Volume 28 — New York Reports

<p>H. M., the elder, was bom in Scotland, and at an early day came to reside in the colony of New York, and lived near Fort Miller, when he received a conveyance of certain lands -from W., L. & Y. in 1774. Shortly afterwards, "and just before the commencement of the revolutionary war, he went to Montreal, and always afterwards resided in Canada, until his death, in 1802. Held, that he was an alien, as regards the state of New York, from the time of the establishment of an independent government here, until his death.</p> <p>H. M., the younger, son of H. M. the elder, was born in New Jersey, in about 1766; went with his father’s family to the neighborhood of Fort Miller, and was left there with his mother and the remainder of the family when his father went to Canada. At the commencement of the revolutionary war his mother went with her family, consisting of this son and four other young children, to the city of New York, where, and on Long Island, then also in the possession of the British army, they, or the survivors of them, remained until the close of the war. The mother and all the children, except this son, appeared to have died during the war. He was with an aunt on Long Island, at the peace, and was then sent for by his father to come to him in Canada, whither he accordingly went, being then about 17 years of age; and he had ever since resided in Canada, in the same town, with his father, whose property there he inherited.</p> <p>Held, that H..M. the younger was, equally with his father, born a British subject) that he did not become a citizen of New York by force of the declaration of independeúee, or of the act of the convention of July 16, 1776, affirming that all persons abiding within the state and deriving protection from the laws of the same owed allegiance to the said laws and were members of the state; because, independently of Ms minority, he withdrew, or was withdrawn from the'place where those laws practically operated, and was placed under the protection of the British government, in a locality possessed by its armies and wholly under its .control. Nor did he become a citizen of New York by force-of any election to abide therein, after the British forces were withdrawn, upon the conclusion of the peace, for the reason that he was incapable, from his non-age, of making an actual election, and did not attempt to do so; and that if he did remain here for a short time after the treaty, no election could be inferred from that circumstance, on account of the same disability; especially as he conformed to the directions of his father, a British subject, by repairing to a British colony, at once; and hence that he also was an alien.</p> <p>Held, also, that notwithstanding his alienage, H. M. the younger could inherit from his father, who was never attainted of treason, the lands held by the latter in this state, by force of the treaty of peace, of 1783, and the subsequent treaty of commerce, of 1794.</p> <p>A deed purporting to be executed by virtue of a power of attorney from the owner of the land, which power is not proved, affords sufficient color of title on which to found an adverse possession, if there has been a good constructive occupation, under it.</p> <p>Where a grantee of a large tract of uncultivated land entered upon the same, in 1797, under and by virtue of his deed, and made extensive, valuable and permanent improvements, erected buildings, and paid taxes thereon; the cleared portion being continuously occupied by him and his successors in the title, and by his and their lessees and tenants, down to the present time, under a claim of title to the whole tract; and the uncleared portion of the land having been extensively used for cutting timber for the market, and for fencing and fire wood; Held, that in the absence of any subordinate allotment which would limit the effect of such entry and possession, the whole of the premises included in the deed were, by force of the 9th section of the article of the revised statute relative to the time of commencing actions relating to real property, (2 M. S. 294,) to be deemed to have been held adversely to persons claiming to hold under a subsequent deed.</p> <p>The provisions of that article of the revised statutes were not intended to introduce a .new rule, applicable only to future cases, but are declaratory of the then existing law.</p> <p>A child born here, of non-resident parents, and now residing here, is prima fado a citizen of this slate, notwithstanding his mother was only here for the purpose of being confined.</p> <p>An alien may take by purchase, and hold against all parties except the state claiming under an inquest of office.</p>

This action was brought in the Supreme Court to recover the value of certain goods that the plaintiff alleged the de-, fendant forcibly and wrongfully took from his possession and carried away, at the city of Brooklyn, in November, 1857.

One Andrew Simpson made the affidavit upon which the justice issued the summons requiring Mitchell to remove, forthwith, from the premises or to show cause on the same day, January 29, 1862, at 12 o’clock noon, why the possession of the premises should not be delivered to the landlord.

The action was' brought to foreclose a mortgage executed by the defendant Stanley to Lewis Stanley, deceased, on the 9th of July, 1851, to secure the payment of the sum of $1000, in ten equal annual payments, with interest at five per cent per annum, the first payment to be made on the 1st of April, 1852.

The action was to recover the amount of an over-draft hy the defendant, on a cargo of corn shipped by him from Buffalo to the plaintiffs, as consignees, at Albany, for sale1 on commission. The complaint averred that the plaintiffs were partners, as produce commission merchants, at Albany, under the name of Blackmar & Irwin.

This was an action against the defendants as common carriers, in which the • plaintiffs claimed damages for injury to a quantity of oats, caused by their heating and becoming mouldy, during the months of June and July, 1851, in consequence of the failure of the defendants to transport them from Perth, in Canada, to Oswego, within the time required by their contract.

The action was to recover freight for carrying flour and oats in ‘canal boats, from Elmira to the city of Hew York, in the fall of 1853.

Appeals from the Supreme Court. John Hopper died in 1819. The material provisions of .his will were as follows : ££I give all my real estate to my three grandchildren, G-arrit H. Striker, Ann Striker, and Winifred the wife of Jordan Mott, and their heirs, forever.

The action was to recover damages for an alleged trespass by the defendant upon lands claimed by the plaintiff. The parties were owners of adjoining farms; the farm of the plaintiff lying on the west of that of the defendant, and the only controverted question was as to the true, location of the .division line. Both farms were originally owned by Bobert Waugh, the grandfather of the parties.

This is an appeal by the defendants from a judgment of the Supreme Court in the first district, at a general term, affirming a judgment entered at special term, on the report of Lucius Robinson, referee, in favor of the plaintiffs against all the defendants for $5156.81, damages and costs.

The relator sued out a mandamus requiring the supervisors to audit certain damages assessed for the land of the relator taken for a highway, and to the end that the same should he levied and collected in the town of Southfield, or to show cause, &c. The supervisors answered the writ, denying some of the allegations in it, and alleging some new matters.

This action originated in a justice’s court, and was tried in 1854. It was trover, for a quantity of hay. The defendants answered jointly, denying each and every allegation of the complaint, and also justifying under a title in Elwood, under a mortgage from the other defendant, Miller. The plaintiff proved the purchase of the hay on an execution, in his own favor, issued from a court of a justice of the peace, against the defendant Miller.

<p>An.cider of the Supreme Court, setting aside a sale of mortgaged premises, atld directing a reference, to ascertain when two of the defendants in the foreclosure suit entered on the premises, and under what' agreements, or title, respectively; also the value of the premises occupied hy those defendants respectively at the time they took possession of the same; and what the relative value of such parties respectively, independént of the improvements made hy such defendants, is, with reference to the value of the rest, and of the whole of the mortgaged premises; and the cost or value of such improvements respectively was; and reserving to either party, on filing the report of the referee, the right to move for its confirmation', and for an order determining the payments to he made by the two defendants named, respectively, is not appealable to this coilrt.-</p>

This action was brought in the Court of Common Pleas of the city of Hew York, to recover the value of a trunk and its contents, which it was claimed were delivered to the defendants, on ship board in the harbor of New York, on the plaintiff’s arrival at that port, in the ship Ontario; which trunk the defendants undertook to forward to their place of business at Castle Garden; and it is alleged that the trunk and its contents, of the value of $1290, were lost by the…

This action was brought upon a lease of a farm and certain personal property, to recover damages for the breach of covenants in the lease and rent reserved therein for. the use of the farm. The lease was under seal. The defense to the action was that the claim for damages and rent had been submitted to arbitrators, who had made an award which •destroyed all rights of action oh the lease.

The action was upon a contract of insurance upon the church edifice of the plaintiffs. It was tried before a jury, at the circuit, and a verdict was rendered for the defendants. Apd from the judgment rendered thereon, the plaintiffs appealed. Several exceptions were taken, on the trial, by the defendants, which are noticed in the following opinions:

The action was brought to recover a threshing machine and two wagon gearings, which the defendants, in September, 1856, received to carry on their vessel from Buffalo to Milwaukie, and which they failed to deliver. The defendants, Ensign and Holt, appeared and answered. The other defendants, Merchant, Marsden and Moses, were non-residents, not served with process, and did not appear or answer.

The plaintiff in error was indicted and convicted in the Hew York General Sessions, of a conspiracy to cause one Jacob Laube to be arrested for the crime of larceny. It was averred in the indictment that in pursuance of the conspiracy, he caused and procured one Josephine Westendorff to appear before one of the police justices in Hew York, and complain of Laube for larceny, and falsely swear that Laube had stolen money from her.

<p>S. and 0. entered into an agreement in writing, by which S. agreed to sell to 0. his house, farm and premises, &e. all the tools belonging to the saw mill, all the apparatus belonging to the grist mill, “ together with all the fixtures belonging to the fulling mill and carding machine, together with every article attached to the freehold.” It was proved that a. building on the farm, which had been used in the wool-carding and cloth-dressing business, was called and known, at the date of the contract, as the fulling mill and carding machine. But the building had not been used for that business for several years, and the carding machine itself had been taken from the building, and stored in the grist mill. JHeld that S. intended to sell, and G. intended to purchase, by the contract, not only the fulling mill and carding machine building, but ail the machinery on the farm, which had been used in such building as fixtures; and that such machinery was what they meant by the .words “ fixtures belonging to the fulling mill and carding machine.”</p> <p>Sold, also, that the judge erred, in charging the jury that if before the contract was made there had been a permanent removal of the carding machine from the carding machine building, upon an abandonment there of the carding business, tlie machine ceased to be a fixture, and became mere personal property, and did not pass to 0. by the contract.</p> <p>That he should have submitted to the jury, upon the evidence, the question whether the words “ carding machine and fulling mill,” as used in the contract, did not mean the building on the farm, in which the business of carding wool and dressing cloth had been carried on; and if so, whether the phrase “ fixtures belonging to the fulling mill and carding machine” did not mean the carding machine and other machinery that had been used in said building, though detached and stored elsewhere, at the date of the contract.</p>

<p>This action was commenced-in the Supreme Court by the surviving executor to obtain a construction of the will of his testator, John Eose.</p> <p>By the will, a large share of the testator’s property was devised for the purpose of establishing and endowing an associaton for the care and education of certain children designated therein. Another portion of his property was given to the American Colonization Society, and it was to determine the validity or invalidity of these bequests that the action was commenced.</p> <p>These bequests were held invalid, by both the special and general terms, and the judgment of the general term was affirmed in this court.</p> <p>The appeals to the general term from the special term, and the appeal to this court, were not prosecuted by the executor, but by the counsel for the association and colonization society.</p> <p>The counsel for these appellants now move that an extra allowance out of the fund in the hands of the executor be made to them, to indemnify them for costs, counsel fees and disbursements not 'paid by the. allowance of costs in the cause. The judgment in this court and the judgments in the courts- below gave" the defendants their costs, to be paid by the executor out of the estate.</p> <p>The counsel for the next of kin resists the motion on several grounds: 1st. Because costs having been allowed, by the judgment, no other or different relief can now be granted, except upon a rehearing of the cause.</p> <p>2d. The code of procedure has abolished all former rules and statutes allowing or regulating costs, and no costs can now be granted except such as are allowed by it.</p> <p>3d. That costs as between attorney and client could only be allowed in favor of a trustee.</p>

The fund amounted^ to. $1859.99 ; and the only claimants were the defendants, David Jones and Joseph T. Schmidt, each of whom claimed the whole. Held: that the payments by Maass to Jones subsequent to the maturity of the mortgage to Jones were not’ applicable on account of the mortgage. It distinctly appears that these payments were on account of further sales from Jones to Maass.

This action-was brought to recover damages for the failure of the defendant to carry the plaintiff from New York city to San Francisco, via Lake Nicaragua. Three claims in the complaint charged the defendant with neglect of duty as a common carrier in not transporting the plaintiff. The fourth and fifth claims charged the defendant with fraud in not transporting the plaintiff. The action was tried at the Cayuga circuit, in October, 1855.

The relator made a motion, on affidavit and notice, at a special term of the Supreme Court in the city of Yew York, for a writ of mandamus to be directed to John Keyser, register of the city and county of Yew York, commanding him to receive on file in his office a -satisfaction piece of a mortgage, and to cancel and discharge the mortgage of record.

The order of the special term directed that the clerk of the city and county of blew York do take and remove from the files of his office a satisfaction piece, in this cause, filed August 25, 1858, of the judgment of the Supreme Court, on a remittitur from the Court of Appeals, the judgment roll whereof was filed May 8, 1858; and that the clerk mark the docket of said judgment in conformity therewith.

The action was to recover the amount of an award to the plaintiff Mrs. Palmer. The award was made pursuant to a submission reciting that Joseph Palmer and Nancy E. Palmer his wife, or one of them, claimed an interest in the Huestis farm, or the proceeds thereof, which claim was denied by Davis and Gilbert.

Action for the conversion of a horse, tried by the court, without a jury. The pleadings are sufficiently noticed in the opinion of Marvin, J. in connection with a question made upon them. The plaintiff claimed the horses as mortgagee, his brother Edwin being the mortgagor.

This action was brought in the Supreme Court to recover damages, for the reason that the plaintiff failed to obtain a title to a house and lot in the city of Brooklyn, which the defendants, as auctioneers, sold to him at public auction.

The action was to recover, as damages, the value of certain property, (converted hy the defendants,) embraced in a chattel mortgage given by the firm of W. &' W. H. Lewis to one Amos Haynes, to secure a debt of $1300, for which debt the plaintiff had become the surety of such firm, and had been compelled hy legal proceedings to pay.

The defendants purchased of the plaintiff her interest in her father’s estate for the sum of $1800. At the time of the purchase they deeded to her, as part payment of the $1800, a piece of land described in said deed as containing twenty-four acres of land, more or less, for the consideration of $1440. The deed is dated July 29, 1857.

The action was brought hy the plaintiff, as a judgment creditor of the firm of Clark & Hadwin, of Ogdensburgh, against the defendants French, other judgment creditors of such firm, and the sheriff of St. Lawrence county, to have the execution issued on the judgment in favor of the defendants the Frenches vacated from the time it issued, so far as it affected the execution issued on the plaintiff’s judgment, and to have the execution and judgment in favor of the plaintiff…

<p>Where an order was made by two commissioners of highways, laying out a road, in which it was recited that all the commissioners of highways of the town met and deliberated on the subject embraced in the order; and the referee found, as facts, that on the 23d of April, 1839, all three of the commissioners met and viewed the proposed route, and on the 10th of May following, two of them caused it to be surveyed, and made the order of that date laying out the highway; and that one of the commissioners was not present at the survey, nor was he notified to attend the same; Meld, that the order was valid, in the absence of any finding that the third commissioner did not meet with the others and deliberate on the subject' of laying out the highway; the presumption being that all the commissioners did meet and deliberate on that subject, and that the act was legal until the contrary appeared.</p> <p>M'eld, also, that the survey was a mere ministerial act, not requiring the presence of the third commissioner to give validity to the order laying out and establishing the highway.</p> <p>It is not necessary to the Validity of an order of the commissioners of highways, laying out a road, that there should be an application in writing by some person liable to be assessed for highway labor; where it is laid out by the commissioners With the assent of the' owners of the lands, such owners releasing their damage's.</p> <p>Commissioners may, upon their own motion, and without any application therefor, lay out a highway.</p> <p>Where, after the making of an tirder by commissioners of highways, in 1839, for laying out a road, the road Was that ye'ar opened in fact, and during 1839, and succeeding years, Was opened and partially worked throughout the route, and was traveled by the public, more of less, every year from the time of its being thus laid out, opened and worked; Held, that this was an opening and working of the road within six years, as contemplated by the statute.</p> <p>The requirement of the statute is, that the road shall be opened and worJeed within six years after making the order; that is, the commissioners shall have six years in which the road they have laid out may be opened and workéd, but if it be not done within that period, their order laying out or establishing it shall have no legal effect. .</p> <p>The statute does not prescribe how well, or how much, it shall he worked; if opened and worked at all, it will not lose its legal existence.</p> <p>Commissioners of highways may act upon the personal consent of the owner, in laying out or altering a highway across his lands; and although such . consent may be revoked, .it must be done before the road" is laid out, or the alteration made. If the commissioners act immediately, on the faith of the virtual consent, hy laying out the road, or making the alteration, he will he estopped from denying the legality of the act.</p> <p>Where such consent has been given Under a mistake of law, merely, no relief can be given, even' on a bill in equity, filed for that purpose.</p>

This action was brought to reform a bond and also a mortgage on a farm in Delaware county, executed by the defendant to George Eider, the original plaintiff, who has died since the trial. The facts ‘are, that on the 3d day of March, 1858, George Eider, since deceased, made an oral contract with the defendant to sell him his farm and certain personal property on the same, for $4600.

Kelly recovered a judgment, in the Hew York common pleas, in 1850, against one Boylan, and proceedings supplementary to execution were had against him, and in the course of those proceedings, an attachment was issued against him for contempt, which was returnable before one of the judges of the court of common pleas at their chambers in the city hall, at a time specified in the attachment.

The action was for libel. The case has been twice tried, and on both occasions before Chief Justice Oakley, in the Superior Court, The complaint set forth twelve causes of action, being so many separate libels, as claimed. One was demur-' red to and abandoned. To each of the others the answer set up a justification and mitigating circumstances. Special damages were not charged or claimed.

<p>A deed may be delivered to the grantee to await a complete execution or acknowledgment by another party, without authorizing the conclusive inference that such delivery gives effect to the instrument.</p> <p>In June, 1854, the plaintiff'loaned to B. $1000, as security for the repayment of which it was agreed that B. and his wife, should execute and deliver a bond and mortgage, and that B. should pay the plaintiff $10 in addition to the legal interest, for such loan, which was paid, and the bond and mortgage signed by B. and delivered to the plaintiff, with the agreement that the mortgage should thereafter be signed by his wife, who was then ill, and acknowledged by both. On the 27th of March, 1855, the parties met, before a justice, for the purpose of having the mortgage acknowledged, when B. and his wife refused to acknowledge the execution unless the plaintiff would repay the $10, paid as usurious interest. The plaintiff repaid the money, and the mortgagors then acknowledged the mortgage, and the same was delivered.</p> <p>Held, that prior to the 27th of March, 1855, the bond and mortgage had never taken effect as delivered instruments, but were in the hands of the plaintiff, awaiting completion and acceptance. That before any effective delivery took place, the contract between the parties had been made legal by the repayment of the usurious premium; and that the bond and mortgage, when first delivered to take effect, were delivered in pursuance of a lawful contract, which they correctly represented; and that they were therefore vaild."</p>

The action was for an assault and battery. It was proved that the defendant kicked the plaintiff, a boy of 14 years, in his side. The plaintiff immediately complained that he was injured, and went away with his hand upon his side crying. He left the defendant’s, where he was at work when the assault occurred; and the next day commenced work for a farmer in the same neighborhood, where he cradled all day and continued to do .good days’ work regularly, afterwards.

The leading facts in the case are, that on the 8th of December, 1847, Joseph R. Hyatt made an agreement in writing with Columbus W. Seeley for the sale of four acres of land, with the buildings thereon, in Yorktown, Westchester county, for the sum of $5000, as follows: $3000 to be paid on the 1st day of April, 1848, and $2000 by “suffering the premises to remain mortgaged as they now are to Seth Whitney for $2000.” Hyatt, died on the 24th of March, 1848, leaving children,…

This was ah action of replevin. The plaintiffs claimed the property by virtue of a chattel mortgage made to them February 28, 1857, by Peter M. J: Mitchell and James H. Dewey, and the defendant justified his taking' the property as sheriff, by executions upon judgments against Mitchell & Dewy. At the trial the plaintiffs introduced the mortgage.

<p>Where the defendant in a suit, after the commencement thereof, and previous to the trial, made an ■ agreement with his attorneys that his costs, to be recovered in that action, were to belong to said attorneys; and after a judgment had been recovered by him, for costs, in that action, he assigned the judgment to his said attorneys; Held that the agreement was good and valid; that the assignment passed to the attorneys the costs and judgment ; and that the plaintiff in the suit had no right to set off, against such judgment, to the prejudice of the attorneys’ rights, a judgment previously recovered by him against the defendant.</p> <p>When the affidavit annexed to the petition of an insolvent, in proceedings under the two-thirds act was not sworn to by him before the judge, nor subscribed by the judge prior to granting the order for the creditors to appear and show cause; Held that there was a fatal defect in the proceedings, which rendered the assignment and discharge void, for want of jurisdiction in the officer; and that a subsequent verification of the petition would not cure the defect.</p> <p>A judgment by confession was entered upon the following statement of the nature of the indebtedness: 1. The sum of $1500 for cash borrowed of . the plaintiff from time to time, for which he held the note of the defendant, dated &c. 2. That the plaintiff had assumed for the defendant the payment of $2000, for which the latter had given the former his two notes fór $1000 each, payable &c. Held that this statement conformed to the requirements of the code. '</p>

<p>A testator, by his will, executed in 1850, after giving certain real and personal estate to his son P. E., ordered him to pay the testator’s debts, and to pay an annuity to his brother John", for life. He gave other real and personal property to two other sons, Hugh and James, and then directed as follows: “I release and acquit all and each of my children from any charge I have made against them, or either of thqm.” In March, 1855, he executed a codicil to the will, by which he revoked the direction to P. E. to pay an annuity to John, and also the order to pay debts. The testator died in 1857, owing no debts, and possessed of considerable personal estate, including two notes executed to him by P. E., the one dated in November, 1854, and the other dated in April, 1856. Sold, that the words of the will, “from any charge I ham made," showed an intention on the part of the testator to limit the release to charges existing at the time when the will was executed. But that the codicil amounted to a republication of the whole will, not revoked by the codicil, and must be held to speak, in regard to the release of charges, as of the time of the execution of the codicil.</p> <p>Sold, also, that the words of the will, releasing the testator’s children from “any charge I have made against them, or either of them,” could not be held applicable to promisstiry notes, so as to release the notes of P". E. held by the testator.</p>

This action was brought in the New York Superior Court on the 10th day of October, 1856, by the plaintiffs as assignees of Goodyear & Ely. Two claims or causes of action were stated in the complaint.

This action was brought in the Supreme Court to compel the defendants to deliver up to the plaintiffs for cancellation two negotiable promissory notes for $100 each, which the plaintiffs had executed and delivered to the defendants, and which had not become due ; and to recover back the money the plaintiffs had paid to the defendants in taking up two other promissory notes for $100 each, which had become due. „ The action was tried before a referee.

' Appeal, from a judgment of the Supreme Court. The action was brought to restrain the defendant from énlarging a pier, known as pier Ho. 1 Horth river, adjoining the battery. See report of the case, in the Supreme Court, 38th Barbour, 282; where the ' facts are fully stated.

<p>H., having been convicted of murder, and been sentenced in March, 1859, to be executed, this court-reversed the judgment, because the legislature had subsequently (in 1860) enacted a statute which forbade the execution of sentences of that character, and had required that such convicts should be imprisoned for one year, and then executed, if the governor should issue his warrant for that purpose; the court considering the provision for imprisonment and death in the same case, to be an ex post facto law, and holding it to be void. Eeld, that H. could not be again tried and convicted for the same murder. That the reversal of the judgment against her, proceeding as it did upon the absence of any law for the punishment of her offense, had effectually exempted her from being again tried and sentenced for the murder charged in the indictment,, as it shielded her from the execution of the sentence already pronounced; and was equivalent to an acquittal upon that charge.</p> <p>Eeld, also, that the effect of the act of 1860, “in relation to capital punishment,” &c., was to forbid, from the time of its passage, the infliction of the penalty of death, simply, and unconnected with any other punishment, in any case, and tó substitute for such penalty the year’s imprisonment, and then the putting to death of the offender, in some form, if the governoi shall so determine. That the substitute might have the full effect intended as to future offenses, but could have no operation in respect to those already committed.</p> <p>Held, further, that the Act of April 17,1861, (chap. 303,) “inrelation to cases of murder,” &c., repealing the Act of 1860, and restoring the previous statutes, did not affect the case of H.; the judgment reversing and annulling her conviction having been previously pronounced, and being res adjudícala between the people and her.</p> <p>It was also held, that' the award of a new trial by this court, on reversing the previous judgment, was improvidently entered, the prisoner being entitled to her discharge, as the facts involved were contained in the record.</p>

This action was upon a premium, note, of which the following is a copy: “$180.00. For value received, in policy Ho. 1477, dated 8th October, 1851, issued by the iEtna Insurance Company of Utica, I promise to pay the said company, or their treasurer for the time being, the sum of one hundred and eighty dollars, in such portions and at such time or times as the directors of said company may, agreeably to their charter and by-laws, require.

The action-was to recover the amount of five checks drawn upon the defendant by one Green, and certified by the defendant’s paying teller on their face to be good. The checks were not drawn against funds, and the teller, in fact, had no authority to certify such checks. The jury found that the plaintiffs were bona fide holders for value of the checks, and they had judgment for their amount. The defendants appealed to this court.

This action was brought to recover for nine months’ services, rendered by the plaintiff (his wife assisting him) in teaching a school, in school district Ho. 12, in the towns of Almond and Hornellsville, at the price of fifty dollars per month for the first three months, and sixty dollars» per month for the last six months.

The action was brought to recover a balance of account alleged to be due to the plaintiff's testator for a large quantity of goods and merchandise purchased prior to the 3d day of August, 1861. The plaintiff's bill of' particulars showed the claim to be for a balance of an entire account extending through a period of four months, viz. April, May, June and July, 1861. The defendant claimed to have paid the whole amount mentioned in the-bill of particulars, except $20.

<p>Appeal from a judgment of the Hew York Common Pleas. The action was brought against George Lewis, since deceased, to recover the value of certain barrels of soapstone and redstone, and a quantity of vulcanized gutta percha, alleged to have been the property of the plaintiff, and to have been converted by the defendant. Lewis, the- defend^ ant, having died, the action was continued against George Lewis, jun. and Augustus Cleveland, his executors.</p> <p>The answer denied that the plaintiff owned the articles in question, or that the then defendant had converted them ; and averred that certain articles (but whether those in question the defendant did not know) had been left in the store Ho. 66 Liberty street by the United States Vulcanized Gutta Percha Belting and Packing Co., who were the original owners of the goods; that the store was not the property of the defendant, nor ever had been; and that the goods were still there, and that they had' never been appropriated or interfered with by the defendant. That the articles had been sold to the defendant by virtue of an execution under a judgment against the company, and that the defendant was the owner of the same, and entitled to the possession of them, although he has never taken .possession thereof. The answer also contained a counter-claim against the plaintiff, as a member, stockholder and director of said company, and seeking to hold him liable on a judgment against the company, assigned to the plaintiff.</p> <p>The counter-claim was as follows:</p> <p>“And the said defendant further, and by way of counterclaim to the demand of the plaintiff, says that the said plaintiff is a member, stockholder and trustee of the United States Vulcanized Gutta Percha Belting and Packing Co. above mentioned—a corporation created for manufacturing purposes, under the laws of the state of Hew York, on or about the 27th day of February, 1857—and was, on the 1st day of February, 1859, and some time prior thereto, the president of said company.</p> <p>And this defendant, further answering, by way of counterclaim, says, that on the 15th day of March, 1859, a judgment was recovered by the above mentioned Augustus Cleveland, against the said United States Yulcanized G-utta Percha Belting and Packing Co., in the Marine Court of the city of New York, for the rent of the aforesaid store No. 66 Liberty street,, due February 1st, 1859, which said judgment was duly docketed with the clerk of the city and county of New York, and execution issued thereon to the sheriff of the city and county of New York; and that said execution has been returned unsatisfied; and that the, sum of three hundred and ninety-six dollars and' sixty-one cents, with interest from the 15th day of March, 1859, is now actually due thereon; and that said judgment was, on the 2d day of May, 1859, duly asssigned by the said Augustus Cleveland, for a valuable consideration, to this defendant.</p> <p>■And, this defendant, further answering, says that he is entitled to recover the amount due on said judgment from the plaintiff, and to counter-claim the same against him for the causes, following:</p> <p>That by the certificate of incorporation of the United States Vulcanized Gutta Percha Belting and Packing Co. aforesaid, filed in the clerk’s office of the county of Queens, the capital stock of said company was fixed at one hundred thousand dollars; but that the whole of said capital stock has not been paid in, as this defendant is informed and believes. And the. defendant claims and insists thát the plaintiff, as stockholder of said company, is thereby rendered liable for the debts of said company, under section 32 of article 2 of title 12 of chapter 18 of part 1 of the revised statutes.</p> <p>That the said company -have neglected, as this defendant is informed and believes, to make and publish, within twenty days from the 1st day of January, 1859, the report required by section 34 of the article of the .revised statutes above referred to; and this defendant insists that, by reason of such neglect, the plaintiff, as a trustee of said company, became, and is, individually liable for the debts thereof.</p> <p>That the said company, as this defendant is informed and believes, has become indebted to various persons to an amount exceeding the amount of the capital stock of said company, with the consent of said plaintiff. Wherefore, the defendant insists that the plaintiff, as a trustee of said company, by reason of such consent, became, and is, liable for the debts of said company, to the extent of said excess, under section 46 of the said article.</p> <p>And the defendant claims that, by reason of the premises, the plaintiff is indebted to him in the sum of,” &o.</p> <p>A demurrer to the counter-claim was sustained, on the ground, among others, that the action was in the nature of tort, and that the summons (which was for a money-demand on contract, and was claimed by the defendant’s counsel to amount to a waiver of the tort) could not he referred to as determining that the plaintiff had elected to waive the tort, and rely on an implied contract. (10 Abb. Pr. Eep. 206; affirmed, 11 id. 2l0.)</p> <p>The facts established on the trial were as follows: The articles in question were originally the property of "the company, and by them deposited in the store hired by them from Mr. Cleveland. On the 24th day of December, 1858, they made a general assignment of all their effects to Mr. J. 0. Sargent; the plaintiff, who was president of the company, continued to occupy the store as agent of the assignee. The property in question, and other property, was sold at the store, under an execution, January 7, 1859, and the greater part bought in by the plaintiff. The goods still remained in the store, and were left there when the company vacated it, February 1, 1859. ' On the 30th of March, 1859, the same goods were sold under another execution against the company, and purchased by the defendants’ testator, who also left them in the store.- The plaintiff subsequently demanded the goods of the defendants’ testator, who did not deliver them, saying that he understood they were the property of the company.</p> <p>The jury found a verdict for the plaintiff for $724.58. The appeal was on exceptions to the refusal to nonsuit, to the judge’s charge, and to his refusal to charge; also from the order sustaining-the demurrer to the answer.</p>

This is an appeal by the defendant from a judgment rendered against John Plass, her intestate, by the Supreme Court, in the third district. Held: the whole proceeding was void for want of power in the commissioners to make the order. 2. The application was to “lay out” a highway, and the order of the commissioners is, that a highway “be laid out” according to the application.

The action was brought against Davis and John P. Westervelt, as indorsers of a promissory note made by one Haskin, on the 2d day of February, 1857, for $>2500, payable to the order of Westervelt six months after date. In the complaint it was alleged that the note was indorsed by Westervelt, the payee, to 'Davis, by Davis to Hoxon, and by Noxon to the plaintiffs.

The action was brought to recover the possession of two bay horses claimed to belong to the plaintiff, and to have been wrongfully detained .by the defendant. The plaintiff had sold them to one Higgins and taken his notes therefor. Higgins transferred the horses to the defendant, from whom the plaintiff demanded them before suit brought.

David Robinson, who resided in Brookhaven, in said county of .Suffolk, was the owner of a farm and considerable personal estate. Some twenty-five years before his death he deserted his wife, leaving her on the farm on which they had resided for several years previously, he himself going to reside about three miles distant. The children of said David had ceased to live at home before he left, and there was no one to look after the farm or to take care of Mrs. Robinson.

This action was commenced in August, 1853, against Thomas B. Cooke, in his life time, to procure the cancellation and discharge of a mortgage executed by Ephraim Beach to Francis I. Marvin, in' the year 1836, to secure the payment of fifty-two thousand dollars and interest; which mortgage had been duly recorded, and was afterwards assigned by the mortgagee to said Cooke; the plaintiff alleging that the mortgage had been fully paid, but remained uncanceled of record, and that…

This action was against the defendant North, as the maker, and the defendants Woods and Dayton, as indorsers of a promisory note signed “Orrin North,” dated June 15, 1857, payable to the order of the defendant Woods, at the office of Townsend, Clark & Co., 180 Broadway, New York, sixty days from date, for $1000. The complaint alleged that the note was made by the defendant North.

Action on a promissory note made by Orrin North, for $2000, payable to the order of the defendant Woods, and' indorsed by him and by the defendant Dayton. It was dated at Cooperstown, July 16, 1857, and was payable at the office of Townsend, Clark & Co., No. 180 Broadway, New York, forty days after date.

<p>This action was brought by the plaintiffs, the children and • heirs at law of Peter Swinburne deceased, to recover of the defendant, their share of the purchase money of - a farm of land situate in Denmark in the county of Lewis, which had been purchased by said Peter in his lifetime and partially paid for by him, and of which land the defendant, without ■ the knowledge or consent of the heirs of the said Peter, (of whom the defendant was one,) obtained the title and sold and conveyed the' same and received and converted to his own use the proceeds.</p> <p>The facts were these: On the 1st of August, 1810, said Peter Swinburne entered into a contract with Richard Harrison and others, owners in fee, through Isaac N. Bostwick, their attorney, for the purchase of 160 acres of land in Denmark, Lewis county, and for which he agreed to pay the sum of $472.97; and to secure the payment thereof he gave an instrument in writing signed by him, obligating himself to pay for said lands in certain installments, but -the terms of said writing did not appear. Peter entered into possession of said land, cleared a part of it, put up buildings and fences and otherwise improved it. He paid for and obtained a deed of 100 of the 160 acres. Peter died in October 1822, leaving him surviving his widow, Artemisia, and several' children, his heirs at law. After his death, and in J anuary 1833, said Artemisia took from the said Bostwick, the agent of the owners, a contract for the 60 acres, for which she obligated herself to pay $475.87. She continued in possession of said 60 acres and made improvements thereon. The family lived on these 60 acres, and the last mentioned contract was taken for the benefit of the children of said Peter. About this time one of the sons and a daughter died with-out children and intestate, neither ever having been married. Something was paid by the said Artemisia while she held the contract.</p> <p>About the 1st of November, 1840, the defendant took a contract for said land, from the owners' in fee," obligating himself to pay for said 60 acres the sum of $511.20. The said Artemisia surrendered her contract for said land. During all the time from 1810 the family of said Peter had resided on and used and cultivated the land. In 1844 the defendant took a deed of said 60 acres in his own name, without the knowledge or consent of the other heirs of said Peter. The money paid for the land on said several contracts except the amount ($511.22) paid on the last contract, was raised from the farm by the joint labor and services of the several members thereof. In August 1845, he sold some 4 or 5 acres of said 60 to one Clark, for $50. In April 1847, the defendant sold the residue of said 60 acres to one Horace Rogers, for $1475, and received the purchase money paid therefor. Neither the contract to Peter nor the one to his widow were forfeited, but each new contract was given for the balance due on the preceding, and the new ones were given for the benefit of the widow and heirs of Peter Swinburne.</p> <p>The defendant’s counsel moved for a nonsuit, on the following grounds, viz:</p> <p>1st. The complaint does not contain facts sufficient to constitute a cause of action.</p> <p>2d. It is not averred that the evidence of the trust is in writing, nor any facts stated sufficient to show the existence of a trust.</p> <p>3d. From the proofs it appears that the defendant contracted and took a deed in his own name, and that no trust is fastened on the estate.</p> <p>4th. The defendant had sold the land prior to the commencement of the action, which was known to the plaintiffs and averred in the complaint.</p> <p>5th. It appears affirmatively that a deed was given for 100 of the 160 acres, and that would be a rescisión of the contract of 1810.</p> <p>The motion was denied, and the counsel excepted.</p> <p>The learned judge before whom the cause was tried found the facts substantially as stated above, and ordered judgment in favor of the plaintiffs for $839.64, being for five tenths thereof, which the plaintiffs owned in their own right, the widow’s life estate in the two tenths which belonged to the son and daughter who died, six eighths of ten tenths owned by the plaintiffs in their own right as heirs of said son and daughter, with interest on said share of the purchase money from the day of sale to the date of decision.</p> <p>Several exceptions to the reception of evidence were taken on the trial.</p> <p>The defendant had purchased the interest of one of the heirs in said premises, which, with his own share and that of the plaintiffs, represents the interest of all the heirs in the premises, or the proceeds thereof.</p> <p>Judgment being entered in the Supreme Court in accordance with the findings of the judge, the defendant appealed to the general term of the Supreme Court, which affirmed the judgment; whereupon he appealed to this court.</p>

In April, 1854, Mathaniel Dougherty, as general partner, and Eliza Harris, Charles T. Harris and Hamilton Murray, as special partners, formed a limited partnership to continue until 1857.

After the new trial ordered in this case, upon a former appeal, (23 N. T. Eep. 539,) the issue was again tried before Mr. Justice Monell, in January, 1862, when the plaintiff recovered by the verdict of the jury $1368.06 damages.

<p>An ordinary bill of lading is not conclusive, as between the original parties, either as to the shipment of the goods named in it, or as to the quantity said to have been received; and any mistake or fraud in the shipment of the goods may be shown, on the trial.</p> <p>That part which relates to the receipt of the goods, their quality, condition and quantity, is to be treated as a receipt, and not as a stipulation of a written contract.</p> <p>A stipulation, in a bill of lading, that “any damage or deficiency in quantity the consignee will deduct from balance of freight due the captain,” will not affect this question; and will not be understood as a guaranty that the captain has received the whole quantity of goods specified; or as an agreement to pay for that portion, if any, which shall be found to be deficient, of what he has received. The words “deficiency in quantity" relate to the property shipped.</p> <p>The principle that a Iona fide indorsee of a bill of lading, advancing his money on it, may rely upon the quantity acknowledged therein, and may compel the carrier to account for that quantity, whether it was put on board the vessel or not, does not apply to a case where the owner of the property did not purchase it while it was in the hands of the carrier, and did not make title to it through the bill of lading, but his purchase was made prior to the shipment, and the goods were shipped by his agent for him.</p>

The following facts were found hy the referee, viz: That the plaintiffs were possessed of and owned, as partners, twenty shares of the capital stock of the American Guano Company: and that on or about the 25th day of October, 1858, one Alexander H. Anderson, a son of the plaintiff Eobert D. Anderson, and a minor of the age of about sixteen years, without the-leave, permission, authority or knowledge of the plaintiffs, or either of them, wrongfully took said twenty shares of…

. This was an action brought to recover the sum of about $41,740, paid for principal and interest by the plaintiff upon a contract for the sale to him by the defendant, of three thousand shares of the stock of the Bochester and Genesee Valley Bail Boad Company, issued under and in pursuance of an act to amend the charter of the city of Bochester, passed July 3, 1851, upon the ground that the act, so far as it authorizes the defendant to subscribe for, or dispose of the stock…

The action was brought by the plaintiff as receiver of the Medina Bank, a banking association duly organized and doing business at Medina, in the county of Orleans, to recover damages for the conversion of a promissory note, owned by the bank, made by John R. Weld, for the sum of $3000, to the order of Reuben S. Castle, payable ninety days from date at the Metropolitan Bank, Eew York; and the same was indorsed by said Castle. The note was dated the 16th of May,-1861.

Appeal by the defendant from a judgment of the Supreme Court.

Catharine C. Young, by her will, left certain personal property in the city of New York, and certain real property in New Jersey, to David Brush, as executor, in trust for her son, George Young, during his life, with certain limitations over. The will was proved before the surrogate of the city and county of New York, who set aside the limitations over. Some questions were raised, upon the probate, as to the residence of Mrs. Young.