Volume 3 — Keyes's New York Court of Appeals Reports

<p>Upon a trial for robbery in the first degree, the taking of property from the person by force and violence yvas clearly proved. A strong array of circumstances was proved, pointing to the prisoner as the person who committed the offense. Held, that the question of the prisoner's guilt was properly submitted to the jury.</p>

<p>The receiver of an insolvent debtor held among his assets notes of B., also held a note of the insolvent debtor, upon which he had obtained judgment against the receiver. In an action by the receiver against B. upon his notes, the latter claimed this judgment as a set-off.</p> <p>Held, that the judgment of B. against the receiver only, determined the legal validity of his claim, but it must take its chances of payment with other valid debts against the estate of the insolvent. To allow it as a set-off would be to give him a preference over other creditors to which, in this case, he was not entitled.</p> <p>The fact that B.’s notes were given to assignees of th§ debtor, under an assignment afterward set aside by the action under which the receiver was appointed, gave to B. no lien against the notes by virtue of his claim against the insolvent debtor’s estate, subject to which the receiver took title.</p>

The action is upon an open policy of insurance, dated January 17,1857, for $50,000, on cargo, to recover the value of eleven hundred bags of coffee, shipped on the 18th of December, 1856, from Port au Prince to the.port of New York, upon the brig Delafield, by the correspondents of the plaintiffs.

<p>An order to punish a party guilty of an alleged contempt is not embraced within any .of the classes enumerated in the Code, as appealable, to and reviewable by this court.</p>

<p>This action was brought to recover the amount of a promissory note, by which the defendant promised to pay the plaintiff or order the sum of $123.67 on demand, with interest.</p> <p>The defense was: first, that the plaintiff was a married woman, and the note belonged to her husband; second, that she owed defendant for money lent and advanced to her, and paid out for her at her request, in the years 1855, 1856 and 1857; third, that she. owed him for rent of certain premises in Williamsburgh, rented to her by him at the yearly rent of $400 per year.</p> <p>The action was tried before a referee, who reported in favor of the plaintiff for the amount due upon the note and against the defense. The défendant took certain exceptions, and, after entry of judgment, appealed to the General Term, where the judgment was affirmed. The nature of the exceptions sufficiently appears in the opinion of the court.</p>

<p>Action by plaintiffs, residents of Paris, on drafts payable at London, drawn by them, at Paris, on the defendant, and accepted by him.</p> <p>Defense, certificate of discharge under the English bankrupt act.</p> <p>Meld, that, no proof of the statutes of Great Britain being made, the court had no evidence of the effect or force of the certificate produced.</p> <p>That the plaintiffs, not being subjects of Great Britain, nor domiciled in England, and it not appearing that they voluntarily became parties to the proceedings in bankruptcy, or that they received any dividends thereunder, the discharge of defendant under English bankrupt laws, did not operate to release him from his liability upon an action thereon in the courts of this State.1</p>

Action by receiver of an insurance company upon a premium note given by defendants. The defendants denied every allegation in the complaint, and set up fraud in the organization of the company and in procuring the premium note. The cause was referred to a sole referee, who reported in favor of the plaintiff, and judgment thereon was affirmed by the Supreme Court, and the defendants appeal.

This was a common law certiorari to review the decision of referees, appointed by the county judge of Columbia, reversing the decision of the commissioners of highways, and laying out a highway pursuant to the application, which had been denied by the commissioners. The road, as applied for and laid out by the referees, terminated at the north end in what was known as the “mill road,” and at the south end in a road passing the house of Jonas Phillips.

Action in the Supreme Court, on an agreement entered into by the defendant, to receive from the plaintiff four certain bonds of the city of Sacramento, in the State of California, and to pay therefor, on demand, the sum of $2,540. The answer set up, in bar, a recovery in the Marine Court of the city of Mew York for a breach of the same agreement.

Action in the Supreme Court to recover damages for the breach of a contract made by the defendant with the plaintiff’s assignors, Smith and Mathews, of which the following is a copy: “ $50.

Pbisoneb, plaintiff in error, was indicted, tried and convicted, in the Hew York General Sessions, of assaulting and shooting at Mrs. Baily, with intent to kill her. The proof on the trial showed that he shot at Thomas J. Baily, intending to kill him only, and not Mrs. Baily. The hall missed him, and, passing beyond, hit his wife.

<p>The act in relation to a public market in the city of New York (Laws, 1865, ch. 120), imposed a duty upon the mayor, aldermen and commonalty of the city to create a public fund or stock, to be denominated “market stock.”</p> <p>Where a legal duty is imposed by law upon a municipal corporation, and a mandamus is required to enforce the performance of such duty, the writ lies to the person or body whose legál duty it is to perform the required act; that is, the writ- lies against the body upon whom the duty of putting the necessary machinery in motion is imposed.</p> <p>Mandamus against the common council of the city of New York, commanding them to proceed according to the requirements of the law of 1865 (ch. 120), to create a public fund or stock, to be denominated “market stock” — sustained.</p>

<p>A person, making an executory sale of property, providing, however, that the title is to remain in himself until the property is paid for, has an insurable interest in such property.</p> <p>It seems, that an insurance company should not be allowed to avoid its policy by reason of formal words or clauses inserted therein to reach a broad class of contingencies, on the ground that facts, t)f which the company had full knowledge at the time of issuing the policy, were not in accordance with such formal words or clauses.</p> <p>The interest of the policy-holder in the property insured may be proved by parol.</p>

Justice Ingraham. The Columbian Marine Insurance Company having become insolvent, a proceeding was brought against it under the statute by a stockholder, which resulted in the appointment of receivers, who filed their bonds on the 24th of January, 1866, and thereupon entered into possession of the property of the company. The company had been duly taxed, for the year 1865, for its personal property in the city of Mew York, to the amount of $96,048.84.

18, rendered on the trial before Mr. Justice Bookes, without a jury, at the Saratoga Circuit.

Robert Middlebrook died at his residence in Trumbull, Connecticut, on the 15th of May, 1861. He owned a hundred shares of stock in the Merchants’ Bank. He bequeathed to the plaintiff $16,000, to be selected by him from stocks belonging to the estate!

85, recovered in the Supreme Court, against the defendant, and affirmed at General Term in the first judicial district.

The controversy in this action is confined to the defendants Plank and Sckermerhorn, executors of F. Quackenbush, deceased, and the defendant… Held: that the defendant, Yan Yranken, by the deeds of Edwin Yedder to Isaac Yedder, and Isaac Yedder to John Bradt, and the contents thereof, had constructive notice of the said assignment to F. Quaekenbush of the Edwin Yedder mortgage of the 2d of Oct., 1843; and that by means of such constructive notice the defendants, Plank and…

This was an action which originated in the late Court of Chancery. The case was tried by a referee, upon whose report a judgment was entered dismissing the complaint. Upon appeal to the General Term of the fourth district, this judgment was affirmed, and the plaintiff now appeals to this court. The facts are stated in the opinion of the court.

The action was brought to recover the value of a horse owned by the plaintiffs’ testator, which was run over by a train of cars on the defendants’ railroad, and killed. The defendants’ road runs through lands that were owned by the testator, and, at the time of the accident, fences were erected on each side of the road.

This appeal is from a judgment of the General Term of the Supreme Court in the second district, affirming a judgment recovered by the plaintiff against the defendants in the city court of Brooklyn. The action is brought to recover for wrongfully taking and detaining a quantity of blacksmith’s tools claimed by the plaintiff as his property.

Action to recover for baggage lost by the defendant as an express-man, tried at the Circuit by the judge and a jury. The appeal was submitted at the last term of this court, by the respondent. The cases furnished are the copies used at the General Term in the court below, and are very imperfect. Ho cases or points have been furnished by the appellant.

<p>The contract in a bill of lading contained the following: “The property is to be delivered in like good order and condition at the port of New York, dangers of the seas (land carriage and river navigation, thieves and robbers) excepted." Held, that the contract disposed of all customs and practices by its own terms, and was not subject to modi'fication by proof of any usuage or custom in regard to freights.</p> <p>It having been alleged in the complaint and not denied, hence admitted in the answer, that the defendant received the goods in his capacity of common carrier, and the contract being entire and for the whole route, it was not error for the judge to refuse to charge, that, over a part of the route, the defendant was merely a bailee for hire, and not a common carrier.</p>

The plaintiff brought this action to recover back the sum of $1,929.38 paid to the defendant, as the assumed owner or agent of the owner of the following instrument: “•Exchange for $5,000. New York, Oct. 9, 1859. “ Thirty days after sight of this first of exchange (second and third unpaid) pay to the order of Messrs. Ward & Price $5,000, payable in gold-dust at $16 per ounce, value received, and charge the same to account. (Signed) “ ALBERT PRIEST.

The action was to recover a penalty of $500 for giving theatrical exhibitions without a license, in violation of an act entitled “An act to amend an act to create a fund in aid of the society for the reformation of juvenile delinquents in the city of New York, and for other purposes,” passed February 1, 1839.

The action was brought to foreclose a mortgage executed by Egbert Bement and wife to William B. Bement on the 20th of October, 1854, upon a farm or tract of land in Tioga county, which mortgage and the bond accompanying the same were assigned to the plaintiff on the 27th of October, 1854. The bond and mortgage were to secure the sum of $3,500, payable on the 20th of October, 1856, with interest semiannually.

Action commenced in the Supreme Court, in January, 1857, for the recovery of rent, upon covenants for its payment, made by the grantees in two several conveyances of lands in fee, executed, one in the year 1797, and the other in , 1799.

This action was brought by the plaintiff to recover damages on account of being bitten by a dog kept by the defendant, accustomed to bite mankind; which dog did, on the 21st March, 1859, bite the plaintiff, to his damage. The cause was tried in the City Court of Brooklyn, in March, 1860. On the trial it appeared that the parties were residents of the city of Brooklyn.

<p>An exception taken to a nonsuit may be ordered to be heard in the first instance at the General Term.</p> <p>Where a plaintiff was nonsuited evidently upon a wrong issue, the evidence upon the real question being wholly ignored by the court; it was held, that the exception to such decision was sufficient to enable the appellate court to give an opportunity for the correction of the error, by reversing the judgment and ordering a new trial.</p> <p>That is not a voluntary payment which is made without a full knowledge of all the material facts, and constitutes no waiver of any rights to which the party making such payment was entitled before he could be legally charged.</p>

The action was for the conversion of a quantity of hay and. oats, claimed by the plaintiff under a purchase from Eunice Griffin. The defendant justified as purchaser at a sheriff’s sale, under judgments and executions in favor of third parties, against Epenetus H. the husband of Eunice Griffin.

<p>B., as agent.for the defendants, a joint stock company, had frequently indorsed their business paper, and procured it to be discounted by the plaintiff, which -indorsements the defendant had recognized. Held, that the plaintiff, from the facts above stated, had a right to presume that the note, which was the subject of this action, was business paper such as it had been in the habit of discounting for defendants, and the latter are precluded from denying that it was such business paper.</p> <p>Held, further, that the notice of protest sent to the agent B., and received by him,'was notice to the defendants, there being evidence from which a general agency in B. might be inferred.</p> <p>Besides, the judge before whom the cause was tried, found, as a conclusion of law, that the notice of protest served on the agent B. was properly served on the company, and there being no exception to such finding, the question is not open for review.-</p>

<p>A fraud upon one does not form a claim on behalf of a stranger to the transaction, not claiming under the party defrauded.</p> <p>A fraud is an individual and personal thing. It is a cause of complaint only upon whom it is committed, no other person can claim a benefit from it. A recovery by any other person is no defense to a claim by the party defrauded.</p> <p>Query. Does the statement in the last clause, by its terms, exclude a stranger claiming under the party defrauded, and if so, is not the statement too broad ? The two clauses should be taken together, and the whole be modified by the exception stated in the first.</p>

<p>The act of April 13, 1866, subjecting sales of foreign merchandise by brokers to taxation, does not contravene any of the sections of the Constitution of the State of Hew York, but is in conflict with provisions of the Constitution of the United States, in so far as it imposes a duty upon imports.</p> <p>A State cannot impose a duty upon articles which have been imported for sale, until the importer has either sold them, or divided them into smaller quantities by breaking up the casks, packages, etc., so as to destroy the character of import which subjected them to duties under the laws of the United States.</p> <p>After they have passed into the mass of general property, by being sold by the importer either for consumption or resale, they may be taxed in common with other property. Until súch a sale is made, the articles retain their Character as imports, if the packages in'which they were imported remain unbroken.</p> <p>Whatever may be the right of the State to impose a tax upon brokers, as engaged in an avocation within the State, the tax imposed by this act is not upon the avocation, but upon merchandise, whether such as has lost or such as still retains the character of an import; and the Constitution of the United States prohibits State taxation of the latter.</p>

This action is brought by the plaintiff, as assignee of Joel Parker, to recover a legacy of $500, together with one fifty-fourth part of the residuary estate, under the will of the late Isaac M. Woolley, of the city of Hew York, amounting to $1,218. Joel Parker, the legatee and devisee, was one of the witnesses to the will, and at the time of the death of the testator, and ever since, was a resident of the State of Hew Jersey.

<p>The defendant contracted with plaintiff to transport certain materials for the construction of a railroad. Among these materials nothing was said specifically about “ spikes,” but the plaintiff testified that the defendant’s agent, with whom the contract was made, said, “he would put on an engine and train of cars, and do my work for me.” Held, that the referee properly construed this as including all the materials required by the plaintiff in his work.</p> <p>In an action for damages from breach of contract by a railroad company refusing to deliver railroad materials to a contractor, as agreed, it is competent to introduce testimony to show how much more it would cost to lay the track, by reason of the failure of the company to deliver the materials according to contract.</p>

The plaintiff was a judgment creditor of the defendants, John E. Green and Richard C. Green, and brought this action to set aside a certain conveyance of real estate to the defendant Julia A. Green, the wife of the defendant John E. Green, and the sales and assignment of certain personal estate to her, on the ground of fraud upon the creditors of the said John E. Green. The judge before whom the issues were tried at Special Term found as conclusions of fact as follows: “1.

The plaintiff brought this action against the defendants to recover damages for alleged false and fraudulent representa-' tion by the defendants, as to a certain mortgage made to the defendant Ward, by one Elisha P. Davis.

<p>The plaintiff intrusted to one McL. $4,000 for a special purpose. The latter applied to the use of defendant $1,070 of the above sum, he having reason to know, or to believe, that they were moneys of plaintiff thus misapplied. Meld, that the action was properly brought, and judgment against defendant for the amount received by him correctly rendered.</p>

<p>The provisions of chapter 178, Laws of 1849, relating to the taxation of foreign insurance companies doing business in this State, in so far as they are applicable to the cities and villages of this State, outside of the city of Eev York, are not affected by the provisions of chapter 548 of the Laws of 1857.</p>

<p>A delivery of property, to satisfy the requirements of the statute of frauds, must be a delivery by the vendor, with the intention of vesting the right of possession in the vendee, and there must be an actual acceptance by the latter, with the intent of taking possession as owner.</p>

The respondent applied to the commissioners of highways of the town of Westfield, Richmond county, to lay out a highway in said town. Said highway was laid out by the commissioners, and the appellant and three others brought separate appeals from the.entire order to the county judge of the county. Referees were appointed, and the four appeals were heard together by them—the appellants all appearing by the same counsel.

<p>Where there is evidence to support the complaint in an action, the case should be submitted to the jury, though the evidence should be conflicting. It would be error in such case to dismiss the complaint.</p>

<p>Giving a check in payment of an existing obligation, does not discharge the debt, unless the debt is paid.</p> <p>But where a check is received in pursuance of an agreement to take the same in payment of the debt, its acceptance may discharge an obligor, whose obligation was taken in pursuance of such agreement.</p>

<p>The defendant in an action has the right to serve an amended answer within twenty days after service of the original, and to include therein a new defense; and this without regard to the nature of the defense.</p>

<p>A charge,'in substance, that the servants of a railroad company are in the line of their duty and employment, in helping the young and infirm, on and off the car, and that the company is responsible for their negligence while so doing, is not error.</p>

<p>Where a case does not contain any exception, the judgment cannot he reviewed in this court.</p>

York, affirming judgment in favor of the plaintiffs on the verdict of a jury for $6,164.70. The action was on a policy of insurance issued by the defendant to the plaintiff on the 23d of June, 1858, and covering the “ Crystal Palace ” building, which was destroyed by fire on the 5th of October following.

The complaint alleged that on the 15th of April, 1858, a note was made by one Clark Reason, and H. Addington as his surety, for $130, with interest, payable one year from date to Charles Arnold or bearer, at the store of Thompson & Bennett, in Willink; that the note was transferred by Arnold, the payee, to the plaintiff; that the defendant is indebted to the plaintiff on the note in the sum of $130, with interest; and that such indebtedness originated upon a contract between…

The action was for the recovery, under the riot act of 1855, of the damages sustained by the plaintiffs through injuries to their property by a mob on the 15th of July, 1863. The complaint alleged the facts-on which the claim was based, and the answer consisted of a mere denial of the allegations. The cause was tried at the Kings Circuit,-on the 15th of June, 1864, before Mr. Justice Lott ánd a jury; and it resulted in a verdict in favor of the plaintiffs for $17,450.66.

Appeal, from the Superior Court of the city of Buffalo. The action was upon a judgment for $77.20, recovered in justices’ court in that city before Justice Merrill, on the 3d of January, 1856. The cause was tried before Judge Cluttoh without a jury, and the only question involved was whether Merrill was a magistrate, either de jure or de facto, at the time the judgment was rendered.

The action was for the recovery of an undivided half of four acres of land in the town of Java. The cause was tried at the Wyoming Circuit, before Mr. Justice Marvin. Each of the parties claimed under Joseph Steele, the previous owner of the premises.

The action was for moneys expended and services rendered by the plaintiff under a written, agreement with the defendant; which provided, among other things, that the plaintiff should take charge of certain rooms in a hotel in Buffalo, kept by the defendant, for the sum of ninety dollars a month, and that the plaintiff should provide certain articles necessary for that purpose, and pay for all gas consumed in the building.

This action is for money lent and advanced by the plaintiff to the defendant, at his request. The defendant, in 1858, resided at the city of Buffalo, and was owner of the schooner Waurecan. Yan Inwagen & Co. were grain brokers, residing and doing business at the city of Chicago. The defendant, in the month of July, 1858, sent his vessel to Chicago, and requested Yan Inwagen & Co. to buy for him .a cargo of corn and load it upon his vessel.

This is an appeal from the judgment of the General Term of the Superior Court of the city of ¡New York, affirming a judgment in favor of the plaintiffs, upon the report of a referee. The action was brought upon the following contract: “ This contract made this 1st day of August, 1855, between Aaron A. De Grauw and Delafield & Baxter.

On the 17th of September, 1864,- John F. Cook and John Brennan were returning from: their work, in a one-horse wagon. Their course was northerly, up' Hamburg street, in the city of Buffalo. While crossing the defendant’s railroad, as it passed over that street, the wagon was struck by a train of cars which was backing toward the city of Buffalo. Both the occupants of the wagon were thrown out, and Cook was instantly killed.

<p>A bequest of personal property is a legacy, including as well one made in lieu of dower, or in satisfaction of an indebtedness, as one which is wholly gratuitous.</p> <p>For rules of construction and interpretation of wills, see opinion.</p>

This action was brought to recover damages of the defendants for the breach of an alleged agreement made by them with the plaintiff to purchase of him a quantity of barley for a price exceeding fifty dollars. ' The only question involved is, whether the contract was valid, or whether made void by the statute of frauds.

<p>No special principle is involved in this case. The fads involved, which cannot be profitably abbreviated from their statement in the opinion) are valuable as a guide to executors or to their counsel, in the,administration of their trust.</p>

<p>Satisfaction of mortgage. Circumstances under which it cannot be compelled. The facts, which are unusual, and involve no new principle, are stated in the opinion.</p>

<p>Where the description in a deed, both from its terms and from the destruction of the monument given as the starting point, renders the precise location of the land intended to be conveyed uncertain, and evidence is introduced tending to show acquiescence by the parties in a practical location for a series of years, a question is presented for a jury, and a motion for nonsuit is properly overruled.</p> <p>Where the court was requested to charge as follows: “ Where there are no monuments given in the deed, but courses and distances only, it must be controlled by the course and distance on that line,” and he did so charge, with this addition: “ This is so, if the line runs by the deed alone; but this proposition fails in its application to a case where the land cannot be platted from the deed,"—held, that there was no error in the charge.</p> <p>Upon question of a disputed boundary which it is competent to establish by proof of acquiescence between the proprietors for a series of years, it is proper to admit the testimony of one in a situation to know of any dispute concerning such boundary, that “ he never heard of any question as to the line íuifÜl last summer.”</p> <p>Evidence of a surveyor tending to show the ambiguity of the terms of a deed in respect to location, and that all the lines as given in the deed are-shorter than as found by actual survey, is competent.</p>

<p>Admission of evidence. Judgment set aside on the ground of admission of improper evidence.</p> <p>Specific performance of contract. Statute of frauds. Doctrine of agency and trust, discussed in the opinion, but not affirmed by the court.</p>

<p>Where the facts, to which excepted testimony relates, are found, wholly independent of such testimony, and conclusively determine the rights of the parties, it is immaterial whether such testimony was competent or not.</p> <p>An action may be maintained against a party, upon a promise made by him to a third person, for a valid consideration, for the benefit of the plaintiff, although the latter was not privy to the consideration.</p>

<p>The exclusion of irrelevant testimony is not material.</p> <p>It is in the discretion of a referee to allow an amendment of pleadings, and when such amendment has been allowed to one party, it may become especially just and proper to allow the same to the other party for that reason.</p> <p>Sundry questions of evidence in the case considered.</p>

<p>There is nothing in the marriage relation which forbids the wife to employ her husband as her agent in the management of her estate and property; and such employment.does not subject her property, or the profits arising from such business, to the claims of the creditors of her husband.</p>

<p>Where the issue is one of fact, upon which the evidence is conflicting, it is proper for the court to deny a motion for nonsuit.</p> <p>A demand upon the director of a railroad company, acting as its agent, for the return of property taken by his direction as such agent, is sufficient to authorize the party claiming the property and making the demand, to bring an action against the company for its recovery.</p> <p>When a party is in possession of goo.ds belonging to another, which he is bound to deliver on demand, if he, without authority from the owner, parts with that possession to one who refuses to deliver them, he is responsible in detinue equally with the party refusing. (See Nichols v. Michael, 23 K T. 264.)</p>

<p>A conveyance in trust to the trustees of a religious corporation, for the use and benefit of the corporation, vests the title by the statute in the corporation, without previous conveyance from the trustees; and hence, the corporation is the proper party to maintain an action of ejectment.</p>

<p>An insurance company will not be permitted to avoid a policy issued by them, upon the ground that the insured failed to notify them of certain facts of which the policy required notice, if it is shown that the company or its agent had full knowledge of those facts at the time of issuing the policy. The knowledge of the facts is sufficient notice.</p>

<p>Under the provisions of the act of 1849, as amended in 1853, in relation to suits by and against joint-stock companies and associations, an action cannot be brought against the individual partners upon the judg- ■ ment obtained against the company.</p> <p>In .bringing an action against the individual partners, after a judgment against the company and a return of the execution thereon unsatisfied, the complaint should set forth, besides the fact of judgment and failure to collect by execution, such facts as are sufficient to show the original cause of action against the company.</p> <p>Where, in such action against the individual members of the company, ■ the complaint, besides setting forth that the defendants were such members, and the proceedings to judgment and the return of the execution unsatisfied, further alleged, only, that “ the said company became indebted to the plaintiff for goods sold and delivered to its officers and agents for its use and benefit, in the sum of,” etc., held, that the complaint does not state facts sufficient to constitute a cause of action. It, does not allege an existing indebtedness.</p>

<p>Under section 28 of the rules of the police commissioners of the metropolitan district, a person, in order to be detained as a prisoner at the station-house during a recess of the police court, must be charged with a felony or misdemeanor; and an arrest for violation of a city ordinance ■ against riding or driving upon the sidewalks, which is not shown to be any thing more than a finable offense, does not authorize the detention of the accused at the station-house until the opening of the court.</p>

<p>“ Whenever one of two innocent persons must suffer by the acts of a third, he who' has enabled such third person to occasion the loss, must sustain it.’!</p> <p>D. gave to Gr. an order, upon the elevator where it was stored, for a quantity of corn owned by D., subject to his (S.’s) order until paid for.</p> <p>Gr. received the corn, shipped the same, and took a bill of lading signed in the name of the forwarder by his agent, but not signed by the master of the boat. Gr. drew upon his consignees, E. & Co., in New York, for the value of the corn, attaching to the draft the bill of lading. The draft was accepted and ultimately paid by them. D., who had not been paid for the corn, replevied the same while on its passage to New York, and sold it for his own account. In an action by E. & Co., against D., to recover the value of the corn, it was held, that the negotiation of the bill of lading, and transfer thereof to the plaintiffs, constituted them bona fide holders and owners of the corn; and the defendant’s right of stoppage in transitu, for the purchase -money, was cut off and terminated.</p> <p>The delivery of the carrier’s receipt (bill of lading), is a symbolical delivery of the merchandise receipted for.</p> <p>The delivery of the carrier’s receipt or bill of lading, to a party, for a valuable consideration, passes to the party the legal title to the same.</p> <p>The absence from a bill of lading, of the master’s name, where the same is signed by another duly authorized agent of the carrier, does not impair its force or validity.</p> <p>For reference to other cases involving the same principle as the present, and determining it, see opinion.</p>

<p>Words, to be actionable per se, must impute a crime involving moral turpitude punishable by indictment.</p> <p>An action for slander may be maintained, where the allegation is, that the defendant charged that the plaintiff kept a whore-house; such charge being synonymous with a charge of keeping a bawdy-house or house of ill-fame, which is an indictable offense.</p> <p>Circumstances attending the examination of a witness, may, without countervailing proof, become so overwhelming as utterly to destroy his evidence.</p> <p>After impeaching witnesses are shown to be acquainted with the general moral character of the person whose credit is assailed, and-they declare it bad, the question of credit is then for the jury, under proper comments from the court, without any inquiry of the discrediting witnesses, as to whether they would believe him under oath. Bocees, J.</p> <p>A proposition on which a judge is asked to charge, must be good in all its parts, both as to the law and facts, or he may refuse to give the instruction asked for; and he may do so without qualification.</p>

<p>Exceptions to refusal of referee to admit testimony offered.</p>

<p>A delivery of merchandise, according to the terms of a contract of sale and delivery, vests title in the purchaser under the contract.</p> <p>It seems that it is not necessary that the purchaser should see the merchandise, or do any thing in regard to it, in order that his title thereto ' shall vest. . ' •</p> <p>Query. If acceptance by the purchaser is an essential element in the vesting of title, does the case show such acceptance, except as determined by the assumed finding of the referee ? Reporter.</p>

<p>The law in this State, that tenants in common must all join in an action of trespass to recover damages for injuries to real estate held in common, has not been changed by the Code.</p> <p>"Where a defect of parties appears upon the face of a complaint, it can be made available to the defendant only by demurrer, and not by answer setting up the defect of parties as a defense.</p> <p>Where, in such case, the demurrer is overruled, the only remedy is by appeal.</p>

<p>An estoppel in pais may be urged against the defense of usury and is available against the indorser as well as maker.</p>

<p>The statutory penalties for encroachments upon highways are applicable where the highway has been “ laid out ” according to law, and not to highways established by prescription.</p>

<p>The right to give or withhold costs to a party in equity cases rests in the .discretion of the court, and such discretion it is not the province of this court to direct or control.</p>

<p>A mere probability is not enough to enable a party to support a claim to premises, held by another under a conveyance from the same grantees, and which unquestionably embraces them.</p>

<p>Under the provisions of chapter 280, Laws of 1845, relative to designating two newspapers in the county to publish the laws relating thereto, it is necessary to such designation, that at least three legal votes be cast; and where twenty-four votes were cast, only one of which was in form, as prescribed, by law, held, that that vote was ineffectual to designate a paper under the law. ■</p>

<p>Mortgage of a vessel, by nominal owner, as security for moneys loaned to the reed owner, without any covenant or. agreement by the mortgagor to pay the same.</p> <p>Upon failure to recover upon the mortgage, by reason of the loss of the vessel, in an action against the mortgagor to recover from him the sum loaned, held, that he was not liable, it appearing that the moneys had not been loaned to him nor for his benefit.</p>

Seguine, deceased. The will in question was executed on the 22d of May, 1859, at Rossville, in the county of Richmond, at the house of the testator’s brother,. Henry S. Seguine. The testator died at his residence, at Deep Creek, in the State of Virginia, on the 11th of January, 1860, leaving an only son, James Henry Seguine.