Volume 28 — Barbour's New York Supreme Court Reports

DEMURRER to complaint. The material portions of the complaint are set forth in the opinion of the court. Held: if A. beat the wife of B. so that she die, B. can have no action on the case for that, because it is criminal and of a higher nature. So also 1 Levins, 247; Vin. Abr. 74, affirming same doctrine. 1 Keble, 487, was an action for placing posts in the highway. It was held that plaintiff must proceed by indictment.

THIS action is brought to set aside a judgment of a state court in Michigan, which pronounced a decree of absolute divorce between the present parties, in favor of the wife, against the husband. The relief prayed for in the complaint is, that the aforesaid judgment or decree may be declared null and void, and that the marriage contract between the plaintiff and defendant may be and remain in full force and effect.

Demurrer to complaint. The action was brought to recover damages against the defendant for not fulfilling a contract for the purchase from plaintiff of certain stock. The time of the making of the alleged agreement was prior to the passage of the act of 1858 (Laws of 1858, 251, ch. 184), repealing the statute prohibiting stock-jobbing (1 Feo. Stats., 710).

DEMURRER to answer. The action was to foreclose a mortgage. The complaint alleged the execution of a bond, by the defendant Ferris, on the 15th of June, 1857, for the payment to the plaintiff of $2477.50 on or before the 21st day of June, 1859, with interest payable semi-annually; and that as collateral security for the payment of that amount, Ferris on the same day executed a mortgage on certain premises therein described, with the same condition as the bond; and that both…

DEMURRER to complaint. The action was brought upon a promissory note, made by one of the defendants, and indorsed by the other, to the Bowery Bank.

THIS adtion was brought to recover the sum of $313.75, the price ilgteed to be paid by the defendants for a double acting putiip, of Earfiham's patent, to be made by the plaintiffs, for the defendants.

MOTION by the defendant for a new trial. The facts in the case sufficiently appear in the following opinion of Justice Balcom.

THIS is ap appeal by the defendant from a judgment rendered in favor of the plaintiff on the. 1st day of July, 1856, upon the report of a referee. The plaintiff’s claim was for a sum of #34.93, found due from the defendant to him on settlement, on the 16th of March, 1855, and also for the amount of a promissory note executed by the defendant, dated the 18th of March, 1855, and payable to James Carroll or bearer, one day from date, with interest.

<p>A cause of action, originally within thg exceptions of the act of 1831 to abolish imprisonment for debt, does not lose that character by being assigned to a third person.</p> <p>The remedies provided by that act were intended to aid the enforcement of the claim, in whosever hands it might be ; provided the relation of the parties remained the same, and the cause of action had not been substantially changed.</p> <p>Accordingly held that the assignee of a judgment recovered against a debtor for fraud and false and fraudulent representations, could institute proceedings under the. act of 1831, for the arrest and imprisonment of the judgment debtor; especially where it appeared that some of the acts of fraud were committed after the assignment of the judgment.</p>

<p>Although the law does not imperatively require that a school district meeting shall he held within the hounds of the district, it is eminently fitting that it should he so held.</p> <p>Where defendants justified the taking of property on a tax warrant issued by them as trustees of a school district, and it was objected that they were not legally trustees, because chosen at a meeting of the inhabitants of the district, held outside of the district; there being no evidence of abuse, nor that the place of meeting was an inconvenient or inaccessible place; nor that any objection was taken, at the time, on that account; nor that the inhabitants were not fully notified and represented at the meeting; nor that any action was ever had to oust the trustees on that account; but on the contrary, it appeared that they subsequently acted, without objection, as trustees, and sufficiently so to constitute them officers de facto; it was held the objection was unavailable.</p> <p>Where a tax was voted at a school meeting held in the district, adjourned from a previous 'meeting held outside of the district, it not appearing that at the original meeting any inhabitant'was not notified, or complained, then or afterwards, of the irregularity; or that there was any inhabitant absent from the adjourned meeting; and the evidence showing that it was a meeting of the freeholders and inhabitants of the district; and there being no proof of any objection or complaint of the irregularity of the proceedings having been made, at the second meeting; it was held that the court might presume a waiver of the irregularity, if it were such, and a unanimous assent to the regularity of the adjourned meeting.</p> <p>Where a school district voted “ to raise by tax on the district a sum which, together with the amount that should arise from the sale of a school house in district No. 4, should amount to the sum of $315,” under which resolution the trustees raised by tax the whole sum of $315, not having sold the school house, in consequence of a doubt of their right to do so; Held that the fair construction of the resolution was, that in the contingency of nothing being realized from the sale of the school house, the trustees were authorized to raise the entire amount of $315, by tax; and that the amount to be raised was sufficiently definite to satisfy the law.</p> <p>Where M. was an actual resident of school district No. 4 and his homestead farm lay in that district, but he improved and occupied a lot of 37 acres lying in district No. 6, which lot was not a part of his farm, nor attached to it, nor adjoining it, Held that M. was a taxable inhabitant of district No. 6, and that-the 37 acres freré prdpérly taxed for school purposes, in that district.</p>

The complaint alleged that the defendant severally with others, made an agreement with the Buffalo and New York City Bail Boad Company, whereby he agreed to pay the said company the sum of fifty dollars, in consideration that the said company would construct a depot, comprising water tank, warehouse, office, &c., at a certain point in the town of Burns, or Dansville; that said agreement was in writing, and at the time of its execution was delivered to the said Buffalo and…

<p>MOTION to dismiss the complaint, on answers denying the material allegations therein.</p>

<p>APPEAL from a judgment entered upon the report of a referee. The action was upon contract. The referee found that in December, 1854, the parties entered into an. agreement, by which the defendant should take and vend certain goods, wares and merchandise, the property of the plaintiff, to be delivered by the plaintiff to the defendant, and should account to the plaintiff, at certain stipulated prices, for all that he should sell of the same; and should receive for his services all sums which might be realized upon sale of the same, over said stipulated prices; and should return the goods which he might not be able to sell, in good order, to the plaintiff. The referee also found that the plaintiff delivered the goods to the defendant; that the defendant sold a portion of the goods, of the value of $36, and that he paid to the plain- ■ tiff $4, and had in his possession, unsold, in March, 1856, goods of the value of $114.80. He also found that in March, ' 1856, the plaintiff demanded of the defendant that he should return said property. He also found that the defendant did not return any part of the property to the plaintiff. The action was commenced November 10, 1856. The defendant became 21 years old April 6, 1856. The referee found, as a conclusion of law, that the plaintiff could not recover, by reason of the infancy of the defendant at the time the agreement was made,</p>

MOTION by the -defendant, for a new trial, upon a case and exceptions. The plaintiff was in the employ of the defendant as a brakeman, and on the night of the 6th of June, 1856, was injured by a collision of the trains, at Pekin, eight and a half miles east of Suspension Bridge, on the road to Bochester.

THIS was an action for slander. The plaintiff gave evidence having a tendency to prove the cause of action, and then, for the purpose of showing the defendant’s pecuniary ability td respond in damages^ introduced evidence, under ohjection and exception, tending to prove the pecuniary circumstances of the defendant. There was a verdict for the plaintiff.

APPEAL by the defendant, from a judgment entered upon the decision and report of a referee. The action was upon a promissory note made by the defendants and one J. J. McPherson, by which they promised, one year from date, to pay Geo. R. D. Colvil or bearer $600 with interest semi-annually. The note was dated Oct. 1855. It was transferred to the plaintiff after it was due. The semi-annual interest had been paid. This action was commenced Oct. 30,-1856.

The action was brought to recover the possession of certain articles of household furniture, which the plaintiff claimed to own, by virtue 'of a gift thereof from one Bryan J. Lawrence, who had bid the same off at a sale under a chattel mortgage executed by the defendant Jacob Allen, to his daughter, Mary N. Allen.

<p>An action will lie to recover compensation for services rendered to another, under a contract, in putting up and taking down a tent, used by the employer as a place for holding public meetings of the political friends of a particular candidate for the presidency, during the canvass preceding a presidential election.</p> <p>The case of Jackson v. Walker, (5 Sill, 27,) should not be extended beyond the circumstances out of which it arose.</p>

The action was brought to recover the amount of a policy of insurance for $650, effected June 1, 1854, upon the contents of a shop and dwelling of Michael McEamara, in Brooklyn, on which a total loss was claimed to have happened on the 1st of September, 1854.

The action was brought by the plaintiff, as sole acting executrix, against the children and heirs at law of Anson Gr. Phelps, sen. for a construction of his last will and testament. The will was executed on the 24th day of March, 1852, in due form of law to pass real estate, and the testator died November 30, 1853. The will, as set forth in the complaint, contained the following provisions: “ First.

ACTION to recover 2703 bushels of corn, being the cargo of the canal boat Cuba, of which the appellant was master. The action was tried before Justice Edmonds, on the 21st day of December, 1849, who directed the jury to find for the plaintiffs, to which the defendant excepted. Judgment was rendered upon the verdict for $2559.64. The defendant appealed to the general term on a bill of exceptions.

The action was brought by the plaintiff, as receiver of the Island City Bank, to recover back money paid defendants for usurious interest within the year preceding.

THIS was a motion for a new trial, on a case and exceptions; the motion having originally been made at special term and denied, and coming here by appeal. The suit was brought to recover damages for the defendants’ neglect in conducting the repairs and improvements of a house at 108 Bowery, Hew York, in consequence of which the plaintiff, in passing by, was struck by a stick of falling timber and had his leg broken, and was otherwise injured.

THIS was an appeal by the defendant from an order of Justice Davies, refusing to vacate or discharge an order of arrest originally granted by Justice Ingbaham, The latter order was granted on the 15th day of July, 1858, at the time of commencing this action, simultaneously with the issuing of the summons, and was founded upon an affidavit of the plaintiff’s attorney of the facts entitling the plaintiff thereto.

<p>Demurrer to complaint.</p> <p>The facts are stated in the opinion.</p>

The action was replevin, for 844 barrels of spirits of turpentine, and was tried by a jury; who found a verdict for the plaintiffs, and assessed the valúe of the property at $14,476.81,

The complaint in this cause was filed by the plaintiffs, stating that they were owners of lots on Broadway, with buildings erected thereon, and doing business therein. That the defendants were about to construct a railway therein, without legal authority, and that such railway would be specially injurious to them. The judge at special term, before whom the case was tried, found as matter of fact: 1.

Demurrer to complaint. Three parties brought actions against the same defendants, who were partners, seeking at once to recover judgment. upon their respective demands, and to enjoin the defendants from disposing of their property, and to obtain the appointment of a receiver. The defendants demurred, and the issues were tried together, and the demurrers overruled at special term. The defendants appealed to the general term.

<p>ORDER to show cause why a temporary injunction should not be continued.</p>

DEMURRER to complaint. The complaint, as amended alleged that the people of the state of New York are now, and have been for many years past, owners in fee of certain premises situate in the city of New York, and lying on the westerly side of West street, and north of a parallel line of the southerly line of Dey street and south of the northerly line of Yesey street, in the third ward of the said city, and which premises are about 480 feet on West street and extend westerly…

The Ogdensburgh, Clayton and Borne Bail Boad Company was organized on or about the 22d day of April, 1853. The defendant was employed by it to procure subscriptions to the capital stock of said rail road company, and to negotiate for procuring rights of way over lands necessary to be appropriated for said road. Being so engaged, and on the 2d day of July, 1853, the defendant himself made a subscription to the stock of the company of five hundred dollars.

THIS was an action to recover the possession of personal property. The plaintiff claimed title to the property under a personal mortgage executed to him by Thomas C. Hopkins. The defendant claimed to hold the same as a bona fide purchaser for value from the mortgagor, subsequent to one year from the time the' mortgage was filed. The defendant testified that he had no knowledge of the existence of the mortgage at the time he purchased the property.

THIS action was tried at the Broome circuit, in October, 1857, before Balcom, J., and a jury, and upon the trial the following facts appeared, viz: That the Hew York and Brie Bail Boad, upon which the plaintiff was a passenger and the defendant a conductor, consists of four divisions.

The action was brought to recover penalties or fines, to be imposed upon the defendants, for neglecting to ring a bell, or sound a steam whistle on crossing a highway with their locomotives, as required by statute.

<p>APPEAL from a judgment entered at a special term, on the report of a referee. The facts sufficiently appear in the opinion.</p>

APPEAL, by the plaintiff, from a judgment of nonsuit. In April, 1855, the plaintiff took of the defendant five or six acres of his mint ground, to work on shares, the plaintiff to put in the crop and do the work, and the defendant to fur-finish. a team and half the roots, and a distillery, and each to have half of what was raised, to be divided in the oil.

APPEAL by the defendants from an order made at a special term, denying a motion to vacate an order of arrest. The material facts appear in the opinion of the cotirt.

THIS was an appeal from an order made at a special term, denying a petition presented by the mother of the defendant, as her natural guardian, (the defendant being an infant under the age of twenty-one,) praying that the decree obtained in this action, dissolving the marriage contract between the plaintiff and defendant, on the ground of the defendant’s impotence, might be opened and the petitioner permitted to defend the action.

THE above suits were instituted to test the right of the defendants to the offices of clerks 'of the district courts of the city of Hew York, now held hy them, respectively. The complaint in the first cause alleges that Frederick W. Loew was, on the 18th of December, 1857, duly appointed to, and is entitled to, the office now held by the defendant Batchelor; and in the second suit, that at the same time Edward 0.

THE plaintiffs in the above entitled suits are foreign corporations, or associations organized under acts of parliament of Great Britain, for the purposes of insurance.

THE plaintiff, on the first day of January, 1855, delivered to the defendant, at Hew York city, certain goods to he carried on the defendant’s rail road, by the defendant, as a common carrier, to Owego, in Tioga county.

DAVID PARISH, an alien, having been empowered by act of the legislature to take and convey real estate, the same as a natural born citizen, purchased a large quantity of lands, including lot Ho. 687 in Antwerp in the county of Jefferson, in the year 1809.

<p>THIS was an action to enforce an equitable lien for the purchase money, upon an equitable interest in lands.</p>

THIS was an appeal from a judgment entered upon the trial of the action at the St. Lawrence circuit, before a justice of this court, without a jury, in June, 1857. The action was for partition of real estate. Jonathan Fuller was originally the owner in fee simple, and the common source of title to the lands and premises in question.

THIS was an appeal from an order made at a special term, upon a motion by the plaintiff to amend her complaint, by striking out the name of her husband, Perry P. Billings, as a defendant.

The complaint alleged that at the city of New York, in or about the month of November, 1856, the defendant being desirous of purchasing flour for shipment abroad, but not being able to make such purchases in his own name, applied to one Angus Cameron for leave to make purchases in his, Cameron’s, name, and it was thereupon agreed by and between said Cameron and the defendant, that the defendant might make such purchases in the name and upon the responsibility of said…

<p>APPEAL by the defendants, from an order made at a special term.</p>

THE plaintiff sold to the defendant William M. Foster, in August, 1854, a quantity of lumber, on the terms cash for freight and his note for four months for the amount of the bill of lumber.

<p>B., the agent of a corporation, drew a draft upon the company at New York, in favor of M. for the amount of a protested draft previously drawn hy such agent, in M.’s favor and then held by him. Both the drawer and the drawee were insolvent at the time the draft was drawn, and were known to M. to be so. In drawing the draft, B. acted only as the agent of the company, had no funds in the hands of the drawees, and had no reason to believe that he had any. M. sent the draft to the defendants, a banking house at New York, for collection. It was duly presented for acceptance, and was ac- . cepted, but was not presented and' protested for non-payment. Held that the defendants were not bound to present the draft and demand payment, and were not liable to M. for their neglect to do so.</p> <p>Where the drawer of a bill has no funds in the hands of the drawee, applicable to the payment of the bill, a presentment of the bill for payment, and protest and notice, are not necessary to charge the drawer.</p>

<p>Where goods are purchased for cash on delivery, that is, the price to he paid within ten days, the very terms and import of the arrangement are that there is to he a qualified delivery, which is to precede payment.</p> <p>An understanding, arrangement or custom that the possession of the goods shall be intrusted to the vendee for the purpose of enabling him to realize upon them, and thus provide the means for the payment of the price, cannot be construed into an absolute transfer of the title to the property, as between the original parties to it, or persons having no greater equities than the original parties.</p> <p>And if, under such circumstances, the goods are delivered to the purchaser, on hoard a vessel, and he receives a bill of lading therefor, which, together with a bill of exchange drawn upon it, he transfers to third persons, before he has himself paid for the goods, upon an agreement that such third persons shall pay the amount of the bills within ten days, the latter cannot, as against the original vendors, set off against the bills the amount of debts owing to them by the purchaser.</p> <p>The case of Kleemam, v. McKean, (25 Barb. 474,) approved.</p>

The action was brought for the purpose of charging the defendant, as a common carrier, for the value of certain bonds of the state of Michigan, intrusted to him at Buffalo, for transmission to the plaintiff at Detroit, and which he failed to deliver.

<p>THIS cause was tried at the circuit and a verdict rendered for the plaintiff, and a motion, made at a special term, for a new trial, denied. The defendants then appealed to the general term. James Carpenter took from the defendants a policy of insurance on his stock of goods in a store situate in Brooklyn, upon which a loss was sustained. Carpenter assigned his claim against the defendants to the plaintiff, and this suit was brought to recover the amount of such loss. By the ninth condition of the policy taken from the defendants by Carpenter, it was provided that “ whenever required in writing, the insured or person claiming shall produce and exhibit his books of account and other vouchers to the insurers or their agents, at the office of the company, in support of his claim, and permit extracts and copies thereof to be made." And in the same condition it was further provided that until such proofs &c. were produced, or if they were refused by the claimant as required, the loss should not be payable. On the trial it was proved that the company, after the loss" happened and claim made upon them, gave a notice in writing to Carpenter, requiring him to produce “all original invoices or bills of goods purchased) or duplicates of the same, and all other vouchers relating to your business for said period.” The witness, Carpenter, testified on the trial that he “had found only a few bills. I have found others, but only a part, but did not produce any to the defendants. They asked me to furnish further statements and the bills of purchases, or duplicates of them, but under the advice of counsel I declined.”</p> <p>The counsel for the defendants moved the court to dismiss the complaint, upon the ground in substance that the insured had not complied with the provisions of the ninth condition in producing the vouchers, bills of purchase or duplicates of them, which motion was denied and the defendants excepted. The jury found a verdict for the plaintiff, upon which judgment was entered, and the defendants appealed.</p>

<p>After an insolvent’s discharge is granted, if the officer has acquired jurisdiction, it is conclusive in all other proceedings in which it comes in question.</p> <p>Objections to it, not relating to the jurisdiction of the officer, cannot be raised collaterally, in an action against the insolvent for the collection of a debt claimed by him to be discharged. If such objections are well taken, the remedy is by a direct review of the proceedings, upon certiorari.</p> <p>What steps are necessary to be taken, to give the officer jurisdiction, so as to make his subsequent proceedings, and the discharge of the debtor, conclusive.</p> <p>Where affidavits of petitioning creditors are sworn to before a Hew York commissioner residing in another state, the certificate of the secretary of state of the latter state, proving the official character of such commissioner, is not necessary to give jurisdiction to the judge before whom the proceedings'are • pending.</p> <p>It seems, the jurisdiction of the officer may be shown by parol.</p> <p>On the other hand, although the discharge furnishes evidence of the performance of the jurisdictional conditions, it does not prevent the party assailing it, from showing that the officer in reality had no jurisdiction.</p>

<p>Where a commissioner of deeds, in a certificate of acknowledgment, certifies to a material requisite to the validity of a certificate, and without which he could not legally take an acknowledgment, viz: that he knows the parties by whom the instrument purports to have been executed—which statement is untrue—such certificate is a nullity, both in respect to the recording of the instrument, and as proof of the execution thereof.</p> <p>As between the parties, however, the instrument would be valid, without any certificate of acknowledgment, upon proof that it was executed and delivered by the grantors.</p> <p>The court will not interfere with the finding of a referee, upon a question of fact, as to which there is conflicting testimony; unless the clear weight of evidence shows that he has erred.</p>

THIS is an action brought upon a bond- made by John W. Carpenter and Joseph G. Carpenter, both deceased, tc James I. Roosevelt, deceased, and Cornelius Y. S. Roosevelt, against the heirs of Joseph G. Carpenter, who was the survivor of the obligors, by the plaintiff, who is the assignee of Cornelius Y. S. Roosevelt by assignment from him personally and as executor of James I. Roosevelt. The bond was conditioned for the payment of the principal sum of $2000 and interest.

THIS case was submitted, for the construction of the will of the late Edward Gr. Thompson.

THIS action was brought upon three promissoiy notes, made by the defendant during her coverture, and also for a balance due upon an account, for merchandise sold to her during her coverture, The complaint alleged that the promissory notes were for goods sold and delivered to defendant at her request) “and g'olely on her credit and responsibility, she being thén a trader doing business in her own name, and for her own personal benefit and advantage, she holding herself out to…

<p>Facts may be averred, in a pleading, according to their legal effect; but facts appearing on the trial, directly different from those averred, will be deemed a variance, although, if properly pléa'ded, they also would have constituted a good defense.</p> <p>In an action upon a promissory note, thó answer set tip the defense of usury on the part of the plaintiff in exacting more than seven per cent on a loan of money, or on giving a further day of payment. The proof was that the makers, being indebted to the plaintiff upon a promissory note, which they were unable to pay at maturity, and being pressed for payment, requested an extension of the time of payment, which the plaintiff’s agent refused to grant, unless the makers would give a new note, with two additional indorsers, and pay certain of the said agent’s expenses ih going to see the makers and of waiting for the new note. This was agreed to, and the note sued on was given for the amount of the principal of the old note, and the expenses of said agent; Held that there was a fatal variance between the answer and the proof.</p>

The action was brought to recover 1160.50 for rent due on the 1st of May, 1856, by Edward Heilberth, on the following agreement, to wit: • “I have this day rented the office Ho. 2 Hanover street, of Thomas Andrews, treasurer, until the 1st May next, for the sum of three hundred and twenty-five dollars, payable one half 1st of February, the other half 1st May next. Messrs.

ON the 30th of May, 1850, the plaintiffs, being manufacturers of oils and varnish in Brooklyn, entered into an agreement with Roberts & Low, merchants of London, doing business under the firm of E. G. Roberts & Co. The parts of the agreement material to the present case are as follows : The plaintiffs agreed to inorase the capacity of their works, so as to produce double the quantity of material then being manufactured by them, and when they were thus prepared to increase…

<p>APPEAL from an order made at a special term, for an injunction and a receiver.</p>

<p>A testator by his last will directed that on his youngest child coming of age one third part of his estate should be set apart and invested for the use of his wife during her life, and at her death it was to be divided among his children. The “ residue” of his estate he also directed 'to be divided among his children. The provision in favor of tlie widow was not declared to be in lieu of her dower. Held that thewvidow was not bound to elect between her dower and the provision made for her by the will, but was entitled to both. Ceerke, J. dissented.</p>

The action was brought to recover of the defends ant the loss and damages sustained by the plaintiff on account of certain false and fraudulent representations alleged to have been made by the defendant, on a sale of liquors to the plaintiff j and upon a warranty on said sale; and for the defendant’s neglect to furnish the plaintiff with a receipt or information, by means of Avhich a certain kind of liquor or schnapps could be made, at a specified cost, equal in quality to…

The action was brought to recover the vaít¡.e of goods sold by the plaintiff to the defendant Wells, upon fraudulent representations alleged to have been made in regard to his credit and responsibility, by the defendant Eenway. The referee found the following facts.

The plaintiff sued as “ Assignee of Antioch College.” The complaint was as follows: “Firstly.

<p>Parties.—Suit by Executor or Administrator.</p> <p>An executor who for a consideration proceeding from the estate of the testator, takes a note payable to him as executor, may maintain an action thereon, in his representative capacity.</p>

<p>Supplementary Proceedings.—Corporation Debtor.</p> <p>A judgment against a foreign corporation may be enforced by supplementary proceedings ufltier section 294 of the Code, to reach property belonging to it in the hands of third parties, or debts due to it from third parties.</p> <p>It seems, that the proper construction of section 294 would apply it to the case of a judgment against any corporation.*</p> <p>An action against a foreign corporation was commenced by attachment, which was levied by the sheriff on moneys on deposit in a Trust Company. The defendants appeared and interposed a defence which was unsuccessful, but did not procure the attachment to be discharged, nor did the sheriff collect the deposit ; and pending the action the Trust Company failed.</p> <p>Held, that the moneys attached and lost were not to be regarded as paid upon the plaintiff’s judgment. The laches, if any, were chargeable to the defendants.</p> <p>The rule as to the effect of a levy under an execution does not apply in its full extent to a levy under an attachment.</p>

<p>An application to open a sale under a .judgement, on the ground of misapprehension as to the time of sale, or any other circumstances not affecting the regularity of the proceedings, is addressed to the discretion of the court; and an order made thereon is not appealable.</p>

APPEAL, by the defendants, from an order made at a special term denying a motion for a new trial. The action was brought upon an agreement made between the defendants and one John Cockle, by which the former agreed that, in case the latter would procure for the defendants the agency for the sale of certain rail road bonds, they would pay Cockle one.third of their commissions upon the sale.

The pleadings were in substance as follows: The complaint alleged, substantially, that on the 2d day of February, 1855, the plaintiff caused to he delivered to the defendant, as common carrier, 142 firkins and 15 barrels of butter, of the value of $3051.17, to be safely conveyed and transported from Suspension Bridge to New York, and there delivered to the plaintiff, conformably to his directions in that behalf.

THIS was an action commenced before a justice of the peace of Otsego county, to recover for work and labor. The defendant, by his answer, denied the complaint, and claimed to set off demands against the plaintiff.

CBOSS-APPEALS from a judgment entered at the circuit, upon a verdict.

MOTION by the plaintiffs for judgment on a verdict taken, subject to the opinion of the supreme court. Also, motion by the defendants for judgment in their favor, on the case. The action was brought for the conversion by the defendants of three negotiable promissory notes, amounting in the aggregate to $2101.42 of principal, made by Daniel Tompkins, and payable to Clinton Evans or bearer, the assignor of the plaintiffs.

MOTION by the plaintiff for a new trial. The action was tried at a circuit court held in the county of Cayuga, in May, 1856, when there was a verdict in favor of the defendants.

jury. Martin Lynch sued Tibbies & Miller, claiming the delivery to him of a horse which was in their possession. To entitle Lynch to the immediate delivery of the property, the defendant, O’Connor, executed an undertaking pursuant to, and in accordance with, the provisions of section 209 of the code.

<p>MOTION for an injunction.</p>

<p>APPEAL, by the defendants, from a judgment rendered at a special term. The action was brought under the code of procedure, and was in the nature of a bill in equity. It was commenced April 25th, 1852, against the same defendants, the defendant Mrs. Livingston then being sole. The defendants having thereafter intermarried, an order was made October 24, 1855, directing that the action proceed against them as husband and wife. The defendant' Alfred S. Livingston having demurred to the complaint, the demurrer was allowed, and judgment thereupon entered, dismissing the complaint as to him with costs, August 20,1856. From this time forward he was not a party in his own right; hut only for conformity qua husband of the real defendant. The defendant Eliza, then Eliza B. Blackwell, put in an answer. On the issue thus joined, the action was tried by the court without a jury, at special term, March 16, 1857. The decision was in favor of the plaintiff, granting the whole relief claimed. The defendants having taken exceptions and made a case, appealed from the judgment to the general term.</p> <p>The complaint alleged that on or about September 1,1845, the defendant Mrs. Livingston, then Eliza B. Blackwell, “ in consideration of the sum of $11,000,” conveyed to the plaintiff, Dr. M. P. Moore, one equal undivided moiety of two lots of land, one in Oourtlandt street and the other in Broadway, in New York. That the deed was duly acknowledged before Dayton Hobart, a commissioner of deeds. That the consideration.was “ fully settled and adjusted between them previously to” the delivery of the deed. That the deed remained in the possession of Dr. Moore over eight months, “when he was requested by A. S. Livingston permission to look at the said deed,” and handed him the deed, “ and permitted him to take it with him under his promise to return it in a short time.” That A. S. Livingston was then acting as Dr. Moore’s agent in care of the premises; that he so acted to the entire satisfaction of Dr. Moore, paying over all rents to him until October, 1851. That A. S. Livingston at this date denied that he had received the deed, refused to return it, and set up the pretense that the property belonged to Miss Blackwell. That the defendants were living together; that A. S. Livingston insists that he is Miss Blackwell’s agent in collecting the rents; that Miss Blackwell, when requested to return the deed or execute a new one, declines "any answer, hut refers to A. S. Livingston. Prayer for a return of the deed, or the execution of a new one, and an account of the rents from July 1, 1851. The answer of Miss Blackwell admits that she claims to own the premises, and also that A. S. Livingston is her agent in collecting the rents thereof. Every thing else alleged in the complaint is denied. The judge at the trial suggested a doubt whether the answer unequivocally denied the execution of the alleged deed. The defendants’ counsel at once moved for leave to amend the answer; but the plaintiff’s counsel prevented that step by agreeing that “ as a pleading the answer shall be regarded as fully putting in issue the allegations of the complaint as to the execution of any conveyance for all the purposes of this case.” The property was described in the pleadings as having once belonged to Dr, Moore. The plaintiff gave in evidence a conveyance thereof, by Flias Gr. Drake to Miss Blackwell, dated June 11,1845, for the consideration of one dollar, with covenants against his own acts. The defendants gave in evidence a full covenant warranty deed for the same premises, from Dr. Moore, the plaintiff, to said Elias Gr. Drake, dated November 11, 1844, in consideration of $10,600. The defendants also gave in evidence the following documentary proofs touching the title and possession of the premises. 1. A mortgage for $10,000, Stephen Price to Henry H. Watson, November 30,' 1839. 2. Deed of D, Ullman, master in chancery, on foreclosure of said mortgage, to Lewis Moore, dated May 18,1841, recorded September 18, 1843; consideration, $6000. 3. Lewis Moore and wife to M. P. Moore, the plaintiff; June 7, 1841; recorded June 21, 1841; consideration, $11,148. 4. Lease by M. P. Moore and William Bradford, (owner of the other half,) for Oourtlandt street property to William Burger, at $540 per annum, three years from May 1, 1842, with extension for two years, dated Feb. 11,1847, signed by the tenant, Bradford, the other owner, and Miss Blackwell. 5. A like lease of north half of the Broadway property to Kimball & Rogers, for five years from May 1, 1842, at $800 pet annum, with an extension for two years, dated Feb. 11, 1847, signed by Rogers, one of the tenants, and Miss Blackwell. 6. A like lease of south half of the-Broadway property to J. Gr. Bolen for three years from May 1, 1842* at $650 per annum, with an extension for two years, signed by the tenant and Elias G-. Drake; and another extension for two years at $600 per annum, dated Feb. 11, 1847, signed by the tenant and Miss Blackwell. It appeared tha¿fc Miss Blackwell was one of a family of that name consisting of one brother and five sisters; that A. S. Livingston, at the earliest period referred to in the proofs, was the husband of one of the sisters named Justina; that she died September 11, 1851, and that in 1854 he married her sister Eliza, the defendant. In 1840 or 1841 and onward to 1844, Justina Blackwell and her husband, A. S. Livingston, Harriet Blackwell and her husband Mr. Bleecker, Rosina Blackwell, Julia Blackwell and Eliza Blackwell, the defendant, all then unmarried, resided together as one family, in a house in Hubert street, Hew York. Afterwards A. S. Livingston, his wife Justina and the defend- and Eliza boarded together for some time in Hudson street, Hew York. Afterwards they traveled together for a short time. After that period until' Justina’s death, the last named three persons lived together, first in Third street, Hew York, and then at Trenton, H. J. During all this period Dr. Moore was on very intimate and friendly terms with A. S. Livingston and the ladies. He boarded in the same house with them in Hudson street, and traveled with them, and was their family physician. At the time of the trial, only three of the sisters were living. Mrs. McDonald, one of them, was examined as a witness. Drake, the purchaser, collected the rents of the premises in question from August 1, 1845, (the first quarter after his purchase,) until August, 1847, first in his own name, afterwards as agent for Miss Blackwell. After that time A. S. Livingston collected the rents as agent for Miss Blackwell. Ho act of Dr. Moore was shown after, the date of his deed to Drake, in connection with the property or indicating any care for or interest therein until his demand for a reconveyance in 1851 or 1852. In the years 1849-50 the two lots were improved upon at a cost of about $14,000. Mr. Bradford, son and agent of the other co-owner, made the payments, receiving one half from A. S. Livingston. Miss Blackwell mortgaged the Oourtlandt street property to C. Lawson for $2000, Hov. 23, 1847, and mortgaged the Broadway property to 0. H. Marshall for $5000, June 7, 1850.</p> <p>The plaintiff produced Thomas F. Conry, Thomas Seaman, Geo. L. Pride, and his brother, Charles Moore, as witnesses to certain matters, tending, as he conceived, to the conclusion that such a deed as that alleged in the complaint had been in his possession about the year 1845. Except the delivery of a certain letter written by himself to Miss Blackwell, which was not answered, the contents of which were received under objection, he gave no evidence accounting for the non-production of the supposed deed. The oral testimony of each of said four witnesses, touching the existence and contents of the supposed deed not produced or accounted for, was objected to for that reason. The objection was in each instance overruled, and the decision excepted to. Mr. Dayton Hobart was also examined for the plaintiff; hut he gave no material evidence. After all the plaintiff’s four witnesses had been examined, and just before resting the case, Dr. Moore was himself offered as a witness “ to prove the allegations in the complaint, about the manner in which the alleged deed to plaintiff was procured from him by A. S. Livingston, and to account for its loss,” “ not as a witness in chief, but to account for the non-production of the deed.” The defendants objected to the reception of this evidence, on the ground that the inferior testimony had all been admitted without it, and because A. S. Livingston could not be heard to contradict the plaintiff as a witness for his wife, and’ the complaint showed that Mrs. Livingston had no personal knowledge of the fact in question, and consequently she could not avail herself of 2 R. S. 406, § 74. (See Revisers’ Note, 3 R. S. 738, 2d ed.) The defendants, also, in support of their objection to this evidence, offered to waive expressly in writing any objection to other evidence founded on the non-production of the deed. The court, nevertheless, admitted the witness to testify, and the defendants excepted. Dr. Moore testified that he once had a paper purporting, &c., as alleged in complaint, and that he last saw it in the hands of A. S. Livingston, and did not at time of trial know where it was. Dr. Moore then offered himself as a witness in chief, with liberty to both defendants to become witnesses in contradiction to him. The offer was not accepted. The plaintiff then .called the attention of the court to the fact, that the description in the complaint showed that Dr. Moore once owned the property, gave in evidence the deed from Drake to Miss Blackwell, and rested his case. Dayton Hobart testified that ten or twelve years prior to the trial, (say in 1845, 6 or 7,) he took the acknowledgment of Miss Blackwell to some instrument, at her residence in Hudson street, ÍT. V. He could recollect nothing more about the paper. He could recollect but one instance. He had a sort of vague impression that he might have taken her acknowledgment three or four times. The defendants produced a power of attorney from Miss Blackwell to S. 0. Williams, witnessed by and acknowledged before this witness, December 7, 1844. John F. Conry, a witness for the plaintiff, testified that ten or twelve years before the trial, Dr. Moore called on witness to get a loan on real estate, and showed him a deed purporting to be signed and sealed by Eliza B. Blackwell; that Dr. Moore told him it was not recorded, and that he examined for and found upon it no indorsement of registry. It was not shown or pretended that this witness knew Miss Blackwell, or her handwriting; and each question to him, and each answer by him, was objected to by defendants. Each objection was overruled, and the defendants excepted. Thomas Seaman gave essentially the like testimony, fixing the time more exactly, September, 1845. He did not know Miss Blackwell or her handwriting. The plaintiff’s conversations with him were allowed, under exception. Every part of his direct testimony was excepted to. His cross-examination tended very strongly to discredit his statement. George L. Pride gave the like testimony, with, perhaps, one additional fact. He testified that he remembered the name of Hobart to the acknowledgment. He said that he did not know his handwriting; took it for granted; he was not then acquainted with Mr. Hobart’s handwriting to know it, to swear to it. He had not intimated that he had ever seen Mr. Hobart’s writing, or knew him at all, or knew any thing of him; and the counsel for the plaintiff, in the face of an exception, was allowed to ask whether, from his “ then knowledge of the character of Mr. Hobart’s handwriting, he believed that to be his signature ?” He answered affirmatively. He was cross-examined at length. He could not recollect how the name of Hobart was written, whether abbreviated or at length. He did not recollect reading the" acknowledgment; he took it for granted. Did not scrutinize it. While under cross-examination he volunteered this statement : “ I had seen Mr. Hobart write two or three times before that, when I had acknowledged deeds before him.” This led to fuller cross-examination, when he declined to swear that he had so acknowledged any deed ,or paper before Mr. Hobart, or seen him write. He thought it was a deed of trust; looked at it but slightly; was rather attending to what Dr. Moore said, than looking at the deed. It was a hasty interview. He did not recollect the signer’s Christian name; nor whether or not Dr. Moore’s signature was appended. Did not afterwards recur to this circumstance; and but for a recent conversation with Dr. Moore, would not have recollected the names as well as he did. The interview at which he saw the paper was at Dr. Moore’s office, in Hudson street, about 11 o’clock in the morning.. Dr. Moore called him in. At first he thought he could tell; but at last he failed in telling where he had been that morning, what his business had been, or whither he was going. He could give no fact, through which his story might be tested by contact with other witnesses. He had ’several real estate transactions during his life ; he had bought and sold. He described the various instances; but he could not remember the name of any witness or commissioner to any of his deeds'; had forgotten the names of some of his grantors, and had an imperfect recollection of others. He had only seen Dr. Moore two or three times, and had only a bowing acquaintance with him; and never had but two conversations with him. One was when he saw the deed, the other was the year before. Gould not teE who introduced them.</p> <p>Charles Moore, a brother of plaintiff, testified that, about 11 A. m., one morning, in September, 1845, he had an interview with Dr. Moore in his bed room, a back room in the second story of Mrs. Newport’s boarding house in Hudson, street. That Dr. Moore then took torn his coat pocket a 'deed conveying the premises in question to him, purporting to be signed by Miss BlackweE. That he had often been with his brother in that room. That he had no special occasion for cafiing on this occasion; the interview might have lasted two or three hours. This witness was about 19 years of age at the time referred to. He had been previously examined conditionally in the cause in 1852, and located this interview in the parlor. On the trial he was cross-examined to this point, and could not remember whether or not he had so testified ; but he insisted, however that might be, that it in fact took place in the second story back room. Mrs. Newport, her sister-in-law, and her son were produced by the de- . fendants, and united in testifying that Dr. Moore’s bed room was a front room on the third story, and that whüe Eving in that house he never occupied any other room.</p> <p>0. Moore said that there was no attesting witness. Mr. Hobart testified that it was his habit to see that there was an attesting witness, or to attest as such himself. He admitted that he did not scrutinize the signature ; but said that he knew Miss Blackwell’s handwriting, and that the signature to the deed was her’s. He was fully cross-examined as to his knowledge of her handwriting. After stating that he saw her write a number of times, he retreated to two occasions. They were both about the same time in 1843, and no person present on either occasion was living at the time of the trial. The two occasions were as follows : He was in the habit of visiting at the residence of the Blackwell family in Hubert street, Hew York, for a couple of years ; had paid twelve to twenty visits. Once, without any known occasion, during one of witness’ evening visits, Miss Blackwell took a pen, and wrote her name on a blank sheet two or three times. Ho "one else was present. She said nothing; did not ask witness to look at it. The other occasion was in the evening, when playing a game called consequences. She then wrote with a pen and ink. He had frequently played that game at that house ; but could name no.living person with whom he had played it, except Miss Eliza B. Blackwell. Alex. H. Bleecker, who married Harriet Blackwell, one of the sisters, testified for the defendants that he understood the game called consequences; that if a lady showed a gentleman what she "wrote, it would spoil the game. In playing it, one could not see what others wrote. That a pencil is used; pen and ink never; it would be very inconvenient. That he never knew it played by Miss Blackwell, or in the Blackwell family. The only surviving sister who was able to attend, and the brother, testified that they never knew the game played in the family, or by the defendant Eliza. G. Moore, at first, named his employer at the time of this occurrence ; but afterwards said that he could not remember where he was then employed. He testified that A. S. Livingston superintended the rebuilding for Dr. Moore. He had been a witness for" Dr. Moore in his various controversies, and was his’expected devisee. He testified that one of the things written in this game of consequences was the name of Mr. Brantingham. Mr. Brantingham testified that he never visited at the house in Hubert street, and his acquaintance with Miss Blackwell commenced subsequently to her leaving that house. In 1852 he" went to the house in Trenton, H. J.; and there had ■an interview with Miss Blackwell, in the presence of A. S. Livingston. He told her he came, at Dr. Moore’s request, "with some papers, to induce her to convey the property back ; that he had a deed ready, and she had nothing to do "but to sign it. She said he must speak to Alfred; but he continued to speak to her ; Livingston became very angry, ordered him to withdraw ; and he did so, under an apprehension of being kicked out. He handed to, and left with her, a letter from Dr. Moore ; he showed her certain depositions to read; she wept. He told her she knew very well why the property was put in her ■ hands; that she knew very well she had never paid any thing for it, and was bound to return it to Dr. Moore. She said she would do nothing in the matter. Nothing was said about the previous reconveyance, now alleged. It did not appear that Miss Blackwell opened, or read the letter. Under the defendants’ exception, the court admitted it in evidence. It alleges, in substance, that Dr. Moore’s conveyance was in trust for himself; and that A. S. Livingston had destroyed a reconveyance executed by Miss Blackwell.</p> <p>The plaintiff rested. The defendant gave the following evidence. First. The title papers before mentioned, other than the deed to Miss Blackwell, which the plaintiff had produced, Secondly. A complaint of Dr. Moore, in an action for medical services and money expended, brought against Miss Blackwell, April 22, 1852, claiming on oath $3900. A like complaint, of same date, against A. S. Livingston, for $14,760. Thirdly. An examination of Dr. Moore, the plaintiff, on oath, before the surrogate of New York, November 29, 1844, in which he expressly testified that the sale to Drake was without any understanding for a reconveyance, and was for the price or consideration of $10,650 received by him. Fourthly. Elias G-. Drake, the purchaser, testified that he bought from Dr. Moore at the request of A. S. Livingston, and paid him for the property with funds provided by A. S. Livingston. One item was Livingston’s check for $500. As far as he knew, it was an out and out bona fide sale. His intervention was procured to avoid suspicion that it was not an actual sale, Moore and Livingston being very intimate. At the request of Mrs. Justina Livingston, for whom he understood the purchase to have been made, he executed the conveyance to Miss Blackwell.' Fifthly. Thomas W. Brantingham testified that, in February or March, 1849, in a free and friendly conversation, Dr. Moore told him that his sale of the premises was bona fide, and that Miss Blackwell was bona fide owner of the property. In cross-examining the defendants’ witnesses, the plaintiff sought to show that Miss Blackwell had not sufficient means to pay for the property when it was conveyed to Drake.</p> <p>The defendants having rested, the plaintiff was allowed to give in evidence, by a bank clerk, a bank account of A. S. Livingston, as kept in 1844, in the Mechanics’ Banking Association. The admission of this testimony was excepted to. The plaintiff then offered the examination and cross-examination of A. S. Livingston, as a witness, on the indictment of Dr. Moore, in February, 1857. The court admitted it, and the defendants excepted. The examination contained the most, full and explicit declaration ; 1st, that the sale to Drake was bona fide and for full value. 2dly, that the full consideration was furnished to Drake by Livingston for the purpose, and, as the witness believed, paid over by Drake to Moore ; that Livingston never knew of, or had in his possession, any reconveyance to Moore.</p> <p>The judge at special term found that the conveyance by Dr. Moore to Drake was made without consideration, with intent to hinder, delay and defraud Dr. Moore’s creditors. Also that a reconveyance to Dr. Moore was executed by Miss Blackwell about Sept. 1845; and that such deed was in possession of A. S. Livingston; that it was “ mysteriously obtained” and “fraudulently withheld.” And the court decided that the defendants should execute a deed to the plaintiff, and that the tenants should attorn. The defendants excepted. The defendants made a case containing the evidence, with their exceptions, in order to review the questions of law and fact.</p>

of Samuel Parsons, deceased, and directing the executor to account for the assets realized by him in this state. The facts appear in the opinion of Sutheeland, J., and in the report of the case before the surrogate. (4 Bradf. 268.) David Lyman, the executor, appealed.

<p>MOTION for a new trial upon exceptions, ordered to be heard at a general term. The action was upon a premium note, in these words: “For value received, in policy No. 1875, dated Jan. 25th, 1851, issued by the Orleans Insurance Company, [I] promise to pay the said company, or their treasurer for the time being, the sum of three hundred and . fifty dollars, in such proportions, and at such times, as the directors of said company may, agreeably to their charter and by-laws, require. (Signed) H. S. Achilles.”</p> <p>The questions discussed are sufficiently presented in the opinion.</p>

ACTION for a partition. The rights and interests .of the several parties depended upon the construction of the will of H. Weller, deceased.

<p>Where one of two partners in a firm doing business here is absent in a distant state, and thus unable to assist in the management of the business, and to assent to such transfers of its property as the exigencies of its affairs may demand, it seems that such absence, if it does not warrant the remaining partner in making an assignment of the partnership property, in trust, for the benefit of creditors, will authorize the presumption that he was duly empowered to make such an assignment as attorney for the absent partner, until the contrary appears.</p> <p>And no one hut the absent partner can question the validity of an assignment thus executed. It is not void per se, but only voidable at the election of the absent partner.</p> <p>If, upon his return, the absent partner affirms and ratifies an assignment, executed during his absence by his partner, in his name and as his attorney, such ratification will relate back to the time of the original execution of the instrument, and render the assignment' valid and operative from that time.</p> <p>Such assignment, being a complete and perfect deed immediately on its execution and delivery to the assignees, it is from that time entirely beyond the control of the resident partner, and he has no power to alter, amend or vary its terms or provisions.</p> <p>Hence, he cannot vary its effect by making a note to a creditor, in the name of the partnership, after the execution of the assignment, and. dating it back to a day prior to the execution of that instrument, for the purpose of having such note embraced in the schedule of debts preferred in the assignment.</p>

The following facts were established by the proofs: That in the year 1849, and prior and subsequent to that time, the defendant, Henry Chamberlin, and James Wood, jun. were attorneys and counsellors at law, doing business at Geneseo, in the county of Livingston, as joint partners, under the firm, name and style of Chamberlin & Wood.

THIS action was commenced by summons issued by a justice of the peace for the county of Westchester.

The plaintiff, by his complaint, sought to have a certain assessment and sale, and the proceedings therefor, adjudged illegal, irregular, and void, and for other relief.

<p>Where a sheriff dies, while in office, after having taken a bond for the jail liberties from a person imprisoned upon a ca. sa., and a new sheriff is thereupon appointed, and a certificate of his appointment signed by the county clerk, is served upon the under sheriff, such prisoner, and the bond for the jail liberties, must be assigned by the under sheriff to the new sheriff, within ten days, or the prisoner will be at liberty to go at large. After the expiration of that period, the new sheriff has nothing to do with the prisoner, and the power of the under sheriff is at an end.</p> <p>Hence, no action can be maintained, upon the bond, by an assignee of the under sheriff, by virtue of an assignment executed after the expiration of the ten days.</p>

The action was brought by the plaintiff as indorsee, against the defendants as indorsers, of the following check: “New York, May 24, 1857. Bowery Bank pay to P. Morris, Esq’re, or order, five hundred dollars. #500. (Signed) Joseph S. Taylor. Indorsed—Pay B. Graves, Treasurer. Peter Morris. Pay Sam’l Conklin. B. Graves, Treasurer. Samuel Conklin, •Bradford.

<p>A wife may confer upon her husband the use or income of her separate property, as a gift; and her acquiescence, or assent to its receipt or use by him, is evidence of a gift by her.</p> <p>Where a married woman, owning a farm, in her own right, goes into the possession of it with her husband, and occupies it, with him and their family; she permitting him to cultivate the land—but without any agreement as to the rents or produce—and to use the proceeds in the support of herself and family, and to sell, exchange and deal with the crops at his pleasure ; she thereby confers on him rights which cannot be withdrawn or repudiated when his creditors seek to collect their demands out of property for which he has exchanged the produce of the farm.</p> <p>Both at law and in equity property thus purchased by the husband belongs tq him, and. may be seized by his creditors,</p>

THIS was an action for false imprisonment, tried at the Onondaga circuit, before Mullin, J. The defendant justified as a constable, and under a warrant issued by a justice of the peace reciting a complaint for a felony against John H. Miller, and commanding the officer to arrest “ the said William Miller.” The judge at the circuit, upon proof that the plaintiff was the person intended, held the warrant a justification to the officer and nonsuited the plaintiff; who appealed…

<p>Contesting Will Of Married Woman.—Husband’s Title to Separate Property of Deceased Wife.</p> <p>The acts of 1848 and 1849, respecting the separate property of married women (Laws of 1848, ch. 200; Laws o/1849, ch. 315), do not divest the husband’s right of succession to his wife’s personalty on her decease, except where the power of disposal given to her by the statute is actually exercised.</p> <p>The relatives of a deceased married woman have no interest, under these statutes, enabling them to contest the probate of her will of personal estate.</p>

The complaint alleged that on or about the 9th day of July, 1852, the defendants William Yarian and Elnathan Hawkins, and Robert Gr. Palmer, - late deceased, made a certain bond, signed with their seals, and acknowledged the same before a justice of the peace, which was in the words and figures following: “ Know all men by these presents, that the corporation, the ‘ trustees of the town of Westchester,’ Elnathan Hawkins and Robert Gr.

ACTION of ejectment, to recover an undivided interest in certain real estate situate in the town of Rome, tried before Justice Pratt and a jury, at the Oneida circuit. The plaintiffs claimed in right of the wife as heir at law of Dominick Lynch, deceased. The defendant claimed under a devise from Dominick Lynch to his wife Jane Lynch, and a devise from the latter to the defendant Louisa Lynch.

THIS was an appeal from a judgment entered in pursuance of an order made by a justice of the court at chambers, directing judgment for the plaintiff on account of the frivolousness of the demurrer, under section 247 of the code.

<p>Appeal from a judgment of the county court of Kings county, affirming a judgment of a justice’s court.</p> <p>Willins sued Wheeler in a justice’s court of the city of Brooklyn on the 27th day of February, 1858, by a long summons returnable on the 10th day of March, 1858. On the return day of the summons the defendant Wheeler appeared before the justice and stated that “ he did not appear in the action, that he was a non-resident,” and declined further to plead. The defendant then left the court-room, and an adjournment was taken for one week. On the adjourned day plaintiff appeared, entered his complaint and took judgment for the amount demanded in the summons: the defendant then appealed to the county court of Kings county, and on the appeal offered as evidence of his non-residence two affidavits which were read : the county judge was of -the opinion that these affidavits should have been offered in the court below in abatement of the action, and refused to entertain them on appeal, and affirmed the judgment of the justice. From his decision the defendant now appealed to the general term of the Supreme Court.</p>