that the grantor and mortgagor was, at the date of the deed, and at the time of executing the mortgages, a director in the insurance company.</p>

<p>Where the makers of a promissory note, within six years before suit is brought thereon, and before a suit is barred by the statute of limitations,' assign their property to trustees, in trust for the benefit of creditors, and direct them to pay such note, among others, in full if there shall be sufficient property, and if not, then to pay a ratable dividend upon it, with other debts, and the assignees in pursuance of such direction, make a dividend of fifty per cent upon the note, and pay the amount to the holder, this payment will be treated as the act of the makers themselves, by their agent duly authorized for that purpose, and as evidence of a new promise by them to pay the note.</p> <p>A payment made by a part of the joint and several makers of a promissory note, within six years before suit is brought thereon, and before a suit is barred by the statute of limitations, will not revive the debt, as to the other makers.</p>

Upon the hearing of the motion, . it was shown affidavit on the of the plaintiff, that . it was shown by affidavit on the part of the plaintiff, that on the 16th of January, 1855, the plaintiff was duly appointed chief of police in the police department of the city of Albany for the term of three years, and that he entered upon, and has ever since continued to dicharge the duties of the office ; that a charter election for said city was held on the second Tuesday of April,…

MOTION by the defendant for a new trial. The- action was brought by the plaintiff as assignee of Louis Barron, to recover the sum of $150, alleged to have been won by the defendant, from Barron, on a bet or wager upon a horse race at Saratoga Springs, in September, 1853. The money was deposited by Barron with a stakeholder, who paid the same to the defendant. The cause was tried at the Monroe circuit in October, 1855, by Mr. Justice Johnson.

ÁN application was made to the surrogate by Whitbeck, executor, and others, legatees, to prove the will of William Patterson. Orrin Patterson, the respondent, contested its validity, and the surrogate, refused to admit it to probate. The applicants appealed to the supreme court, and that court reversed the decision of the surrogate, directed the will to be admitted to probate, and ordered the costs of the contestant to be paid out of the estate. These costs were paid.

MOTION by the defendants for a new trial, upon a case. The action was against husband and wife, for slander uttered by the wife.

THIS action was tried at a circuit court held by Mr. Justice Gray, in Broome county, in October, 1855. The plaintiff was nonsuited. He now moved for a new trial upon a case and exceptions. The facts sufficiently appear in the opinion of the court.

The action was brought before a justice of the peace, where the plaintiff complained of the defendant as follows : “ That said defendant, on or about the 8th of June, 1824, with force and arms, to wit, at Lenox, made an assault upon the horse of said plaintiff, while said horse was attached to a buggy wagon of plaintiff, and while plaintiff was in said wagon, by willfully and maliciously striking, whipping, beating and pounding said horse with a whip and hoe; and greatly…

I 1ST this case the plaintiff had lived on unpleasant terms with his wife, who is the sister of the defendant, and his wife had quit him in consequence of alleged ill treatment, and refused longer to live with the plaintiff.

<p>Since the code, an assignee takes precisely the same interest, on the assignment of every species of demand, either at law or in equity, as he did before.</p> <p>Hence if the demand is such as was capable of assignment before the code was adopted, so as to carry an equitable interest to the assignee, it is such a demand as will now pass by assignment, so as to give the assignee a right of action thereon.</p> <p>Claims for mere personal torts, which die with the person—such as slander, assault and battery, false imprisonment, crim. con., seduction and the like—are not assignable; but claims for taking and converting personal property, or for injury to personal property, and it seems, generally, all such rights of action for a tort as would survive to the personal representatives of the party, may. be assigned, so as to pass an interest to the assignee, which he can assert in his own name in a civil action under the code, as he formerly might do in the name of the assignor, at law.</p> <p>Service of notice of the intended examination of an assignor, as a witness, in a justice’s court, cannot be made upon the attorney of the opposite party, before such party has appeared, and before issue has been joined, in the action.</p> <p>Whether service of a notice of that character, upon the attorney of a party, is good in any case 1 Qucere.</p>

The papers upon which the motion was founded stated, that at the general election of judges, held in November, 1855, the relator (Charles A. Peabody) was voted for by the electors of the First… Held: used, and exercised the office, and continued to do so.

<p>MOTION by the defendants, Ainsworth & Hunt, to vacate an injunction order. The facts appear in the opinion of the court.</p>

THIS was an action commenced in a justice’s court, to recover the sum of $3 for transporting the defendant in the plaintiffs’ cars from Rouse’s Point to Madrid Station. The defendant had a ticket, purchased by him from the receiver of the Hudson River Rail Road Company, for one passage, from Rouse’s Point to Ogdensburgh; of which the following is a copy: “ One passage. Rouse’s Point to Ogdensburgh. Kendrick, receiver Hudson R. R. R. N. T. to Ogdensburgh.” Stamped June 1.

The complaint was on a note of hand for $65, dated Eov. 19, 1852, on which $20 had been paid. The answer set up, by way of recoupment, that the note was given by the defendant to the plaintiff for a pair of horses, which the plaintiff had sold to the defendant and had warranted to be sound, and of the ages of 10 and 11 years and no older, when in fact they were 20 years old at the time.

<p>In an action brought in a justice’s court, to recover penalties for violations of the excise law, it is a sufficient indorsement of the summons if it states that such summons is issued “ according to the provisions of title 0, part 1, chapter 20 of the statute of Excise and the regulation of taverns and groceries.y</p> <p>A justice of the peace has authority to allow a constable to amend bis return to a summons. And the refusal of the defendant to appear, will not deprive the justice of this right.</p> <p>The power of amendment docs not depend upon the appearance of the defendant in the suit.</p> <p>The provisions of the code, respecting amendments, are in addition to those in the revised statutes. They are not inconsistent with each other, and both remain in force.</p> <p>Whether a service upon the defendant of a copy of the indorsement on the summons is necessary 1 Qucsre.</p> <p>After two overseers of the poor have united in commencing an action, and in the employment of counsel to appear in their joint behalf, to prosecute it, one of them alone, without the consent or concurrence of the other, has no power to discontinue the suit.</p> <p>The act of withdrawing such suit involves the exercise of judgment and discretion—in ether words, is a judicial act—and it cannot be done without the conjoint act of both the plaintiffs, determined upon while they are conferring together.</p> <p>Where power is delegated for a mere private puipose, all the persons (if more than one) upon whom the authority is conferred must unite and concur in its exercise. In cases of the .delegation of a public authority to three or more persons, the authority conferred may be exercised and performed by a majority of the whole number. If the act to be done by virtue of such public authority requires the exercise of discretion and judgment—i. e. if it is a judicial act—the persons to whom the authority is delegated must meet and confer together, and be present when the act is performed; or at least a majority must meet, confer, and be present, after all have been notified to attend.</p> <p>If there are only two to whom a public authority is delegated, it necessarily follows that nothing can be done without the consent of both.</p>

THIS action was tried before Judge Cady, at the Warren circuit, in May, 1851. It was commenced on the 28th of July, 1849.

The suit was commenced before a justice of the peace, who rendered a judgment in favor of the defendant for $1,25. This judgment was reversed by the county court, on appeal.

HODGES, the plaintiff, sued the defendant Hunt before a justice of the peace on a promissory note signed by the defendant, for $19.50, dated April 26,1854. The defendant put in an answer setting up the defense of infancy. There was no reply ; and the plaintiff made no application to amend his complaint. On the trial the plaintiff proved the execution of the note, and the defendant proved that he was under 21 when he signed the note.

THIS action was commenced in April, 1854, to recover damages for the non-performance of a contract made on the 20th of August, 1852, by the defendants, with Gardinier & Van Denburgh, in which the defendant sold and agreed to deliver to Gardinier do Van Denburgh, at their lumber yard in Fultonville, 30,000 merchantable spruce plank, sawed at their mill in Stratford, Fulton county, two-thirds at least of which to be 9 and ten inches wide, for which Gardinier do Van Den-burgh…

THIS was an appeal from an order' made by Justice 0. L. Allen, at a special term, granting leave to the defendant Slade to put in a supplemental, or a new answer, to the bill. The suit was commenced in April, 1832, in the late court of chancery, to foreclose a mortgage given by Jacob Becker, on the 20th of August, 1803, on premises now owned by Slade. Becker and the other owners of the mortgaged premises were made parties to the suit.

OTION by the plaintiff for a resale of premises sold under a judgment in partition. The lands sought to be partitioned were situated (being several distinct parcels, and embracing a tannery,) in the counties of Fulton and Hamilton. They belonged to the plaintiffs and the defendant Laraway, and to the widow and heirs of Isaac Van Valkenburgh, deceased. The heirs of Isaac Van Valkenburgh were infants, and appeared in the action by William Wait, their guardian ad litem.

PROCEEDINGS upon habeas corpus, instituted by the relator, to obtain the possession and custody of her infant daughter. The facts are set forth in the opinion below.

APPEAL by the defendants from a judgment rendered at; a special term, after a trial at the circuit. The action was for the recovery of the possession of a house and lot, now known as No. 193 Fulton street, in the city of New York, but formerly known as lot No. 32 Partition street.

<p>The defendants having a claim against the United States government, for the refunding of duties erroneously collected of them, upon molasses and sugars imported by them, the plaintiff proposed to recover and cause any excess of duties so paid, to be refunded, upon his receiving for his services and expenses one half of the same, or, at the option of the claimants, a reasonable compensation to be afterwards agreed upon; he agreeing to save the defendants harmless " from all costs and liabilities to costs,” and to charge his commission only “ on whatever sum or sums of money he might recover fpr them.” The defendants, among others, agreeing to the plaintiff’s proposal, they signed a stipulation to that effect, writing opposite to their signatures, however, the words “ not to interfere with any other arrangement already made.” The defendants had previously employed D. & 0. to prosecute the same claim, who were then actually engaged in the business, and' whose influence and exertions contributed largely to the result. The claim having been allowed, and a large < sum of money refunded to the defendants : Held, that the plaintiff was not entitled to recover fifty per cent upon the amount refunded.by the treasury, with interest and without deduction; and that it was erroneous to charge the jury that, in fixing the defendants’ liability, they were not to take into account the amount paid by the defendants to D. & 0. who were previously employed to prosecute the claim.</p>

THIS 'action was brought to recover the value of a quantity of firewood, alleged to have been sold and delivered by the plaintiff to the defendants.

THIS was an appeal by the defendants from a judgment of the Ontario county court. The action was commenced before a justice of the peace.

THIS was a case agreed upon by the parties for submission to the court, without action, under section 372 of the code. The tiontroversy related to the proper mode of applying the income of the poor-house farm of Monroe county, in support of the poor therein, whose support is made a public charge.

The plaintiff in his complaint alleged that he was the owner in fee simple, and entitled to the possession of a certain parcel of land in the village of Port Byron ; that the defendant was in the actual possession of said premises, claiming title thereto or some interest therein, and that he unlawfully and wrongfully withheld the possession thereof from the plaintiff, and the plaintiff demanded judgment for the surrender of the possession of said premises with $250 damages,…

PPEAL from a judgment entered at a special term, after a trial at the circuit, before the court, without a jury. The action was brought to recover the possession of real estate. The answer of the defendant denied that the plaintiff had lawful title, as the owner in fee simple, to the premises in question. The defendant admitted that he was in possession, but denied that he unlawfully withheld possession from the plaintiff.

IH these suits and in several others, actions were commenced in the Monroe county court, and -judgments recovered and docketed therein, from which appeals were brought to this court.

MOTION by the defendants for a new trial, upon a case. The action was commenced against the defendants as common carriers, and the complaint contained three counts. 1. For injuries resulting from a delay in transporting over the defendants’ rail road from Albany to New York, eighty sheep, by which delay the sheep were injured and the plaintiff sustained damage by a decline in the market. 2.

<p>Any person interested in the use and enjoyment of the water of a running stream is entitled to receive it pure and uncontaminated; and he may maintain an action for any special injury sustained by him in consequence of the corruption of the water by any other person.</p> <p>Accordingly, where the plaintiffs, who were carpet manufacturers, oocupied premises situated on the 0 wasco river, and had the right to use the waters of the river for supplying their works, and the defendants, who were engaged in manufacturing gas upon and near said stream, above the plaintiffs’ works, suffered to flow from their gas works into the river certain noxious and offensive substances and materials, and certain tarry and oily substances, which became mingled with the water and adulterated the same as it flowed to the plaintiffs’ works, and injured the wool and other materials used by them, it was held, that this was an injury for which an action would lie, by the plaintiffs.</p> <p>And this, notwithstanding the defendants claimed exemption from damages and liability on the ground that the soil on which their gas works were situated was incompact and pervious, and was percolated by the water of the river, without their agency or fault; and that if any noxious substances had flowed from their works into thb river it had been by the percolation of the water into the ground occupied by them, and the reflux of said water into the river intermixed with such offensive substances as escaped from the gas works into the ground, in the ordinary course of business, and without any neglect or design of the defendants.</p> <p>Gas works, it seems, are to be placed in the class of erections which are not within the ordinary and usual purposes to which real estate is applied; and whenever they create a special injury they are to be regarded as a private nuisance, and an action will lie in favor of the person sustaining the special injury.</p>

PPEAL by the defendant, from a judgment entered at a special term.

THIS was an action for the dissolution of a joint stock company and for an accounting among the associates. After issue it was referred to a referee to take and state an account between the parties and report the same, with the proof, to the court.

APPEAL by the defendant from a judgment entered at a special term, upon the report of a referee. The action was brought by the plaintiff, John Wolcott, as assignee of “Jones Wolcott,” to recover for work and labor performed by the latter for the defendant, in running a canal boat for him, during the season of 1848.

<p>Where an action was originally commenced in a justice’s court, and the defendant put in a plea of title there, and gave the undertaking required by sec. 56 of the code; whereupon the action before the justice was discontinued, and a new action for the same cause was commenced in the county court, by a summons and complaint in the usual form, and the defendant appeared and put in an answer denying the material matters stated in the complaint; Held, that the appearance of the defendant and putting in an answer by him without objecting that the jurisdiction of the county court did not appear from the summons and complaint, was to be deemed a waiver of that objection, and an admission that the case was within the jurisdiction of the court.</p> <p>Held also, that the rule that the jurisdiction of an inferior court must appear upon the record, does not necessarily require that it be set out in the complaint and summons in such a case. .</p> <p>If the plaintiff, on recovering at the circuit, in an action thus commenced, makes up a judgment roll, containing all the papers and proceedings from the commencement of the suit before the justice to the final judgment in the county court, as he is entitled to do, under the 281st section of the code, the record wifi show the jurisdiction of the county court, upon its face.</p> <p>Hence, a summons and complaint in the ordinary form, without any recitals or averments conferring or showing jurisdiction, are a sufficient compliance with the statute, and the jurisdictional facts aliunde can properly be proved on the trial, or presented to the court with, or as a part of, the pleadings, like an offer under sec. 368 of the code.</p> <p>Although consent cannot confer jurisdiction, yet where the court has jurisdiction of the subject matter, consent will dispense with recitals or statements in the pleadings, in matters of mere form.</p>

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

<p>Where gravel was given to the public, by the plaintiff, and was delivered to and applied by the defendant as overseer of highways, in repairing the road; Held, that no action would lie against the defendant for the value.</p> <p>A permission by parol, from the owner of the gravel, in such a case, is sufficient to protect the defendant from liability; a parol license to enter upondand and remove a part of the soil, being a complete justification of acts done under it.</p> <p>Where, in an action for gravel sold and delivered to the defendant, it was proved that in 1853 and 1854 the plaintiff and others, all acting under the direction of the defendant, went on land in the plaintiff’s possession, and took gravel fi'om the same, and put it on the road; that in 1853, before the gravel was drawn, the plaintiff told the defendant he could go there and get gravel to draw on the road; and it was inferrible from the evidence that the defendant was overseer of highways, and acting as such; Held that the license was to be construed as authorizing the taking of the gravel without compensation, and that such license was not limited as to time, but continued until 1854, or would be implied, under the circumstances ;■ and that consequently the plaintiff was not entitled to recover.</p>

THIS action was brought to recover possession of States 100 acres of lot 44, Ovid, commenced August 1, 1854. Held: had not been seised or possessed within 25 years. 4th. That A. J. Cutler, and those under whom he held, had held adversely for more than 25 years, and the deeds under which the plaintiffs claimed were therefore void. 5th.

PPEAL by the defendant from an order made at a special term, overruling a demurrer to the complaint.

APPEAL by the plaintiff from a judgment entered at a special term, allowing a demurrer to the complaint.

k PPEAL, by the defendants, from a judgment entered upon £A. the report of a referee. The complaint alleged that on the third day of February, 1849, at South Bristol, in the county of Ontario, the defendants made and executed and delivered to one John Van Buskirk a certain instrument in writing, bearing date on that day, in the words and figures following: “ South Bristol, Feb. 3d, 1849.

THIS was an appeal from a decision made at a special term, overruling a demurrer to the complaint. The opinion below states the facts.

The assessment of a school tax was made by two trustees, the third trustee not being present. After the two had made the assessment, and made out the warrant and signed it, the- warrant was carried by one of them to the third trustee, and he signed it. The plaintiff’s property being seized and sold upon the warrant thus issued, he brought an action against two of the trustees for the trespass.

THE reporter has not been furnished with any papers in this case, from which to prepare a statement of the facts. It is .believed, however, that the opinion of the court states all the particulars necessary to an understanding of the decision.

THIS was an application for a peremptory mandamus to com- ■ pel the defendants to proceed in the matter of the widening of Fulton street in the city of Brooklyn, and to complete the same. The facts are fully stated in the opinion of the court.

This action was brought by Apollos R. Wetmore, Howell Hoppock, Robert L. Stuart, and Alexander Stuart against Miner C. Story, William Radford, and James Murphy. Its object was to restrain the construction of a city railroad in front of premises owned by the plaintiffs. The facts in the case are fully stated in the opinion of Mr. Justice Strong. The cause was tried before Mr. Justice Cowles, at special term, who rendered a decision dissolving the temporary injunction.

MANDAMUS to compel the defendant, as clerk of the marine court in the city of New York, to issue an execution upon a judgment of that court.

The action was brought to recover damages for alleged injuries to the plaintiff’s dog, inflicted by the defendant’s dog, in a fight, in consequence of which the plaintiff’s dog died.

OTION by the defendant for a new trial, upon exceptions. The substance of the complaint was, that the plaintiff was a house holder and resident in a school district in the town of Cheektawaga, in Erie county; that the school district owned and possessed a large school district library; that by the regulations made, each and every of the inhabitants of the district was entitled to free access to the library, and to take and carry away and read—subject to certain regulations,…

<p>In an action upon a guaranty indorsed upon a promissory note, it is not ne* cessary to prove, by witnesses, the signature of the' maker of the note. This is sufficiently proved, as against the guarantor, by proving his execution of the guaranty.</p> <p>Where it is proved that the plaintiffs were partners in business two or three years since, and there is no evidence of any change, or dissolution of partnership, the presumption is that they are still partners.</p> <p>When a guaranty is written upon a note, and the note is transferred, the sale and delivery of the note with the guaranty upon it, furnishes prima facie evidence of a sale of the contract of guaranty. And the possession of the note and the guaranty is prima facie evidence of a right, in the holder, to the guaranty, and will authorize him to maintain an action thereon, unless it be shown that the contract of guaranty was not transferred, at the time the note was transferred.</p> <p>Where a guaranty is expressed to be " for value received,” the consideration is sufficiently expressed to satisfy the requirements of the statute of frauds.</p>

VHIS action was brought to recover the amount of a reward offered by the defendant, sheriff of Erie county.' .The • offer was published as an advertisement, thus : “ Two hundred and fifty dollars reward is hereby offered for the discovery and apprehension of the person or persons who murdered John Brown, in the town of Alden, in this county, on the evening of the 21st instant. Dated Buffalo, Dec. 24, 1852.

<p>A levy upon sufficient personal property is not per se a satisfaction of the judgment.</p> <p>An execution issued upon a justice’s judgment directs the constable to levy, of the goods and chattels of the defendant, the amount of the judgment. There is no restriction upon the officer as to the amount of property he shall take; nor is he required to levy upon all the property at the same time.</p> <p>He may, therefore, after having levied upon sufficient property to satisfy the execution, levy upon other property, at a different time, and sell it, without making himself liable as a trespasser.</p>

The action was upon a contract to insure against loss by fife. The referee stated in his report the facts found by him. The case also contained a statement of the evidence and exceptions. The facts appearing and the questions raised, are sufficiently stated in the opinion of the court.

<p>The plaintiff, being the owner of a raft of saw logs, lying at Port Maitland, Canada, made a contract with the defendants, who were the owners of a steamboat, by which it was agreed that the defendants would come to Port Maitland on the next Tuesday morning, with the steamboat, and would proceed up the river about five miles to D. and there land her passengers, and immediately return to Port Maitland and take the plaintiff’s raft in tow and tow it to Black Bock, a distance of about 40 miles, which the steamboat could traverse in about fourteen hours, with the raft in tow. The usual time for the arrival of the steamboat at Port Maitland, upon her trips up, was 3 o’clock in the morning, and it generally took about two hours to proceed to D.. land her passengers and return to Port Maitland. On Tuesday morning the weather was fair and the lake and river were calm, and so continued through the day. But the boat failed to call for the raft, according to the agreement. In the evening, at about sunset, she returned, and took the raft in'tow, for Black Rock. During the night a storm arose, and the raft went to pieces and was scattered along the shore. Held that, had the defendants entered upon the performance of their contract at the time specified, and used proper diligence in attempting to perform it, the plaintiff would have taken all the risk of storms or other casualties. But that, as the defendants delayed for some 14 hours to enter upon the performance of the contract, and as such delay resulted in the raft being overtaken by the storm, the defendants were responsible for the consequences. That when they took the raft in tow in the evening instead of the morning, as agreed, they took the risk of any storm that should arise after a sufficient time had elapsed for towing the raft to Black Rock if they had commenced the towing in the morning.</p> <p>Held also, that the plaintiff had the right to fix the time in the contract; and to make it an essential part of the contract. That considering the dangers of navigation upon the lake, and the peculiar nature and condition of the plaintiff’s property, he might determine when the voyage should commence, and make a special agreement to that effect. And, that upon the non-performance of the agreement, at the time specified, the party in default was liable for the damages resulting from causes which would not have arisen, had the agreement been performed.</p> <p>A few days after the raft was thus broken np bj' the storm, the defendants agreed that if the plaintiff wrould collect the logs together, into rafts fit for towing, the defendants would take the logs in tow and tow them to Black Rock; Held that the expenses necessarily incurred by the plaintiff in collecting the logs and forming them into rafts, might be taken into the account, in estimating the damages arising from the breach of the contracts.</p> <p>If property is exposed to imminent danger, it is not a violation of the statute prohibiting labor on the sabbath, to preserve it on Sunday, and remove it to a place of safety.</p>

APPEAL by the defendants from a judgment rendered at a special term, adjudging void an assignment made by the defendants, S. Y. Talcott and Henry H. Hale, to the defendants, George Talcott and Andrew T. Hale, for the benefit of the creditors of the assignors. The case is sufficiently stated in the following opinion.

PPEAL from a judgment entered upon a verdict. The questions came up upon exceptions taken on the trial. It was alleged in the complaint that the defendants were common carriers between Lewiston, in New York, and Battle Creek and Kalamazoo, in Michigan.

THIS was an appeal from a judgment entered upon the report of a referee, bringing up certain exceptions taken upon the hearing. The action was for converting a quantity of unthrashed wheat and straw of the plaintiff. The answer denied every allegation in the complaint; claimed property in the wheat and straw in the defendant, and also a license from the plaintiff to take it. The referee made his report in favor of the defendant, upon which judgment was entered.

HIS was an appeal from a judgment of the county court of Genesee county, reversing a judgment of a justice’s court. The action was brought in the justice’s court, in February, 1853, by Van Rensselaer Terry against the rail road company, to recover damages for killing a horse. In his complaint the plaintiff alleged that the defendants were a rail- road company, existing and transacting business under the statutes of this state.

PPEAL, by the defendants, from a judgment entered upon the report of a referee.

THIS action was commenced before a justice of Chenango county, against the defendant, who was a resident of Madison county, to recover back the sum of about forty dollars which it was claimed that the defendant, who was an attorney, had taken from the plaintiff, by charging illegal fees in certain bills of costs which he had collected of the plaintiff. The gravamen of the complaint was in tort.

<p>Where individuals claiming that an insurance company was organized and only authorized to do business as a mutual insurance company, and upon the plan of mutual insurance, and that policies issued to certain persons in consideration of a premium paid in cash, and upon the principle of insurance for cash premiums, were unauthorized and void as contracts of the company, brought an action, as the makers of a premium note held by the receiver of the company, to restrain him from assessing, or collecting of them, any amount for the payment of losses upon policies effected in consideration of a cash premium, or from applying any of the assets of the company to the payment of such losses, and for an accounting by the receiver; Held, that the creditors of the company had an interest in the controversy, adverse to the plaintiffs, and were necessary parties defendants.</p> <p>If such an action is brought against the insurance company, "and its receiver, only, and judgment is rendered therein, according to the prayer of the complaint, creditors of the company upon policies of insurance effected upon the principle of insurance for cash premiums may apply by motion, while the proceedings are open, and before any final judgment has been given, to vacate and set aside the judgment in such action, so far as it affects or passes upon the rights of the claimants under the cash policies, or gives direction to the funds or property in the hands of the receiver, to their prejudice, or without making provision for the payment of such claims.</p>

THIS action was brought to recover damages for a breach of a covenant, whereby the defendant was to maintain -the plaintiff through life, Ac.

THIS action was commenced before a justice of the peace of St. Lawrence county. It was for work and labor, and a separate count in the complaint averred that the defendant, in the month of April, 1854, hired and employed the plaintiff to work for him, at the price or sum of $30 per month, and that the plaintiff worked for the defendant, under the said agreement, from the 15th of August, 1854, to the 1st of January, 1855. The defendant denied the allegations of the complaint.

THE plaintiff commenced this action against the defendant, in a justice’s court of St. Lawrence county, for negligently and carelessly setting fire to his fallow, wood and timber, and alleged that in consequence thereof the fire spread, and burned, injured, damaged and destroyed the plaintiff’s land, hay and timber adjoining. The plaintiff claimed to recover damages, to the amount of $100. The defendant denied the allegations in the complaint.

THIS action was commenced before a. justice of the peace of the county of Saratoga, to recover the price of a wagon, alleged to have been sold by the plaintiff to the defendant in the year 1853. The trial was by jury, and a verdict was found in favor of the defendant, and the justice rendered a judgment in his favor, for costs.

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

<p>A plank road company being about to construct a plank road from Fishkill to Beekman, entered into an agreement with the supervisor and commissioners of highways of the town of Fishkill, for the use of a certain highway in such town. By this agreement the supervisor and commissioners consented and agreed that the company should take and use forever the highway in question, or so much and such parts thereof as the company might require and should locate their road upon. As the consideration for this grant, the company agreed to keep said road, so occupied and taken by them, with all bridges across which their road should pass, in good and sufficient repair. In an action by the town against the company, for a breach of this agreement, in not repairing a bridge, the defense was that the highway and bridge in question had never been occupied and taken by the company for the use of their road, and therefore that they had never assumed their support. But it appearing that the company had taken possession and control of the highway and bridge in question, which were upon the direct route between one designated termination of the plank road and the other, and were a part of the highway which they had obtained the right to take; and that they had expended labor, laid down plank, and constructed their road upon and over them, in the same manner as they had done in respect to the residue of the road; it was held that these acts, in the absence of any explicit and legal declaration to the contrary, warranted the conclusion by the town officers, that the company meant to assume, and to use the bridge and that part of the road connecting with it.</p> <p>Held also, that for all the purposes of the action, and of the contract, the company appropriated the highway as far as they constructed a plank track upon it, or assumed control of it.</p> <p>Held fm-ther, that the town of Fishkill, in its corporate character, could not sue for a breach of the contract by the plank road company.</p> <p>The inspection of a certain length of plank road, and the certificate of the inspectors, under § 34 of the plank road act, do not furnish conclusive, nor the best, evidence of the entire length of the road, and of the extent to which a highway has been appropriated.</p> <p>Such inspection, and the certificate that it has been made, were not intended for any such purpose; but were designed only to ascertain the character of a road, after it has been completed, and whether it is a good and substantial road, in conformity with the law, so as to authorize the company to demand tolls for its use.</p> <p>The compensation and damages for the use and occupation of a highway, by a plank road company, which the public officers are authorized by the statute to agree upon, need not be wholly estimated and paid in money. A part of the compensation may be in the shape of an executory agreement, by the coin-pany, to keep the road and bridges in repair.</p> <p>An agreement to that effect, made by the supervisor and commissioners of highways, is not void for an excess of authority by the town officers in making it, but is within the line of their duty and obligation.</p> <p>An act of the legislature, entitled “ An act to release the Fishkill and Beekman Flank Road Company from the construction of part of their road, and for other purposes,” contained eight sections. The first released the company from its obligation to build and maintain a plank road any further than the portion of the road which had been inspected and certified. The second authorized an abandonment of any portion of the road, and the third regulated the terms and conditions, and the manner, of effecting such abandonment. The next three sections authorized the company to relay their road with gravel instead of plank, inflicted penalties for shunning the toll gates, although within three miles Of each other. The seventh section legalized all the preliminary acts in the organization of the company, the subsequent acts of the company, and of various public officers, from time to time, in relation to it; and the eighth section was the usual- enactment giving immediate effect to the whole statute. Held, that there was no constitutional objection to including all these provisions in one law, inasmuch as they all related to one general subject—the relief of the plank road company, by altering its fundamental articles, and modifying its obligations. But that the statute was in conflict with the spirit and intention, as well as with the letter of the sixteenth section of article three of tho constitution, which requires that the subject of every private or local bill which may be passed by the legislature shall be expressed in the title.</p> <p>The whole of the act, with the exception of the first section, was therefore declared to be unconstitutional and void.</p> <p>The whole power and capacity of towns, as corporations, are derived from, and conferred by, statute. Their authority to contract or assume liabilities is restricted to cases where such action is necessary for the exercise of their appropriate functions as corporations; and their power to sue and be sued is limited to cases where the assertion of their corporate rights, or the enforcement of their corporate liabilities, require such proceedings.</p> <p>As a corporation, a town has nothing to do with, and no interest in, the highways within its limits. The roads are not the property of the town, nor is the town responsible for their condition or their repair.</p> <p>It has no rights nor responsibilities in respect to public highways, for which it can either sue or be sued.</p> <p>The control and management of highways and bridges are vested in the officers of the town who are chosen for that purpose.</p>

THIS action was brought to recover the amount of .a promissory note, alleged to have been executed by the defendants to the plaintiff, bearing date October 1, 1854, for the sum of §1169.86, payable six months after date. The words “with use” had originally been inserted, at the end of the note, but were erased, by lines drawn across them. The cause was heard before H. Gibson, Esq. sole referee. The defendants objected to the note being given in evidence, on the grounds, 1.

THIS action was orignally brought in a justice’s court of Fulton county, to recover damages for an alleged fraud in an exchange of horses. The cause was tried by a jury three times, and on the last trial (the two former juries having disagreed) the plaintiff recovered a verdict for $60 damages, for which, with costs of suit, the justice rendered judgment.

<p>A purchaser of goods sold on execution has such an actual or constructive possession as will entitle him to maintain an action against a trespasser.</p> <p>Where a defendant, on a trial before a justice, omits to raise the objection that there is a lack of the evidence necessary to sustain the plaintiff’s case, and it is assumed on such trial, that the proof is complete, this court, on appeal, will hold that it was sufficient.</p> <p>Where a party forbids the sale of personal property, on execution, upon the sole ground that the property is exempt from sale, this will be considered a virtual admission that the execution and sale are in other respects legal and valid.</p> <p>Where, upon a trial before a justice, it is taken for granted that an execution and sale were valid, and the defense is placed upon other grounds, particularly specified, the defendant will not be allowed, on appeal, to change his ground, and roly upon objections to the execution and sale which, if taken at the proper time, might have been obviated.</p> <p>The claim that property levied on and sold upon execution is exempt from execution, is a claim personal to the defendant in the execution; and he, only, can avail himself of the privilege.</p> <p>An assignee of the judgment debtor, although claiming under a general assignment which does not except exempt property, cannot claim property as exempt from execution, after having stood by at the time of the sale thereof on execution, and made no claim to the property as assignee.</p> <p>The presumption is that a sheriff, selling" property on execution, has done his duty and previously made a levy. And this fact will be considered as •admitted, if a party omits to raise the objection on the trial.</p> <p>Where a sheriff has executions in his hands in favor of different creditors, against the same debtor, whatever is said by either creditor, especially in the presence of the other, at the sale, by way of direction to the sheriff, is proper evidence.</p> <p>A witness, testifying that he knows a particular stove, and is acquainted with the value of stoves, is within the rule which authorizes á witness to fix a value upon property.</p>

<p>The statute imposing a penalty of $25 upon every person who shall “forcibly or fraudulently ” pass any gate on any turnpike or plank road without having paid the legal toll, is penal, imposing a penalty or forfeiture for the benefit and protection of a private corporation, and in derogation of common right; and is not, therefore, to be extended, by construction, to cases within the mischief intended to be remedied, but which are not within the words of the statute.</p> <p>The terms “ forcibly or fraudulently ” in the statute, must be held to have beep used in their ordinary sense, and to mean actual force, or actual fraud, as distinguished from constructive force or fraud.</p> <p>Accordingly, where the defendant, finding a gate, upon a plank road, open, passed through the same with his team, and on being requested to pay toll, declined, saying that he ought not to pay toll, as the road was bad, but would do so if B. said he must; and on another occasion he again passed through; the gate, on finding it open, without paying toll, although informed that B. said he must pay toll, no effort being made, by word or deed, on either occasion, to stop him; it was held that this did not amount to a forcible or fraudulent passing of the gate, so as to subject the defendant to the penalty.</p>

THIS was an appeal by George Nipper, from a decree of the surrogate of the county of Oswego, admitting the will of Mary M. Nipper, deceased, to probate. The material facts appear in the opinion of the court,