Volume 3 — Duer's New York Superior Court Reports

This was an action to recover the possession of certain goods and chattels particularly described in a schedule annexed to the complaint, and was brought by the plaintiff as assignee of George Stewart and James W. Patterson, composing the firm of George Stewart & Co., against the defendant as Sheriff of the City and County of New York.

This was an action to recover the possession of fifty hogsheads of sugar and fifty barrels of molasses, which the defendant, as Sheriff of the city and county of Mew York, had seized and taken possession of, under a warrant of attachment against the property of one W. S. Gordy, as a non-resident debtor.

The plaintiff demised to the defendants, Ho. 414 Broadway, for the term of ten years from the first of May, 1850.

This action was brought to recover the value of an iron safe, delivered by the plaintiff to Brooks & Hopkins under the following agreement: “New York, Feb. 6th, 1852. “Received from Silas C. Herring, one Patent Salamander Safe, No. 4910, delivered to us this day, under a bargain for the sale thereof, and for which we have given our note at six months for two hundred and thirty-five dollars. “ And it is expressly understood that said Herring neither parts with nor we acquire…

<p>The defendants, who had contracted to build a house, had employed a blacksmith, at a stipulated price, to make and finish a grating on the front area. The opening for-the intended grating was left without a covering or fence, and the pláintiff fell through it and was seriously injured.</p> <p>Reid, that as it did not appear that the blacksmith was bound to guard and protect the opening except while engaged on his own work, the negligence to which the accident was owing was justly imputable to the defendants and their servant. Whether a principal contractor is liable for the negligence of a subcontractor is an undetermined question.</p> <p>Judgment affirmed with costs.</p>

<p>A person who enters into the possession of land under a conveyance is presumed to claim title to no more than his deed embraces.</p> <p>The presumption may be repelled, but it can only be so by positive evidence of an adverse claim.</p> <p>A conveyance from the true owner during the possession of a person, who is shown to be a mere trespasser, is valid.</p> <p>"Where there is no dispute as to the facts, the question of adverse possession is a. question of law.</p> <p>Judgment for plaintiff affirmed with costs.</p>

The complaint charged that the defendants had wrongfully taken, carried away, and sold, a large number of tubs of butter belonging to the plaintiffs, of the value of three hundred dollars, and claimed judgment for five hundred dollars damages, with costs. The defendants, in their answer, denied the ownership of the plaintiffs, and justified under an execution issued out of the Marine Court of the city of Hew York, against the property of John Bates, one of the plaintiffs.

The action was originally brought, and the complaint filed, in the name of Charles Henry Hall, deceased, and in consequence of his death was revived and continued in the name of the present plaintiff, as his administrator. The material allegations in the complaint are that the plaintiff, Hall, in and before the year 1847, was the owner of a, considerable landed estate in the Twelfth Ward of the City of Hew York, and extending from 129th to 135th street.

This case came before the court upon an appeal by the defendant from a judgment entered on the report of a referee. The action was brought to recover the value of the contents of a trunk, put by the plaintiff on board of defendant’s cars, about the 15th of April, 1852. The action was tried on the 22d and 29th of January, 1853. The only witness who testified particularly as to the contents of the trunk was. James G-. Kennedy, a brother of the plaintiff.

<p>Authenticated copies of deeds, purported to be executed and duly acknowledged, in 1822, so as to entitle them to be recorded, but not recorded until 1843, are competent and primé facie evidence of the execution and delivery of the deeds.</p> <p>A conveyance by husband and wife of real estate belonging to her, to a third person, and a reconveyance of the same estate by such third person to the husband, with intent to vest the title in the husband, when the freedom of the wife in the transaction, and her capacity, are unquestioned, will vest in the husband a valid title to the property granted.</p> <p>A subsequent conveyance by the husband and wife of the same real estate to a trustee, by a deed, the terms of which imply, or justify the inference, but do not expressly affirm that the real estate belonged to her, in fee, in her own right, will not estop a subsequent grantee of the husband of the same premises, in a controversy between them and the heirs of the wife, from claiming title, under the deeds, which had previously vested the title in the husband.</p> <p>An estoppel is not favored in the law. If anything be not directly and precisely alleged, it shall be no estoppel Estoppels, to be binding, must be mutual</p> <p>The wife of D. E. Tylee was not estopped by the recitals, in the deed to Morris, from proving the truth in relation to the matters recited, whenever it should become necessary to litigate as to the truth of the facts recited, and she not being estopped, he was not, nor are his bond fide grantees.</p> <p>Per Boswobth, J.—A married woman cannot convey her real estate directly to her husband. Hot being able to make a valid conveyance directly to him, she cannot, by uniting with him in a deed of her real estate to a trustee, reserve a valid power, to appoint it to his use, or one by which she can, by a last will and testament, devise to him. A will by a married woman, in pursuance and in execution of a power so reserved, by which she devises her real estate to her husband, is inoperative and void.</p> <p>During coverture she possesses no power to convey by deed to her husband, and is destitute of any testamentary capacity. Such power or capacity cannot be created over lands belonging to herself in fee, by virtue of any agreement made, during coverture, between herself and her husband. It can only be created or preserved by an ante-nuptial agreement. Having power to grant or devise, whñe a feme sole, she may by such an agreement reserve a power, by the due execution of which, she may make a valid will in favor of her husband.</p> <p>y, B.—It was not intimated, on the argument of this case, by either counsel, that Chap. 200 of the laws of 1848, and Chap. 376 of the laws of 1849, had any application to the facts of this case.</p>

This action, which was commenced in April, 1846, by the service of a declaration, was brought to recover the sum of $5000, which was alleged to be due to the plaintiff from the. defendants for work, labor, and services performed and rendered by him at their special instance and request. The declaration, in addition to the usual general counts for work and labor, contained thé usual money counts, but set forth no special contract.

This action now comes before the court on appeals taken by the defendants', from the judgment, and also from an order made thereon. This action was commenced in December, 1852. The summons and complaint were originally in the names of Thomas E. Davis and Courtlandt Palmer, as plaintiffs, against the Mayor, Aldermen, and Commonalty of the city of Hew York as defendants.

This case came before the Court, upon questions of law which the Justice presiding at the trial directed to be heard, in the first instance, at the General Term.

This action was brought by the plaintiffs as judgment and execution creditors of defendant, Waterman (the judgment having been recovered in this court December 10,1851, and being for the sum of $1,102 03), to set aside a judgment confessed August 25,1851, in the Supreme Court for $5,257T%V, by Waterman, in favor of the defendants, J. & Gr. Hecker, on which an execution was issued on the day last named, and levied upon the leviable property of the Heckers.

Tilts cause was tried upon the issues raised by the pleadings before Duer, J., and a jury in November, 1852. The action was brought by plaintiffs as tenants of the store number 18 Courtlandt street, New York, to recover damages against the defendants, for taking down and demolishing the westerly wall of said store.

The complaint charged that on or about the 10th of August, 1850, William McGarvey of the city of New York executed and delivered to John Curry of Troy, in the county of Rensselaer, N. Y., a bond and mortgage to secure the payment in one year of $700 with interest; that the mortgage covered certain premises particularly described in the Seventh Ward of the city of New York, and was duly recorded on the day it bore date, and together with the bond had been duly assigned to the…

This action was brought to recover damages for an alleged wrongful conversion by the defendants of 174 sacks of wool, of which the complaint averred that the plaintiff was the owner, and demanded judgment for $12,000.

<p>Executors having a naked power to sell the real estate of their testator, and not authorized to make repairs, cannot charge the personal estate in their hands with the cost of repairs, although made under a contract with one of them, as an executor. The executor making the contract may he personally liable, but not those who were not parties or privy to the contract.</p> <p>Judgment for defendant affirmed with costs.</p>

This action was brought to recover a penalty of $1000 for an alleged violation, by the defendants, of the act entitled “ An Act concerning Foreign Bank Notes, passed 'Tth May, 1839.” The first section of the act is as follows: “ § 1.

This action was brought by Levi H. Gale, the original plaintiff, to recover of the defendants, surviving partners of the firm of William Vernon and Company, the sum of $15,271 33, with interest, for advances and disbursements alleged to have been made by the plaintiff at the request and by authority of the defendants in Hew Orleans, in the year 1831, and the succeeding years to 1835 inclusive, in establishing and putting into operation at that place on their account two…

This was an action to recover damages for an entry, by the defendant, upon the plaintiff’s close, a lot of ground on Twenty-sixth street in the City of New York, and digging and carrying away the soil.

<p>In the policy upon which this action was founded, the insurance against fire was declared to he upon the stock in trade, and of the plaintiffs, in a certain building “ occupied as a storehouseand the Court of Appeals had determined that these words constituted a warranty that the building was occupied as a storehouse, and for that purpose only, and upon that ground had reversed a former judgment of this court, and ordered a new trial. Upon this trial it appeared that the building was not occupied exclusively as a storehouse, but in part for other purposes. The counsel for the plaintiffs, however, offered to prove by evidence of usage, and of other extrinsic facts, that the true use and occupation of the building were known to the defendants when the insurance was effected; and that it was, in fact, occupied as a storehouse, in the sense in which the words were then understood by the parties. The judge rejected the evidence and nonsuited the plaintiffs.</p> <p>Held, That the evidence so offered was properly rejected, as it was in conflict with the decision of the Court of Appeals, and, if admitted, would vary and contradict that construction of the warranty which that Court had adopted.</p> <p>Held, also, that the usage offered to be proved had existed for too short a period to warrant the presumption that it was known to the parties.—Slossox, J., dissented.</p>

. This action came before the court on appeal from a judgment of the Special Term. It was tried on the 15th of June, 1853, before Justice Bosworth and a jury.

This motion was brought to recover the sum of ¡$174.40,-which was alleged in the complaint to be a balance due to the plaintiffs upon a sale made by them to the defendant of 43 bales of jalap in March, 1848. The answer admitted the sale and delivery of the jalap, which at the time was in .the public store, the duties being unpaid; but averred that the whole sum which the defendant agreed to pay therefor was $3,324.03, which sum he had paid in full to the plaintiffs.

A verdict was rendered in this action for the plaintiff, subject to the opinion of the court at General Term, on the questions of law presented by the case. The action is on an undertaking, also on a bond, executed by the defendants. The former was given to obtain an injunction, and the latter, after the injunction had been dissolved, to have it restored and continued.

This action was brought by the plaintiffs, as assignees of one D. H. Tichenor, to recover the sum of $1,568.99, as the price of certain ranges and other hardware goods, which the complaint alleged had been sold and delivered by Tichenor to the defendant in December, 1848. The answer denied the sale, and averred that the goods had been delivered to the defendant to be sold by him on commission, and that no sale had yet been effected.

This action came before the court, upon an appeal from a judgment entered on the report of a referee. The action was brought to recover of the defendant, who was master of the ship Alert, $265.89, the value of goods alleged to belong to the plaintiffs, and to have been converted by the defendant to his own use.

The action was brought to recover the possession of one-sixteenth part of three lots of ground in the city of New York,, in. Houston street, and one in Broadway. The plaintiffs claimed title as the heirs-at-law of one Catharine Corbett,.deceased.. The defendant in his answer denied the title, and, as a bar to the recovery, set up an adverse possession of more-than twenty years.

This action was tried before Mr. Justice Duer and a.jury, on the 14th of Hovember 1853.

The action was brought to recover the value of fifty tons of iron, which the complaint alleged belonged to the plaintiffs, and had been unlawfully taken possession of, and converted to their own use by the defendants. The value of the iron was averred to be $1,000, for which sum judgment was demanded.

This was an action to recover the price of a quantity of flour which it was alleged that the plaintiff had sold and delivered to the defendant. The complaint demanded judgment for the sum of $2,485.95, with interest, but it was admitted on the trial that the balance due was only $288.91, and interest.

This cause was tried before Ohief-Justice Qakley and a jury, on the 23rd day of May, 1853, and a verdict rendered for the plaintiff for two hundred dollars, and judgment rendered thereon. The defendant appealed from the judgment, on the ground that the jury were misdirected. The facts appear sufficiently in the opinion of the court.

<p>A person obtaining a delivery of goods under a contract of sale, though it be procured by false pretences, indictable under 2 R S. p. 677, § 63, can vest a title valid as against his vendor, in a bond fide purchaser. Such a contract is not absolutely void, as between the original parties. A title passes under it, defeasible and avoidable at the election of the first vendor, while the goods remain in the possession of his vendee, or in that of any person merely succeeding to the rights of the latter or standing upon his title. But all mesne dispositions to any party who pays value, and is not privy to nor cognizant of the fraud, will pass an indefeasible title to such party: 2 R S. p. 702, § 30, defining the word felony, does not affect the common law rule, applicable to such a state of facts.</p> <p>One bond fide advancing to a person thus obtaining goods, and acquiring a documentary title, and the constructive but not the actual possession of the goods, is not liable in trover to the first owner, for not giving him the manual possession of the goods, on a demand made, and offer to refund his advances, when he offers to assign all his documentary evidence of title to, and to confer all the actual power of disposition he possesses, on the original owner.</p> <p>A master of a vessel, who has issued a bill of lading in good faith to a person returning shipping receipts issued to the true owner on his putting goods on board of a vessel for transportation, is not liable in trover to the shipper of the goods, on a demand of them, without the bills of lading are surrendered or fully indemnified against, nor unless the master is also indemnified against all damages consequent upon the delay necessary to unload them, and is paid the expenses of loading and unloading them, notwithstanding possession of the shipping receipts may have been obtained from the shipper by false pretences. Nor are the owners of the vessel liable for the goods on such a state of facts.</p>

<p>An entry in the hooks of an auctioneer, which was produced as a sufficient note or memorandum of a contract for the sale of certain lots in the city of Hew York, contained no statement of the terms and conditions of the sale, except such as was contained in a letter from the owner of the lots to the auctioneer, which on the day of sale was attached to the entry in the hooks.</p> <p>Held, that this letter was a distinct paper, and not a constituent part of the entry signed by the auctioneer; and consequently, that the entry, as containing no statement of the terms "of the sale, was, as a memorandum of the contract, defective and void.</p> <p>The entry in the books of the auctioneer described the lots intended to be sold as eight lots, mentioning their numbers in 132d and 133d streets, without specifying to which street the lots severally belonged.</p> <p>Held, that this description of the lots was insufficient, and that its defects could ■ not be supplied by a reference to another entry in the books of the auctioneer, relative to a former sale of the same lots.</p>

<p>A municipal corporation is liable in damages to any person who may sustain injury from an improper, negligent, or wrongful exercise of its legitimate powers, when those powers .become ministerial</p> <p>Every corporation, in the exercise of its powers over its own property, is as much bound so to manage and use its property as not to produce injury to others, as an individual owner.</p> <p>Held, therefore, that the defendants were bound to make good to the plaintiff the damages which his property had sustained from an excavation on Thirty-second street, in the city of Hew York—it being proved-that the excavation was ordered by the defendants, and that the damages were the necessary result of the performance of the work at the time and in the manner which they had directed.</p> <p>Held, also, that the plaintiff was entitled to a compensation for the loss of profits, during the suspension of his business as a manufacturer, it being proved that the suspension was a necessary consequence of the injuries to his property for which the defendants were liable, and that the profits claimed would certainly have been realized.</p> <p>Judgment for plaintiff, with costs.</p>

This was an action to recover the price of fourteen hundred pieces of printed lawns, which the complaint alleged that the plaintiff had sold and delivered to the defendants, upon a credit of eight months, in February, 1849.

This case came before the court upon an appeal by the defendants from a judgment for the plaintiff at Special Term upon demurrers to portions of the complaint and to the answer. In order that the questions discussed may be clearly understood, it is deemed necessary to state the pleadings m extenso. They are as follow.

This action was brought by the plaintiffs, as the owners of the brig Venus, to recover from the defendant the sum of $1,403.07, which the complaint alleged had been received by him as part of the proceeds of the sale of the brig, .under his promise to remit or pay over the same to the plaintiffs.

This was the submission- of a controversy under § 372 of the Code. The following is the statement of facts agreed upon by the parties. City omd County of New York, ss.: The parties to this controversy hereby mutually agree upon, and submit to this court, the following statement of facts:—■ First.

Submission of a-controversy under § 372 of the-Code; The following is the statement of facts agreed' on by the parties. “On the 27th day of'September, 1852, Daniel D.- Howard leased to Doolittle & Burroughs the premises known as the Irving House, in the city of Hew York, on Broadway, Cham-hers, and Reade streets, for the term ending on the first day of May, 1855. “ A copy of the lease is annexed. “ On the first day of May, 1853, Bininger, the owner of the premises and…

<p>The will of J. J. A. was proved before the Surrogate by the subscribing witnesses to have been duly executed on the 31st of December; 1836; a first codicil- on the 19th of January, 1838; a second on the 9th of January, 1839; and a sixth on the Sd of June, 1841. These instruments, together with five other successive codicils, were also proved to have been acknowledged and published by the testator as his last will and codicils thereto, on the 11th of January, 1845; and upon these proofe all the instruments were admitted to probate by the Surrogate, as the last will and testament of the deceased.</p> <p>Reid, that the will and codicils were not to be regarded as an entire instrument, executed for the first time on the 11th of January, 1845; but that the sentence of the Surrogate, read in connexion with the proofs upon which it was founded, established that the instruments were proved before him as nine distinct instruments, which together composed the last will and testament of the deceased.</p> <p>Reid, that the act of the testator on the 11th of January, 1845, was not a re-execution of the will and codicils so as to make them speak from that date, instead of that of their original execution, but that, in judgment of law, it amounted to no more than a re-publication.</p> <p>Reid, that a clause in the first codicil relative to the effect of advancements to be made by the testator upon the provisions in his will and codicils, was not limited in its operation to the will and the codicil in which it was found, but was also applicable to the second and all subsequent codicils.</p> <p>The testator by his will bequeathed to his daughter, the plaintiff, the income during life of §100,000 of the debt of the city of Hew York, bearing five per cent, interest, with an absolute remainder to her issue living at her death; and the will contained a provision, that, “ in case any of the stocks or funds therein specifically bequeathed should not be in the testator’s hands at his .decease, the several bequests should be made up, by purchases at the expense of his estate of similar stock or funds, and to the same amountand by a clause in the sixth codicil this provision was made applicable to all the codicils. The first codicil, dated the 19th of January, 1888, contained this clause: “ Inasmuch as I may make advancements, or beneficial provisions, for persons or purposes provided for in my will and codicils, it is my direction that such advancements, if charged in my book of accounts, shall be deemed so much on account of the provision, in my will or codicils, for such persons or purposes.”</p> <p>• The testator, by his second codicil, dated the 19th of January, 1889, bequeathed ■to the plaintiff the income during life of $100,000, deposited in the Hew York Life Insurance and Trust Company, the capital on her death to her children therein named. He also, in the same codicil, bequeathed to the same children ' $100,000 of the debt of the city of Hew York, usually called the Water Loan, bearing interest at five per cent.</p> <p>On the 19th of August, 1839, the testator transferred to Wm. B. Astor, in trust for the plaintiff during life, and for her six children on her death, $100,000 of City Water Stock, and $100,000 deposited in the Hew York Life Insurance and Trust Company; and on the following day entries were made by his direction in his books of accounts, by which W. B. A., in trust for the plaintiff, was made debtor for these stocks, “ as transferred to him in trust, as property left to Mrs. L. (the plaintiff) in similar items in a codicil of his will.” And on Hovember 23, 1840, the plaintiff was charged in his books of accounts as debtor for the same stocks, “ as property bequeathed to her in similar items by a codicil.of his will.” A draft of the second codicil was found among the papers of the testator at his death, on one .of the pages of which there was a memorandum in his handwriting in these words: “ The stock here alluded to has been transferred to Mrs. L. and her children, $100,000 Life Insurance, and $100;000 Water Stock,” and on which there was also an endorsement in the handwriting of the testator in these words: “ The stock herein given is the same which W. B. Astor holds, in trust, for Mrs. Langdon and her children. 1st Oct., ’40.”</p> <p>It was held by Sandford, J., at special term, that both the legacies to the plaintiff, that of $100,000 bequeathed to her by the will, and the $100,000 Trust Company deposit by the second codicil, were adeemed and satisfied by the trust created by the testator for her and her children.</p> <p>Upon the appeal from his judgment the judges at the general term, differing in their views of the law, delivered their opinions seriatim,:—</p> <p>Conclusions of Dues, J.</p> <p>First That the legacies in question were not specific, but general, or pecuniary, (Campbell, J., concurred.)</p> <p>Second. That as general, they were entitled to satisfaction from the personal estate of the testator, unless they had been satisfied in fact, or by intendment of law, or had been duly revoked by an instrument in writing.</p> <p>Third. That the trust created by the testator in his lifetime, for the benefit of the plaintiff, of stocks, corresponding in description, amount, and value with those bequeathed to her, did not necessarily operate as a satisfaction of the legacies, since, as they were entirely consistent, the trust might well operate, not as a substitute for the legacies, but as a cumulative bounty. (Campbell, J., concurred.)</p> <p>Fourth. That the satisfaction of a legacy by a subsequent advancement or gift is, in all cases, a question of intention, and that the intention must either be presumed or be established by positive and legal evidence. (Campbell, J. concurred.)</p> <p>Fifth. That the intention in this case to satisfy the legacies could not be presumed unless the equitable doctrine that a legacy from a parent to a legitimate child is presumed to be satisfied, in whole or in part, by a subsequent gift from the parent, must still be regarded as the law in this State.</p> <p>Sixth. That this is not a doctrine which a court of equity in this State is bound or is at liberty to follow. It is an arbitrary doctrine, founded on artificial reasoning, far more likely to defeat than to carry into effect the intentions of a testator, and both in its principles and in its consequences is repugnant to the spirit and policy of our institutions.</p> <p>Seventh. That if this ¡loctrine was ever in force in this State it was wholly abolished by those provisions in the Bevised Statutes by which all implied revocations of a will, or any part of a will, except in the cases enumerated, are prohibited. (Campbell, J., concurred.)</p> <p>Eighth. That there is an implied revocation in all cases when a will, or any part of a will, is rendered inoperative and void by a subsequent intention, which is presumed to have been that of the testator. The satisfaction of a legacy, in the absence of positive proof, is founded solely on such a presumption, and is, therefore, necessarily an implied revocation. (Campbell, J., concurred.)</p> <p>Binth. That the claims of the plaintiff could, therefore, only be barred by positive and legal evidence of the intention of the testator to satisfy and revoke the legacies.</p> <p>Tenth. That the entries in the testator’s books, considered without reference to the clause in the first codicil relative to the advancements, were not such evidence; and that by acting on them as such, the court would contradict the plain words' and defeat the manifest intent of the statute of wills, and would sanction a revocation by parole, or by a writing not executed with the formalities which the statute prescribes.</p> <p>Eleventh. That the entries were not made evidence by the clause in the first codicil, relative to the effect of future advancements, since it was not competent to the testator, by a direction in his will, to make these entries evidence of his future intentions. He could not, by such a direction, or by any other means, create for himself prospectively the power of altering or revoking, by an unattested paper, any of the provisions in his will or codicils.</p> <p>Twelfth. That it being thus shown that there was no legal proof that the legacies in question had been satisfied or revoked, it was a necessary consequence that the judgment at special term, so far as covered by the appeal, must be reversed, and a judgment be rendered for the plaintiff, for the relief .demanded by her complaint.</p> <p>Conclusions of Campbell, J.</p> <p>First. That the legacies in question were general, and were not satisfied merely by the transfer made by the testator, for the benefit of the plaintiff, of stocks of equivalent value.</p> <p>Second. That in the existing state of the law, the court had no right to presume that the testator intended to satisfy the legacies by this advancement.</p> <p>Third. That the entries in the testator’s books, if unconnected with the clause relative to advancements in the first codicil, were not legal evidence of the intentions of the testator.</p> <p>Fourth. That the undoubted right of the testator to declare that every advancement made by him should operate to reduce the provisions in his will or codicils, in favor- of the person so advanced, involved and implied the right of defining the cases in which such should be the effect of an advancement.</p> <p>Fifth. That, consequently, it implied the right of confining this effect of advancement to such as should be charged in his books of account.</p> <p>Sixth. That the intention of the testator as to the operation and effect of the charges in his books, was properly and sufficiently declared in his will.</p> <p>Seventh. That the charges so to be made, in connexion with the advancements charged, constituted an entire condition, upon proof of the fulfilment of which, legacies or other provisions in the will were meant to be defeated or reduced.</p> <p>Eighth. That.this was a lawful condition, and the charges made an integral part of the proof of its performance.</p> <p>Ninth. Consequently, that the fact that the charges were made, was just as susceptible of being proved by ordinary evidence, irrespective of the provisions of the statute, as the feet of the advancement.</p> <p>Tenth. But, that it was clear from the evidence that the testator never intended that the advancement charged should operate as a satisfaction and extinguishment of the legacy of $100,000 city debt, given by the will, but that its effect was meant by him to be confined exclusively to the stocks mentioned in and bequeathed by the second codicil. (Duer, J., concurred.)</p> <p>Eleventh. That the plaintiff could not be put to an election between the trust and the legacy given to her by the will, the doctrine of election being wholly inapplicable to the case. (Duer, 3., concurred.)</p> <p>Twelfth. That in respect to the legacy given by the will, the judgment must be' reversed, but in aU other respects be affirmed. (Duer, 3., concurred in rendering this judgment.)</p> <p>Conclusions of Boswobth, 3,</p> <p>First. That the will and codicils gave to the plaintiff the income of two distinct funds of $100,000 each, and of two only.</p> <p>Second. That the income of these funds, or of funds substantially like them, in all respects, were transferred to her by the testator in his lifetime.</p> <p>Third. That the law presumes that he advanced them with intent to satisfy the legacies. He advanced and charged them as being, in substance and effect, the very things he had bequeathed, and with intent to satisfy the bequests.</p> <p>Fourth. That the intent of the act, as declared by the will itself, was the same as the law presumes, and all the evidence shows it-to have been, viz. an intent to satisfy the legacies.</p> <p>, Fifth. That the revised statutes have no relation to the matter of satisfying legacies, and therefore do not abrogate or modify any pre-existing well settled rules relative to that subject.</p> <p>Sixth. That the court will not abrogate any rule of law on account of its view of the considerations of public policy in which it may think the rule had its origin, when the effect of such an act will be to overthrow and defeat the intent of the testator.</p> <p>Seventh. The legacies having been attempted to be satisfied, and the evidence tending to show that the plaintiff accepted of the transfers, knowing they were made, as being transfers of property bequeathed to her, there is no reason why effect should not be given to the transactions according to the intent of the testator, as presumed by law, declared by the will, and established by the whole evidence.</p> <p>Eighth. That, as a necessary consequence from this series of propositions, the judgment appealed from ought to be affirmed m toto.</p> <p>Judgment, as to the legacy of $100,000 city debt given by the will, reversed, and judgment in respect to that legacy rendered for plaintiff, with costs from estate. In all other respects, judgment affirmed.</p>

<p>A complaint may be verified by an agent who personally knows the facts stated in it to be true, without stating in the affidavit, that the party is absent from the county in which the attorney resides, or any reason for its being verified by the attorney, other than his having such knowledge.</p>

<p>When a motion to compel a non-resident plaintiff to file security for costs is unreasonably delayed, it is a matter resting in the discretion of the judge, whether the motion shall be granted or denied.</p>

<p>A complaint against the endorser of a note, alleged that due notice that the note had been presented for payment, and that payment was refused, had been given to the defendant. The answer did not deny these allegations, but denied that such notice had been received by the defendant. This'part of the answer was stricken out as irrelevant, and as tendering an immaterial issue.</p>

<p>In an action against the maker of a promissory note, the complaint averred that the defendant made and endorsed the note, and that the plaintiff was the lawful holder and owner of it. But it did not aver that the note was endorsed to, or delivered to the plaintiff by the defendant. Held that an answer merely-denying that the plaintiff was the lawful holder and owner was not frivolous. That such an answer, to a complaint in that form, did not deny a mere conclusion of law, but the fact of the plaintiff’s title.</p>

<p>The points raised on this appeal sufficiently appear in the opinion of the Court.</p>

The defendant, a resident of Rhode Island, came from that State to this city, to testify as a witness in an action, pending in a court of this State. He came voluntarily, but at the solicitation of one of the parties, and in good faith, for the sole purpose of being examined as a witness. While waiting for the cause to he called, it being on the day calendar, he was served with a summons, at the suit of Seaver, the plaintiff, issued out of this court.

Ttttr is an appeal by the defendant from an order enjoining him, as hereinafter stated. The papers on which .the injunction was granted, show that the plaintiff is, and for a long time has been, extensively engaged in the manufacture of steel pens at Birmingham in England. That the pens made by him are well known, as such, in the market, and are extensively sold, as well in the United States, as in the country in which they are made.

The complaint alleged that the plaintiff is the father of George E. Safford, late of the city of Hew York, deceased; that on the tenth day of December, 1853, letters of administration were granted to the said plaintiff by the Surrogate of the city and county of Hew York, giving the said plaintiff full power to administer upon the goods, chattels, and credits of the said George E. Safford.

<p>The court has no power to enforce a decree, that one of the parties to an action for a limited divorce deliver infant children of the marriage to the other, to whom their custody is awarded, by issuing process to the sheriff commanding him to take the bodies of the infants wherever they may be found, and deliver them to the party entitled to their custody. The remedy of the aggrieved party is by attachment against the other party, to enforce obedience to the decree, or by habeas corpus.</p>

<p>The rule, that witnesses to be examined under a commission must be named in it, is never departed from, except under very special circumstances, and never when by reasonable diligence the names might have been ascertained.</p>

<p>When a demurrer is interposed to a complaint containing two causes of action, of a nature that admits of their being united, but of one of which the court has no jurisdiction, it will be overruled if it is to the whole complaint, and assigns no cause of demurrer except that several causes of action are improperly united. In such a case, the demurrer should be limited to the cause of action of which the court has no jurisdiction.</p>

<p>In on action "by several plaintiffs to. recover for property sold and delivered, a complaint which states that the plaintiffs sold and delivered, is good, without averring that they were partners. Such a complaint states a case of joint ownership. Several persons may be joint owners of any kind of property, without being partners.</p>

<p>A complaint in an action on contract for the recovery of money, is defective, if bo drawn as to leave it uncertain whether the plaintiff seeks to recover upon one or upon two causes of action; and if on two, unless it shows how much is claimed to be due on each, it will be required to be made more definite and certain.</p>

This action was brought to recover damages for taking and carrying away certain goods which had formerly belonged to Mason the assignor, but which the complaint averred had passed to the plaintiff under the assignment.

<p>In an action, for the recovery of personal property, seized under an execution against a third person, the plaintiff in the execution, is entitled on applying, to be made a defendant, under § 122 of the Code.</p>

• This case came before the court on a demurrer to a complaint. The pleadings are as follows: The above-named plaintiffs, by Charles A. Peabody, their attorney, say, that they are a corporation, duly chartered under and by the laws of the State of Hew York, and pursuant to an act of the Legislature of said State, entitled “ An Act to Authorize the Formation of Corporations for Manufacturing, Mining, Mechanical, or Chemical Purposes,” passed February 17, A.D. 1848.

<p>When the complaint states a cause of action arising on contract, and prays no relief except for judgment for the recovery of money only, the summons should be in the form prescribed by sub. 1 of § 129 of the Code. In such a case, when an assessment of damages is necessary to enable a plaintiff to take judgment, and no answer has been put in, they must be assessed by the Clerk of the Court (§ 246, Sub. 1).</p> <p>If assessed by a referee appointed by the court, a judgment entered on such an assessment will be set aside as irregular.</p> <p>An action “ for the recovery of money only,” is one in which no relief is sought except a judgment, that the plaintiff recover a sum stated, or to be ascertained, in dollars and cents.</p>

This is an appeal from an order denying a motion to set aside an inquest. ' The motion was made solely on the ground that the inquest was irregularly taken. The defendant’s answer contained no new matter, but merely denied some of the allegations of the complaint. The plaintiff, on the answer being put in, noticed the cause for trial.

<p>The costs of an appeal, when a new trial is granted, are in the discretion of the court. When, upon an appeal, a report of a referee, or the verdict of a jury, is set aside as clearly and palpably contrary to evidence, and the court thinks the justice of the case requires it, the party obtaining a new trial will only be required to pay, as a condition of it, the costs of the former trial, and the costs of the appeal will be ordered to be costs in the cause, and to abide the event. So in á case, in which the report is obtained upon the testimony of a single witness, whose accuracy and good faith are open to very great suspicion, and whose testimony, as the case presents it, was not entitled to credit.</p>

<p>This court, upon a reversal of its judgment by the Supreme Court of the United States, on a writ of error directed to it and issued out of that court, will render such judgment, as will strictly conform to and fully comply with the judgment and opinion of that court. It has neither the disposition, nor, in its own view of its duty, the right to make any other order, or enter any other judgment, upon the idea that the equities of either party may justify it.</p>

<p>The fact that a plaintiff is permitted to enter judgment on a verdict, for the purpose of better securing the recovery, does not deprive a defendant of the right to move to set aside the verdict, on a case duly made and settled.</p> <p>"Where a defendant, in an action on contract, dies pending the action, and it is continued, hy order of the court, against his personal representatives, the plaintiff will recover costs against the estate of the deceased, if the verdict he one which would have entitled him to recover costs of such defendant, had he not died.</p>

An application was made for the usual order for the examination of a defendant as a judgment debtor, but it appeared from the affidavit of the applicant not only that the rendition of the judgment, but that the return of an execution unsatisfied, was before the Code went into effect. The counsel for the applicant relied upon the case of Jones v. Lawlin (1 Sand. S. C. R. 922).

<p>Motion for an injunction upon the complaint. The complaint set forth in substance, that another action was pending in this court in which the plaintiff, as defendant, was charged with various acts of fraud, and relief was sought against him upon that ground; that the issues in this action had been referred and testimony in support of the charges taken before the referee, but that the testimony was not closed, the witnesses on the part of the defence not having been yet examined; and that the defendant Marvine, from malicious motives, threatened to publish immediately the pleadings and evidence which had been given; and therefore- prayed that such publication might be enjoined and restrained, as calculated to injure the plaintiff in his character and reputation, and to prejudice him in making his defence before the referee.</p>

This is an action on a policy of insurance, issued by the defendant, to recover $7,000, the sum insured, with interest.

This is an action for falsely, maliciously, and without reasonable and probable cause, malting an affidavit, and causing the defendant to be arrested. The plaintiff moves, that the answer be made more definite and certain, or that certain parts be stricken out. The part, moved to be stricken out states facts which the defendant insists constitute, in judgment of law, probable cause.

The defendant, being a citizen of the State of Delaware, and having been sued in this court by the plaintiff, a citizen of this State, on the 9th of September entered his appearance in the action with the clerk of the court, and at the same time filed with the clerk a petition to remove the cause to the Circuit Court of the United States for this district. The petition is now presented to the court, and such security is offered as complies with the act of Congress.

<p>This is a motion to correct the adjustment of costs made by the clerk. The action is upon contract for the recovery of money. The defendant, before answering, served an offer in writing, “to allow judgment to be entered against him in favor of the plaintiff in this action for the sum of fifty dollars.” The offer said nothing about costs, and plaintiff’s attorney took no notice of it. The action was put at issue and referred, and the referee reported in favor of the plaintiff—the sum of fifty dollars. The clerk allowed the plaintiff all his costs of the action. The defendant insists that the plaintiff should pay costs subsequent to the offer, as a less favorable judgment was recovered than the one offered. That it was not essential to a legal offer, that it should state that judgment might be taken “ with costs.” In support of this proposition, he relies on Megrath v. Va/rmyck, 3 Sand. S. C. R. 750. The plaintiff’s attorney insists, that inasmuch as the offer served did not, by its express terms, authorize a judgment “ with costs,” the. service of the offer was a nullity.</p>

<p>In. an action by the holder, against the second endorser of a promissory note, a complaint which states the making of the note, and sets forth a copy of it, and which also states that the payee and the second endorser, before its maturity, endorsed it in writing, and that before it fell due, the plaintiff became and is now the holder and owner of it, is good in substance, without a formal averment that the second endorser delivered it to the plaintiff. The word endorsement, in common acceptation importing a delivery, the averment of an actual endorsement and possession by the holder before maturity, is equivalent to an allegation that it was endorsed to the plaintiff. The two averments are together sufficient, primd facie, to establish that the holder has a good title to the note.</p>

This action comes before the court on an appeal from each of three several orders made in it, and upon a motion to dismiss one of the appeals.