Volume 3 — New York Reports

In December, 1837, letters patent were issued by the government of the United States to Jonathan G. Hathaway, for “ a new and improved mode of applying heat to cooking stoves.” In March, 1840, the complainant Dudley, through several intermediate assignments, became the owner of the patent for the county of Erie, in the state of New-York, and in 1842 he filed the bill in this cause before the vice chancellor of the eighth circuit, against the defendant Mayhew, for the purpose…

<p>The statute prohibiting banking associations from issuing or putting in circulation any bill or note unless payable on demand without interest, (Sfai. 1840, f. 406, $ 4,) is not confined in its interpretation to bills and notes capable of circulation as money.</p> <p>Where a banking association, organized under the general law, issued negotiable promissory notes, payable in twelve months with interest, and delivered them to a mercantile house in London, on account of a previous liability of the bank; held, that the notes were illegally issued and void.</p> <p>And further held, that a trust deed executed by the bank at the same time, transferring property and effects of the association to trustees for the purpose of securing the payment of the notes, was illegal and void.</p> <p>Neither a prior debt nor any other good consideration will support a new contract which is in itself contrary to the provisions of law. Per Bronson, J.</p> <p>But where a deed or other contract contains distinct provisions, some of which are legal and some illegal, the former will in certain cases be upheld, although the latter are void. Per Bronson, J. '</p> <p>An epgagment of a hanking association in the form of a certificate of deposit, payable at a future day, is in legal effect a promissory note, and as such is vrithip the prohibition of the statute above mentioned. Per Bronson, J.</p> <p>A court of equity will not reform a deed or writing, unless it be alledged and proved that there was mistake or accident in the preparation of the instrument, so that it does not express the true intention of the parties.</p> <p>Where a banking association agreed to secure a party to whom it was under a legal liability, and for that purpose executed its promissory notes for the amount of the liability in a form prohibited by law, and at the same time executed a trust deed of a portion of its effects, which, on its face, was declared to be collateral to the notes, but contained no reference to the original liability; held, that in the absence of any allegation or proof of mistake in the deed, a court of equity could not reform it so as "to enable it to stand as security for the original liability.</p>

Ejectment, brought by Staples against Fairchild, in the supremec ourt, for lands in Erie county, tried before Sill, J. hi February, 1848. The plaintiff claimed title as a purchaser at a sale made by trustees, appointed in a proceeding by attachment against one Bradley, as a non-resident debtor. The attaching creditor was Giles Sanford, on whose petition a supreme court commissioner residing in the county of Albany, in February, 1843, issued the attachment in question.

The case was this: In 1839, Mann, one of the defendants, brought a replevin suit against the plaintiff Daniels, The bond on commencing the suit was executed by himself and by the defendants Stickney and Patterson as his sureties. In October, 1845, Daniels recovered judgment in the replevin suit, and in 1847, brought this action on the bond in the common pleas of Niagara county, by the filing and service of declaration.

<p>Where an application is made to the court of chancery to confirm a sale of real estate, made under the order of a surrogate who had jurisdiction of the matter,</p> <p>. the investigation must be limited to the fairness and good faith of the sale; and it is not competent to inquire into the regularity and propriety of the previous proceedings before the surrogate.</p> <p>Whether upon such an application the jurisdiction of the surrogate to make the order of sale is open to inquiry, quere.</p> <p>If upon such an application a decree is made favorable to the applicant, it should confirm the sale only in respect to the defect or irregularity to cure which the proceeding is had; and the parties interested adversely to the sale should not be precluded by the decree from contesting it on other grounds.</p> <p>Under the statute of 1801, authorizing the sale of a decedent’s real estate to pay debts, the surrogate acquires jurisdiction of the subject matter of the proceedings by the presentation of an account of the personal estate and debts, accompanied by a request for his aid in the premises.(a)</p> <p>A testamentary guardian of an infant devisee has no right to purchase the real estate of the testator at a sale under a surrogate’s order. The sale, however, is not absolutely void, but its validity is at the election of the ward.</p> <p>And where a sale was made beneficial to the ward at which he was present, and who, instead of repudiating it, suffered eighteen years to elapse after he became of age without impeaching the conveyance, during which time the title had. passed into the hands of innocent parties; held, that he must be deemed to have waived the objection and to have affirmed the sale.</p>

<p>Where goods are sent to a factor for sale without instructions as to the time or terms of sale, he is at liberty to sell at such time and on such terms as in the exercise of a sound discretion he shall deem proper for the interest of his principal. Per Cady, J.</p> <p>But the factor is bound to obey the subsequent instructions of his principal as to the sale, although after the receipt of the goods he has made advances thereon, unless the principal, after reasonable notice, fail to repay such advances.</p> <p>Whether special circumstances, such as the insolvency of the principal or the impracticability of giving him reasonable notice to repay advances, will not jus■tify the factor in selling contrary to his instructions, quere.</p> <p>The plaintiff, residing in Ohio, consigned to the defendants, who were commission merchants and factors in New-York, a large quantity of pork for sale. The defendants on the receipt of the property paid the freight and charges, and subsequently they made advances thereon to the plaintiff. The plaintiff, after the advances were made, in anticipation of a rise in the market, gave the defendants instructions not to sell. Held, that the defendants were bound by the instructions, and had no right to sell the pork without calling on the principal to repay the advances, or giving him notice of their intention to sell.</p> <p>A promise by a factor who has made advances on the goods not to sell without instructions, it seems, is upheld by a sufficient consideration.</p>

of that court, in October, 1847. The plaintiff, a manufacturer at Amiens in France, in June and July, 1844, consigned to the defendants, who were commission merchants in New-York, goods for sale, invoiced, in the aggregate, at 10,908,82 francs. The consignments were accompanied with instructions not to sell at less than the invoice prices, adding thereto freight, commissions, and other expenses.

In May, 1841, the plaintiff Battle was indebted to the City Bank of Rochester upon notes which had been discounted, in the sum of $5,400 besides interest. This sum was secured by a mortgage made by Battle to the Bank on a dwelling house in Alien-street in the city of Rochester. This mortgage was after-wards foreclosed and the bank purchased the house at a master’s sale on the first of July, 1841.

Levi Harris brought assumpsit in the supreme court, against Ralph Clark, Eneas P. Clark and William H. Bradford, executors of the last will and testament of Sidney Smith, deceased. Held: that the plaintiff could not recover; (see 2 Barb. Sup. Court Rep. 94 ) and after judgment of nonsuit, the plaintiff brought error to this court.

<p>O’Neil sued The Buffalo Fire and Marine Insurance Company, in the recorder’s court of the city of Buffalo,- on a fire policy, and had a verdict and judgment. The supreme court affirmed the judgment on error brought, and the defendants appealed to this court.</p>

Brisbane- brought trover against Adams in (the superior court of the city of New-York, to recover the value of a standing press, and two transferring machines used in the business of engraving bank notes. The case was this: In February, 1841, one Durand, then the owner of the property in question, mortgaged it to the plaintiff to secure the payment of the sum of $2750.

Eckhart. The suit was upon a contract made March 2, 1841, between the plaintiff, of Oswego, of the one part, and James Gibb & Co. of Quebec, of the other part. The cause was first tried in January, 1843, when the plaintiff had a verdict which was set aside by the supreme court and a new trial granted. The facts as they appeared on that occasion are stated in the report of the case.

Isaac Potter, Abner Potter, and Elihu S. Smith, sued John Kerr and Charles S. Kimble in a justice’s court in the county of Erie.

The New Hope and Delaware Bridge Company brought assumpsit in the superior court of the city of New-York, against the Phenix Bank. The declaration contained the common money counts. The cause was tried before Chief Justice Oakley, in October, 1845, when the defendants had a verdict which the superior court, on a bill of exceptions, refused to set aside. After judgment, the plaintiffs brought error to this court.

Su el Davis brought assumpsit in the supreme court against John Allen, Jonathan Child and William Griffith, as partners constituting a firm under the name and style of “ The Albany and Buffalo Towing Company.” The declaration was for work and labor, money had and received, &c. The cause was heard before referees, who reported in favor of the plaintiff.

<p>A party insisting upon a former recovery as a bar to an action, must show that the record of the former suit includes the matter alledged to h.ave been determined.</p> <p>Consequently where the declaration in the first suit states a particular matter as the ground of action, and issue is taken by the defendant, parol proof is inadmissible to show that a different subject was litigated upon the trial.</p> <p>In an action for slander, the defendant set up a former recovery for the same cause. Held, that it was not competent to prove on the trial that some of the words charged in the declaration, but not contained in the declaration in the former suit, were given in evidence on the trial of such former suit.</p> <p>Where certain words are given in evidence on the trial of an action of slander for the special "purpose of showing the quo animo with which other words are spoken, it seems that the plaintiff is not thereby prevented from insisting upon the same words in another suit as a substantive ground of action.</p> <p>In the action of slander a former recovery for the whole or any part of the actiona. words may be given in evidence, under the general issue. Per Gardiner, J.</p>

The defendant pleaded the general issue and gave notice of special matter. At the trial before Pratt, J. in August, 1848, the plaintiff had a verdict for §127, which the supreme court sitting in the sixth district refused to set aside, and the defendant, after judgment against him, appealed to this court. The case is stated in the opinion of Jewett, O. J.

Allen, in May, 1837, held a mortgage on a part of lot number one in the city of Buffalo, and having instituted proceedings for a foreclosure of his mortgage, obtained, on the 27th day of that month, a decree in equity for the sale of the mortgaged premises. On the 8th day of July, 1837, a judgment was docketed in the supreme court in favor of Seth Grosvenor and Henry B. Starr, against Allen and two others, for $1132,37.

The questions arose upon the declaration, which set forth a bond executed by the defendant in the penalty of $1283, with a condition framed according to the statute in such cases. It then averred that the defendants in that suit (the present plaintiffs) recovered judgment for the sum of $1378,98 damages and costs; that execution was issued and returned unsatisfied; and that afterwards the coroner assigned the bond to the plaintiffs.

Turner brought assumpsit against Roby and others in the recorder’s court of the city of Buffalo, and declared for work, labor and materials, goods sold and delivered, <fcc.

This was an action of debt, brought to recover the sum of $1200, assessed by a jury as the amount of the plaintiffs’ damages, in consequence of laying out a street through their land in the village of Lockport, pursuant to the act incorporating said village, passed March 26th, 1829, (Stat. of 1829, p. 141, § 43.) On the trial, the plaintiffs were nonsuited, upon the ground that “ they were not named in the precept directed to the jury to assess the damages.” The supreme…

<p>A general letter of credit authorizes any person to whom it is presented to act upon the proposition therein contained ; and when any person does act thereon, a contract arises between him and the maker of the instrument, in the same manner as if it had been addressed to him by name.</p> <p>And such a letter of credit, if it authorize more than a single transaction with the party to whom it is granted, may be honored by several persons successively, keeping within the aggregate limit specified in the instrument.</p> <p>Where A. by a general letter of credit, undertook to accept and pay drafts to be drawn by B. to a given amount, and C. at the foot of the letter, at the same time, wrote and signed a guaranty in these words, “ I hereby agree to guarantee the due acceptance and payment of any draft or drafts issued in virtue of the above creditMid, that the letter and guaranty should be read and construed together, that the Consideration of the guaranty was sufficiently expressed in the writing, and therefore that the guaranty was a valid undertaking within the statute of frauds.</p> <p>Contracts of guaranty, although required by the statute to be in writing, are subject to the same general rules of construction as other contracts.</p> <p>A promise to do an act in consideration of some act to be done by the promisee, implies a request, and such a promise is made upon sufficient consideration. And if the promise be in writing, the consideration therefor is expressed so as to uphold the contract within the statute of frauds. The performance of the acts to be done by the promisee, may be proved by parol.</p> <p>A person who gives a general letter of guaranty; absolute in its terms, is liable to a party who accepts it and makes advances on the faith thereof, without notice from the latter that he has accepted or made the advances.</p> <p>In an action against a surety the omission to give notice of the default of the principal can not in any case be set up as a defence, unless it be shown that damage has been sustained in consequence of the neglect.</p>

Clark filed a .bill in the court of chancery before the vice chancellor of the fifth circuit against John Bowling, jun. and Joseph Rowling, for the purpose of procuring satisfaction of a judgment against them, after execution at law had been returned unsatisfied. Other persons were also made defendants who were alledged to be the fraudulent assignees of the property of the judgment debtors.

<p>The drawee of a bill of exchange, it seems, is presumed to know the hand-writing of the drawer.</p> <p>And the payment of a bill by the drawee is ordinarily an admidsidn of the drawer's signature, which he is not afterwards, in a controversy between himself and the holder, at liberty to dispute.</p> <p>And therefore if the drawer’s signature is on a subsequent day discovered to be a forgery, the drawee can not compel the holder, to whom he has paid the bill, to restore the money, unless the holder be in some way implicated in the fraud.</p> <p>But the reason of the rule fails, and the rule itself does not apply, where the forgery is not in counterfeiting the name of the drawer, hut in altering the body of the bill.</p> <p>A bank in New Orleans drew a bill at sight upon the plaintiffs’ bank .in New-York for $105, payable to “J. Durand.” After it was issued the bill was fraudulently altered to a bill for $1005, payable to “ J. Bonnet,” and indorsed, with that name. The plaintiffs, at sight, paid the bill to the* defendants’ bank in New-York, which had received it for collection from a bank in Charleston. Held, that the plaintiffs, on ascertaining the forgery, were entitled to recover back the money, the jury having found that they were not guilty of any.negligence in not discovering the forgery before paying the bill, and notice of the forgery having been given as soon as discovered.</p> <p>Money paid by one party to another, through a mutual mistake of facts in respect to which both were equally bound to inquire, may be recovered back.</p>

<p>The charter of St. Peter's church (Stat. of April 11, 1917,) authorizes the trustees of the corporation “ to give, grant, demise, lease, or otherwise dispose of its real and personal estate,” provided that nothing in the act contained should authorize the trustees to “ sell" the real estate without the concurrence of the chancellor to be obtained according to the 11th section of the general act for the incorporation of religious societies. Under this provision of the charter, held, that an assignment by the trustees, with the concurrence of the chancellor, of all the real and personal estate of the church, in trust to pay its debts, was valid.</p> <p>A corporation, whether trading or religious, may, at the common law, assign its property in trust for the payment of its debts, unless restrained by its charter, or by some other statute.</p> <p>An assignment of all the property of a corporation in trust to pay its debts, does not, it seems, operate as a transfer of the corporate franchises.</p> <p>And such an assignment may be made to persons ineligible under the charter as general trustees of a religious society.</p> <p>Under the general act for the incorporation of religious societies, (Slat. April 5, 1813,) the power to sell real estate is vested in the court pf chancery, and not in the trustees; and the sale, it seems, may be directed to be made by a master or other officer, as well as by the trustees.</p>

' Cowperthwaite, for the benefit of the Bank of England, brought assumpsit in the superior court of the city of New-York against Sheffield… Held: drawn by Jno. and James Reid, and which did not include the bills in suit. This was done under the grant or warrant issued under the process of outlawry, and it is conclusive upon the question of the application of the amount received by the Bank of England. III. The Bank of England had a right thus to apply the funds in question.

Cromwell brought an action on the case in the supreme court against Selden and others, for diverting from the plaintiff’s grist mill, &c. the waters of Fish creek, in Oswego county.

<p>it seems that the heir and the personal representative of a deceased person can not be joined in a suit brought by a creditor under the statute (2 R. S. 452) to charge the heir in respect to lands descended.</p> <p>But all the heirs must be joined, and in order to charge them it must be shown, either that the personal assets of the deceased were not sufficient to pay the debt- or that after due proceedings before the proper surrogate’s court and at law, the creditor has been , unable to collect the debt or some part thereof from the personal representative.</p> <p>And where it is not shown that the personal assets were insufficient, the non-residence of the administrator within the state is no excuse for not taking due proceedings in the proper surrogate’s court.</p> <p>And where in a suit against the heir, the pleadings and proofs did not make out a proper case under the statute, held, that a stipulation for a reference to state an account between the parties, and to take proof “on other points in issue” did not waive the objection.</p>

The declaration set forth in substance that on, <fcc. at, &c. the defendant by an instrument in writing under his hand and seal acknowledged himself to be indebted to the plaintiff in the sum of $345,70, which remained unpaid, and thereby an action had accrued for the recovery of that sum. The instrument declared upon was set forth on oyer, and was in the form of a chattel mortgage.

the hearing the notes in question were given in evidence as follows: “ $100,00. For value received in Policy No. 4319, dated the eighth day of May, 1849, issued by the Chenango County Mutual Insurance Company, we promise to pay the said company, or their treasurer for the time being, the sum of one hundred dollars, in such portions, and at such time or times, as the directors of said company may, agreeably to their act of incorporation, require. Milton W. Goodnow.

On the trial before Sandford, J. the plaintiff gave in evidence the draft in question, as follows ; “ Washington City, March 10,1845. $295,32. At three days’ sight please to pay to the order of Win. Thomas Carroll the sum of two hundred and ninety-five dollars and thirty-two cents, and charge the same as advised to Clayton Tiffin, and oblige Your ob’t serv’t, Francis H. Upton.

The case was .this: The late Simeon De Witt died on the 3d of December, 1834, leaving a will bearing date the 9th of September in that year, which, after making certain special devises and bequests, proceeded as follows: “I empower my executors to sell all my estate, both real and personal, not specially bequeathed or devised, in such parcels, at such times, and for such considerations as they shall judge proper for the purpose of discharging my debts and creating funds for…

McFarlan sued Watson in the superior court of the city of New-York, and declared in assumpsit for use and occupation. On the trial before Oakley, C. J. in April, 1848, it was proved that the plaintiff owned a house at New Brighton, Staten Island, which the defendant occupied from May 1, 1846, to May 1, 1847. The rent for the first three quarters of that year, was paid by the defendant, to Richard Oakley, who gave receipts as follows: “ New-York, August 5, 1846.

he superior court of the city of New-York, where Howland & Aspinwall brought assumpsit against Theodore A. Myet The cause was tried before Sandford, J. without a jury, in June, 1848 and on the trial the plaintiffs gave in evidence and claimed to recover upon a promissory note as follows: “ 13698,40. New-York, May 1, 1846.

After the commencement of the suit, Mary H. Jenkins, who had leased the premises to Helmuth, was admitted to defend the suit jointly with him. The case was this: James Englishbe, a native of Ireland, emigrated prior to 1798, and was naturalized in the city of New-York in 1807.

Lawrence, administrator of, &c. of Isaac Lawrence, late of the city of New-York, deceased, applied to the surrogate of that city and county for an order to sell the real estate of the decedent to pay debts. An order was made accordingly, directing the sale of forty-one separate parcels of land, and among them of a tract known as the Turtle Bay farm. A sale was had pursuant to the order, and the property was sold in separate parcels.

The only question presented by the pleadings, in the court below, necessary now to be stated was whether, a mechanic’s lien in the city of New-York, under the act of April 29 th, 1844, for materials furnished upon a contract with the owner, expires at the end of a year from the time of its commencement, or whether by obtaining a judgment against the owner within the year, the lien may be prolonged and enforced afterwards.

Baskins brought trover against Shannon in the common pleas of Yates county, for the conversion of a canal boat. On the trial the plaintiff claimed title under a mortgage from one Ward, dated November 19,1841, to secure the payment of $425 by the first day of July then next. The defendant claimed title under a prior mortgage from Ward to him, dated October 28, 1841, covering the boat and other personal property.

The cause was heard before a referee, and the facts found by him were as follows: The defendant married the plaintiff’s mother, a widow, in the year 1834, and lived with her until her death in 1842. The plaintiff at the time of the marriage was eleven years old, and he lived in the defendant’s family until his mother’s death, and this action was brought to recover the value of his services during that time.

Edmund Price and Elijah B. Price brought an action on the case in the common pleas of the city of New-York, against Powell and others as common carriers. On the trial it appeared that on the 30th of May 1846, the plaintiffs shipped at New-York on board the brig “ Belle,” S. Myers master, some pieces qf marble commonly called tomb tops, consigned to one Hotchkiss at Wilmington, North Carolina.

<p>An assignee óf á demaná, who prosecutes an action for the recovery thereof, and obtains judgment in the name of his assignor, but for his own benefit, is bound, on the reversal of the judgment, to refund the money which he has collected on the execution.</p> <p>But where a judgment is collected, and the money is paid over by the officer holding the execution, to the attorney who prosecuted the suit, an action will not lie, after a reversal of the judgment, against the attorney, to recover back the money, although by agreement between him and his client he retains the money in payment of a debt due from the latter to him.</p> <p>A party in whose favor a j udgment is recovered has, until the j udgment is reversed, a perfect title to the money collected on the execution, notwithstanding the pendency of a Writ of error or certiorari; and if he pay's the money to his creditor, the latter acquires a complete right to hold it, although a reversal after-wards takes place.</p> <p>A special verdict should find facts, and not the mere evidence of facts, so as to leave nothing for the court to determine except questions of law.</p>

<p>Where a justice has jurisdiction of the subject matter of a suit before him and of the person of the defendant, his judgment can not be attacked collaterally.</p> <p>And therefore in an action against an officer who has taken the body of the defendant on execution, for the escape of his prisoner, it is not competent to show in defence that the evidence before the justice failed to make out a cause of action in tort, and so, that thejudgment was erroneous.</p> <p>Where a sheriff suffers a defendant whom he has taken on execution, to go at large on the undertaking of a third person to pay the debt or surrender the prisoner, the plaintiff, unless he consented to the arrangement, may issue a new process and retake the defendant. Nor is the plaintiff’s consent to the escape, made out by evidence showing that he subsequently called upon the third person to perform his undertaking.</p>

This was a creditor’s suit instituted for the purpose of procuring satisfaction of a decree out of the equitable assets and other property of the defendant. In June, 1848, an order was made directing the receiver, appointed in the suit, to sell certain real estate of the debtor for the purpose of paying the debt.

S. Stevens, for the respondent, Thompson, moved to dismiss the appeal, on the' ground that there was no valid undertaking. Three sureties had executed an instrument under § 335 of the code, without seals, as follows: “ In Supreme Court. Isaac W, Thompson v. Leonard Blanchard, impleaded with Russell C. Wheeler.

On the same day, Frederick Edwards, the appellant, executed to Dunlop his bond, in the penalty of $6000, conditioned that George Edwards should pay the sum to be awarded, to the amount of $3000; and at the same time he gave a warrant of attorney, authorizing judgment to be entered against him on the bond. Judgment was accordingly entered on the said 8th of June, 1847.

The bill in this cáse was filed before the chancellor, in September, 1842, by the New-York Dry Dock Company. Its object was to have certain bills of credit issued by the complainants and delivered to the defendants, The American Life Insurance and Trust Company, and also a trust deed, executed by the former, to M. Robertson, J. Duer and A. Crist, as trustees, to secure their payment, declared void for usury and cancelled.

The ground of the motion is sufficiently stated in the opinion of the court, which was delivered by moved to vacate the judgment of affirmance in this cause, which was rendered in May term, 1849.

This was an action of trover for a quantity of whisky. On the first trial before Willard, circuit judge, at the Montgomery circuit, in May, 1843, the plaintiffs were nonsuited. The supreme court on bill of exceptions set asi.de the nonsuit, and ordered a new trial. (See 6 Hill, 425.) The case was again tried in November, 1844, before the same judge.

On the 29th of June, 1837, Wilmot Everitt, having borrowed of the commissioners for loaning certain moneys of the United States deposited with the state of New-York in the county of Chemung, the sum of $402, executed to the commissioners a mortgage upon a farm in the town of Chemung, to secure the payment of the amount with interest, according to the provisions of the act of April 4, 1837.

The plaintiffs claimed to recover as heirs of their cousin John McGregor jun. who died prior to 1830, seised of the premises, and the question was whether the descent to them was impeded by the alienage of the common grandfather through whom the pedigree was traced. The plaintiffs were nonsuited on the trial, and after judgment they appealed to this court.

<p>A creditor of a railroad corporation recovered judgment at law, issued execution, had it returned unsatisfied, and filed his bill in chancery under section thirty-six of the statute relating to “ proceedings against corporations in equity,” (2 R. S. 463,) for a sequestration of the effects of the corporation and the appointment of a receiver. The receiver appointed in that suit then instituted a suit in equity against a stockholder to recover the unpaid balance of his subscription. The stockholder sued had paid all the calls made by the corporation, pursuant to the terms of his subscription, and other stockholders who had not paid their subscriptions were not made parties. Held, that the bill could not be sustained.</p> <p>A receiver appointed under that section of the statute, it seems,' has no greater or other powers than receivers in ordinary creditors’ suits. The forty-second section of the same statute, declaring the powers of receivers, relates only to such as are appointed in suits commenced under section thirty-nine against moneyed corporations, and not to those appointed under section l/iirly-six.</p> <p>A corporation, it seems, is not necessarily dissolved by proceedings instituted under section thirty-six, after the return of an execution at law.</p> <p>Where the return of an execution at law uqsatisfied is the ground of proceeding against a corporation according to section thirty-six, and the effects of the corporation are not sufficient to pay the debts, the creditor may resort to equity to recover the unpaid subscriptions to the capital stock.</p> <p>But m such a case each shareholder is liable only in due proportion with the others, and the bill should be filed by the creditor in behalf of all the creditors against the corporation, and all the shareholders who have not paid up their subscriptions, so that an account may be taken of the debts and assets of the corporation, of the amount of capital not paid in, and the sum due from each shareholder.</p> <p>Where the rights of creditors are not in question an action will not lie against a subscriber to the capital stock of a corporation to recover his subscription or any part thereof, until he is in default after regular calls upon him pursuant to the charter.</p>

On the 6th of January, 1807, Barent Van Benthuysen purchased of the state of New-York a tract of land known as the state’s one hundred acres on military lot No. 41 in the township of Hannibal, county of Oswego ; and on such purchase he paid down a portion of the consideration money, gave his bond for the residue payable at a future time, and received from the surveyor general a certificate of the purchase in the usual form.

This was an action brought in the supreme court by David P. Halstead, against the mayor, aldermen and commonalty of the city of New-York, to recover the amount of two drafts drawn by the defendants upon the treasurer of the city, payable to P. A. Cowdrey, Esq. and endorsed to the plaintiff.

<p>Under the statute in relation to “ demands against ships and vessels,” a “ debt” is not “ contracted ” for goods furnished to a vessel so as to give the creditor a lien until they are actually delivered or furnished. An agreement to deliver the articles without actual performance, is not sufficient.</p> <p>The lien and the right to attach the vessel accrue as soon as the goods are furnished,-in* pursuance of a previous agreement; but the lien is waived if, by the contract a credit is given extending beyond twelve days after the departure of the vessel from the port where she was when the supplies were furnished.</p> <p>The lien can not exist, it seems, even by agreement of the parties, except in the manner and upon the conditions provided fot in the statute.</p> <p>When goods are furnished from time to time to a vessel navigating the Hudson nver, and making daily trips between New-York and Albany, under a previous agreement that the bills were to be paid at the end of the season, held, under the second section of the statute, that after the expiration of twelve days from any time when the vessel left "port, there was no lien for goods previously furnished under the contract.</p>

The president, directors and company of the Seneca County Bank sued George Neass, as the second indorser of a promissory note for $2000, dated July 9, 1842, and payable at the plaintiffs’ bank. One of the questions on the trial at the circuit was, whether the notice of protest had been properly directed and sent. The plaintiffs’ bank was at Waterloo in Seneca county. The defendant resided in the town of Fayette in the same county, and adjoining Waterloo.

Bradley and William Jackson, given on the 30th Hay, 1836, for $3000 payable in five equal annual installments, with annual interest on the whole sum. The first payment and interest had been received by Baker, before the assignment. The mortgage covered twelve acres of land in the city of Syracuse. Default was made in the payment of the note, but there was paid thereon, April 21, 1838, $140, and May 18, 1839, $141.

The Rochester White Lead Company brought an action on the case against the city of Rochester, to recover damages on account of an injury done to the plaintiffs’ factory and to a quantity of white lead situated therein, occasioned, as alledged, by the negligence of the defendants in the construction of a culvert. The case was heard before referees, who reported in the plaintiffs’ favor, for the sum of $1652,56.

<p>The plaintiffs were incorporated in February, 1823, with power to make loand, insure lives, and grant annuities. The charter was limited to fifteen years, except as to insurances and annuities. In April of the same year, by another act containing no limitation of time, they were authorized to increase their capital, to take and hold property in trust, and to assume and execute trusts. By another act passed in April, 1836, the name of the corporation was changed, the directors classified-, and the amount of property which it might hold in trust limited. This act was also silent as to the duration of the charter. Under these several acts, held, that the charter did not expire at the end of the fifteen years, hut continued to exist indefinitely after that time.</p> <p>‘The express power to make loans originally granted, expired with the fifteen years, but held nevertheless that the power continued after that time as incidental to the other powers of the corporation, and therefore that a bond and mortgage taken for a loan after the fifteen years had run out were valid.</p> <p>A corporation authorized by its charter to insure lives, grant annuities, hold property in trust, and execute trusts, has power by implication to loan and invest the funds intrusted to its care.</p> <p>And where a loan made by such a corporation is Contested by the borrower, on the ground of a want of power to make it, it rests upon him to show affirmatively that the loan was not made in the proper exercise of the powers expressly granted.</p> <p>í'he original charter required that bonds and mortgages taken dn loans should be conditioned for payment in not less than one year, with annual interest. This requirement, it seems, expired with the express power to make loans, so that a bond and mortgage, with, a different condition in respect td time of payment, taken for a subsequent loan, would be valid.</p> <p>But if otherwise, a bond and mortgage dated in August, 1837, and conditioned for payment in “ one year from date, with interest, payable yearly as the same should accrue, on the first day of November in each year,” was a compliance with the requirement of the charter. The interest, it seems, could not be exacted until November, 1838.</p> <p>Where a lender advanced the full amount of the securities received by him on the loan, held, there Was no usury, although the borrower sustained a loss in consequence of an arrangement made by him with a third person, through whom the loan was effected, it not appearing that the lender had any knowledge of the arrangement, or received any benefit therefrom.</p>

The bill in this cause was filed in May, 1843, by Amos Bradley, Javan Bradley, Chester Bradley, Lucius Bradley, and Benjamin Bradley) against Angel, the surviving executor of Justus Hall, deceased, praying that certain demands in favor of the plaintiffs might be set off against a demand due from them to the defendant’s testator.

The St. Lawrence Bank was organized in the year 1838, under the general banking law of that year, and commenced business early in 1839, at Ogdensburgh, in the' county of St. Lawrence. In the winter of 1841-2, the bank commissioners filed a bill and obtained an injunction against the institution.

On the trial in May, 1849, it appeared that in 1847 certain persons employed by the city corporation were engaged in excavating and blasting rocks on the Bloomingdale road; that fragments of rock were thrown against and entered the house of the plaintiff, situated on that street, whereby his wife and son, a lad eight years old, were injured, the latter fatally, so that he died in an hour and a half.

The plaintiff was nonsuited on the trial, and after judgment he appealed to this court.

In November, 1842, Minturn filed the bill in this cause against the Farmers’ Loan and Trust Company, praying for an injunction to stay the proceedings in an actiou at law which the company had instituted against the complainant to recover the sum of $5405,51, due from the latter upon a note or promise in writing.

<p>Although the law does not, in general, give interest upon an open running account for goods sold, yet it may be recovered where there was a stipulated term of credit which.has expired, or where there is an agreement express or implied to pay interest.</p> <p>And an agreement to pay interest may be inferred from the course of dealing between the parties, as where it has been charged and allowed under like circumstances.</p> <p>So it may be inferred from a uniform practice of the creditor to charge interest, known to the customer at the time o f the dealing.</p> <p>So also where there is a general usage in any particular trade or branch of business, to charge and allow interest, parties having knowledge of the usage are 'deemed to contract with reference to it.</p> <p>This court, on appeal from a judgment of the supreme court, rendered on a report . of referees, can not review a mere question of fact. The conclusions of fact must be found by the referees or the court of original jurisdiction, and stated in the record, so as to leave for this court nothing to pass upon except pure questions of law.</p>

<p>Where a chattel is tortiotisly taken from the actual or constructive possession of the owner, he may at his election bring trespass de bmis asportatis, or replevin in the cepit.</p> <p>And the owner is in the constructive possession of the goods within this rule, although a bailee may, at the time of the tortious taking, have the actual possession.</p> <p>If goods be delivered by a carrier or other bailee to a stranger, trespass will not lie by the owner against the person to whom they are delivered.</p> <p>But where goods are fraudulently sold by a carrier, and the purchaser takes them without delivery, it seems that trespass or replevin in the cepit will lie by the owner against the purchaser, although he bought the goods in good faith.</p> <p>In replevin the plea of non-cepit only puts in issue the taking of the goods, and the place where they were taken, if that is material. Any matter of justification or excuse must be specially pleaded.</p>

Peter Embury, Hannah Ay mar, and Margaret Jacot, brought ejectment in the superior court of the city of New-Yorle, against James Conner and William C. Conner, to recover a lot of land situate at the corner of Ann and Nassau streets in said city. In June, 1791, and until his death in 1815, Daniel Ay-mar was seised of the premises in fee, together with some other lands contiguous thereto, which, in 1829, were taken by the corporation of the city in widening Ann-street.

The bill in this cause was filed before the vice chancellor of the first circuit, on the 25th July, 1847, for the partition of lands. On the 2d of October, 1838, Benjamin W. Rogers borrowed of the Farmers’ Loan' and Trust Company $38,000, and to secure the payment thereof he conveyed to that company, in fee, certain lands in Livingston county, described in the bill.

<p>A testator left seven children, together with k granddaughter, J. K., who was the daughter of a deceased son, and three children of another deceased son, his only heirs at law. By his will he provided for the creation of a trust fund from the hulk of his real and personal estate, the income of which he directed to be divided into nine shares, one share to be paid to each of his seven children, or their representatives, one to the said J. K. “ daughter of, and representing Ms deceased son Philip,’’ but omitting her representatives, and one to his three grandchildren, “ children of, and representing his deceased son John.” He directed his executors to take the separate receipts of his sons and daughters for such payments of income, and to make payment to his “ granddaughter J. K.” for her separate use arid upon her receipt. In case of the death of a daughter leaving issue, prior to the expiration of the trust, her share of the income Was to be paid to her husband, if living; if not, to her children ; but no similar provision was made in case of the death of J. K. The executors were authorized, upon the request of the sons or daughters of the testator, to make advances to his grandchildren, the issue of such sons of daughters, from the capital of the trust fund. The trust was to continue twenty-one years from the date of the will, at the expiration of which the testator directed the trust fund to be divided among his said heirs, naming J. K. as one of them, or their legal representatives. In the partition of the fund the will declared that his granddaughter J. K. was to be considered as standing in the same situation with regard to her own rights and those of her issue, as the daughters of the testator, and all the rules applying to them, their husbands and issue, to be applied to her, her husband and issue.</p> <p>By a codicil annexed to the will the testator gave to each of his grandchildren living at his death a legacy of $6000, to be paid on their respectively attaining the age of twenty-one, or marrying, whichever event should first take place: such payment to be made in no case without the approbation of the parents of the grandchild, or the survivor of such parents, to be expressed in writing to the executors. At the time of making the will and codicil the testator had several- grandchildren under age and unmarried, hut his granddaughter J. K. was of age, married, and both her parents were dead.</p> <p>Held l.,That J. K. was not entitled with the other grandchildren to a legacy of $6000 under the codicil. 2. That her children in esse at the death of the testator, and being his great-grandchildten, could not take legacies utider the denomination of grandchildren as used in' the codicil.</p> <p>The language of a will should be construed according to its primary and ordinary meaning, unless the testator has manifested an intention in the will itself to give it a different signification.</p> <p>Where a testator in his will makes provision for his daughters, and under that denomination includes a granddaughter the daughter of a deceased son, and by a subsequent clause or codicil gives a legacy of a certain sum to each of his grandchildren, the latter provision will be held, it seems, to include tha children of the granddaughter.</p>

Duane sued the Railroad Company under the code, and at the circuit there was a verdict and judgment for the defendants. The plaintiff appealed to the supreme court in general term, where the judgment was reversed, and a new trial ordered The defendants then appealed to this court. moved to dismiss the appeal, on the ground that the judgment was not final, and there fore an appeal would not lie.

<p>Where the supreme court on appeal reverses the judgment or decree of a subordinate court, an appeal will lie under the code to this court, although further proceedings are directed to be had in the court where the suit or proceeding originated.</p> <p>Therefore, where a surrogate dismissed a proceeding instituted before him to bring executors to account, and the supreme court, on appeal, reversed his decree with costs and directed him to proceed with the account, held, that an appeal would lie to this court.</p>

Hiram P. Hastings, for the plaintiff, .made a motion in March last, to vacate the judgment of reversal which had been rendered in this cause in December last, and that the cause either be re-argued or judgment of affirmance be entered. The grounds on which the motion was made are stated in the opinions delivered by the judges.