Volume 24 — New York Reports

The action, was commenced in.the Court of Common Pleas of the city and county of Mew York, by Mrs. Hannah E. Gil-man, to procure a determination as to the validity and construction of her deceased husband’s will, and for a distribution of his estate. The testator died in February, 1853, leaving his widow, the plaintiff, and three children aged, respectively, one, three and five years, the youngest of whom died about a year later.

<p>The statute (ch. 130 of 1854) exempting from prosecution for libel the publishers of legislative debates, &c., is prospective only and is no defence for a publication prior to its enactment.</p> <p>The publication of a slander uttered by a murderer at the time of his execution, is not privileged either under that statute or at the common law.</p> <p>The statute relates only to statements made in judicial, legislative or administrative bodies in execution of some public duty.</p>

Action upon a promissory note made by one George Vanden, payable to the order of the defendant, and by him indorsed. The note was dated at New York, where the maker resided at the time, and the indorser resided in the same city. The note was dated May 3, 1855, and had three months to run. About the middle of June following, the maker removed to the State of New Jersey, and continued to reside there until September 24th, 1855.

<p>Appeal from the Supreme Court. The complaint set forth a contract for the conveyance by the defendant to the plaintiff $f forty acres of land by a good warrantee deed. It averred that the defendant had tendered a deed which contained only a covenant of warranty against his own acts, which the plaintiff refused to receive: that the defendant had no title to the land, but that it was in the possession of a third person who held it adversely under a valid title. It prayed for a specific performance of the contract, or for damages. The defendant denied the contract to convey with general covenant of warranty. The trial was before a judge without jury. The Case did not show whether this was by consent, nor that any objection was taken to that mode of trial. The judge found the facts, as the same as sufficiently stated in the following opinion, and ordered judgment for the plaintiff for $500 damages. The judgment having been reversed, and a new trial granted at general term in the sixth district, the plaintiff appealed to this court.</p>

Stover, so far as concerned the respondent, Sipperly, and directed him to render a further account. The facts were these: Martin M. Stover died intestate in June, 1849, and in July of the same year, Martin Sipperly, Jacob A. Snyder and Elizabeth M. Stover, were appointed administrators of his estate.

The surrogate of Westchester county admitted to probate a paper purporting to be the last will of Edward Orser. Upon appeal from the decree of the surrogate to the Supreme Court, issues were framed and sent for trial by jury, to the Westchester Circuit. There'was an attestation to the will, stating all the particulars requisite to its valid execution and publication, and subscribed by two witnesses.

Action to recover damages for ttm failure of the defendant to receive and pay for one thousand one hundred shares of the capital stock of the New York and Erie Railroad Company, in performance of three several contracts therefor, bearing date the 2d and 30th May, and 5th June, 1854, one of which was in the following form: , “New York, May 2, 1854. . “ I have purchased of Dykers, Alstine & Co., five hundred (500) shares of the stock of the N. Y. and Erie Railroad Co., at…

The action was brought upon the following guaranty: “ Mr. Rindge, Sir: I will be accountable to you that Mr. Butler will pay you for a credit on glass, paints, &c., which he may require in his business, to the extent of fifty dollars. “Dated, Nov. 29th, 1858. “D. C. JUDSON.” ■ The referee found “that the plaintiff was, at the time, a dealer in glass, paints, &c., at Ogdensburgh, New York; and J. W. Butler, the individual named in the guaranty, was, at the date thereof, a…

In April, 1853, the defendant, Abrahams and Ms wife signed a statement in writing, and verified it by the oaths of both, for the purpose of confessing judgment thereon without action. The indebtedness arose upon four promissory notes, two of them made by third persons and indorsed by both the defendants, the others made by the two defendants. All of the notes had been discounted b,y the plaintiff, had matured and were dishonored.

The first case was an appeal from a judgment of the Supreme Court, by which Hackley,' the relator, was remanded to the custody of the sheriff, after a hearing of his case upon a return to a writ of habeas corpus, issued at his instance to the said sheriff.

Action in the nature of quo warranta, brought by the attorney-general in the name of the People to test the right of the defendant to exercise the duties and powers of the office of… Held: that the formation of the town of Afton was in all'respects valid, and that the defendant was duly elected supervisor thereof. The judgment entered by his direction, dismissing the complaint, was áffirmed at general term in the sixth district, and the plaintiff appealed to this court.

Case agreed upon pursuant to section 372 of the Code, and submitted without action. The Park Bank claimed that it was not liable to taxation on its capital stock until one year from the date of its commencing its banking business on the 31st of March, 1856. In July, 1856, it was assessed upon such capital by the assessors of the City of Mew York, the tax amounting to $21,000.

Writ of error to the Supreme Court. The plaintiff in error was arraigned and put upon trial at the Erie Oyer and Terminer, on an indictment containing twenty-three counts; nine for embezzlement of different sums of money at different times and fourteen for larceny.

-On the trial, before Mr. Justice Hoffman, without a jury, these facts appeared: The commissioners, appointed under the act of Congress, of March 3d, 1849, to carry into effect the treaty between the United States and Mexico of February 2d, 1848, on the 15th of April, 1851, made an award in favor of the respondent, in the sum of $15,041.

The complaint stated a judgment by confession against James Heth, on the 23d of August, 1855, in favor of the defendants in this action, upon which execution was issued, and Heth’s property sold by the sheriff, and the proceeds of sale paid over to the defendants. That on the 8th of November, 1855, the plaintiffs recovered a judgment against Heth, and issued execution thereon, which was returned unsatisfied.

The obligations purport to have been issued pursuant to an act of the legislature passed in the year 1852, entitled “an act to authorize… Held: by him “in good faith, and for a- good and valid consideration paid by him, and became the bona, fide owner and holder thereof.” The raising,' the interest money and. the payment thereof' to the county treasurer, who held it subject to tké order of the defendants, and was ready to pay it to them, and that they refused tti receive it…

ApPEAL.from a judgment at a general term of the Supreme Court, affirming a judgment of nonsuit given at the circuit. The action was ejectment. The plaintiffs claimed title to the premises sought to be recovered through the will of John Gr. Hill.

<p>.Appeal from the Supreme Court. Action brought by the plaintiff as committee of Maria Gridley, a lunatic, to ■ recover certain sums alleged to be due to her. The complaint set forth four distinct and separate causes of action against the defendant. First. That the father of the defendant at his decease, was indebted to Maria Gridley, the lunatic, and that by his will he gave all his real and personal estate to the defendant, and declared therein that “ the said George is to pay all the debts that I [the testator] may owe at my decease,” &c. “ And, also, $35 annually during her life,” &c. The complaint further alleged that the defendant “ accepted the said several devises and bequests by said will made to him, and then and there took possession of all of the personal estate of the testator whereby he became liable to pay the said indebtedness, and said annuity.</p> <p>Second. That the defendant was indebted to Maria Gridley for moneys of her received by the defendant.</p> <p>Thirdly. That said Maria was the owner of certain property which the defendant consented and became liable to pay for, and which he promised to pay for, &c.</p> <p>Fourth. That the said defendant was indebted to one Sarah Gridley for certain rent, which demand said Sarah Gridley had assigned to said Maria.</p> <p>The defendant demurred, and assigned for cause that it appeared upon the face of the complaint that several causes of action had been improperly joined.</p> <p>Judgment was rendered in favor of the defendant at special term and affirmed at general term in the seventh district. The plaintiff appealed to this court.</p>

-Appeal from a judgment of the ¡New York Common. Pleas at general term, affirming a judgment at special term,, entered upon the verdict of a jury, in an action for the possession of personal property. ' The facts were these: ■ The plaintiffs, who were wholesale dealers in ¡New York on the 4th of April, 1854, sold the firm of Kerr & Adams a bill of goods on credit, amounting to $766; on the 14th of the same month, Kerr & Co. failed and assigned their goods, including those…

In the spring of 1845, the plaintiff, and one White, and the defendants’ testator, Yan Winkle, entered into a partnership in the city of Buffalo. Held: it was not, and gave judgment for the plaintiff for the amount due to him. This judgment was reversed, at the general term, and a new trial ordered. The plaintiff appealed to this court.

The plaintiff gave in evidence an agreement, dated March 8, 1853, purporting to have been signed by the defendant and others, by which the subscribers agreed to take and pay for the number of shares of stock, at fifty dollars a share, set opposite their names, .to the directors of a company thereafter to be formed,—under the general act of May 7,1847, authorizing the formation of plankroad and turnpike corporations,— for the purpose of constructing a plankroad from the…

Action by a widow residing in France, against the executors and legatees of her deceased husband, to recover the value of certain real estate inherited by her, which was sold with her assent and the-proceeds received by her husband while she was living and domiciled with him. in France. Upon the trial these facts were proved and found: On the 23d day of January, 1823, the plaintiff married at Severne, in France, Maximilian Bonati, and continued his wife until he died in 1849.

<p>The statute '(eh. 460 of 1837, § 22), upon affidavit of the intention to filé objections against the -granting of letters testamentary to one of several . executors, requires the surrogate to suspend the grant of letters as well to. any of the executors not objected to as to those who are.</p> <p>tae issuing of special letters of administration to a collector is discretionary with the surrogate, and though his refusal to appoint such collector be put on the ground of his having (erroneously) issued letters testamentary to an executor, this does not render bis discretion the subject of review, on appeal. The remedy, if any, is by mandamus.</p>

Action for the foreclosure of three mortgages upon-the same premises. The referee, before whom the cause was tried, found these facts; Two of the mortgages executed by Henry Harrison and wife to the plaintiff’s testator, in regard to which alone any question was made in the case, were executed upon a usurious agreement for the loan of money.

<p>Appeal from a judgment of the Supreme Court./ The action was brought to recover the amount of two mortgages executed) with his bonds, by E. E. Bullard to John Cramer, committee of the estate of Charles Burr (the plaintiff’s intestate), for $1,000 and $2,000 respectively. After giving the mortgages, which covered several parcels of lands, Bullard conveyed both parcels to the defendants by a deed containing a recital and covenant in the following words: “ Subject to two mortgages held by John Cramer, committee of the estate of Charles Burr, bearing date, &o. [describing the mortgages], which mortgages are deemed and taken as a part of the consideration of this conveyance, and which the party of the second part hereby assumes to pay.” ■ Charles Burr was restored to the possession and control of his estate, by an order of the Supreme Court; and he prosecuted this suit to judgment, but died pending this appeal, when the action was continued in the name of the plaintiff as his administratrix. The plaintiff on the trial proved the actual delivery of the deed by Bullard, to the,, defendant. ' The defendant objected that there was no privity^ of contract between him and the plaintiff; but the justice (before whom the case was tried without, a jury) held otherwise. Judgment was given for the plaintiff for the amoulft of the mortgages, which was affirmed at a general term when the defendant appealed to this court</p>

Action to recover damages for injuries sustained by the plaintiff, a passenger upon the defendant’s road, from a collision between the train in which he was riding and a freight train carelessly left standing upon the track in the night time.

Upon the trial, these facts appeared: On the 10th of May, 1858, the plaintiff’s husband, William H. Perkins, applied to one of the directors of the defendants’ Company for a free pass on the defendants’ railroad from Eochester to Albany and back, and received a pass in the words and figures following: “New York Central Eailroad Company, “ Rochester, May 10, 1858. “ Pass W. H. Perkins, Esq. (transp’t of Smith, Perkins & Co.), as per conditions on the other side of this…

■ Appeal from, the Supreme Court. Action, under- the statute of 1847, for- damages from the negligent killing of the plaintiff’s intestate, while a passenger on the defendant’s-railroad. On the trial, these facts- appeared: The deceased made a written contract- with the defendant for the transportation, from Buffalo to Albany, of two car-loads of hogs,; for $87 per car.

Action for breach of promise of marriage. The plaintiff had a verdict for five thousand dollars at the circuit, and the judgment was affirmed at the general term,, in the third district.

A corporation, under the name of the Albany ¡Northern Railroad Company, was formed, in 1851, pursuant to the provisions of the general railroad act, for the purpose of constructing,. maintaining and operating a railroad between the city of Albany and Eagle Bridge, in the county of Rensselaer. The road was constructed, and put in operation in 1853, and continued to be run until September, 1859.

Action for damages arising from the failure of the defendant, a corporation created by this State, to deliver a quantity of fruit trees at the time specified by a contract between the parties. The trial was before a referee, who found these facts: On the 24th October, 1855, the plaintiff, a nurseryman, at Rochester, agreed with, the general freight agent of the defendant for the transportation, from.

This was an action upon the case for the refusal of the defendant to permit the transfer upon its hooks of twenty shares of the capital stock of the bank to the plaintiff as the assignee of one William E. Leggett. The cause was tried before a referee; and, upon the trial, it appeared that Leggett was one of the original associates in the organization .of the bank, and became the holder-and owner of, twenty shares, of one hundred dollars each, of its capital stock.

This was an action of trover for a quantity of hay cut by . the defendant, on premises owned by the plaintiff’s intestate, John E. Newcomb, and carried off and converted to his own use. The referee gave judgment for the value of the grass or hay cut. The judgment of the referee was affirmed by the Supreme Court, and the defendant appealed to this court. Certain questions of evidence arose upon the trial, which are sufficiently referred to in the opinion.

Action upon a marine policy, which by its terms purported to be “upon the whole body, tackle, apparel and furniture of the good steamer Garden City,” and in which it was “agreed that the property be warranted by the assured free from all liens,” &c. The plaintiff, who was a mortgagee of, the vessel, procured the insurance “on account of Brastus Crocker,” the owner, “ loss, if any, payable to Vincent Bidwell,” the plaintiff, to secure his interest as mortgagee.

<p>Appeal from the Supreme Court. The question is fully stated in the following opinion.</p>

Action to recover the amount of a promissory note made by the defendants’ testator, in the following words: “For value received, in policy Ho. 256, dated October 27, 1849, issued by the Hew York -Protection Fire Insurance Company, I promise to pay the said company, or their treasurer for the time being, the sum of five hundred and eighty dollars, in such portions, and at such time or times as the directors of said company may, agreeably to their act of incorporation,…

Action to recover the freight upon a quantity of wheat transported by canal from Oswego to Troy, by one Davis, and there delivered to the defendant, under this bill of lading: “ Oswego, Nov. 11,1856. “Received, of John Van Burén, Jr., on board boat 0.

The plaintiff was nonsuited at the trial, upon a state of facts which sufficiently appears in the following opinion. The judgment dismissing the complaint was affirmed at general term, and the plaintiff appealed to this court.

Action to enforce a bond executed by the defendant, Lemuel' Arnold, and a. mortgage upon her separate property executed by Caroline Arnold, his wife, as collateral to such bond.

<p>A writing in this form, “F. bought of W. one horse, $150. Received payment. W.,” given upon the purchase of and payment for the horse, is a mere receipt, and not a contract or bill of sale, so as to exclude paroi evidence of a warranty of soundness of the horse by the vendor.</p>

Action in the nature of a bill in equity, to restrain the defendants, as commissioners of highways of the town of Hoosick, from opening an alleged highway across the plaintiffs’ track, and side track and i grounds, at their station at Buskirk’s Bridge, in that town; and to have the proceedings for laying out the highway ad- ' judged to be illegal and void. The case was tried before one of the justices of the Supreme Court, without a jury, in October, 1855.

The plaintiffs, the proprietors of the “ Sunday Courier,” a newspaper printed and published in the city of ¡New York, brought their action against the defendants to recover the agreed price of publishing an advertisement of and for the defendants in such newspaper for six months, in pursuance of a contract made with the agent of the defendants. The making of the contract and the performance of the duty by the plaintiffs was proved.

<p>Appeal from a judgment of the Supreme Court. The action was-for" tsiking and carrying away personal property^" The judgment upon a verdict for the plaintiff taken on a former trial had been reversed by this court and a new trial ordered (13 N. Y., 577). On the second trial it appeared that S. Sutherland kept a retail hardware store at Newark, Wayne county; and on the 11th October, 1848, mortgaged his stock of stoves, hollow-ware, &c., and also his household furniture to the plaintiffs *to secure them as the indorsers, for his accommodation, of a promissory note, made and indorsed at the time of giving the mortgage and discounted for the benefit of Sutherland at a bank at Geneva. The goods were seized on an execution in favor of J. & A. Morrison for $611.86, on the 13th January, 1849, and were subsequently sold by the under-sheriff of the county. These creditors resided at Troy and the defendant was their attorney in Wayne county, and in that character recovered the judgment and issued the execution. Two principal questions were litigated on the-trial: whether the plaintiff’s mortgage was bona fide or fraudulent; and whether, if it Was valid, the defendant had made himself personally liable for the trespass by the part he had taken in procuring the seizure and sale of the property—he contending that he had done nothing beyond placing the process in the hands of the sheriff and communicating to him the plaintiffs’ directions to have the property in question seized and sold, and executing an instrument of indemnity on behalf of his clients. It appeared that being aware of the mortgage to the present plaintiffs, the judgment creditors had elected to contest it by a seizure of the property, and for that purpose had, by letter, authorized their attorney, the present defendant, to sign in their behalf and in their names a bond of indemnity. This he did by executing an instrument to that effect under seal, which act was held, on the former occasion, not to charge him as a trespasser. But it was, in addition, sworn to by the plaintiffs’ witnesses on the present trial that the defendant personally directed the under-sheriff to take the property in question and to sell it under the execution; and that during the sale when Ford, one of the plaintiffs, forbid it, the defendant directed the sheriff to go on, saying that he would protect him, and that he was present and gave general directions at the sale. There was some contradictory evidence as to this. It was also shown that at an interview between Ford and the defendant after the sale, the latter was requested to state at whose request he acted in directing the sale of the goods, but refused to disclose, and, upon being told that he would be sued unless he would do so, he replied that the plaintiffs might sue him as soon as they pleased.</p> <p>On the question of the Iona fides of the mortgage it appeared that Sutherland continued in possession of the store from the time of executing it until the levy on the execution; and made sales of portions of the property, apparently in the same manner that he had done before the mortgage; but it was shown by the testimony of Sutherland, and of the plaintiff, Ford, that it was agreed when the mortgage was executed that Sutherland should sell the property as he could find purchasers for cash, but not on credit; and that the whole proceeds of the sales should be applied upon the note which the plaintiffs had indorsed. Sutherland swore that he had sold only to the amount of ninety dollars, eighty dollars of which had been applied in part payment of the note, and the remainder had been spent by him without the knowledge or consent of the plaintiffs, and that he had not made any sales on credit. There was evidence tending to show that one article had been sold on credit, but Sutherland swore that it was by a clerk, without his knowledge or consent. It appeared that the plaintiffs had purchased some of the articles at the sheriff’s sale.</p> <p>The defendant’s counsel moved for a nonsuit, claiming that the testimony was not sufficient to charge him with such a participation in taking the goods as would make him a trespasser, and that the mortgage was void on account of the possession remaining in the mortgagor, and on account of the permission given him to make sale of the property; and also that the purchase of part of the property by the plaintiffs was a waiver of their title and a license to the sheriff to make the sale.</p> <p>The defendant offered in evidence the deposition of a witness examined in Michigan, by virtue, as it was claimed, of a commission; but it' appeared that there was no seal to the paper ’ called a commission. The judge, upon the plaintiffs’ objection, ruled that it was inadmissible, and the defendant excepted.</p> <p>The defendant presented a number of written propositions, the affirmative of which he requested the judge to charge;but the charge actually given, and the exceptions to portions of it, raise all the questions of law which were presented.</p> <p>The judge charged, in effect, that the retaining of possession of the goods by the mortgagor rendered the transaction presumptively fraudulent, and" that the burden of proof to rebut this presumption, and to show the mortgage to be fair and honest, was upon the plaintiff; that, where property mortgaged is of the character of that in question in this case, an agreement that the mortgagor might retain the possession and' continue to sell it as he had done before, would make "it- fraudulent and void; but, in this cáse, if, by an arrangement betweeh the parties honestly made, the plaintiffs allowed the mortgagor to sell a part and apply the proceeds towards the payment of the-debt which the mortgage was given to secure, and there wás no intention that the mortgage should be used as a cover to protect it from- Sutherland’s creditors, so that he might control and sell it for' his own benefit, the transaction might be sustained-. Upon the question of the defendant’s liability, if the , mortgage shoúld be found to be valid, he charged that all who' "aided and abetted a trespasser were themselves liable for the • tortious act; but that an attorney was permitted to do what appertained to Ms duty as an officer of the court without being chargeable as" a trespasser if a seizure on the execution should prove to be unwarranted; “ but if, beyond that, the defendant-in this case personally interfered with the removal and sale of the property; if he aided and assisted, or directed the sheriff in the sale; if he directed the sheriff to go on, and pointed-' out the property to him; if he declared he would- indemnify and protect those who bid on the sale, this would not be within the line of his duty, and would be an-excess-of his" authority, as an attorney, and would make him personally liable as a partaker and assistant,- or aider, in the trespass.” He added-that, if the defendant did this, on the sale, and refused to give up the names of his principals to the plaintiff when asked to do so by him, and if he told the plaintiff, on making such request, to sue him, he would be estopped, as the judge thought, from denying, in this action, that he personally directed the sale, or assumed the personal direction thereof. The defendant excepted to the foregoing two propositions; and he excepted to the judge’s refusal to charge peremptorily that the mortgage, under the circumstances proved, was fraudulent and void.</p> <p>The jury found a verdict for the plaintiff, and the judgment rendered upon it was affirmed at a general term; upon which, the defendant appealed here.</p>

<p>Appeal from the Supreme Court. The facts on which its decision was based were these: On the 2d day of July, 1854, the plaintiff agreed in writing to sell and convey to the defendant a house and lot, and to deliver the possession of the same to the defendant on the 2d day of April, 1855. In the same contract the defendant agreed to pay the plaintiff, in consideration therefor, the sum of one thousand dollars on the said 2d day of April, 1855. On that day the defendant went to the house of the plaintiff with one thousand dollars for the purpose of making payment, and the plaintiff was not then ready to receive the money or execute the deed. It was then and there agreed, by paroi, between the parties, that they should postpone the time of payment, and execution and delivery of the deed until the next day; and-that they should meet the next day at one o’clock, at the office of one Henry Smith, and perform the conditions of said contract. On the 3d day of April, 1855, at twelve o’clock, the defendant and William B. Borst came to the office of Henry Smith with one thousand dollars, and remained there until three o’clock, and then left. The plaintiff did not come there while the defendant was there. Soon after the defendant left said office, the plaintiff came there. About four o’clock in the afternoon of the said 3d of April, 1855, the plaintiff tendered to the defendant a deed of the premises in question, duly executed by the plaintiff and his wife to the defendant, dated April 2d, 1855, and duly acknowledged, April 3d, 1855, together with thé key of said house, which the defendant at that time declined to receive, on the ground that the house was out of repair, or that waste -had been committed upon the premises, and Borst-, who was to furnish the defendant with the $1,000, said he had parted with five hundred dollars, of the money that afternoon. •</p> <p>The evidence failed to establish the commission of any waste.</p> <p>The referee, before whom the trial was had, ordered judgment for the plaintiff for $200, the sum fixed by the contract as stipulated damages. This judgment having been affirmed at general term in the third district, the defendant appealed to this court.</p>

<p>At common law, a husband is entitled to the personal property and choses in action of his wife, and they are vested in him at her death, whether reduced to possession or not, in virtue of his marital right, and not of bis right to administration.</p> <p>The statutes of 1848 and 1849, for the protection of married women, gave no power to the wife to dispose by will of property acquired by her before the passage of the acts, or of the interest accruing after the acts upon money previously given to her, or of the proceeds of her own-labor which her husband permitted her to receive, manage and invest in ■ . her own name and as if it were her own property.</p> <p>Evidence of such a course of dealing by the wife with personal property bequeathed to and earned by her, and her husbands declarations' that she could give her money to whom she pleased, only establish an omission to- exercise his marital rights in her lifetime, and do not imply a relinquishment of his rights in cáse óf survivorship.</p>

Action by the assignee of Mrs. Lucy Sherwood for the taking and conversion of chattels alleged to be on her premises and in her possession. On the trial before a referee, it appeared that Mrs. Sherwood married in 1850, being then engaged in business as a grocer, owning the fixtures of her shop and the stock in trade.

Action by the plaintiff as the committee of Alva Davis, an habitual drunkard, on two joint and several promissory notes made by the defendant and one John A. Williams, and payable to Alva Davis or bearer.' The value of the estate of Alva Davis was several thousand dollars, and the plaintiff was appointed committee of his estate by the County Court of Tompkins county.

The judgment involves only questions of evidence. On the trial, copies of several records of courts in the State of Ohio were offered in evidence certified to be copies in the name of the clerk by a deputy; the deputy signing the name of the clerk, with the addition of his title, adding, “ By F. S. Smith, Deputy Clerk.” The presiding judge of the court added his certificate that the individual named in the certificate as clerk was such clerk, and had the custody of the…

Mullins, a junk-dealer in the city of New York, was proceeded against, before a magistrate of that city, under a complaint that he had in his possession, secreted, a number of bottles which were stamped with the name of one Knebel, the complainant, who was engaged in the manufacture,' bottling and vending of soda-water, ale, cider, &c., and that such bottles were “being sold, disposed of, bought and trafficked in by said Mullins.” A search-warrant was issued, and the officer…

The plaintiff in error was convicted, in the Court of General Sessions of the Peace of the city and county of Hew York, of stealing money. The indictment charged the stealing, from the person of Eliza Denike, of divers bank notes of the different amounts usually issued, and of divers different kinds of gold and silver coins, in such a manner that, if the statement were assumed to be correct, the amount stolen would be several hundred dollars.

Upon the trial it appeared that the plaintiff was a girl of fourteen years, employed by the defendant in his mill for knitting shirts, &c. In the wheel-house of the mill, and partly, over the waterwheel, was the only privy provided for the use of the female operatives. It was secured by iron spikes or hooks to the east wall of the wheel-house, and was supported by an upright wooden scantling, the lower end of which rested on a breast beam in front of the water-wheel.

E. Thomas Lathrop died leaving a father and brother, and the appellant being a creditor of the deceased, applied by petition to the surrogate of Oswego county for letters of administration. The father of the deceased having renounced administration, the surrogate granted letters to the appellant, without the issuing or service of any citation to the brother of the deceased.

The plaintiff was one of the executors of T. M. Watson, deceased, and on the 4th. day of May, 1858, he deposited in the defendant’s bank a sum of about $350, of which $72.37, a balance-undrawn, is claimed to be recovered in the action. The account in the books of the bank was opened with “ Henry Scrantom, Executor,” and it was entered in this manner by the direction of the plaintiff.

Action under the statute for causing the death of the plaintiff’s intestate by the negligence of the defendant in running a train of cars in the city of Troy. It appeared, upon the trial at the Eensselaer Circuit, that Wilds, the deceased, was a farmer residing about twelve miles ■ from Troy. He received the injury from which he died while crossing the defendant’s road, which has two tracks, at its intersection with Fourth street.

The defendant, by its policy, dated 17th December, 1857, insured George Daniels to the amount of $15,000 on freight, valued at $25,000, earned or not earned, in the ship Flying Dutchman, at and from San Francisco to New York. The vessel was under charter to Moore & Folger for the voyage, at $10,000, payable on arrival at the port of discharge.

Action to ■ compel the specific performance of an agreement, made between the plaintiff’s intestate and the defendant, whereby the former agreed to sell, and the latter agreed to purchase, a certain lot in Clinton street, in the city of New York, whereof the plaintiff’s intestate claimed to be seised in fee.

Action to recover for the death of the plaintiff’s intestate (who was also his wife), from injuries resulting from the alleged negligence of the defendants, brought pursuant to the acts of the legislature authorizing such actions.

Apb-E'AL from the Supreme Court. Action to enforce an alleged ¡personal liability of the defendant, as a stockholder in the Albany Northern Bailroad Company, an… Held: the plaintiff taking an exception, that the indebtedness for which the note was given was not a debt owing to a laborer or servant of the corporation, and directed a verdict for the defendant. Judgment thereon having been affirmed at general term in the third district, the plaintiff appealed to this court.

The action is to recover tolls which would have accrued and. become payable to the State from the defendant, and the several corporations which were consolidated- and merged in the defendant at its organization, under laws in force when the present Constitution of the State was adopted, had these laws remained in force.

The plaintiffs, as judgment creditors of George Caldwell and Robert Fero, commenced this action in February, 1850, to procure -a satisfaction of their judgment out of the property and equitable interests of the defendants, and particularly to set -aside certain assignments and mortgages of the defendants’ property which were -alleged to be fraudulent as against their creditors.

In November, 1854, one Nelson confessed a judgment in favor of Benjamin Chamberlain, for $6,000. The statement upon which it was founded is set forth in the following opinion. Execution upon this judgment having been levied upon the property of Nelson, Hopkins, who had obtained a subsequent judgment, moved to set aside the judgment in.favor of Chamberlain.

Action by the plaintiffs, who were English manufacturers, » under the firm of Cartwright & Warners, to avoid two pledges of merchandise made by Acker & Harris to the defendants.

Action to recover a quantity of oil sold by the plaintiff to one Wing and delivered on board his vessel at Hew Bedford for transportation to Hew’’ York for sale. Before the arrival of the- oil, Wing became insolvent, and determined to return the oil to the plaintiff. On its arrival in Hew York, he directed it stored for the plaintiff ■with the defendant Kelly, and it was so stored.

The complaint stated the making and indorsement of a promissory note for $12,500, dated at Buffalo, and payable at the Bank of North America, in the city of New York, and its delivery to the plaintiff before maturity for a valuable consideration and in the ordinary course of business.

The plaintiff sued, as a stockholder of the bank, to recover fifty-six dollars due him for a dividend. Upon the trial it appeared that the defendant was a banking association organizéd under the genferal law of 1838. The directors declared a dividend of four pér cent,'.payable, by the terms of their resolution,'“in New.

Action iii the Suprerhe Court bn a 'note for 'S808.'04, made May 9,1859, !by “ Wdrteadylce ¡Bros. ■& Co. to the ordfer‘tif -the plaintiffs,-‘six months 'from date. Defence, that the’defendant, David D. A. Wortendyke,was not a partner -of 'the firm who were 'the makers. -The evidence showed that fie- was mot ’in -fact 'such 'paAne-r-; 'but the 'plaintiffs -claimed that be Was, nevertheless, liable to them upon the note, finder the lawof partnership.

the laying out of a certain highway in that town, and to open the highway by removing the fences and marking the same. The highway had been laid out by referees under the act of T847 (ch. 455), after a refusal by the commissioners to lay it out, and after an appeal from their decision, and a reversal of that decision by such referees.

13. The partnership was dissolved in March, 1838; and the defendant had notice of such dissolution in 1839.

<p>Appeal from the Supreme Court, in which a judgment of the County Court was affirmed.</p>

In September, 1849, the canal appraisers made an Award to the relator for $8043-.35 for damages-from the appropriation of his land and waters. Appeals were taken •on behalf of the canal commissioners, representing the State, and also by the relator. On the -29th December, 1859, the canal board adopted a resolution-adding $4,010 -to the award. The resolution simply directed’this increase, without recital-or statements of any facts or grounds ‘for thus modifying the award.

<p>A creditor in good faith of a manufacturing corporation which was organized, and its business conducted, for the purpose of defrauding the creditors of its president, has no priority of claim to property in the possession of such corporation over a creditor of the president.</p> <p>The purchaser of goods of- the corporation under execution against its . president, for his private debt, gets a good title as against a subsequent execution against the corporation.</p>

The action was for the conversion of one billiard-table, with. the balls, cues, and counters, alleged to be the property of the plaintiff. The defendants justified under a chattel mortgage; and the facts were as follows: , ■ ' ■ ■ - ■ On the 25th August, 1855, the defendants sold to a certain Dean & Finnegan four billiard-tables and apparatus, for $1,100; •for the payment of which, they took from the purchasers eleven promissory notes of $100 each.

<p>To corroborate the conductor on a railroad in respect to the time of the arrival of his train at a station, evidence is admissible that he made a contemporaneous memorandum, in compliance with a regulation requiring it; and the time-table regulating the running, stoppage, &c., of such „ train may also be proved.</p> <p>So, also, evidence is admissible of the regulations of the “corporation, and of the custom of its agents, in respect to giving notice to passengers of the necessity of their changing cars in order to reach a given station.</p> <p>A passenger was pointed by ah agent of the carrier to a train then standing in his sight as one which would convey him to Lyons. That train) after running, one hundred and fifty- miles, deflected to. a branch road • not. passing through Lyons,..but was .followed, an,hour-afterwards by- - another train which passed through Lyons. , ¿eld, that the passenger, was in fault for being miscarried, if, at .or before reaching the point of. . divergence, the carrier used such means as would have conveyed to a traveler of ordinary intelligence, using .reasonable cara and attention, information of the necessity of his transferring himself to the .sec.ond.. train.</p> <p>If the traveler, without fault on his part, passed the point of divergence, but was apprised of his error and requested toi take- a return train on which. he would have been carried free, in season to have reached a train which would have carried, him to Lyons without delay, his refusal to do so, and persisting in remaining upon the wrong train, renders him a trespasser, liable to ejection from the cars,</p>

The plaintiffs, as assignees of Edward E. Marvine, sued the defendant to recover from him certain sums of money, which it was claimed that he had obtained from Marvine by means of various false statements and representations; which representations and statements were also characterized in the complaint as fraudulent.

Action for, the redemption of land from a mortgage executed in March, 1836, by J. S. McKibben and Thomas Nichols. The sum secured w.as $39,000, payable in April, 1841. In February, 1842, the mortgagees filed a bill in Chancery for the foreclosure of the mortgage, to which McKibben and one Strong, who had succeeded to all the interest of Nichols, were made parties defendant.

The trial was before a referee, who found these facts: In June, 1858, the plaintiff, commenced a suit against the defendant John Eckler to recover… Held: as a conclusion of law, that the fact that said John Eckler was liable to the plaintiff in the manner mentioned at the time of the conveyance in November, 1855, and the subsequent purchase with a portion of the proceeds of that property of the Phelps farm, and the conveyance' thereof to Mrs. Eckler, was not, under the -…

. Appeal from judgment in the Supreme Court reversing a judgment of the County Court. The plaintiff commenced a suit by summons before a justice of the peace of Cortland county. The constable made due return of personal service of the summons and on the return day no one appearing for the defendant the justice proceeded with the case ex parte, heard the plaintiff’s testimony and gave judgment for the plaintiff for forty dollars, besides costs.

Replevin for two thousand five hundred and sixty-five bushels of corn, upon which the plaintiffs had made an advance of thirty-eight cents per bushel, for which they asserted a lien, under circumstances sufficiently stated in the following opinion.

Action to obtain the judicial construction of a will. The testator devised his real estate to his wife for life, and his personal estate to his two half-brothers, his executors, upon trusts which are stated in the following opinion. There were directions for the payment of an annuity to his widow, and certain small legacies, as to which no question was made.

<p>Motion for a reargument, upon the ground that certain recent English decisions upon one of the points involved had not been brought to the attention of the court.</p>

Ejectment for a strip of land, fifty feet long and thirty-eight feet wide, in the city of Oswego. Defence, that the land was part of a public street, and that the occupation of the defendant was by the permission of the municipal authorities. The trial was before a referee, whose general report was that the plaintiff had an estate in fee in the land, and that the defendant was wrongfully in the possession thereof.

Action for damages from the construction by the TJtica and Schenectady Railroad Company (to whose rights and liabilities the defendant had succeeded), of an embankment in front of two houses of John Mahon, the plaintiffs’ testator, in the village of Herkimer, and partly on the lands of said Mahon, by which he was deprived of the use of the highway called the Mohawk turnpike, which ran immediately in front of the dwelling-houses, and by reason of which the houses and lots…