Volume 29 — Barbour's New York Supreme Court Reports

THIS was an appeal by the defendant from a judgment rendered in February, 1856, in favor of the plaintiffs, upon the report of a referee. The plaintiffs are the devisees and heirs at law of Lawrence Van Deusen, late of Albany county, deceased, and the defendant was the vendee, under a contract of sale, of the farm of said Van Deusen.

The action was by a female for breach of promise of marriage. The complaint alleged that the defendant, being already married, represented himself to the plaintiff to be unmarried, and so contracted a marriage promise with her. Within a few days of the time the marriage was to have been consummated, she learned the fact of his existing marriage, and commenced thereupon the present action.

THIS is a suit brought by the plaintiff, as receiver of William L. Flint, in the nature of a creditor’s bill, to. set aside a conveyance of real estate by William L. Flint to the defendant Jerusha Brainard, and- also a conveyance of the same premises by the said Jerusha to the defendant.Currance J. Flint.

ASON W. HUGHSTON and,wife, by a deed bearing date the 13th day of September, 1828, granted and conveyed half an acre of land in Huntsville (now Otego) to Elisha Lathrop, Daniel Shepherd, James Bundy, Moses Bundy, William Shepherd, Michael Birdsall, Benjamin Shepherd, Peter Bundy and David Bundy, trustees of the Huntsville Baptist Society, and their successors in office.

THIS action was brought by the plaintiff to recover for baggage delivered to the defendant at Toledo to be carried to Buffalo and there delivered to the passenger to whom it belonged, the plaintiff’s assignor. The cause was tried at the Oneida circuit, before Pratt, J. and a jury.

THIS action was brought against David Aikin, as supervisor of the town of Venice in the county of Cayuga, and Judah W. Bathbun and Hamilton Avery, as rail road commissioners of said town.

The action was brought by the plaintiff as receiver, to recover for an alleged conversion of a house, and was tried at the Steuben circuit in ¡November, 1856. By the evidence it appeared, that on the 19th June, 1851, F. W. Morrow recovered a judgment against the defendanffbefore a justice of the peace, for $93.28, and that it was docketed in the clerk’s office June 25th, 1851. That on the 19th May, 1852, upon affidavit, an order for the examination of the defendant was made.

COMMON law certiorari, issued by the supreme court, on the application of Mary Keenholts, to A. D. Robinson, Albany county judge, Titus Rushmore, James B. Wands and John I. Groesheck, referees, to remove into this court for review the proceedings had before the referees, who were appointed by the said county judge to hear and determine the appeal of Jew I. Jewett from the order of the commissioners of highways of the town of Guilderland, in that county, laying out a private…

39, drawn by the superintendent of the Monroe county penitentiary, to pay for labor performed and materials provided in building an addition to such penitentiary. The labor was performed under a contract made with the board of supervisors of Monroe county, by the relator, for building an addition to the Monroe county penitentiary.

THIS was an appeal from a judgment entered at a special term, in favor of the plaintiff, upon a demurrer by the defendants to the complaint. The complaint alleged that on April 15, 1856, the defendants recovered a judgment against the plaintiff, in an action in the city court of Brooklyn, for $268.05. That oh April 27, 1857, the plaintiff paid to the défendants the amount of said judgment.

<p>Where an alternative mandamus, directed to the attorney general, commands him to certify that certain suits in the name of the people, in which costs were adjudged to the defendants, were duly instituted as by law required, and the' attorney general, in his return, states that no appropriation has been made, by the legislature, for the payment of such costs, which allegation is admitted by demurrer, a peremptory mandamus will not be granted.</p> <p>So held in respect to costs adjudged to the defendants in suits brought by the district attorney of Kings county, for penalties under the Metropolitan Police Law. S. B. Stbong, J. dissented.</p> <p>A mandamus will not be granted, where it would be fruitless, and ineffectual to relieve the relator. Nor, when the object is impossible of attainment, should the court compel a single step towards it.</p> <p>The constitutional prohibition against the payment of any moneys out of the state treasury, except in pursuance of an appropriation by law, is a sufficient reason for denying a mandamus to compel the making of a certificate by the attorney general to enable the relator to obtain payment, out of the treasury, of a claim for which no appropriation has been made.</p>

APPEAL by the defendant from a judgment of the city . court of Brooklyn. The action was brought to recover a quarter’s rent claimed to be due upon a lease executed by the plaintiff to the defendant. The plaintiff had judgment for the amount claimed, with costs.

THIS was an action to recover the value of certain household furniture, alleged to have been seized and taken away by the defendant, as sheriff of King’s county. The answer put in issue the taking, and also justified, under an attachment issued out of the supreme court in favor of one Dewitt 0. Hay, against Bobert Hall; claiming that the property taken was the property of said Bobert Hall.

The action was brought by William D. Everitt, Euphemia Wallace and William J. Wallace, three of the ohildren and heirs at law of Charles Gr. Everitt, deceased, against Eosine Everitt, Margaret Ann Everitt and Alice Everitt, three infant children and heirs of the deceased, and John A. Bryan, sole acting executor, to set aside the last will and testament of the said Charles Gr. Everitt.

<p>Where two tenants in common of chattels unite in an action for the conversion thereof, one cannot release, discharge or settle the action, so as to defeat the rights of the other to proceed and recover his portion of the damages.</p> <p>If one of the plaintiffs settles the action, without the consent of the other, and executes a release to that effect, it seems the action may proceed in the name of both plaintiffs, for the benefit of the one not releasing; or an amendment can be made, striking out the name of the other.</p>

Justice Gould, in a cause tried before him without a jury, at the Rensselaer circuit in October, 1858.

THIS is a bill of exceptions ordered to be heard in the first instance at the general term. The action was brought to recover damages for alleged negligence on the part of the defendants in causing the death of Joseph Ward, the plaintiff’s intestate, on the 24th day of March, 1855, and was tried before Mr. Justice Emott, at the Albany circuit, in March, 1856, when the plaintiff recovered a verdict for $5000.

The action was brought to foreclose a mortgage. The complaint states that the defendant Melvin Power, on or about the 1st day of May, 1856, purchased of the plaintiff the premises therein described, for the consideration and price of $26,568.75.

OTION by the plaintiff for judgment on a verdict taken subject to the opinion of the supreme court. The case was this; In August, 1855, William Whittlesey held a note for $1000, made by Emery and Peter Thayer, payable on the 1st of November following, without interest. On the 29th day of August, 1855, the defendant, Hamilton, became legally bound to Emery Thayer to pay Whittlesey the $1000 note given by the Thayers.

The action before the justice was brought by Gates against Davenport. The complaint was upon an account for work and labor done by one Byerson Clark for the1 defendant, which account was assigned by Clark to the plaintiff. The evidence on the trial showed that Clark was under twenty-one years of age when the services were performed. The remaining facts are sufficiently stated in the opinion of the court.

THIS action was brought to recover the amount of a due-bill, or promissory note, for $71.31, dated December 8, 1856, in the words and figures following: “ Moscow, December 8, 1856. $71.3Í. Due Emory Rathbun, or bearer, seventy-one dollars and thirty-one cents, for value received. John 8.

PPEAL from a judgment entered on the report of a referee. The action was brought to recover the possession of a strip of land 32 chains and 33 links long, east and west, and one chain wide at the east, and one chain and 10 links at the west ends, being part of military lot Ho. 39, in the town of Fayette, Seneca county. The action was, by consent of the parties, referred to James K. Eichardson, Esq., to hear and determine.

It is the same case reported in 24 Barb. 514. Upon another trial at the Steuben circuit, in January, 1858, the plaintiff recovered a verdict for $150, upon which judgment was entered. The defendants appealed from that judgment.

ÁPPEAL by the plaintiff from a judgment entered on the report of a referee. The action was brought to recover for the defendant's use and occupation of a portion of the plaintiff’s building, being a store, situated on the west sidé of Buffalo street in the city of Rochester. It appeared that the defendant was a jeweler and watch repairer by occupation, and the building had two front windows prepared for carrying on that business.

<p>The fact that the defendant is a corporation, and therefore cannot be examined as a witness in its own behalf, will not prevent the plaintiff from offering himself as a witness, and being examined, in support of his claim.</p> <p>The provision of the code, that “ whenever a party or person in interest has been examined ” as a witness, under the 399th section, “ the other party or person in interest may offer himself as a witness in his own behalf, and shall be so received," should be construed to extend only to cases where the party against whom the other party has been examined is a natural person, capable of giving evidence, and a competent witness, provided he had not been a party or person in interest.</p>

<p>An instrument in these words: “ Due A. y.,'fir_bearer¡¡ three hundred and forty dollars, for value received, ’with interest, at L.’s office in Rochester,”/ is a promissory note, within the statute; and not being payable at any specified time after date, the maker is not entitled to any days of grace. .</p> <p>And being, by its own express terms and legal effect, due and payable at the moment of its execution and delivery, such a note cannot be transferred so as to cut off any defense existing in behalf of the maker at that time.</p> <p>A witness may be allowed to refer to his cash book, to refresh his recollection; but after having sworn positively, he cannot refer to his’ cash book for the purpose of corroborating his testimony.</p> <p>In an action upon a promissory note, a teller in a bank was shown the note, with a guaranty written across the back, and the defendant offered to prove by him that the pm-tion of the guaranty written across the fold in the paper was written since the paper had been folded and soiled, or stained; and to ask him whether, in his judgment, from the lustre and brightness of the ink, the guaranty could have been written as long as six years ago. Held that upon these questions the opinions of witnesses were not admissible, even though the witnesses were experts.</p> <p>Where there is a question as to the credibility of witnesses, and there is evidence in conflict with their testimony, which ought to be submitted to a jury; and where there are exceptions in the case, in regard to the admissibility of testimony; it is improper for the judge, at the circuit, to take the case from the jury and direct a verdict for the plaintiff subject to the opinion of the court at a general term.</p> <p>Such a direction is admissible only when the case presents questions of law alone.</p>

THIS was an appeal by the defendant Campbell, from an order overruling his demurrer to the plaintiff’s complaint. The complaint stated that the plaintiff was the holder of nine several promissory notes against Timothy Chapman, amounting together to $10,000, and that the defendant Campbell, on the 12th of January, 1853, executed to the plaintiff a guaranty of the payment of these notes.

APPEAL by the defendant from a judgment rendered at a special term in favor of the plaintiff, for $305.03 damages and costs. The facts appear in the opinion.

THIS was an appeal from an order made at a special term, overruling a demurrer to the plaintiff’s complaint.

<p>THIS was an appeal from the judgment of a county court, reversing a judgment rendered by a justice of the peace. The opinion of the court contains a statement of the facts.</p>

APPEAL, by the defendant, from a judgment entered at a special term. The material facts appear in the opinion of the court.

<p>THIS was an appeal from a judgment of the city court of Brooklyn. In 1853 the plaintiff was health officer of the city of Brooklyn. On the 21st of January, 1853, the common council passed the following resolution:</p> <p>“ Resolved, That the policemen of the city of Brooklyn, already appointed, as well as those to be hereafter appointed, be ordered to appear individually before the officer of health for inspection; and that each policeman shall present to the mayor, before March the first next, a certificate from the aforesaid officer, setting forth his physical qualifications for a proper discharge of his duties.”</p> <p>Pursuant to this resolution, 146 policemen presented themselves to the plaintiff, and were examined by him, for which services he charged the defendants $2 for each examination. The plaintiff, as health officer, received a fixed salary of $500, which was regularly paid to him. Upon these facts appearing, the defendants moved that the complaint be dismissed. The court denied the motion, and the defendants excepted. The court charged the jury that the plaintiff was entitled to recover a fair compensation for his services;■ to which the de» fendants excepted. The jury found a verdict for the plaintiff for $292 and costs; and from the judgment entered thereon the defendants appealed.</p>

THIS is a proceeding under title 10, chapter 8, part 3, article 1 of the revised statutes, entitled “ Summary proceedings to recover the possession of lands in certain cases.” Commenced originally before the county judge of Kings county, it was, upon the finding of an inquisition against the defendant, removed into this court by a writ of certiorari. The defendant traversed the inquisition, and the issue thus joined was brought on for trial on the 8th of November, 1858.

The action was brought to recover back moneys paid by the plaintiff, as ^assignee of the purchaser, in part performance of a contract for the sale and purchase of land. The cause was tried, at the circuit, before Justice Lott, who directed a judgment to be entered setting aside the contract; and directing a sale of the premises, and that out of the proceeds the plaintiff be paid, 1. The costs and allowance in this suit, and the expenses of the sale. 2.

THIS action was commenced in a justice’s court, of Dutchess county.

CONTROVERSY submitted by the parties, for the opinion and judgment of the court, pursuant to the provisions of the code, upon a statement of facts agreed upon.

APPEAL by the plaintiff from a judgment of nonsuit, entered at a special term. The action was brought to recover the value of the plaintiff’s mill, situated about 67 feet east of the Hudson river rail road track, at Tarrytown, which was destroyed by fire, on the 7th of February, 1852, communicated, as the plaintiff claimed, by sparks from the defendant’s locomotives.

<p>In an action by the administrator of a deceased person, to recover damages for the negligence of the defendant, whereby the intestate was deprived of his life, to entitle the plaintiff to recover, it must appear affirmatively that the accident resulted wholly from the negligence of the defendant, and that the negligence and improvidence of the intestate did not contribute to bring it about.</p> <p>The negligence of the defendant must be made out and established by proof, and not be left to be inferred from circumstances.</p> <p>Where there was a well in one of the streets of the city of Brooklyn, level with the grade of the sidewalk, and usually covered with a wooden cover having a square opening in the center, which was also covered with a lid, opening and shutting on leather hinges, and the intestate, a child four years of age, was found dead in the well, within half an hour after leaving his home; Meld, in an action against the city, by the administrator of the child, to recover damages for negligence, that, considering the tender years of the child, his inability to take care of himself, and the nature of the accident, the plaintiff was bound to show how the accident occurred, and to throw some light upon the causes which led the child to the vicinity of the well, and the condition, of the opening into the well, and whether it was closed or not when the deceased came there.</p> <p>That merely showing the existence of the well, with its covering, and the child .being found in the water, was not sufficient to entitle the plaintiff to recover, or to put the city upon the defense.</p> <p>The interest which the next of kin have in the life of a person negligently killed, Under the acts of 1847 and 1849, is merely pecuniary. The personal wrong doné to, or the suffering of the person killed have nothing to do with the damages. Nor should the anguish and grief of his parents enter into the estimate of the amount to be recovered.</p> <p>Where a father brought an action to recover for the negligence of the defendant, in causing the death of his son, a child four years of age, and recovered a verdict for $1500; Meld that the damages were unreasonable and excessive, and should have been merely nominal.</p>

THIS action was commenced before a justice of the peace of the county of Dutchess, to recover five penalties of $20 each, under the act of March 17, 1857, “relative to a certain highway in the county of Dutchess.” The plaintiff recovered a judgment, before the justice, which was affirmed, on appeal to the county court of Dutchess county, and the defendants appealed to this court.

<p>THIS was an appeal from a judgment rendered at a special term. The action was brought for the foreclosure of a mortgage, and the judgment was in favor of the plaintiff. The following opinion was given by the judge who decided the cause at the special term:</p> <p>S. B. Strong, J. “ This is an action to foreclose a mortgage given by the defendants, Cook and wife, to Elisha Crawford, and eventually assigned by him, and also by the White Plains Bank, of which he had been president, to the plaintiff. The mortgage was dated on the 4th of September, 1844, and given to secure the payment of fourteen hundred dollars in seven years from its date, with interest at the rate of six per cent, payable semi-annually, according to a bond from Cook to Crawford of the same date. Crawford was, or is alleged to have been at the' time, an individual banker, transacting business in the name or under the designation of “ The White Plains Bank.” Crawford testified on his last examination that the bank was instituted by him as an individual banker, under the general act to authorize the business of banking. (Laws of 1838, ch. 260, p. 245.) This is confirmed by the entries in the books kept in the office of the superintendent of the state bank department. The ledger opening an account with the bank, is headed in the following words: “ Dr. White Plains Bank stocks, individual bank owned by Elisha Crawford of White Plains. Or.” There is also an affidavit on file in that office, made by Crawford on the 25th of July, 1849, stating that the bank was an individual bank, and that no person was interested with him, directly or indirectly, in the securities deposited with the comptroller. The loan to Cook was negotiated by one Bichard Cadmus, who was at the time cashier, and who now asserts that he was the owner of the bank. This allegation that he was the owner is, to some extent, confirmed by the testimony of George Crawford and William H. Seely, from which it would seem that Cadmus, G. Crawford and Seely, had originally owned each one third of the bank, and that Crawford and Seely had transferred their interest to Cadmus. Seely, however, testified that such ownership consisted simply in, and did not extend beyond, the profits and plates. If they were the absolute owners, they were associated bankers, and they should have been described as such in the books of the bank department. But there is no evidence that any entry to that effect was made in the books. It' would not be right to infer, except from clear evidence, that all of these parties had perpetrated a fraud upon the state, for the purpose of obtaining facilities as an individual banker, to which they would not have been entitled as an association. Cadmus, when asked whether he owned the mortgages which were in the hands of and deposited with the comptroller, did not answer the question directly, but said, “ I considered them to be under my control at any moment.” There is no formal conveyance by Cadmus to any one, of the bank, or of any of the securities belonging to it, previous to July, 1846, when he became, as he states, a bankrupt. He then made an assignment of his property for the benefit of his creditors, in terms sufficiently broad to have covered his interest in the bank, if he had any. But although one of his assignees was examined as a witness in behalf of the defendants, it does not appear that the assignees ever claimed any interest in the bank, or any of its securities, or that they interfered in any way in its management. Besides, when Cook, on a subsequent day, made a tender of what he alleged to be due on the mortgage, he made such tender to Elisha Crawford, and not to Cadmus or his assignees.</p> <p>There is no evidence that Cook, at the time, consulted with Cadmus; but it may, I think, be reasonably inferred that he did, as they had previously transacted much of the business together, and appear from the evident leaning shown in the testimony of Cadmus to be on friendly terms. The plain inference from all the reliable evidence is, that although when the loan to Cook was made, Cadmus had an interest in the affairs of the bank, yet it did not extend to its capital or the securities taken in its behalf and assigned to the state comptroller. The bond and mortgage given by Cook were obtained for the purpose of depositing" them in the comptroller’s office, and securing the amount in circulating notes intended for the bank. Examinations as to the value of the property, for the satisfaction of the comptroller, were made with so much publicity that Cook must have been aware of the object in making the loan. On the 5th of September, 1844, the mortgagee assigned the bond and mortgage to the comptroller, “ to secure the redemption of the circulating notes of the White Plains Bank.” On the 20th of the same month Cook, who had in the meantime received the amount for which his securities had been given, in the circulating notes of the bank, signed an admission that he was indebted to Elisha Crawford in the sum of $1400, secured by the said bond and mortgage, and that he had received notice that such bond and mortgage had been assigned by E. Crawford to the comptroller of the state; subsequently Crawford (and when I speak of a person having that name, without any other designation, I mean the mortgagee) signed a paper dated on the 21st of January, 1844, (but mistaken in the year, as that must have been in 1845,) authorizing Cadmus to collect the interest on several bonds and mortgages, and among others the bond and mortgage from Cook.</p> <p>Cadmus swears that he also had written authority from Crawford to collect and receive the principal; but in this he is directly contradicted by Crawford; and as one paper only is produced, and that simply authorizes the collection of the interest, and no satisfactory reason is given for the non-production of the supposed documents, if they ever existed, and especially as an alleged authority to receive the principal due or to become due on securities assigned to the comptroller, would be wholly nugatory, and no reason is shown why there should be any expectation that the principal moneys secured by Cook’s mortgage would be paid before they became payable by the terms of the securities, (in 1851,) the inference is strobg that no authority was given by Crawford to Cadmus to receive the principal moneys loaned to Cook.</p> <p>On the first of January, 1846, Cook paid to Cadmus and took his receipt for $1000 of the principal and all the interest due on the entire principal moneys secured by the said bond and mortgage. It has been said already that no authority has been shown, nor can any be inferred from the proof, from Crawford to Cadmus, to receive such principal. His employment as cashier of the bank did not confer such authority. Besides, if he received the money as a reduction to that extent of the principal, it was a fraud upon the state; or it would have been, if he could have effectuated that purpose. He knew that the comptroller could not receive payment of a part of the principal; nor would it seem that he intended to pay it to that officer, as he made no attempt to do so; but, as he confessed, he mingled the money with his own funds; as to Cook, he knew that his bond and mortgage had been assigned to the comptroller to secure the payment of the circulating notes of the bank; and as those papers were not produced by Cadmus at the time, he had strong reason to suppose, if he did not actually know, that they were still held by the comptroller for the purpose for which they had been assigned to him. If, under these circumstances, he intended that his payment should operate as a present reduction of the principal, he was a participator in a fraud.</p> <p>It is a characteristic of fraud that it cannot avail the perpetrator, and if the usual effect could be fortified, it would be in this instance, by the consideration that the act was manifestly against public policy. The payment could not operate as an absolute reduction of the principal. If the state had been under the necessity of selling the securities, the sale would have conferred a title to the entire principal; a reconveyance to the assignor would have the same effect, unless he had particpated in the fraud. In this case, the assignor had neither received nor sanctioned the receipt of the principal. It is clear that Crawford Was not consulted about the payment, and that he knew nothing about it until long after it had been made. Cadmus swears that he thinks that he communicated it to Crawford before he took a reassignment from the comptroller; but Crawford swears positively that he had heard nothing about it until after he had transferred the securities to the plaintiff; and in this he is supported by what took place when it was mentioned to him by his brother, and subsequently on the same day when Cook and his counsel, Mr. C. P. Smith, called to make the tender to which I have alluded. The witnesses do not entirely agree as to what occurred at the last mentioned interview. Mr. Smith says, that Crawford said he knew or had heard of the payment: he did not recollect that Crawford remarked, “I have just heard of it,"- although he may have said so. But George Crawford, and Bust, (a witness introduced by the defendants,) both testified that Crawford said that he had just heard of it from his brother. The testimony of Cadmus, that he thought, but did not know, that he had made a previous communication of the payment to Crawford, is outweighed by the positive denial of the latter, and the circumstances -sustaining such denial narrated by the other witnesses. Shortly previous to the 18th of July, 1846, the plaintiff delivered to Crawford circulating notes of the White Plains Bank, amounting to fourteen hundred dollars, on an agreement between them that Crawford should pay them to the comptroller, and take from him a reassignment of Cook’s bond and mortgage, for the benefit of the plaintiff. On the day last particularized, Crawford delivered the same notes to the comptroller, and received from him a reassignment of the bond and mortgage, bearing date on the same day. Within a few days afterwards Crawford delivered those securities to the plaintiff, but did not then execute any formal assignment of them. The plaintiff thereupon instituted a suit against Cook and wife, to foreclose the mortgage. They defended the suit, and the action was heard before Mr. Justice McCoun at a special term. The evidence before him was much the same as that which has been adduced in this case; except that there is now evidence from the bank department that Crawford was an individual banker, which was not adduced before; and.there have been since some additional acts confirmatory of the plaintiff’s title. Judge McCoun rendered a judgment in favor of the plaintiff, directing a foreclosure of the mortgage, for the entire principal and the interest thereon, from the time when the plaintiff acquired a title to or interest in the securities. The judgment was unanimously affirmed at a general term, by the same learned judge, and Judges Barculo and Morse. Their judgment was reversed by the court of appeals, solely on the grounds that the comptroller could not convey the bond and mortgage to any other than the person who had assigned it to him, either directly or indirectly, and there had been no transfer to the plaintiff after the reassignment to the plaintiff. The court of appeals could not have decided, and of course did not decide, that Crawford could not subsequently assign the securities to the plaintiff for a consideration primarily advanced by him. The judgment of this court, at special term and at general term, remains unaffected, except as to the points mentibned in the decision of the court of appeals, to which I have alluded. It forms a respectable, if not a controlling, authority in favor of the conclusion which I have thus far .indicated, and which must have been substantially adopted by Judges McCoun, Barculo and Morse.</p> <p>After the judgment of the court of appeals had been rendered, and in the month of April, 1853, Crawford executed an assignment of the bond and mortgage in question, to the plaintiff. Crawford had previously, on the 16th of December, 1849, conveyed the bank to one Emory B. Pottle of Maples, in the county of Ontario. Pottle, on the 2d of March, 1851, transferred the bank to Seth C. Hart of the same place, and the White Plains Bank, by Hart as its president, on the 6th of July, 1853, assigned all its interest in the bond and mortgage from Cook to the plaintiff. On the 22d of July, 1846, Cook tendered four hundred dollars, and the interest upon that, to Crawford, in full satisfaction of the bond and mortgage, which Crawford refused to receive. In my narration of the facts, I have so far considered the questions of law, that it is not necessary for me to do much more than state my conclusions.</p> <p>The judgment of the court of appeals cannot operate as an estoppel to the plaintiff in this suit, as he has since perfected his right, so as to avoid the objections which then operated against him. He has since received an assignment from the mortgagee, and also from the bank. Neither the bank nor the mortgagee oppose his claim. It is clear that the plaintiff has now the sole title to the mortgage, if' any thing remains due upon it.</p> <p>The main question is, whether the mortgage is still an incumbrance upon the land; and if so, to what extent ? If the payment of $1000 to Cadmus was, at the time, or subsequently became, effective as a reduction of the debt, and there was a valid tender of the residue, then the land is entirely relieved from the lien, and the plaintiff must fail in this action, although he would still have a claim for such residue against Cook, on the bond.</p> <p>Did, then, the payment of $1000 to Cadmus operate, at the time or afterwards, as a reduction of the principal secured by the bond and mortgage ? As I have already mentioned, it could not reduce such principal while the securities were in the comptroller’s office. Neither could it have such effect at any time, if Cadmus neither had any title to the securities nor any legitimate authority to receive such principal or any part of it. If I am right in inferring that Cadmus had neither such title or authority, then the payment was inoperative, except possibly to create a personal claim against him. But if, as the counsel for the defendants contended on the trial, Cadmus owned the hank, and the security was taken nominally for Crawford, but actually for him, and the money had been paid to and accepted by Cadmus on a promise or understanding that it should be credited on the bond and mortgage, when he should again become entitled to and have them, could Cook now claim a credit for the amount, and a proportionate reduction of the principal ? Neither Cook nor Cadmus, nor the bank who owned it, nor Crawford as a trustee for any one, could claim these securities from the comptroller without the actual payment of the principal to him. The money received from Cook by Cadmus was- never paid to that officer, nor was any payment made to him by or on behalf of Cook or Cadmus or the bank, The money which went into the comptroller’s office belonged wholly to the plaintiff. Neither Cook, Cadmus, the bank, nor Crawford, had any interest in it.</p> <p>The payment was not, in fact, made for either of them. Crawford paid the money, as he alone could do that and receive a reassignment of the bond and mortgage.</p> <p>It may be as the court of appeals decided, that on receiving such reassignment, he alone had, technically, a right to foreclose the mortgage. But surely neither the power nor duty of the comptroller could interfere or prevent the completion of a previous arrangement between Crawford and the plaintiff, or impair the rights or equities of the plaintiff under such arrangement. Can it be, that if a mortgagee, while his mortgage is in the possession of the comptroller, under the act relative to the free banks, agrees with a third person that if he will furnish the requisite funds, the mortgage shall be procured with such funds, and the security shall be transferred to him who advances the money, and the money is accordingly advanced and paid to the comptroller, and a retransfer had, the mortgagee cannot effectually assign the securities to the lender; or, that if he should then refuse to do so, the lender cannot coerce such transfer in a court of equity ? It is so palpable that, under such circumstances, the assignment could be legally made, or, if necessary, coerced, that the contrary could never have been supposed, but for a misapprehension of the judgment of the court of appeals in the suit of Mitchell v. Cook. In this case there was primarily such an agreement, and the parties have endeavored to consummate it, and have done all that is necessary for that purpose, so far as it relates to them.</p> <p>As Crawford did not pay his own money, he acted in a fiduciary capacity in taking the reassignment. For whom did he thus act ? Not for the bank, if that was owned at the time by any other person, for the money paid by him was not furnished by said bank; nor for Cook, as his money had not been received by Crawford, and of course was not applied by him for any purpose ; nor for Cadmus, who had received such money; but, most assuredly, for the plaintiff, who had actually furnished the identical means.</p> <p>If the controlling question in this case had been, which of the parties has the greater equity, it seems to me that the decision must have been in favor of the plaintiff. It is true that Cook has actually paid his money with an intent that it should be credited to. him on his bond and mortgage. But he knew that those papers had been transferred to, and as he had every reason to believe, if he did not actually know, were then held by, the comptroller as security for the payment of the circulating notes of the bank to the same amount. He must have known—for every one is presumed to know the law—that the payment was unauthorized at the time, and that it could not avail him unless the bank or the payee should return the notes or pay the amount to the comptroller. He must therefore have trusted mainly to the responsibility of Cadmus, to whom he paid the money. It would seem from some of the testimony that he did so. Cadmus failed, and the money was never paid to the state officer. On the other hand, the plaintiff advanced the entire amount, and his funds were the sole consideration of the transfer. Knowing the law, as he did know it, not only presumptively but actually, he was aware that no part of the principal could be legally paid to another, while the bond and mortgage were held by the comptroller. He had a right to presume, and no doubt did suppose, that no unlawful attempt had been made to pay a part of the principal, and that the whole of it was still due. He was an innocent and bona fide purchaser of securities which, as they read, and as he had a right to suppose they were, were still valid for the entire amount.</p> <p>If the payment by Cook had entitled him to a reduction of the principal, the tender of the balance would have been ineffectual; because, first, it was made to one who had no right to receive the money; and secondly, the time of payment of the principal had not arrived. It is very clear that a tender of money before it is payable is invalid. It was contended by the counsel for the defendant, however, that this objection was waived, as it was not mentioned at the time. It is true that an objection is considered as waived when not explicitly'stated, when it could have been obviated by the person making the tender, if he had been apprised of it; but the principle extends no further. In this case there was of course no power to remove or avoid the objection, if it had been mentioned.</p> <p>Upon the whole, it seems to me that the entire principal was due at the time of the assignment to the plaintiff, and that such assignment is valid.</p> <p>There must be the usual judgment of foreclosure for the entire principal, and the interest upon it from the date of the reassignment by the comptroller.”</p> <p>The defendants appealed from the judgment. The appeal was argued by</p>

The action was brought to recover a lot of land and the meeting house thereon, situate at Bellport, in Suffolk county. Held: and became incorporated as a religious society, under the act of 1813, by the name of the Parish of Bellport. Six trustees were elected, and the proper certificate made and filed.

<p>THIS was an action to foreclose a mortgage upon premises in Greene county, dated February 5, 1835, executed and delivered by the defendant, William T. Huggins, to Joseph Huggins, to secure the sum of $250, payable on the 1st of February, 1836, and assigned by the latter to the plaintiff, on the 14th of March, 1836. The mortgage was on the same day acknowledged, and on the 9th day of February recorded in the clerk’s office of the county of Greene. Cotemporaneously with the mortgage, and to secure the same debt, Williana T. Huggins executed and delivered to said Joseph Huggins a promissory note of like date, amount and time of payment as the mortgage, and payable to Joseph Huggins or bearer. The mortgage was under seal, and the note was not under seal. The defendants, among other things, averred that the note was paid and satisfied, and also that the note (and consequently the mortgage) was barred by the statute of limitations, by the failure to commence an action thereon within six years after the cause of action accrued. The action was commenced on the 6th day of September, 1855. The cause was tried by the Hon. Deodatus Weight, then a justice of the supreme court, without a jury, at a circuit court held in the county of Greene, in November, 1857. Evidence was given tending to show the consideration and object of the bond and mortgage, and on the part of the defendants, to show that they were satisfied and paid; and on the part of the plaintiff, that an unpaid amount of about $70 remained due thereon. The justice came to a conclusion favorable to the plaintiff on the latter point, he finding that a portion of the amount secured by the mortgage was still due and unpaid ; but holding, also, that the right to recover was barred by the statute of limitations, he gave judgment for the defendants, with costs; from which judgment the plaintiff, having duly excepted to the rulings of the judge, appealed to the general term, The remaining facts, so far as they are material, sufficiently appear in the opinions which follow.</p> <p>, I. The cause of action having accrued prior to the adoption of the code, the law limiting actions, as it existed before the code, governs the case. (Code, § 73.) Actions on sealed instruments are barred after twenty years. (2 R. S. p. 398, § 48, 3d ed.) On instruments not under seal, after six years. (Id. 394, § 18.)</p> <p>II. The mortgage is signed by the defendant, William T. Huggins. It provides for the payment of the money on the same terms named in the note, and secures its payment by a conveyance of the land. Therefore the note should be deemed the same as if incorporated in the mortgage, and a part of it, and the right of action against both the person and the land follows the sealed mortgage. The seal on the mortgage repels the presumption that the note is paid.</p> <p>III. If the plaintiff’s remedy against the person, on the note is gone, certainly his remedy against the land remains. The mortgage gives a perfect remedy against the land for the moneys secured by it, and being under seal, the plaintiff’s action on it is not barred till after twenty years. This view is sustained by the supreme court of the United States, and in every state where the question has arisen, except in 7 Wend. 94. “ Where a deed of trust was executed to secure the payment of certain notes, and a judgment obtained on the notes, the judgment did not operate as an extinguishment of the right of the holders of the note to call for the execution of the trust, although the act of limitation might apply to the judgment.” (Bank of Metropolis v. Guttschlick, 14 Peters, 19. Also Eastman v. Foster, 8 Metc. 535. 2 Cox’s Ch. Cas. 125. 2 Hilliard on Mort. 21.) In the case of a mortgage of real estate to secure the payment of a promissory note, although the note be barred by the statute of limitations, yet if it has not been paid, the mortgagee has his remedy on the mortgage. (Thayer v. Mann, 19 Pick. 535. Also see cases cited in this last case.) The general rule, that a discharge of the debt discharges the mortgage deed by which it is secured, does not apply where the debt is -merely barred by the statute of limitations. (Bush v. Cooper, 26 Miss. (4 Cush) 599. Also 14 B. Monroe’s R. (Ky) 307.) :</p> <p>IV. The presumption of payment from lapse of time, is not a fixed or universal presumption. It cannot be used as the foundation of an action. (Morey v. Farmers’ Loan and Trust Co., 14 N. Y. R. 302.) It yields to a legal lien upon lands, as in the case of a docketed justice’s judgment under the law prior to 1848. ( Waltermire v. Westover, 14 N. Y. R. 16.) The case of Jackson v. Sackett (7 Wend. 94) was repudiated as an authority by Chancellor Walworth, in Heyer v. Pruyn, (7 Paige, 465.)</p> <p>V. Though the holder of a bond and mortgage discharge the mortgagor from his personal liability on the bond, the remedy remains perfect against the land, under the mortgage. What greater effect can the statute of limitations have, than discharge the remedy on the note and leave it perfect on a sealed mortgage ? Suppose a note and bond be given by the same person for the same debt, and executed at the same time, and inore than six years elapse after the right of action accrues on the note, how could the presumption that the note was paid, work a presumption that the sealed bond was also paid ? The maker of the note and mortgage in this case fixed the time within which the right of action on each of them could be enforced.</p> <p>I. There is not a particle of evidence to show that the defendant has recognized the note or mortgage since the tranfer thereof to the plaintiff, in March, 1836, between nineteen and twenty years after the note and mortgage purport to have become due. The answers set up payment, and the statute of limitations; also that the note and mortgage were executed to secure Joseph Huggins for a contingent liability on which he never had any thing to pay. The statute of limitations is an available answer in equity as well as at law. (Lansing v. Starr, 2 John. Ch. 150.) Kane v. Bloodgood, 7 id. 90. Rosevelt v. Mark, 6 id. 266. Souzer v. De Meyer, 2 Paige, 575. Bedford v. Brady, 10 Yerger, 350. Walker v. Smith, 8 id. 238.)</p> <p>II. The principal instrument, the note, cannot be enforced, and the mortgage being collateral and incident to it, must fail with the note. Until foreclosure, or at least until possession taken, the mortgage remains in the light of a chose in action. It is but an incident attached to the debt, and in reason and propriety it cannot and ought not to be detached from its principal. The mortgage interest, as distinct from the debt, is not a fit subject of assignment. It has no determinate value. If it should be assigned, the assignee must hold the interest at the will and disposal of the creditor who holds the bond. (Jackson v. Willard, 4 John. 41, 43.) The debt is the principal, and the mortgage but an accessory, which cannot exist as an independent debt. (Jackson v. Blodget, 5 Cowen, 202. Green v. Hart, 1 John. 580.) Payment of the debt is an extinguishment of the mortgage. (4 John. above cited. Lane v. Shears, 1 Wend. 433, 437.) The above cases hold that the mortgage is a mere incident to the note or debt, and that a discharge of the debt, even by parol, is considered as a discharge of the mortgage. Where ejectment is brought on a mortgage executed as collateral security for the payment of a sum of money secured to be paid by a note, it seems, in analogy to the principle which authorizes the presumption of payment after the lapse of twenty years without recognition of the debt, that the note may be presumed to be paid after the lapse of six years without such recognition. (Jackson ex dem. Sackett v. Sackett, 7 Wend. 94.) The fact that more than 20 years had elapsed since the giving of the bond or any acknowledgment of it, would be competent evidence of such payment, unless repelled, and defeat the action. (12 John. 242. 3 John. Ch. 135. 4 Cranch, 415.) And I perceive no reason why the same principle should not be applied where the mortgage is given to secure a note. The principle is perfectly well established, that the mortgage is but an incident to the debt. (7 Wend. 98, per Sutherland, J.) And the payment of the debt per se annihilates the mortgage. Here it is held that the debt is to be presumed to be paid.</p> <p>III. If the land has been conveyed by the mortgagor to a third person subject to the mortgage, which the purchaser agrees to pay, in such case the land becomes the primary fund with which to pay the mortgage. Hence the distinction between the cases in 7 Wend. 94, above, and the case of Heyer v. Pruyn, (7 Paige, 470.) In the latter case the mortgaged premises had been conveyed, subject to the mortgage, and had by that means become the primary fund. The remarks of the chancellor, intimating a different doctrine than that contained in 7 Wendell, were unnecessary to the decision of the case, on account of the above distinction. This distinction runs through all the cases. (McKinstry v. Curtis, 10 Paige, 503. Russell v. Allen and others, id. 249. Vanderkemp and Van Hall v. Shelton, 11 id. 28.) Where the land is expressly conveyed, subject to the mortgage therein, the land is the primary fund, as between the grantor and grantee, and those deriving title from the grantee for the payment of the mortgage debt. (Jumel v. Jumel, 7 Paige 591. Willard’s Eq. Jur. 453.) But if no equitable circumstances intervene, the debt is considered the principal, and the mortgage the security. (Willard’s Eq. Jur. 453.) In this case there is no evidence showing any acknowledgment of the debt or the payment of any part of the principal or interest, or promise to' pay, for nearly 20 years. The presumptive bar has not been repelled. The statute is a bar to the plaintiff’s right to recover on the note. By analogy to the statute of limitations barring a right of entry after 20 years’ enjoyment, a possession of that length of time by the mortgagee, without account or acknowledgment, forms a presumptive bar to the equity of redemption. (Cowen & Hill’s Notes to Phil. Ev. 319.)</p>

THIS action originated in a justice’s court. The complaint charged the defendant with taking a wagon and part of a harness from the plaintiff’s barn, without his consent, in the fall of 1856; and that the wagon was returned broken; but that the part of the harness taken, was never returned. The answer was a general denial of each and every allegation contained in the complaint. The action was tried without a jury.

ÍT the 11th day of April, 1850, the plaintiff commenced an action, in this court, against the defendants, for changing the channel of Seely creek, and diverting the water thereof, by means of. obstructions placed therein by the defendants, from its natural channel, in Southport, in the county of Chemung, so that the water of said creek, when high, flowed lands of the plaintiff in that town, and greatly injured them.

THIS action was tried by a jury in a justice’s court, where a verdict was found in favor of the defendant; upon which the justice rendered judgment against the plaintiff for $1.36 costs. The Otsego county court affirmed the judgment, and the plaintiff appealed from the judgment of that court to this court.

THIS action was brought to recover the possession of ninety-five and three-fourths acres of land, situated in the town of Madison, in the county of Madison. The land was owned in 1853 by Uriah H. Ward, who executed a mortgage on it to John B. Burton, to secure the payment of $1255.80, and interest thereon, at certain times therein specified.

THIS action was tried by consent, at a special term of this court, in Chenango county, in August, 185V, before 'Mr. Justice Mason, without a jury. It was upon a note in the form following: “$150.

MOTION by the defendant for a new trial. The plaintiff resided at Hale’s Eddy, N. Y., on the New York and Erie rail road, and the defendants’ chief place of business was at - Athens, Pa.; the defendants’ agent resided at Hancock, N. Y., and having called at the plaintiff’s house on the 28th of March,. 1857, and proposed to insure it in the defendants’ company, a written application was made and signed by the plaintiff, and a receipt given, acknowledging the payment of the…

THIS was an appeal by the plaintiffs from a judgment entered upon the report of a referee. The plaintiffs were partners in buying and selling sheep, and on the 19th day of June, 1857, bought of the defendant 48 old sheep at $3.50 per head, and 12 lambs thrown in. The plaintiffs paid $50 down, on the sale, and were to pay $50 on the 22d of said month, and take the sheep away within ten days from the making of the sale, and pay the balance of the purchase money.

The plaintiffs sued the defendants in trespass, for cutting and carrying off a quantity of timber from lot Ho. 14, in Butler and Clark’s patent, in the town of Fulton, in the county of Schoharie. The defendants answered, 1st, denying the allegations of the complaint; and 2d, averring title to the close or premises on which the alleged trespass was committed, in the defendant Jacob Yan Valkenburgh.

ÁPPEAL from a judgment entered upon the report of a referee. The action was upon a promissory note made by the defendant Bidwell, on the 20th of July, 1855, for $738.92, payable to the defendant Parker, or order, eight months after date, at the Bank of Hew York, and indorsed by Parker.

The question was as to the order in which the several parcels of land, which had been sold and conveyed, by the mortgagor, to different purchasers, at different times, should be sold, under the judgment of foreclosure. The special term decided that Hesser, the purchaser whose deed was first recorded, had the prior equity, as against Pecare, whose deed was first executed and delivered.

APPEAL by the defendant, from a judgment entered upon the report of a referee. The action was brought against the defendant as executrix of David Brown, deceased, to recover $500 upon a subscription by the testator for the erection of the church edifice of the plaintiffs; also $100 subscribed by him towards the salary of the minister.

<p>THIS action was brought for the recovery of $10,828 with interest from the 12th day of March, 1855, for a breach of the covenants contained in a deed of conveyance 'of a house and lot in the city of Hew York. The plaintiff derives title from the defendant, through Samuel Smith, who was the defendant’s grantee, and the plaintiff’s grantor, of the premises in question. The breach of covenant complained of consists in a mortgage given by the defendant, while owner of the premises, to one Edwin Snyder, and which remained an existing incumbrance upon the premises until after the com ' veyance to the plaintiff, who was compelled to remove it, in order to prevent a foreclosure and sale, by paying the amount claimed in this action. At the hearing before the referee, the defendant’s counsel moved, in limine, to dismiss the complaint on two grounds: 1. That an assignee of a grantee of land cannot maintain an action in his own name for a breach of the covenant against incumbrances. 2. That the breach of covenant was insufficiently assigned in the complaint. The referee granted the motion on the first ground, and dismissed the complaint. The plaintiff excepted to the rulings and finding of the referee, and from the judgment entered upon the report of the referee, the plaintiff appealed to the general term.</p> <p>I. The doctrine that has pbtained in this state, and several states of the union, that an assignee of a covenantee in a conveyance of real estate, cannot maintain an action in his own name for a breach of the covenants against incumbrances, of seisin, and right to convey, is founded solely upon the technical rule against the assignment of a chose in action, and not, as the referee supposes., from the want of privity of estate or contract. (1.) In all the adjudicated cases, and elementary treatises, the doctrine is placed upon the ground of the technical rule. (4 Kent’s Commentaries, 471, 472, 5th ed. Rawle on Covenants for Title, 344, 345, 2d ed. Greenby et al. v. Wilcocks, 2 John. 1. Fowler v. Poling, 2 Barb. S. C. R. 300. Sprague v. Baker, 17 Mass. 586. Clark v. Swift, 3 Metc. 395.) (2.) Since the statute quia emptores, which abolished sub-infeudation, upon a conveyance in fee which leaves no reversion in the donor, there is, properly speaking, and can be, no privity of estate between the grantor and the assignee of the grantee. Before the statute, it was the reversion, or possibility of reverter, that created privity of estate; and since the statute, the want of reversion, or possibility of reverter, destroys that privity. (Rawle on Covenants for Title, 341, 2d ed. Am. Notes to Spencer’s case, 1 Smith’s L. C. 108, 109, 112. Bingham & Colvin on Rents, Covenants, &c. 240. Townsend v. Morris, 6 Cowen, 123. De Peyster v. Michael, 2 Seld. 467.) (3.) The ordinary covenants in a deed, though some of them are often denominated real covenants, are in fact all personal covenants, and consequently choses in action. The doctrine that any of these covenants run with the-land, is an exception to the old common law rule that choses in action are not assignable. The law now, for wise reasons, permits their transfer with the land, as incidents, when they are in their nature capable of running with it. What shall constitute a capacity for running with the land has been established somewhat arbitrarily, but firmly: it depends upon two conditions; first, the covenant must be about or affecting the land; and second, it must be for the benefit of the land. (Am. Notes to Spencer’s case, 1 Smith’s L. C. 135, 136, 99. Rawle on Covenants for Title, 340, 341, 342, 343, 2d ed. Norman v. Wells, 17 Wend. 136. Allen v. Culver, 3 Denio, 284. Plymouth v. Carver, 16 Pick. 183. Taylor v. Owen, 2 Blackford’s Ia. R. 301. Bingham & Colvin on Rents, Covenants, &c. 65. Vernon v. Smith, 4 Barn. & Ald. 1. Bally v. Wells, 3 Serg. Wils. 25. Vyvyan v. Arthur, 1 Barn. & Cress. 410. Hurd v. Curtis, 19 Pick. 449. Townsend v. Morris, 6 Cow. 123. 4 Kent’s Com. 472, note a, 5th ed. Spencer’s case, 2d, 3d and 4th resolutions, 1 Smith’s L. C. 23.) (4.) It is a settled doctrine, that on the question whether a particular covenant runs with the land, and passes to the assignee, it makes no difference whether the covenantor be the person who conveyed the land or a mere stranger. Between a stranger and an assignor there can of course, strictly speaking, be no privity of estate. The only privity that can, in such case, exist, is that which results from the capacity of the covenant to run with the land; and this capacity, since the statute quia emptores, as before shown, depends upon two conditions: first, that the covenant shall be about or affecting _ the land; and second, that it shall be for the benefit of the land. (Packenham’s case, 42 Edward III., 3, cited in Spencer’s case, 1 Smith’s L. C. 95. Rawle on Covenants for Title, 342, 2d ed. Norman v. Wells, 17 Wend. 150, 151. Am. Notes to Spencer’s case, 1 Smith’s L. C. 108.)</p> <p>II. From the foregoing positions and authorities, it is difficult to perceive any sound reason for the rule that the covenant against incumbrances does not pass to the assignee. It is no more a personal covenant than all the covenants in a deed; and if it be a chose in action, so are all the rest since the statute quia emptores. The doctrine that any of them run with the land, so as to give a right of action to the assignee, is an exception to the common law rule against the assignment of choses in action. Within this excejfiion, the covenant against incumbrances has all the conditions conferring capacity to run with the land: it both concerns, and is for, the benefit of the land. (1.) The reason assigned for the rule is, that this, and the covenants of seisin, and right to convey, are covenants in presentí, and if not true, are broken as soon as made, and immediately become mere choses in action, incapable of assignment. But we have before seen that all the covenants in a deed are choses in action, whether broken or kept, and hence the reason assigned for the rule shows its absurdity. In Greenby et al. v. Wilcocks, (2 John. 6,) Livingston, <J., in an able dissenting opinion, significantly says: “It might be asked, what makes a covenant more a chose in action after than before its breach ?” (2.) A more specious reason for the rule would seem to be, that, as covenants pass, not - by direct assignment, but as incident to the estate, in those cases where the breach is total, and the damage complete as soon as executed, if the covenant be untrue— as in covenants of seisin and right to convey—the covenant is severed from the estate, and becomes a mere personal right of action for the damages, which passes to the executor, and not to the heirs or assigns, with the land. But, if this were the reason by which the rule is vindicated, then a distinction should be made between cases where the damage is complete and accrues to the first grantee, and those in which, though there may be a mere technical breach to the first grantee, yet the real damage is sustained by the assignee. This distinction is made by the English courts, but it has been ignored by ours. (Rawle on Covenants for Title, 344, 345, 2d ed.) (3.) Our courts generally have adopted the rule in question with great reluctance, especially as applied to the covenant against incumbrances, and only in obedience to what has been supposed to be the strict technical common law rule, as laid down in Lewis v. Ridge (Cro. Eliz. 863.) That case has either been misunderstood this side of the Atlantic, or our courts present the anomaly of following an English decision which is repudiated by the English courts. Upon examination it will appear that the case of Lewis v. Midge does not support the position based upon it, and is not in conflict with the more recent English decisions. The covenant was that the land “should be discharged, within two years, of all statutes, charges and incumbrances, excepting the estate for lifebreach, that the statute was extended. The covenant was to do a thing certain within a specified time, and execution had issued upon the statute; the land was actually extended ; the covenant was, therefore, finally and as completely broken at the expiration of that time as it could be, and the damage was complete. (Rawle on Covenants for Title, 356, 357, 358, 2d ed.)</p> <p>III. But whatever may be the rule and the reason for it, either in England or America, in courts of law, there has never been any difficulty about the matter in equity, where assignments of choses in action have always been held valid; and the common law courts, in modern times, have acted upon the same principle, and permitted the assignee to maintain an action in the name of the assignor. This doctrine, in its application, has embraced covenants that are said not to run with the land at common law-—including the covenant against incumbrances-—and treated the assignee of the land as the equitable assignee of the covenant, by virtue of the transfer of the land, without any direct or specific assignment of the covenant. (Rawle on Covenants for Title, 383, 384, 2d ed. 2 Story’s Eq. Jur. §§ 1040, 1047. 1 Parsons on Con. 193, 2d ed. Clark v. Swift, 3 Metc. 395. Sprague v. Baker, 17 Mass. 586. Thayer v. Clemence, 22 Pick. 493. Redwine v. Brown, 10 Georgia R. 318. Am. Notes to Spencer’s case, 1 Smith’s L. & 122. Nesbit v. Brown, 1 Dev. Eq. R. 30. Thompson v. Rose, 8 Cow. 266. Alexander v. Schrieber, 13 Miss. R. 271. Chaplain v. Briscoe, 11 Smedes & Marsh. 377. Thornton v. Court, 17 Eng. Law and Eq. R. 231. Riddell v. Riddell, 7 Simons, 529. Murray v. Jayne, 8 Barb. 612, 616.)</p> <p>IV. The code of procedure blends the two systems of law and equity, and permits an action to be brought in the name of the assignee, and thus removes the technical difficulty that has driven our courts of law into a series of decisions which they made with reluctance, and from a supposed necessity growing out of the rule against the assignment of choses in action. If, therefore, an assignee of the land who has suffered from the breach of covenant against incumbrances, be an equitable assignee of the covenant, or of the right of action for such breach, then this action is rightly brought in the name of the present plaintiff. ([Code of Procedure, §§ 69, 111. Rawle on Cov. for Title, 383, 384, 2d ed.) (1.) The referee held that the action would be maintainable as an equity proceeding, if the pleadings were properly framed; and that it might be maintained in its present form, if the plaintiff had a specific and independent assignment of the right of action from Smith, his grantor. To this it may be replied: 1. That all the authorities which hold that the assignee of the land is the equitable assignee of the covenant, treat him as such assignee by virtue of the transfer of the land, and do not require a specific and independent assignment of the cause of action. 2. That if the assignee of the land could maintain an equity proceeding against a remote grantor, without a specific assignment of the cause of action, then it follows that the right of action passes with the land as an incident, and that the doctrine that an assignee cannot maintain an action in his own name in the common law courts, on a certain class of covenants, is founded upon the technical rule against assignments of choses in action, and not, as the referee holds, on the ground that there “ is no privity of estate or of contract between the parties.” 3. The equitable interest in a chose in action may be assigned by a mere delivery of the evidence of the contract. (1 Parsons on Cont. 197, 2d ed.) (2.) The rule that choses in action are not assignable at common law, now means only that they can be recovered in no other name than that of the original owner. This appears from the fact that courts will protect the rights of the assignee, on due notice of the assignment. It ought to follow, therefore, that under the code choses in action are assignable, and the technical rule abrogated. (3.) An argument in favor of the technical rule, supposed to be established by Lewis v. Ridge, and followed by our courts, has been drawn from the nature of the covenant of seisin. As covenants which possess the capacity of running with the land do not pass by direct assignment, but as incident to the land to which they relate, it is said that in case of the covenant of seisin, when untrue, no land passes to the grantee and his assignee, and of course no covenant passes as an incident. If this be true of the covenant of seisin, it is equally true of the covenants for quiet enjoyment and of warranty, and ought, for the- same reason, to destroy their capacity for running with the land. But it is not true of the covenant against incumbrances, for, although untrue when made, an estate passes to” the assignee. To meet this difficulty as to covenants of warranty, and for quiet enjoyment, it was held in Beddoe’s Executor v. Wadsworth, (21 Wend. 120,) that a transfer of the possession is sufficient to pass these covenants to- the grantee and his assignee. It was also held that covenants pass by release and quit-claim, as well as by bargain and sale, or lease and release.</p> <p>Y. The doctrine that the covenant against incumbrances does not run with the land, so as to give the assignee a right of action in his own name for the breach, where he has been the only sufferer, has been adopted with reluctance, and operates so inconveniently and unjustly, that courts ought to favor its abrogation. (1.) It is a well established rule, that in an action for a breach of this covenant, the plaintiff can recover only nominal damages, where he has not removed the incumbrance, nor been evicted. The covenant is treated as a covenant of indemnity, and until a party has actually sustained an injury, he is not entitled to recover damages. (Rawle on Covenants for Title, 155, 2 d ed. Baxter v. Ryerss, 13 Barb. 267, 281. Bemis v. Smith, 10 Metc. 194.) Now, in the case at bar, if Smith, the defendant’s grantee, had brought suit, he would have recovered just six cents damages, and been mulcted in costs. But he assigned to this plaintiff, who was compelled to pay ten thousand dollars to remove the incumbrance, and now it is said that Colby cannot recover of the defendant without a specific assignment from Smith of his six-penny right of action. If it be said that Colby has his action against Smith, it may be asked in reply, what if Smith be hopelessly insolvent? Moreover, why multiply actions when the substantial rights of the parties can be disposed of in this action ? (2.) Suppose Smith had brought his action, and obtained a judgment for the technical breach of the covenant, before paying off the incumbrance, and had afterwards paid off the incumbrance, would he have had another action for the damages sustained ? If yea, then it would tolerate the practice of splitting a demand, and allow two actions where one would answef all the purposes of justice. If nay, then the technical right of action, to which so much importance is attached by the other side, is a right the exercise of which would be visited by a forfeiture of the substantial rights of the party. (3.) If this plaintiff shoxild now take a specific assignment from Smith of his valuable chose in action— which, it is said, in case of his death would pass to his executoi--^and bring an action upon it against this defendant, what would he be entitled to recover ? Beyond doubt, he would recover what was thus assigned him, namely, six cents, and the privilege of paying costs; but on what pxinciple he would be entitled, in virtue of such assignment, to recover the ten thousand dollars by him paid, does not very clearly appeal-. (4.) Covenants were introduced originally to succeed the ancient warranty, which was strictly a covenant real, and could never he taken advantage of by personal representatives. It has generally been supposed that their introduction “ was intended rather to extend the remedy—both by means of the more pliable form of the action of covenant, and by giving indemnity in the shape of damages—than to alter materially the rights and relative positions of those who might seek to take advantage of them." Bxit if the doctrine contended for on the other side be carried out, their original purpose would be essentially and unfortunately perverted. (5.) In several states of the union the English rule obtains; in Maine the right of an assignee to maintain the action has been declared by statute; and some of the best elementary writers maintain the same doctrine, holding that the assignee—if he be the party actually damnified---may have an action, either in his own name, or in the name of the assignor. (Rawle on Covenants for Title, 850, 383, 384, 2d ed. 2 Hilliard on Real Property, 393, 57, 2d ed.)</p> <p>VI. The breach of covenant is sufficiently assigned in the complaint, and so the referee found. The complaint sets out the several conveyances in hcec verba, alleges the incumbrance complained of, and the payment thereof by the plaintiff, in order to prevent his premises from being sold under the mortgage. In brief, all the facts necessary to maintain the action are set forth, and under the code this is all that is requisite; more than this would be vicious pleading. (Code of Procedure, § 142. Clark v. Harwood, 8 Pr. R. 472.)</p> <p>I. The deed from the defendant to Smith contains a covenant against incumbrances, and no reservation in it was made of the mortgage in question. That covenant was consequently broken as soon as made and became from that time a mere right in action, upon which Smith alone could bring a suit. (1.) Smith might have assigned that right of action to one and conveyed the real estate to another; or (2.) Supposing that no assignment of it had been made3 specifically, and Smith had died intestate, this right of action would have passed to his personal representatives and not to his heirs.</p> <p>II. The deed executed by Smith, bearing date the 9th day of May, 1854, and delivered to the plaintiff, although it passed the estate in fee, did not pass to the plaintiff this right of action. A covenant broken does not run with the land. (Rawle on Covenants, 350.)</p> <p>III. This rule of law is well established, and the present being an action at law, must be governed by it.</p> <p>IV. Ho other rule could be allowed to prevail even in equity, under the circumstances of the present case. (1.) The plaintiff took a covenant against incumbrances, from Smith, in his deed bearing- date the 9th day of May, 1854, and having constructive notice of the existence of the mortgage executed by Osgood, uncanceled of record, it is to be presumed that he relied upon that covenant. (2.) Osgood has an equitable defense as against Smith, which he could not have as against Colby. (Rawle on Covenants, 376. Suydam v. Jones, 10 Wend. 180.)</p> <p>Y. The plaintiff in this suit has no such interest in the broken covenant as to enable him to maintain an action upon it against the defendant.</p>

<p>Appeal from, an order of the surrogate.</p>

The plaintiff owned four of the defendants’ bonds, purchased before January 1, 1856, and delivered in this state, for the payment each of $1000 and interest, in the usual form, but containing also the following special clause: “ And the said company also agree, to transfer to the holder hereof at any time before the said principal sum shall fall due, whenever such holder shall elect to receive the same on delivery of this obligation, and of the unpaid coupons or interest…

<p>Appeal from an order denying a motion to vacate an order of arrest.</p> <p>The necessary facts appear in the opinion.</p>

OM the 28th of March, 1843, the defendants leased to the plaintiffs the premises known as “ Castle Carden,” for eleven years from May 1st, 1843, at an annual rent of $2000.

<p>Appeal.'—Judgment by Default.</p> <p>A defendant who does not appear on the trial in the court below, cannot appeal from, the judgment rendered against him.*</p> <p>The defendant’s remedy is to move upon excuse, to have the default opened.</p> <p>The objection that the complaint does not state facts sufficient to constitute a cause of action, if not presented by demurrer, must be raised at the special term or circuit before it can be available on appeal.</p> <p>Whether the defendant might succeed in a motion to set aside a judgment by default, on the ground of such defect,—Query ?</p>

THIS was a motion to Confirm the report of a referee, to whom it was referred to apportion the debts and liabilities of the Eeciprocity Bank among the several stockholders liable for the same, under the act of April 5, 1849, “to enforce the responsibility of stockholders 'in certain banking corporations and associations,” &c. (Laws of 1849, p. 340.) The bank was incorporated in 1834, by the name of the Sacket’s Harbor Bank.

<p>In an action upon a penal bond, the judgment, in form, is for the penalty. The code has not changed the law in this respect.</p> <p>If there is a condition to the bond, and the cause of action arises from its breach, the plaintiff should state that fact, as one of the facts constituting his cause of action. But this will not affect his right to a judgment in form for the penalty.</p> <p>Where, by the agreement of the parties, the whole penalty has become due, by the non-payment of an installment of interest, the law will not permit the obligee to collect it, if, on looking at the condition, it is found to be inequitable ; and the obligor’s rights will be protected, by controlling the execution, according to the law and practice prior to the code.</p> <p>A defendant may now avail himself of any defense, legal or equitable, which he may have to the claim or demand sued on, though the action be prosecuted by an assignee. An assignee still takes and prosecutes the demand subject to all the equities existing between the parties to the contract.</p> <p>In an action upon a bond conditioned for the payment of money, brought by an assignee, the obligor alleged in his answer that the bond, and a mortgage to secure its payment, were executed by him to one J., in consideration that J. would fulfill and perform certain covenants contained in an agreement between the parties, and that J. had failed and refused to perform his said covenants; Held that the matter thus set up constituted a good defense, and that the referee erred in deciding that the same could not be set up against the assignee of the bond, and in excluding the evidence.</p>

The action was for the value of a horse converted by the defendant. The plaintiff purchased of one Garret a buggy wagon, for the price of which he gave his promissory note. The defendant purchased the note, and obtained a judgment upon it, and took the horse by virtue of an execution issued upon the judgment; and this was the conversion complained of. The plaintiff was a householder, and had a family, for which he provided.

It is.alleged in the complaint that the plaintiff is and was &c. the owner in fee simple, and was &c. and is in the possession of a certain piece or parcel of land, a garden and messuage, situate &c., and all the appurtenances, hereditaments, easements and privileges thereto belonging or in any wise appertaining. That there is a dwelling house on the land, owned and occupied by the plaintiff.

<p>Where the owner of land dedicates the same to the public for a street, and then grants the land in fee before the public has taken possession, or made any use of the same, and the grantee and those holding under him possess and occupy the land for more than twenty-five years before the public asserts any claim or right founded upon the dedication, all right in the public will be deemed to have ceased.</p> <p>Where land worth $1200 had been entered upon by a municipal corporation, under and by virtue of proceedings regular in form, for the purpose of opening a street thereon, and the sum of one dollar had been awarded to the owner, as a compensation therefor; Held that the owner was entitled to an injunction to restrain the corporation from proceeding further in appropriating the land and opening the street.</p> <p>In such a case a common law certiorari would afford the owner no redress. It would not thereby be disclosed that the commissioners had not awarded him a just compensation. It could not be legally known that one dollar was not a just compensation for the land to be taken. Per Marvin, J.</p> <p>A suit in equity will lie, in favor of a land owner, against a municipal corporation, to restrain it, by perpetual injunction, from entering upon and taking possession of the land, and opening a street thereon, where the claim of the corporation is apparently valid, upon the face of the proceedings, and it is necessary to aver and prove an extrinsic fact in order to establish the invalidity of the proceedings ; as, for example, that the commissioners have only awarded to the plaintiff one dollar for property worth $1200.</p>

THIS action was commenced before a justice of the peace of the county of Livingston. The plaintiff complained in writing on a promissory note, made by the defendant Trescott and one Erastus Wilkinson, dated August 19th, 1850, whereby they promised to pay G. F. Pratt or hearer, six months from - that date, fifty dollars with interest. The defendant answered 1st. General denial; 2d. Payment; 3d. Discharge of Trescott as surety; 4th. Usury; 5 th. Statute of limitations.

<p>APPEAL from a judgment entered at a special term upon the report of referees. The bomplaint contained three causes of action. The first set forth, that about the 1st day of April, 1851, the plaintiff and one Simon jdpéar contracted with the defendants to do work on a railhead^ whjbii was-done by the plaintiff, as was_ also other*'work not 'embr^ced1 in the contract, to the amount of $10,856^. The segohd set forth, that the defendants refused to allow the pontiff to do certain portions of said work, and caused A^fiíntions in doing certain other portions, to the damagcISr the plaintiff of $1568.25. The third cause of aefckiri was a general count for work, labor and materials, in which the plaintiff claimed to recover $10,846.14. The answfeiL set up six separate defenses. The first was a general denial of the whole complaint. The second set forth that on the 1st of April, 1851, the defendants made a contract in writing with the plaintiff and one Spear, to do work and furnish materials, on a rail road, at prices therein mentioned; which was done and furnished by the plaintiff, and paid for by the defendants according to said contract; and which Work and materials were the same mentioned in the complaint. The third set forth that in 1851 the plaintiff did work and furnished materials for the defendants, on said rail road, to the amount of $250, for which he was fully paid, and that it was the only work not embraced in said contract. The fourth alleged that the defendants had paid the plaintiff for all work &c. on said road, and all other work. The fifth alleged that the defendants had paid the plaintiff for all damages mentioned in the second cause of action; and the sixth set forth that the defendants had advanced to the plaintiff $12,500, which remained due and unpaid, and which the defendants claimed to set off. The reply denied generally all the allegations of new matter, in the answer.</p> <p>The action was referred to three referees, who made their report, by which they found due to the plaintiff $4393.93,- and from the judgment entered upon such report the defendants appealed to the general term. The judgment w'as reversed, on that appeal, and a new trial ordered. After a second hearing before the referees, they made their report, by which they found, as facts, that on or about the first day of April, 1851, the defendants were partners in building the Attica and Hornellsville rail road; that the plaintiff and one Spear, on or about that day, entered into a contract with the defendants in writing under seal, (a copy whereof was annexed to the defendants’ answer,) to- do a part of the work on the said road; that Spear afterwards, and with the consent of the defendants, assigned all his right and interest in and by the said contract to the plaintiff; that when the said contract was entered into as aforesaid, the sections of the road were marked out by stakes at either end; that after Spear had assigned to the plaintiff, and after the plaintiff had entered upon his work under the contract, the defendants, without the consent of the plaintiff, removed the stakes which marked the eastern terminus of the section 45, about 1500 feet westward, and took away from the plaintiff that portion of the road specified in the contract; that .the plaintiff in building the road struck upon a hard material in section 42 of said road, which was of difficult excavation; and after he had excavated a portion of said hard material, and in or about the month of August, 1851, the plaintiff informed the defendant Lauman that-he could not go on with said work for the prices named in the contract, and that he would abandon the work if the defendants would not allow him a greater compensation for excavating the said hard material; that Lauman told the plaintiff to quit that portion of the work until some arrangement could be made in regard to it; that the plaintiff did thereupon quit and abandon said portions of the work; that in about two weeks thereafter the plaintiff resumed said work, under an agreement with the defendants that they would allow him a reasonable compensation for excavating the material aforesaid ; that the amount of said material excavated by the plaintiff, after said agreement, was 6100 cubic yards, ■and the value of the same 40 cents per cubic yard; that in or about the month of September, in the year aforesaid, the plaintiff and defendants made an agreement that the plaintiff should be paid for extra haul on sections 42, 43 and 44; that no price was agreed upon for such extra haul, but’ the value thereof was eight mills per cubic yard for each 100 feet of extra haul; that the amount of said haul was as stated and set forth in schedule O, annexed, amounting in the whole to $1813.42; that while performing the work aforesaid, the plaintiff at the request of the defendants did other extra work, and found materials for them of the kind and value mentioned in schedule B, annexed; that all of the work done by the plaintiff under said contract, and under said contract as modified, and all the extra work done by him, and the material furnished as aforesaid, were done and performed to the satisfaction of the defendants, and accepted by them as satisfactory and complete; that all of the said work, except what is called extra work, hard material and extra haul, was done under and for the prices mentioned in said contract; that all of the work herein mentioned was allowed by the defendants to the plaintiff according to the conclusions and estimates of the engineer of the rail road company, so •far as any estimates were made by him; that he never measured or made any estimate of the amount of embankment settled, nor did he make and return an estimate of the clearing and grubbing, according to the contract between the parties; that the kinds and amount of work done by the plaintiff under and for the price named in said contract were as set forth in schedule A, annexed, amounting in the whole to the sum of #12,522.23; that the extra work, except extra haul and materials done and furnished by the plaintiff as aforesaid, were set forth in schedule B, annexed, amounting in the whole to the sum of #534.38; that the whole amount of work done by the plaintiff for the defendants and materials furnished as aforesaid, the value of which was found by the referees, was worth the sum of #17,310.03, and was as set forth in schedule 0, annexed; and the referees found that the defendants paid the plaintiff thereupon the sum of #12,111.72, and no more. And they also found as a conclusion of fact, that on or about the 19th day of December, 1857, the plaintiff went to the office of the defendants' at Portage, ÍT. Y., for a settlement, and demanded payment of whatever balance was due him for the work and materials aforesaid, and the referees found that the same was upwards of #5000; and that the defendants by their showing on the trial and the basis assumed by them, made to have been due to him then about #800 ; that the defendants then offered him in full payment of the amount due him #18.93 in money, and an order-on the treasurer of the rail road company, at Buffalo, for a certificate of #550 of the capital stock -of the said company and that the plaintiff refused to receive the same, in full payment, but in no otherwise refused; that the value of the said stock at the time of the offer in payment as aforesaid was 90 cents on the dollar of nominal value, and at the time of the trial was worth nothing; and the referees also found that, except the circumstances of the offer of the stock for #550 as aforesaid, there was no proof before them that, the defendants owned any of the stock of said company.</p> <p>And the referees found as conclusions of law, that the plaintiff was not by any of the covenants of the said contract debarred from commencing an action in this court against the defendants to enforce any right which he might have thereby; that the plaintiff was hound by the estimates of the engineer, so far as the same were made, for work done under said contract, but as to other work he was not so bound; that the plaintiff having made a demand, at the place of business of the defendants, of them, for the amount due to him, and the defendants having made a tender in full of an amount insufficient to pay that balance, the plaintiff was not obliged to take it; and that he is not now obliged to receive from the defendants any stock in payment of the balance which they found and reported due and payable to him, and that the whole of such balance was payable in cash.</p> <p>And they decided and reported that the plaintiff was entitled to recover and have judgment against the defendants for the sum of #5198.31, and costs. From the judgment entered upon that report, the defendants again appealed.</p>

EIOE to and on and after the 17th day of July, 1854, the plaintiff was the owner, and in the occupation and possession of a farm or tract of land lying in the town of Prattsburgh, in the county of Steuben, containing eighty-one acres of land, about 35 or 40 acres of which was improved and under cultivation, and the residue was wood land.

THIS action was brought to enforce a mortgage bearing date March 12, 1855, executed by Hiram Peets to the plaintiff, conditioned as follows: • “ Whereas the said Alexander Babcock has this day signed as surety, a note bearing date the 12th day of March, 1855, executed by the said Hiram Peets and payable to the Rochester City Bank, for the sum of $1500 in ninety days after date; and whereas the said Alexander Babcock has agreed to and with the said Hiram Peets, to sign as…

THIS was an appeal from a judgment entered at a special term. The action was for the foreclosure of a mortgage, given May 1, 1829, by William Cornell and wife to Daniel A. Amerman, and assigned by Amerman' to John De Mott, May 7, 1831, and by the latter to the plaintiffs in August, 1832. It was assigned to the plaintiffs as collateral security to a bond for $10,000, given by De Mott to them.

APPEALS from orders made at a special term, ordering judgment for the defendant on demurrer to the complaint in each of the above actions. Held: and still owns and holds the said stock, which was paid for by said town, wholly; by the delivery of said bonds in payment as aforesaid, and not otherwise.

THIS action was brought to recover damages of the defendant for the breach of an agreement between the parties, made on the 22d of April, 1856, whereby the plaintiff agreed to sell to the defendant a canal boat and pair of horses at the price of $800, payable by installments of $40 per trip, the boat to be employed in the business of the plaintiff, and it and the horses to remain the property of the plaintiff until the price should be fully paid.

<p>APPEAL from a judgment entered upon the report of a referee. The complaint alleged that on the 30th of August, 1853, the plaintiff commenced an action in the supreme court, against the defendant, to recover damages sustained by the plaintiff by reason of the overflowing of water from the defendant’s dam, upon the plaintiff’s land ; in which action the plaintiff demanded judgment for such damages to the amount of #500, and that the defendant be required to remove the said dam, and for further 'relief. That on the 15th day of September, 1853, the said plaintiff and defendant submitted all the matters in controversy in the said suit to the arbitrament of Daniel K. Sherwood and William Orser, by their submission in writing, and that on the 6th day of October, in said year, the time for the delivery of the award of the said arbitrators was extended or deferred to the 12th day of October, in said year, by an agreement in writing signed by the said parties. That on the said 12th day of October, 1853, the said arbitrators made an award in writing, under their hands, and delivered the same to the plaintiff, and of which the defendant had due notice on the 15th day of October, 1853. And the plaintiff alleged that the defendant had not kept and performed said award, or any part thereof, but had wholly neglected and refused, and still neglected and refused to do so. That since the 6 th day of November, 1853, by reason and means of the failure and refusal of the defendant to remove the said dam, or rebuild or reconstruct the same as in and by the said award required, the plaintiff had suffered further and other damages to his said premises below the said dam, to the amount of $500. The plaintiff therefore demanded judgment against the defendant as follows: 1st. For the sum of $137.50, for the damages and costs, (including the costs of the said arbitrators,) as awarded by said arbitrators as aforesaid. 2d. That the defendant might be required to' remove the said dam, or rebuild, or reconstruct the same as required in and by the said award. 3. For the damages that had accrued to the plaintiff since the 6th day of November, 1853, by reason of the neglect and refusal of the defendant to remove the said dam, or rebuild or reconstruct the same, as required in and by the said award, the sum of $500, and also for the costs of this action.</p> <p>The defendant, by his answer, .admitted the pendency of the action mentioned in the complaint, and the submission of the controversy to arbitration, and that the time for the delivery of the award was extended to October 12, 1853. He alleged that he had no knowledge or information sufficient to form a belief, and he therefore denied that on the said 12th day of Oct. 1853, the arbitrators made an award in writing, under their hands, and delivered the same to the plaintiff. And he averred that he never had any notice of the time or place, when or where the said arbitrators would meet to hear the matters submitted to them, nor did the defendant ever have any chance or opportunity of appearing before said arbitratrators, nor of producing proof, nor examining witnesses, nor of being heard in his defense before said arbitrators, and that the alleged award, set up in the complaint, was made without any information or notice thereof to the defendant until long after the day when the same was alleged in the complaint to have been made. That the said arbitrators, on the 12th day of October, 1853, and while examining the premises, and preparing their award, or immediately prior thereto, and on the same day, did examine several witnesses touching the matters submitted to them by the parties, and took and heard their statements in respect thereto, in the presence of the plaintiff, and in the absence of, and unbeknown to, and without the consent of the defendant; for which causes, among others, the defendant averred that the said award was void, and the plaintiff was not in any way entitled to have the same enforced or carried into execution, nor to receive judgment thereon, nor- to recover any sum or damages for non-performance thereof by the defendant. The defendant further alleged that said submission was not made a rule of court, nor was any judgment rendered on said award ; that he was advised, and verily believed to be true, that he had a good and substantial defense upon the merits, in the matter submitted to said arbitrators, and that he would have been entitled to an award in his favor, had an opportunity been afforded him of producing his proofs before the said arbitrators. He denied that since the 6th day of November, 1853, by reason and means of the failure and refusal of the defendant to remove the said dam, or rebuild or reconstruct the same, as in and by the said award required, the plaintiff had sustained further or other damages to his premises, below the said dam, to the amount of $500, or to any amount whatever. And the defendant insisted, that if any damage had been done to the plaintiff’s premises below said dam, since the 6th day of November, 1853, in consequence of any wrongful act of the defendant, such damage was not caused by the defendant’s failure and refusal to remove the said dam, or rebuild or reconstruct the same, as in and by the said award required ; but the same was caused by defendant’s first act of building said dam and embankments; and the defendant submitted that for any such wrongful acts the plaintiff was not entitled to recover in this action on the award, and that such claim for damages was misjoined with an action to enforce the award; and the defendant prayed that he might have the same benefit and advantage of this misjoinder, as if the same had been fully stated in the complaint, and the defendant had demurred thereto. The defendant denied that the plaintiff was entitled to any judgment for damages, and asked that the said paper set up in the complaint, purporting to 4>e an award, might be pronounced by the judgment of this court null and void, as to the defendant, and that the plaintiff’s complaint might be dismissed, with costs.</p> <p>The referee found and reported the facts above stated, relative to the pendency of a suit between the parties, and the submission of the controversy to arbitration ; that the arbitrators proceeded to examine the premises in dispute, in the absence of the defendant, attended part of the time by the plaintiff in person, and then and there made various inquiries of, and called for, and listened to the statements of not less than three persons as to their knowledge of the damage, and the cause thereof, and without the knowledge and in the absence of the defendant; but that he had no means of judging what influence such statements had on the minds of the arbitrators, except that their award was made in accordance with such statements. Upon the authority of Walker v. Frobisher, (6 Vesey, jun. 70,) he did not see how such an award could stand, and he therefore found, on the above facts, that the same was valid, and that judgment should be rendered for the defendant, on the whole case. The referee further found, as matters of fact, that the statements called for and listened to by the arbitrators were not given under oath; that such persons were not sworn, and that their statements were not taken down or reduced to writing by said arbitrators. And that there was no evidence given in said action tending to show that said arbitrators acted corruptly, or intentionally violated their duty; but that their ex parte examination probably resulted from a misapprehension of their duties.</p> <p>Judgment having been rendered for the defendant, upon this report, for costs, the plaintiff appealed.</p>

THE plaintiff’s intestate, 0. Cobb, instituted proceedings ■ against J ames Herrick, before J ohn M. Bradford, county judge of Ontario, in pursuance of the act of 1831, “ to abolish imprisonment for debt.” To avoid a commitment, Herrick and the two appellants as his sureties, executed the bond set out in the complaint, dated 15th September, 1856, and conditioned that Herrick should, “ within the thirty days from the date thereof, apply for an assignment of all his property,…

IN the year 1849 Jacob Graves made a general assignment of all his property, for the benefit of his creditors. About the same time, with intent to defraud his creditors, he conveyed a large amount of real estate to his brother, Daniel Graves. In 1851 he caused Mark H. Sibley to convey a valuable piece of real estate to Daniel Graves, the consideration for which was paid by Jacob. No trust was declared in writing.

THIS action was brought upon a guaranty indorsed upon an agreement for the sale of goods by the plaintiffs to Thomas White, in these words: “I will be responsible for all such goods as Mr. White shall buy of the Messrs. Church, within one year from date, which shall not be paid for according to the terms of the within contract. July 1, 1852. (Signed) M. Brown.” ■ The guaranty bore even date with the principal agreement, and was executed simultaneously therewith.

THIS was an action against the defendant as a common carrier, to recover damages for his failure to transport the plaintiff from Hew York to San Francisco, in March, 1852. Held: in each case, the plaintiff was entitled to recover back the amount of passage money-paid by him with interest. In those cases, as appears by the

0E the 24th day of July, 1855, the defendant Louis Barron executed his hond to Mary Tower, for the sum of $200, and to secure the payment thereof, he, on the same day, with his wife, the other defendant, executed to said Mary Tower a mortgage on real estate in the city of Rochester. This mortgage was recorded in Monroe county clerk’s office on the day of its execution.

nnHIS action was tried at the Chemung circuit in SeptemJL her, 1858, when the following facts were established, viz. The plaintiffs ran a canal boat, in 1857, on the canals and lakes of this state, and were common carriers of merchandise. As such carriers, they transported, on their canal boat, some lumber, barley and apples for the defendants, from Dresden to Albany.

<p>APPEAL from a judgment of the county court of Otsego county, affirming the judgment of a justice of the peace.</p>

<p>OB the last of December, 1855, or the fore part of January, .1856, Charles Chadwick desired to borrow about $300; and for that purpose he executed a mortgage on personal ■property in Harpersfield, Delaware county, for the payment of $300, with interest, to Sheldon A. Givens, one month from the date of the mortgage. An arrangement was made, when Givens took this mortgage, between him and Chadwick, that Givens should, as the friend of Chadwick, sell and assign the mortgage to the defendant for $265 or $270, as a valid security for $300, if he (Givens) could do so, by concealing from the knowledge of the defendant the purpose for which the mortgage had been given. Afterwards, in the month of January, 1856, Givens sold and assigned the mortgage to the defendant for $265 or $270, then paid by the latter to the former, in money, as a valid security for $300 and interest thereon from the date of the mortgage, and without disclosing to the defendant for what purpose the same had been taken by Givens. The defendant then caused the mortgage to be duly filed in the proper town clerk’s office.</p> <p>Prior to the 31st day of December, 1856, said Charles Chadwick had been in partnership with the plaintiff, who was Ms brother; but they had dissolved their copartnership, and Charles had agreed with the plaintiff to pay their partnership liabilities, amounting to $361.52; and the plaintiff knew, on and before the 31st of December, 1835, that Charles had executed the above mentioned mortgage to Givens, and that he had assigned it for $265 or $270 to the defendant, who held it, supposing it to be a valid security in his hands for $300 and interest thereon. But notwithstanding this knowledge, the plaintiff and said Charles, on the day last mentioned, with the hope of preventing the defendant from collecting said mortgage, by a sale of the property therein mentioned, made an arrangement by which the plaintiff should pay their aforesaid joint liabilities; and the plaintiff then gave Charles a receipt, in which he agreed to pay their said joint liabilities; and Charles gave the plaintiff his promissory note for the payment to him or bearer of the sum of $361.52, one year from its date, with interest. Charles also then executed and .delivered to the plaintiff a mortgage on the same personal property mentioned in the mortgage he had given to Givens, to secure the payment of said note to the plaintiff, on or before the 31st day of December in the following year. And this mortgage contained a clause which authorized the plaintiff, at any time he should deem himself insecure, to take possession of the mortgaged property, and to sell the same at public or private sale to satisfy said note, the interest thereon and costs.</p> <p>After this mortgage was given to the plaintiff, and witMn one year after the filing of the mortgage which Givens had assigned to the defendant, the defendant took from the possession of Charles Chadwick, and sold, a portion of the mortgaged property, by virtue of the authority contained in the mortgage he held, and applied the avails of such property in payment of such mortgage. The plaintiff forbade the defendant selling the property, and brought this action for the conversion thereof by the defendant, to recover its value, without demanding it of him, and before the plaintiff’s mortgage became due. Charles Chadwick had paid over $150 on the plaintiff’s mortgage soon after it was given.</p> <p>The action was tried at the Delaware circuit in August, 1858. The plaintiff claimed to recover the value of the property, under and by virtue of the mortgage he took from his brother Charles; and the defendant justified the sale he had made of the property, and claimed he had the right to take the same from the possession of the mortgagor and sell it, under and by virtue of the mortgage he purchased of Givens. Charles Chadwick directed the bringing of the action, and testified that he had before made up his mind,to defeat the defendant’s mortgage. But he also stated that the action was brought for the benefit of the plaintiff to the amount of what was unpaid on the note he gave him, and that the rest was for his own benefit. He subpoenaed the witnesses for the plaintiff with his own money. The defendant’s counsel requested the judge to charge the jury that if Charles Chadwick made, executed and delivered the mortgage of $300 to Sheldon A. Givens, and made him his agent to sell the mortgage for the best price he could obtain, and Givens, as such agent, sold the mortgage to the defendant for $265, or any other sum less than its face, without communicating to the defendant the purpose for which it was made, then and in that case the mortgagor, and the plaintiff claiming under him, were estopped from setting up usury. But the judge refused so to charge, and the defendant’s counsel excepted. The defendant’s counsel also asked the judge to charge the jury and decide, that the plaintiff, having taken his mortgage with knowledge of the, defendant’s mortgage, could not set up usury in the defendant’s mortgage; which the judge declined to do, and the defendant’s counsel excepted. The defendant’s counsel asked the judge to charge the jury and decide, that the plaintiff’s mortgage not being due at the time the action was brought, he could not recover; which the judge declined to do, and the defendant’s counsel excepted. The defendant’s counsel requested the judge to charge the jury that the plaintiff was not entitled to recover an amount exceeding what was due on his mortgage; which the judge refused to do, and the defendant’s, counsel excepted.</p> <p>The judge charged the jury, in substance, that the Givens mortgage having been sold by him at a discount, became and was thereby rendered usurious and void, and the plaintiff was therefore entitled to a verdict for the value of the property in question. To which charge the defendant’s counsel excepted.</p> <p>The jury rendered a verdict in favor of the plaintiff for $250. The defendant moved for a new trial, on a bill of exceptions.</p>

<p>Notwithstanding the defendant, in a suit before a justice of the peace, fails to appear at the trial, the plaintiff must establish his cause of action by legal evidence.</p> <p>Evidence that one is reputed to be the agent of , another, is incompetent testimony to establish an agency and thus charge the alleged principal.</p>

THE plaintiff Stebbins commenced this suit against TimothyHough, William and James F. Hall and others, to foreclose a mortgage, executed by Timothy Hough to Robert M. Richardson, and claimed that William and James F. Hall were personally liable for any deficiency arising on the sale of the mortgaged premises, on the ground that they purchased the premises of Hough, and in the conveyance by warranty deed, from Hough to them, was this provision: “ Subject also to a mortgage…

OTIOH for a new trial upon a case, which was ordered to he heard in the first instance at the general term. The nature of the action, and the facts appearing on the trial at the circuit, together with the legal questions arising from such facts, sufficiently appeal- in the opinion of the court.

<p>MOTION for a rehearing of a motion made at a special term to set aside a judgment of dismissal, on the ground of irregularity.</p>

<p>APPEAL from a judgment entered upon the report of a referee.</p>

<p>A stipulation in a policy of insurance, requiring the insured to sue, if at all, in twelve months, operates as a forfeiture, and is therefore to he construed strictly. Slight evidence of waiver, as in other cases of forfeiture, will he sufficient to defeat its application.</p> <p>The court, to aid a forfeiture, will not scrutinize very closely the verdict of a jury on such a point; nor the rulings of the judge at the trial, unless very clearly erroneous.</p> <p>A policy of insurance was based on a written survey, in the form of question and answer. To the question whether there was a watchman in the mill during the night, the assured answered, “ There is a watchman nights and to the question whether the mill was left aloneat any time after the watchman went off duty in the morning, they answered, “ Only at meal times, and on the sabbath, and other days when the mill does not run.” The Are occurred between three and four o’clock in the morning, on Sunday, when no watchman was present. And it appeared that by the custom of the mill no watch was kept, from twelve o’clock Saturday night to twelve o’clock Sunday night. Held that by express terms, as well as by custom, Sunday was excepted from the stipulation; and that the insurers were not released from their liability, by the omission of the assured to keep a watchman in the mill on that day.</p>

APPEAL, by the defendants, from a judgment entered at a special term. The material facts appear in the opinion of the court.

THIS was a case settled and agreed upon by tbe respective parties, and submitted to the court under tbe provisions of section 372 of the code.

THIS action was brought against the defendant as maker and indorser of two promissory notes made to his own order.

THIS was an action brought by Bossange against Charles Boss and Elisha Fitzgerald, the appellants, and one Isaac Detheridge, who made no defepse, to recover the amount of a promissory note, signed by Charles Boss, payable to Elisha Fitzgerald, and indorsed by him and also by Isaac Detheridge. The note was made by Boss and indorsed by Fitzgerald for the accommodation of Isaac Detheridge. The note was for $650, for three months, and representing value received.

The complaint stated that on the 4th day of March, 1856, the plaintiff, being the owner of 100 shares in the stock or capital of the Accessory Transit Company of Micaragua, agreed with the appellant and Fleming, who were .then partners in the business of buying and selling stocks in the city of Mew York, to sell and deliver to them, and they agreed to purchase, 100 shares of the said capital stock at the price of $23 per share, and six per cent interest from March 4, 1856.

THIS action was brought hy the plaintiffs as receivers of the president and managers of the Hew Hope and Delaware Bridge Company, to set aside a conveyance of land from the defendant Ansel St. John to the defendant Thomas P. St. John, as fraudulent and void as against the said Hew Hope and Delaware Bridge Company and their creditors.

APPEALS, by both parties, from a judgment, entered at a special term, in favor of the defendants, for costs. The opinion of the court contains all the facts necessary to be stated.

THE plaintiff sold to the defendants a farm, with the stock, utensils, &c., by a contract which embraced in its terms all the personal property on the farm and in the house, save a few articles specially excepted by name. The purchasers claimed the household furniture, and the vendor insisted that such was not the contract, hut that the furniture was intended to he excepted.

On the 5th of September; 1856, Josiah L. Bissell, the husband of the plaintiff, took passage on the defendants’ rail road, from Buffalo to Albany, .upon a ticket… Held: that if the passenger had not been riding on a free ticket, the contract would not have shielded the company. In the present case, the passenger was not riding on a “ free” or gratuitous ticket. It is not called a “ free” ticket, as it was in the case last cited, and the presumption is that it was paid for.

The plaintiffs, in the first count of their complaint, alleged that on the first day of October, 1856, they were copartners in business at the city of Eochester, under the firm name of “ A. Frost & Co.” That on the 13th day of that month the plaintiffs duly appointed the defendant their agent and servant to deliver certain personal property then owned by the plaintiffs, consisting of trees, shrubbery and nursery property, to purchasers or contractors therefor in the state of…

<p>ON habeas corpus, directed to the sheriff of the county of New York.</p>

APPEAL, by Daniel and James Parish, residuary legatees and devisees under the will of Henry Parish, deceased, from an order of the surrogate of Hew York, made on the 31st of December, 1857, by which he ordered that all payments made by the special collector, on the order of the surrogate, be ratified and confirmed; and further, that there be paid to various parties other sums not before directed to be paid.

<p>A lien tinder the mechanics’ lien law in the city of New York ceases, after one year from the time of filing, unless the party filing it commences proceedings in the court of common pleas, within that time, to bring it to a close. And the fact of the person asserting the lien being made a party to an action to foreclose a mortgage upon the property, will not relieve him from the consequences of his neglect to bring the lien to a close.</p> <p>Daring the year-, the supreme court can recognize the lien as existing, and can continue the lien on the property, or keep its proceeds in court, subject to thé lien, if proper proceedings are taken to enforce it; and it may, perhaps, obtain jurisdiction so far over the subject matter as to order the lien to be discharged by payments, if it is brought to a close within the year, or if proceedings are still pending for that purpose. But it can give no judgment ordering the property to be sold to satisfy the lien, either before or after the year expires.</p> <p>A lien under the mechanics’ lien law cannot be asserted where the person alleged to be the owner of the premises did not hold the fee at the time the notice of lien was filed, he having previously conveyed the premises to another.</p> <p>An innocent purchaser from a person obtaining his title and having his deed «recorded previous to the filing of a notice of lien, is not bound to take notice of any lien filed after his grantor’s deed was recorded.</p>

The plaintiff delivered to the defendants, at Dunkirk, 3146 pounds of dried apples to be transported to the city of New York. He alleged in his complaint that they were to be delivered in New York in four days from 7th December, 1857, and at the price for transportation of 60 cents per 100 pounds. The apples were delivered to the defendants, at Dunkirk, on the 4th, 5th and 7th days of December. They were shipped in two cars which left Dunkirk on the 8th of December.

The action was brought to recover the value of hay and oats converted by the defendant. The referee found as facts: That in May, 1852, the farm upon which the hay and oats were raised, was by an arrangement between Epenetus H. Griffin and his wife Eunice, and Samuel-M. Bussell and one Oalwell, conveyed by Bussell to Eunice Griffin, and a mortgage upon the farm was executed by Mrs. Griffin and her husband to Oalwell to secure the payment of the purchase money.

<p>APPEAL from a judgment of the Llagara county court, affirming the judgment of a justice of the peace.</p>

<p>In respect to real estate situated in this state, claimed by a foreign corporation, it is for the courts of this state to construe the charter of such corporation, and determine whether the corporation is authorized thereby to take or hold such real estate.</p> <p>An adjudication upon the question of its corporate capacity, by a court of another state, can have no further effect or authority than the reasoning upon which it may have been founded gives it.</p> <p>A foreign corporation, not authorized by its charter or by statute, to take and hold real estate, cannot take, by devise, lands lying within this state.</p> <p>Nor can the charitable intention of the testator, in such a case, be carried into effect with the aid of the statute of 42d DUz.</p>

MOTION to confirm report of a referee as to the disposition • of surplus moneys arising from a sale of mortgaged premises.

The action was brought to recover the amount of four promissory notes made by the defendant Crawford, three of which were also signed by the defendant Mitchell. The fourth was not signed hy Mitchell, and he denied his liability to pay the same. The notes were payable to Peter Underhill, and the action was brought by him. The action subsequently abated by his death, and was, by an order of the court, revived in the name of the plaintiff as his executor.