Volume 30 — New York Reports

<p> Appeal from a judgment of the' Supreme Oourt, entered upon the report of a referee. </p> <p>The action was prosecuted to recover from the defendant, as sheriff of Yates county, the balance due upon a ' judgment owned by the plaintiff, upon, which execution had been issued and delivered to the defendant as sheriff. The facts found by the referee, before whom the cause was tried, are as follows: That a judgment was obtained in the supreme court in favor of the Bank of Genesee, against Alva Clarke, Joseph Ketchum, Theodore F. Sharpe and Eel-son Thompson, defendants, for the sum of $924.23, and that the same was docketed in the clerk’s office of Yates county on the 30th of August, 1850. That an execution was issued on said judgment, and received by the defendant as such sheriff, on the 31st day of August, 1850. . That the defendant, -as such sheriff, pursuant to and by virtue of said execution, levied upon personal property of the defendants in the execution (except that of Eelson. Thompson), in the life-time of the execution, to an amount of between two and three thousand dollars, viz: On a store of goods of said Sharpe valued at $2,000; a span of horses of Clarke valued at from $250 to $400, and upon live stock and farni property of said Ketchum valued at $1,000. That on the 30th of Eovember, .1850, and after said levy, the said judgment was sold and assigned "to the plaintiff in this action, for a valuable consideration, of which sale and assignment the sheriff had notice. That the said sale and assignment were made to the plaintiff in good faith, for a valuable consideration by him paid, and that he thereby became and is the lawful owner of said judgment. That after such assignment the plaintiff in this action directed the sheriff to let the sale of Ketchum’s property, advertised to be sold on the day after the said assignment was made, go down, but to hold on to the levy and all the levy by him made, on the property of other defendants, until further directions. That the property of said Ketchum, so advertised to be sold, was of sufficient value to make the amount of such execution. That after such assignment and notice to the sheriff, the plaintiff in this action ordered and directed the defendant, as sheriff, to make two-thirds of said judgment out of the property so levied on by him, of the said Clarke and Sharpe, which order and direction the defendant, as such sheriff, neglected and refused to comply with and obey. That this action was commenced on the 24th day of June, 1851, and that two-thirds of the original judgment, on the 9th of July, 1857, amounted to the sum of $912.20, and the referee found as a conclusion of law that the plaintiff was entitled to recover the said two-thirds of the amount of the original judgment so assigned to him, with interest thereon from the time of docketing said judgment. The judgment upon the report of the referee was affirmed at general term, and the defendant appealed.</p> <p>I. The recovery is not for any act or omission of the defendant occurring prior to the 30th of November, 1850. The alleged cause of action upon which the recovery was had, is that the sheriff did not, in obedience to instructions given to him after that day by the plaintiff who had purchased the judgment, make .two-thirds of the amount of the execution from the. property of Clarke and Sharpe, two of the four judgment debtors.</p> <p>II. Upon the facts of the case, the defendant is not liable for two-thirds of the judgment, and the referee erred in deciding that he was.</p> <p>1. The judgment was against the four defendants for damages and costs, and there was no allegation or proof as to whether it was upon contract or for a tort; or whether, as between the defendants themselves, either had superior equities, as against the others, as to its payment. (.2 Barb. Ch. R. 462, per Chancellor; 2 J. Ch. B. 131; 11 Paige, 19.)</p> <p>2. The execution was in the usual form. There was no notice or special direction to the sheriff as to executing the writ, until after the 30th of November, 1850. In advertising and proceeding to make the amount of the execution from the property of Ketchum, one of the defendants, on the 30th of November, the defendant was acting according to law. He omitted to collect the amount of the execution on that day by the express direction of the plaintiff herein.</p> <p>3. Under these circumstances, the defendant was not required to make two-thirds of the amount of the execution from the property of Clarke and Sharpe, and is not liable to the plaintiff for omitting to do so.</p> <p>(«.) The sheriff is a minister of the law, not the agent of the party. So long as he executes process according to the law, he cannot be made liable to the party, in an action on the case, for refusing to follow his instructions as to the manner of executing it. He may collect an execution in, thirty days, but he is not liable to the party if, in disregard ©f his instructions, he give the debtor sixty days to pay it. He may, in defiance of the directions of the party, adjourn a sale of property, to try to obtain a better price. It is submitted, therefore, that if the plaintiff in the execution had, on issuing it, directed the sheriff to make two-thirda of the .amount from the property of Clarke and Sharpe, he was,not bound to do so, but might have levied it from the property of Ketchum.</p> <p>(5.) But in this case no special directions were given to the sheriff until the time to levy by virtue of the execution had expired, and until, relying on the property of Ketchum as sufficient to satisfy the demand, he had allowed the property of Clarke and Sharpe to pass from his control, as, he had a right to do. Again: at the time of these instructions, the sheriff had, in good faith and rightfully, advertised and was about to sell property of Ketchum suf ficient- to satisfy the debt. The plaintiff could not then compel him to look up, other property and sell it, to pay two-thirds of the -debt, -or make him liable for that amount for his refusal to do so.</p> <p>(o.) Again: it is not proved or found that the sheriff could have, made two-thirds of the execution from the property of Clarke and Sharpe, at the time he was directed to do so, if he had made the effort. This, at least, should have been found, to warrant the judgment. The contrary is quite evident.</p> <p>- (cl.) Again: There is nothing in the case showing why two-thirds should be made from Clarke and Sharpe. The judgment was against four. It does not appear that Thompson had not property. It does appear that the property of Clarke which was levied upon would not make one-third.</p> <p>(e.) It was not proved, and is not found, that the property of Clarke and Sharpe,’ respectively, was sufficient to pay one-third of the amount. The instructions and judgment are on the theory that the sheriff was bound to make two-thirds from their several property, even if it had to be levied from the property of one of them.</p> <p>4. It is submitted that the judgment is unwarranted by the facts established.</p> <p>III. At common law an action on the case would not lie against a sheriff for neglecting to execute a ft. fa. according to its demand or return it in due season. Much less sould an action like this be sustained. (Moreland v. Leigh, l Stark. R. 388; Watson on Sheriffs, 203; Commonwealth v. McCoy, 8 Watts, 151; Pardee v. Robertson, 6 Hill, 550-552.)</p> <p>IV. The statute which gives to an aggrieved party an iction for damages against sheriffs and other officers neglecting to execute process, provides for only two classes of cases, viz: 1. When the officer does not execute the process according to the command thereof; and, 2. When he neglects to make due return of his proceeding thereon. In no other cases can the action be maintained by virtue of the statute. (2 R. S. 440, § 77, 1st ed.)</p> <p>V. It cannot be claimed that this action or recovery is founded on the sheriff’s neglect to execute the process according to the command thereof, or to make a return.</p> <p>1. There is no allegation of such neglect in the complaint; and the recovery was not claimed or had upon this ground.</p> <p>2. But the sheriff was in good faith proceeding to execute the writ according, to the command thereof, and would have collected the money and made due return but for the direction of the plaintiff to desist from selling the property advertised, and not in any event to sell the property of Ketchum. This would be an answer to an action for not making a return.</p> <p>VI. But, if technically liable, the damages should have been only nominal. The facts do not authorize a judgment for two-thirds of the judgment. On these facts it would be monstrous to hold the defendant liable for this large, sum. If bound to pay it, he has no remedy, and the reaE debtors escape.</p> <p>I. The only questions which are properly before the court on this appeal are the objections and exceptions take's by the defendants to the reception of evidence on the hear ing, and these were the only exceptions in the case up or which the general term gave judgment. The exceptions to the report of the referee, as presented by the case, madu and filed since the decision and'judgment of the general term, have not been passed upon by that court. This court is strictly a court of review, to correct errors in the actual determination of the general term of the supremA court. The special term had no power or authority tc correct the record of the general term, or grant the ordei allowing the case and exceptions, after the judgment oi the general term. The general term, if it had been applied to, could only have corrected the case after judgment, so as to properly present the facts and exceptions actually taken and imperfectly stated, which had been passed upon by it. The general term could not authorize the making a new ease, after judgment, containing exceptions not before taken. (Johnson v. Whitlock, 3 Kernan, 350.) Here we have now two cases; the one upon which the judgment of the general term was given, and the other for this court to pass upon.</p> <p>H. There was no error in the referee’s over-ruling the objection on the part of the defendant to the reading of the assignment of the judgment in evidence, because:</p> <p>I. The execution and delivery thereof was distinctly alleged in the complaint, and was not denied by the answer.</p> <p>2. The proof was that the assignment was executed and delivered to the witness by the president, in the bank, at the time of the payment of the moneys. No other evidence of its execution was necessary.</p> <p>3. The judgment being for less than $1,000, no resolution of the directors was necessary to authorize a sale and assignment thereof, by the presidént. (1 E. S. 598, § 8.)</p> <p>4. The authority of the president, (if any should be deemed necessary,) to execute the assignment, will be presumed, until the contrary is made to appeal'. (Bank of Vergennes v. Warren & Storrs, 7 Hill, 91; Gillett, rec. v. Campbell, 1 Denio, 520.)</p> <p>HI. In case the court should be against us on the propositions contained in the first point, and should deem the exceptions to the report of the referee, as contained in the case made and filed since the decision and judgment of ■the general term, as properly here on this appeal, it is, still submitted that the conclusions of the referee were fully justified under the pleadings and evidence, and that, the exception to his report is not well taken, because it is well settled by the authorities that a plaintiff, or owner of a judgment and execution, has a right to instruct the-sheriff as to the manner of- executing the process, which instructions the sheriff is bound to obey, so long as they are. within his general power and duties. (Walters v. Sykes, 22 Wend. 566; Godfrey v. Gibbons, id. 569; Sherry v. Schuyler, 2 Hill, 204; Armstrong v. Garrow, 6 Co wen, 465; Gorham, v. Gale, 7 id. 739; Allen on Sheriffs, 143-4.) Therefore it seems to follow that when such .instructions are given and the sheriff refuses to obey, a right of action for such refusal arises. Were it otherwise; the authority and right to instruct, and the duty to obey, would be of no avail, as the law would afford the injured party no mode of enforcing obedience, or indemnity for damages suffered by reason of the disobedience. In the case now before the court, we have not only the neglect of the defendant to obey the lawful instructions of the plaintiff, but that he willfully refused to proceed in the collection of the execution as directed by the plaintiff, or to collect the same in any way unless he was permitted to go contrary to the instructions of the plaintiff. The defendant ought not to complain if he should be held to a strict accountability. His refusal was willful, from which the inference would seem to be warranted that he was in some way indemnified by the defendants in the execution, for whom he seemed to be acting. He was willing to obey the instruction of the plaintiff so far as such instruction related to the property of Ketchum, but when called upon to proceed against the property of the other defendants levied upon, he utterly refused, thus undertaking to protect two of the defendants in the execution at the expense of one of the others. It is time the defendant, and all others holding like executive trusts, learned that it is no part of their duty to assume the province of a court of equity, by undertaking to adjust what they may regard to be equities of the case between the parties; and that it is their duty to obey the process, and the lawful instructions of the party having a right to instruct. The plaintiff is remediless unless he cam maintain his action. The defendant holds the execution, with a levy upon sufficient property to satisfy the same, but absolutely refuses to proceed unless he can do so in a particular manner, contrary to the instructions of the plaintiff. Not only so, but before this action was commenced he received $294 of Clarke upon the execution, which he still holds.</p>

The defendant was one of the firm of .Bowen & McNamee, of New York. The plaintiff had been a clerk in their employ. On his leaving them, the firm gave him a letter of recommendation, saying that he had attended to his duties in a satisfactory manner.

This action was of a novel character. Á director of a bank (who had been such from, its organization, who usually attended the meetings and was actually present and took part in the proceedings of the board of directors when the last dividend was declared), having purchased from the cashier of the institution twenty shares of its capital stock, asked to rescind such contract and recover back the money paid, on the ground of false representations and concealments of the…

This is an appeal by the plaintiff from a judgment of the supreme court, rendered in favor of the defendant, in the fourth district. Held: that a private person may, of his own motion, set up a rival franchise, and thus substantially destroy a legislative grant. IV.

The facts in the case, which seem to have been established by the verdict of the jury arc: That in 1852 a corporation was organized under the general act of 1848, (Laws of 1848, chap. 40,) called the Diamond Mills Manufacturing Company. That the plaintiff's intestate, Peter Stover, took and subscribed towards the capital stock thereof, ten shares, of the nominal or par value of one thousand dollars.

The case does not show what steps had been taken by the defendants as highway commissioners, except what appears in the return of one of the jurors to the certiorari.

The action was brought against father and son, standing in the relation of master and servant, to recover damages for personal injuries caused by the negligence of the son, while driving, the horses of his father.

This action was brought to set aside a sale of mortgaged premises as unfairly and inequitably conducted on the part of the defendant, Jay; also two deeds of conveyance, of the mortgaged premises to. two others of the. defendants,, Weeks and Hoff; and also a mortgage'executed by the last named persons to the other defendant, Hulse, after the purchase under the mortgage sale.

In April, 1854, the defendant owned a lot of land in the city of Rochester, the buildings on which had been destroyed by fire, and it intended to erect on said premises a new building in a part of which its banking house was to be located.

This action-was commenced Tby N. Rogers' & Co., against D. Golden Murray and others, owners of.the schooner Pedee, to recover the value of a quantity of hides shipped on board the Pedee, at Aspinwall, consigned to the plaintiffs at New York.

' On the 19th day of March, 1842, the plaintiff, York, and Esther, his wife, for the consideration of twelve hundred dollars, executed and delivered to the defendant, Allen, a deed of conveyance in fee simple, with full covenants of warranty, of.the lands in controversy in this suit—the grantors covenanting among other things, that they were the true and lawful owners of the said premises, and that the same were free from all legal claims or incumbrances whatever.

This action was brought by the plaintiff as receiver of the Ogclensburgh, Clayton & Borne Bailroad Co., to recover the balance due to that company upon the defendant’s subscription to the capital stock thereof.

Appeal from an order made at a 'General Term of the ■ Supreme Court, affirming an order of the Special Term, setting aside a verdict and granting a new trial on terms, on the ground that the verdict was against the weight of evidence.

The action was upon a policy of insurance issued by the defendant upon the factory building, and the stock and goods therein, of the Glendale Woolen Company, a corporation located and doing business at Glendale, in the state of Massachusetts. The defendant is a corporation duly organized, and located and doing business at Hartford, in the state of Connecticut.

The defendants were the owners of a lot of land in Cattaraugus county, on which was lying a quantity of logs, which had been cut on the lot by the plaintiff, or those under whom he claimed title. The plaintiff claimed to own the logs by virtue of an agreement between the former owner of the land, and certain persons who had conveyed their rights to him.

The principal question was whether Walter Smith, on the 26th clay of October, 1838, had any legal estate in certain lands, at Dunkirk set… Held: under the original sixth section, that it was necessary that the trust should be declared by some deed or conveyance actually subscribed by the party charged with the trust (Wright v. Douglas, 3 Selden, 564); and the effect of the amendment would seem to• be to dispense with the “deed or conveyance,” and to recognize a trust as…

<p>The plaintiff by his complaint, claimed to recover of the defendants as partners, the sum of $114.38 for goods sold and delivered to them. Also, $3,173.04 for money loaned to and debts assumed by E. F. Bullard for the defendants, for $1,000 of which the defendants gave their note at six months from 30th September, 1854, payable to the estate of Jacob Snyder, which note was afterwards transferred to said E. F. Bullard. It was alleged there was still due on said note $104.18. E. F. Bullard assigned all his claims against defendants to the plaintiff.</p> <p>The defendant Raynor alone appeared, and by his answer alleged that the $114.38- for goods sold, had been fully paid.</p> <p>The note for $1,000 was borrowed of the defendants, and was wholly without consideration.. That the money loaned by E. F. Bullard had been fully paid, and that there was a balance due the defendants which they insisted upon by way of counter-claim.</p> <p>On the trial the plaintiff proved a letter signed by defendants, and addressed to E. F. Bullard, in which they admitted an indebtedness to the plaintiff for potatoes and buckwheat in the sum of $114.38, and requested said E. F. B. to' settle with the plaintiff for the same. This letter was dated 23d December, 1854. The plaintiff rested. On the part of the defense, it was shown by E. F. B. that he did assume the said debt of $114.38 to his brother the plaintiff, and by the defendant Raynor, that said E. F. B. was credited in account on the defendants’ books for this sum, and that the account containing such credit had been rendered to E. F. B., and its correctness conceded. It was also shown that the plaintiff when inquired of by the defendants whether E. F. B. had assumed said debt, admitted he had, and subsequently said E. F. B. had applied to the plaintiff for leave to sue the defendants in his name for the said $114.38. The only item of dealing between the parties really in controversy in this suit, was one of $75, the facts in regard to which were briefly as follows: There is charged to E. F. B. on the defendants’ books under date of 20th July, 1854, the sum of $75, as “jjaid your note held by Harrington after shaving it. It will be due the 13th inst.” The account containing this item, with others of dates prior and subsequent, consisting of both debts and credits, ivas rendered to E. F. B. as above stated, and its correctness conceded by him. E. F. B. testified that the note thus charged to him, was a note Avhich he loaned to Harrington for his (H.’s) accommodation, and that he (H.) "was to pay and take it up. Raynor testified that Harrington brought said note to the defendants’ store, and wanted the money on it, and he (R.) proposed to let him have $70 for the note, and Harrington accepted the offer, and R. paid him the $70 and took the note.</p> <p>The court charged the jury among other things, that if the $75 note was usurious, yet if the maker had stated the account including it, and thereby admitted the correctness of the charge, the plaintiff claiming as assignee of the-maker, could not set up the defense of usury; to which the plaintiff’s counsel excepted.</p> <p>The appellant’s counsel in his points, insisted on the alleged error in this branch of the charge only to reverse the judgment of the court below.</p> <p>. The jury rendered a verdict for defendants. On which judgment was entered, which was affirmed at a general term in the 4th district.</p>

The plaintiff was the owner of a barge, which was towed by the, steamer Niagara, on the Hudson river. The defendant was running a steamboat called the New Jersey, which boat came in collision with the barge, in consequence of which the barge was injured and sunk.- At the time of the collision there was no helmsman on the barge. There was evidence upon the question whether the accident was owing to the want of a helmsman.

<p>A provision, in an assignment of property in trust for the benefit of creditors, directing the payment of debts and liabilities due, or to grow due, if intended to secure debts or claims not then in existence, but which are afterwards to be created, either by the assignor or the assignees, would be void.</p> <p>But a clause directing the payment of debts, bonds, notes, bills and sums of money due and to grow due, is not subject to such a construction. It applies only to claims then in existence. Whether due or to grow due, is immaterial.</p> <p>A clause providing for the payment of all debts, ffcc. due to the assignees from the assignor, “ or for which he is liable, or may become liable to them, including notes, bills and drafts indorsed and guarantied by them,” &c., refers to such notes, &c., on which the assignees are indorsers or guarantors, and on which the liability has not yet been fixed by protest— claims which they may pay, or become liable to pay, by reason of indorsements or other responsibilities which they have already made or incurred . for the assignor.</p> <p>A direction for the payment of all debts, demands and sums of money for or upon which, or on account of which the' assignees, or either of them, have become or may be rendered liable, for or on account of the assignor, applies only to past debts, and not to new ones to be created, and vests no discretion in the assignees. It only secures debts which have been assumed, or on which the assignees may be rendered liable.</p> <p>If the findings of a referee are imperfect, it is the duty of the party who is not satisfied with them to apply for more specific findings, instead of seeking to avail himself of such defects. In such cases the finding of facts necessary to sustain the judgment will be presumed. D. and S., the plaintiffs in an attachment suit, issued an execution therein,</p> <p>. without any directions to the sheriff not to levy on any particular property ; and were afterwards informed that the sheriff had levied on certain lumber claimed by B. and W. as assignees of the judgment debtor, and that a suit was threatened by B. and W. The attorney of D. and S. .refused to give the sheriff directions not to sell the lumber. D. and S. knew the lumber was, advertised for sale under the execution, and they afterwards received the proceeds of the sale, in payment of their execution.</p> <p>Held, that these facts would have been on a trial before a jury, sufficient to submit to them the question" whether D. and S. had not by their acts, ratified the taking of the goods by the sheriff, and the subsequent sale of them to pay their claim.</p> <p>Held, also that D. and S. having, with full knowledge of all the facts, and without objection, received the proceeds of the lumber and applied them to their own use, this amounted to a ratification of the levy made by the sheriff, and made them liable to the real owner, for the property so sold.</p>

<p>The charter of the Atlas Mutual Insurance Company, granted in 1843, adopted a section of the charter of the Atlantic Insurance Company, granted in 1842. Held, that these acts, being passed subsequent to the revised statutes, must, so far as they prescribe a rule for the transfer of paper held by the company, different from that declared by the revised statutes, be deemed to overrule the former law.</p> <p>The charter of the Atlas Mutual Insurance Company, in regard to notes received for premiums in advance, authorized the company to negotiate them for the purpose of paying claims, or otherwise, in the course of its business. Held, that a note given for premiums on an open policy of insurance to the makers, and afterwards substituted for notes which had been negotiated by the company to the plaintiff’s, for the purpose of paying claims, or otherwise, m the course of its business, must be regarded as a note of the character specified in the charter; and that the transfer thereof to the plaintiffs by the company, was lawful, and the title of the plaintiffs indisputable.</p> <p>Held, also, that if the notes originally negotiated were lawfully transferred to the plaintiffs, the surrender of those notes, and the substitution of others in their place, for the convenience and accommodation of the parties, was not unlawful; it being but an exchange of securities, all of which were of a character which made it proper, under the charter, for the company to negotiate them for the purposes of its ordinary business.</p> <p>The note sued on was indorsed as follows: “Pay-for account of the Atlas Mutual Insurance Company. G. H. T., Secretary.” It appearing that the object of the indorsement was to pass an absolute title to the plaintiffs, and that this was the usual mode of transfer with this company; and the nature of the transaction showing that the intention of the parties was to pass an absolute and unrestricted title to the paper; Held, that the indorsement, though slightly ambiguous on its face, was susceptible of that construction, and fairly indicated either that the secretary indorsed the note for or on account of the company, or that the plaintiffs, on receiving the sum’due thereon, were to credit the same to the account of • the company, as between the transferee and such company.</p> <p>Held, further, that on such an indorsement the makers could not refuse payment to the holders, whether the name of the payee in the indorsement remained in blank, or was filled in with the names of the plaintiffs.</p> <p>That it was a transfer of the title to them, only to be defeated on a prose cution of the note, by proof that the plaintiffs were not the real parties in interest.</p>

The action was brought against the defendants as makers and endorsers of a promissory note, dated the 13th of July, 1857, made by the firm of Williams, Tanner & Co., payable to the order of the defendant Williams, and endorsed by him and also by the defendant Hazard, for $2,000, payable at the Metropolitan Bank in the city of New York, sixty days from the date thereof. The defendant Hazard endorsed the note by writing “M. Hazard,” instead of his full name.

<p>The supreme court has the undoubted power and right to examine the evidence at large, and upon the whole case, including the law and the facts, to set aside a verdict and grant a new trial.</p> <p>That court can, from the evidence, reach different conclusions of fact from those found by the jury. In reviewing trials, it has power to pass upon questions of fact as well as law; whilst the court of appeals is confined to the correction of errors of law only.</p> <p>Having no power to review any questions of fact determined in the subordinate courts, when a new trial is granted the court of appeals is obliged to affirm the order, if it can stand consistently with any view to be taken of the evidence given at the trial, where the trial has been by jury.</p> <p>The legal and record title does not of itself decide the question of liability for supplies furnished to a registered vessel. The question is,.to whom was the credit given; and the law adjudges it to have been given to the person in "actual possession of the vessel, who controls her operations, receives her freight and earnings, and directs her destination.</p> <p>The defendant was the registered owner of a vessel, but he held the title merely as trustee for P., the real owner; and had no interest in her earnings, which belonged tc P. or the persons to whom? he transferred them. The plaintiff furnished a set of sails for the vessel, upon the order of P.: Held, that a verdict for the plaintiff could only be warranted by a finding, 1st. That the contract was not made with, and the credit given to, P. exclusively; 2d. That the defendant was in actual possession of the vessel, controlling her movements and interested in her voyage, and directing what should be done with her, in all respects as her owner, when the sails were furnished; or that he expressly authorized P. to contract for the same on his responsibility.</p>

This is an appeal by the defendant from a judgment of the supreme, court, in the second district, in favor of the plaintiff, affirming a judgment entered on the report of a referee.

Action on a policy of insurance on freight, the plaintiff suing for the interest of Elijah K. Bruce, the assured, whose right it acquired by assignment, subsequent to the loss. The schooner Europa being at Chicago, laden with a cargo of 16,758 bushels of wheat, Bruce, the owner, procured the defendant to insure her freight-list at $1,500, which was about its amount, on a voyage from Chicago to Buffalo.

This action was brought to recover the amount of a promissory note made by the defendant Wright to the order of the defendant Dunlap, who endorsed it for the benefit and accommodation of the defendant Taylor; and it was without consideration. It was made and endorsed by Dunlap, and delivered to Taylor at Lockport, 11. Y., May 30, 1857, for $400, payable at Niagara County Bank, at Lockport, one year from date.

This was' an action to recover damages for breach of a promise of marriage. The complaint contained a promise of marriage, macle by the defendant to the plaintiff, to marry her when he should be thereafter requested; averring a request to marry and the defendant’s refusal. It also contained a second allegation on a promise to marry the plaintiff within a reasonable time, a request by the plaintiff and a refusal to marry her, although a reasonable time had elapsed.

This action was to foreclose a mortgage executed by Crandall and wife to David Barclay, on 9th February, 1853, to secure the payment of the suni of $800, in three instalments of $266.66 each; the first instalment to be paid on 1st March, 1855; the second on the 1st March, 1856; and the third on 1st March, 1858; interest to be paid annually on 1st March in each year, on the whole principal remaining due and unpaid.' On the 29th April, 1854, Barclay assigned the mortgage to…

The defendants were sued as endorsers of a promissory note as follows: “$6,000. “ÍsTew York, February 12, 1857. “ On the 20th June next, without grace, we promise,, to pay to James Moore, or order, six thousand dollars, for valued received, with interest, at the rate of seven per cent, per annum; having deposited with J. Thompson, as collateral security, with authority to sell the same at the broker’s board, or at public or private sale, or otherwise, at his option, on the…

One Backus Culver was indebted to the plaintiff, upon notes discounted by the bank, to the amount of $4,000. He applied to the bank for an extension of his indebtedness, and proposed as security to give a bond and mortgage on his farm in Amenia. This the plaintiff declined to accept without a covenant of security that the farm was worth enough to pay the mortgage offered. There were at the time incumbrances on the farm,—one mortgage for $10,000, and others.

The action was against David Wemple, since deceased, to recover for work, labor and services by the plaintiff and his wife, performed for the defendant and at his request.

<p>Appeal from a judgment of the Supreme Court, affirming a judgment of \ the special term, dismissing the plaintiff’s complaint, with costs.</p>

This action was brought to set aside á bond and mortgage as usurious and void. The complaint alleged that on the 25th day of June, 1857, the plaintiff loaned of David Barney, deceased, the defendant’s testator, $866.

The action was brought by the plaintiffs, as judgment ■ creditors of the firm of Nace & Co., to set aside an assignment in trust for the benefit of creditors without preferences, _of the assets of that firm. The complaint was framed to set aside the assignment on the ground that it was made to hinder, delay and defraud the creditors of the assignors, and it contained no charge that the assignment had failed for want of power to execute it, or otherwise.

This action was brought to recover from the defendant the- amount of two promissory notes given by him to the plaintiff’s intestate, Isaac Allen, in his life time, one dated May 1st, 1861, payable to said Allen, or bearer, for the sum of $5,000, one year from date, with interest; the other dated June 25th, 186Í, payable to Allen, or bearer, thirty ' days from date, for the sum of $100. The amount of both notes, and the interest thereon, was admitted to be due upon the trial.

Appeal from a judgment of the general term of the Supreme Gourt, affirming the judgment of a speciel term rendered upon the verdict of a jury. The facts appear in the following opinions:

Appeal by the defendant Bloss from a judgment of the Supreme Court, affirming a judgment entered on the. report of a referee. The action was brought to recover for moneys advanced by the plaintiff to the defendants, and also for freight and commissions on garden and other seeds sold by the plaintiff for the defendants.

The action was brought to compel the delivery by the defendants to the plaintiff of certain bills of lading of goods consisting of sulphate of barytes and black lead, shipped by Messrs.

This action was brought for the partition of certain lands in Queens county and in New York. The parties claimed title from Mrs. Hannah Bowie. She died in 1841, without parents, husband or children surviving her. She left a will, dated 12th July, 1834.

This is an appeal, by the executors of Thomas Southard, originally one of the defendants, from an order of the supreme court, in the first district, disposing of certain surplus moneys in this action arising upon the foreclosure of a mortgage and a sale of the mortgaged premises, and awarding said surplus moneys to the defendant Koon, as between him and Thomas Southard, who were rival claimants thereof.

This action was brought to recover the rent of a store and basement, in the city of New York, for a quarter of a year, commencing the 1st of February, 1858, and ending on the last day of April of the same year. ■ The complaint set forth the ownership by the plaintiff of the premises, and the occupancy by the defendants for the quarter ending the 1st of May, 1858, and alleged that the use of said premises was reasonably worth the sum of $450, which the plaintiff had demanded,…

This is an appeal from the judgment of the general term of the supreme court in the third district, affirming a judgment in favor of the defendants on mandamus, rendered at the Schoharie circuit in November, 1858. In 1855, the relator sued out an alternative writ of mandamus, requiring the commissioners of highways of the town of Seward, Schoharie county, to open for public use a highway that he alleged had been previously duly laid out, or show cause to the contrary.

This action was commenced by the plaintiff’s testator, to recover of the defendants the amount of a certain promissory note, made by the defendant Wait. It was dated on the 21st of March, 1855, and given for the sum of $1,000, payable one year from date, with interest thereon semi-annually, to the order of the defendant Sayre, at the Elmira Bank, and endorsed by him, and by the defendants Howe, Hunt and Beach.

This action was brought to recover a balance for goods sold, arising out of merchants’ accounts, part in favor of the plaintiff and Philip C. Wells—the interest of Philip C. Wells in which had been assigned to John Wells—and part in favor of the plaintiff and John Wells, A portion of the demands consisted in charges of cash to the defendant. John Wells died after the commencement of the action.

<p>Under chapter 228 of the laws of 1857, which provides that the New York Central Railroad Copipany, at every station on its road where a ticket office shall he established, shall keep the same open for the sale of tickets at least one hour prior to the departure of ¡each passenger train from such station, but that they shall not be required to keep such offices open between nine P. M. and five A. M., except at Utica and six other stations on its road; and that if any person shall, at any station where a ticket ■ office is established and open, enter .the cars as a passenger without first having purchased a ticket, it shall be lawful for the company to demand and receive from him a sum not exceeding five cents, in addition to the usual rate of fare; the extra fare can only be demanded when the passenger fails to purchase his ticket at an established ticket office that is open.</p> <p>If the ticket office is not open, no ticket can be procured, and no right exists to demand the extra fare.</p> <p>So held where the plaintiff entered the cars of the company, at Utica, as a passenger, at one o’clock A. M., without having first procured a ticket, the ticket office not being then, nor for an hour previous to the departure of the train at one o’clock, open.</p> <p>And held, that the company, having assumed to demand and receive from the plaintiff five cents, in addition to the legal fare, under these circumstances it ‘ ‘ asked and received a greater rate of fare than that allowed by law,” and was thus brought within the provisions of the first section of chapter 185 of the laws of 1857, and was liable to the penalty of $50 mentioned in that section.</p> <p>Held,, also, that in an action against the railroad company, to recover the forfeiture of $50, it was not necessary that the complaint should set out the various enactments consolidating the several companies iVhich make up the New York Central Railroad Company, so as to show that the latter company is restricted to a fare of two cents per mile for each passenger ; but that it was' enough to allege that the defendant had been duly organized; that it was entitled to demand and receive of passengers a certain rate of fare, and'that it had demanded and received a higher rate.</p>

This action was brought by the plaintiffs, claiming that the defendants, by building a wing dam in the Otselic river, flooded water back upon the plaintiffs’… Held: without question or challenge by Luther Bowen. (b.) At the time of the purchase by the plaintiff, and before the conveyance was executed, Luther Bowen, the pretended owner, was present, and was informed that the plaintiff, Edward Brown, had made a bargain to purchase, and he made no claim of title to himself.

in favor of the plaintiff at the circuit, held by Justice Davis, in the county of Niagara, in January, 1858.

<p> Appeal from a judgment of the Superior Court of the city of New York. </p> <p>The action was to recover damages for the non-performance of a contract of sale of certain lead, Brought by the plaintiffs, as vendors, against the defendants, as vendees. The complaint alleged a sale of “one hundred and fifty tons of best English lead, of Walker, Parker & Walker, brand, to arrive by ship Providence from Newcastle,” a notice and a request to the defendants to receive the lead, and their refusal to do so. That upon such refusal the plaintiffs gave notice to the defendants that they would require them to perform their contract, and should sell the lead for their account, .and hold them responsible for the deficiency, and for expenses, &c. That they did so sell, and the deficiency and expenses were $4,923.68, for which they ask judgment. The answer denies the contract alleged in the complaint, and alleges that the lead sold there was soft English lead, branded Walker, Parker & Walker; denies that any such lead was on ship Providence, but avers that the lead she brought was hard and refined; denies that they were ever requested to receive such lead as they bought; denies that the lead on this ship, or which was tendered to the defendants, was soft English lead, branded Walker, Parker & Walker, or was such lead as the defendants had agreed to purchase, or was manufactured by Walker, Parker & Walker, or was of their brand. Alleges that the lead which arrived by this ship and was tendered to the defendants was branded Walker, Parker & Co., which Avas an inferior brand; denies damage by the plaintiff, and counter-claims damage for a breach of the contract by the plaintiff. There is a reply denying the other matter of the answer.</p> <p>At the trial the plaintiffs proved a sale note, signed by Turrell Brothers, brokers: “ Sold T. O. LeRoy & Co., for account of Pollen & Colgate, one hundred and fifty tons soft English lead, of Walker, Parker & Walker brand, to arrive per Providence from Newcastle, at six and five-eighths cents per pound, cash.” They gave evidence that no lea.d branded Walker, Parker & Walker was known in market; that there was lead branded “ Walker, Parker & Co.,” and “Walker, Parker & Co., Newcastle-upon-Tyne,”' and “Walker, Parker .& Co., London.” There was also evidence that these brands or marks indicate different qualities. of metal, and on the other hand that they indicated only the place of manufacture of lead of the same quality, made by the same house, having establishments in different places. This lead arrived July 7th, 1853, and the evidence was that it-was marked “ Walker, Parker & Co., Newcastle-upon-Tyne.” The plaintiffs- proved the re-sale and quality of the lead, under objection and exception by the defendants. They proved the -account of the re-sale of the lead, and its delivery to the defendants, thé defendants objecting that it was incompetent and irrelevant because there had been no notice of the sale and no tender. Certain testimony of members'of the firm of Walker, Parker, Walker & Co., and persons in their employ, taken by commission, was read. One of these witnesses testified that the lead oij this shipment Avas branded Walker, Parker & Co., and not Walker, Parker, Walker & Co., because the pigs were cast shorter than usual, to suit the American market, and were too short to be branded Avith the full name of the firm, and that there was no difference in quality in lead marked either way. This was objected to and overruled, and the defendants excepted. The same witness -testified that his firm was thé only house in this trade of the same or a similar name, and no lead known in trade as that of Walker, Parker, Walker & Co., except this. To this the defendants objected and excepted. He testified that the description “soft English lead, Walker, Parker & Walker brand, from NeAvcastle,” would designate, AAÚth the same certainty; soft lead cast by Walker, Parker, Walker &tCo., ■ with the brand Walker, Parker & Co., as the soft lead cast by them marked Walker, Parker, Walker & Co., and that there is no difference in the market value of these brands-This was objected to and the defendant excepted. Similar objections were taken to similar testimony, and other exceptions. • ’ .</p> <p>The .plaintiffs rested, and the defendants moved for a non-suit, because the agreement was for lead of a particular kind, which was not on the ship Providence. 2d. Both parties were mistaken as to the lead on the ship, if there was no lead of that brand,' and there was, therefore, nothing for the contract to operate upon, and the plaintiffs cannot recover by showing the delivery of another article. 3d. There is no evidence of damage, because the re-sale was made privately and without' notice to the defendants. 4th. That the plaintiffs, by taking the lead and selling it, rescinded the contract, and can bring no action founded on it. 5th and 6th. Repeating the allegations of non-performance of the contracts. The non suit was refused and the defendants excepted.. The defendants then gave evidence on the points to which the plaintiffs’ evidence was addressed, and also to prove that this firm used foreign as well as English ores. One of the defendants -was called and testified that he had a conversation with Turrell before the sale note was delivered, and was asked what conversation passed on the subject of this sale, prior to the actual delivery to these parties of the' sale note. The question was objected to and excluded, and the defendant excepted. A manufacturer of white lead was called, and among other things was asked “ wdiat kind of lead is required to make white lead?” The question was "objected to and excluded, and the defendant excepted. The same witness testified to receiving this lead and rejecting it because of the mark not being Walker, Parker, Walker & Co. He was looking to buy for one Stearns. He was asked if Stearns had arranged to purchase this lot of the defendants. This evidence was objected to and excluded, and the defendants excepted. Pollen, one of the plaintiffs, was sworn, and asked how the lead manufactured by the Walker house was known in market; how it was generally spoken of by persons who alluded to it. The question was objected to and the objection was overruled, and the defendant excepted. The witness answered, “ wre generally speak of it as the Walker lead.” A witness testified that he had bought lead marked Walker, Parker & Walker. There was evidence given by the partners of the English house that Pollen & Colgate had not paid for the lead, and that this suit is prosecuted for their benefit. At the close of the testimony the defendants again moved for a non-suit, on the ground that there was evidence of the existence of the "lead called for, and because the plaintiffs had no interest in this action. The motion was denied, and the defendants excepted. The defendants’ counsel submitted five propositions, or requests, to charge. The court declined to charge except as in the charge given, and an exception was taken. The court charged, and various exceptions to the charge were taken, which are noticed in the opinion.</p> <p>The. jury rendered a verdict in favor of the plaintiffs for $7,580.34, and judgment was entered for that suni, with ¿osts. A motion for a new trial was denied, and the general term affirmed the order and judgment (see 10 Bosw. 38, S. C.), whereupon the defendants appealed to this court.</p>

The action was against the defendants as common carriers, and the complaint alleged that about the 1st of February, 1857, there was delivered to them, at the city of Albany, a case of goods containing valuable cloths and velvets, belonging to the plaintiffs, for transportation to the city of Rochester; that the defendants carelessly and negligently allowed said goods, while in their possession as common carriers, to be wet and damaged; that the defendants delivered the goods…

<p>A defendant may be legally arrested on a ca. sa. issued after judgment in a cause in which an order of arrest has been obtained and an arrest made before judgment, and which order has not been vacated before the arrest on the ca. sa.</p> <p>But where the order of arrest was obtained upon one only of five causes of actioh stated in the complaint, the first, and the judgment was not finally recovered on that, but upon the fifth cause qf action, for which the defendant was not liable to arrest, under the provisions of the code of procedure; and the defendant having been arrested on a ca. sa. issued after judgment, and imprisoned thereon; Held that his remedy was to move to be discharged from imprisonment, and that, not having done so, his imprisonment was regular.</p> <p>A delay of more than three months in issuing a ca. sa., where the defendant, at the time of rendering a judgment against him, is in custody upon process issued in the cause, will entitle him to a supersedeas.</p> <p>The defendant’s remedy, in such a case, is to apply to a judge for a supersedeas on the ground that he was not charged in execution within the time limited by statute, or by motion to the court. If he does neither, the imprisonment will be regular, and the sheriff liable on the escape of the prisoner, either as bail or in action for the escape.</p> <p>The plairitiff has an election which of these remedies he will adopt, and that election is manifested by the complaint.'</p> <p>If he proceeds against the sheriff as bail, he must set forth the proceedings to and including the escape, and allege that the defendant is bail, and the complaint must demand the appropriate judgment. If he elects to prosecute for an escape, the complaint will contain the same matters, but all allegations as to the character of the defendant as bail should be omitted, as wholly irrelevant to the cause of action for the escape.</p> <p>If the complaint makes no mention of -the defendant as bail,'and there is nothing in it manifesting an intention or election to hold him liable in that character, it is to be treated as an action for an escape, and the limitation of one year for bringing an action prescribed by § 94 of the code of procedure, applies.</p> <p>If, in an action for an escape, it is shown that the debtor was totally insolvent, the plaintiff is not entitled to recover of the sheriff the whole amount of the judgment.</p> <p>It is competent for a defendant, after the entry of judgment, to move to set aside the order of arrest, upon showing to the court that the judgment was reversed on a cause of action for which he ivas not liable to arrest, and hence .that he cannot be legally imprisoned on a ca. sa. issued on such judgment. But if he suffers the order of arrest to remain in force, it must be held to be regular, for the purposes of an action for an escape from imprisonment on the ca. sa.</p>

Appeal by the plaintiff from an order of the Supreme Court awarding a new trial, where judgment had been given against the defendants on the report of a referee.

The action ivas for malicious prosecution, -in making a complaint against the plaintiff, before an Albany police justice, on a charge of perjury. The cause, in which the plaintiff was alleged to have testified falsely, was tried at the Albany circuit, on the 23d of January, 1857. The action was on a bond of Joseph Hunter, the defendant's son, for the support of his wife according to his means.

The action was brought against the defendant as proprietor of, or person doing business, under the name and style of “ Spaulding’s Express Freight Line,” to recover for the injury.and damages done to… Held: the owner has no way to protect' himself against his loss but by taking out another insurance against deviation, and thus incurring additional expense for which he can have no recovery.

The plaintiffs are partners in the business of raising garden seeds at Rochester, in this state, and the defendant is engaged in the same business at New Lebanon, in Columbia county. J. Rapelje & Co. were partners, carrying on e same business at Rochester.

The action is to recover damages for the breach of a contract to deliver a quantity of hops. The defendant agreed in writing with one H. R. Wood to sell and deliver to him, at the railroad depot at Fort Plain, all his crop of hops for the year 1860, put up in bales and delivered in good merchantable order, on the 20th of October in that year. Wood was to receive and pay for the hops twelve and a half cents per pound. The defendant’s crop that year amounted to 3,409 pounds.