Volume 31 — Barbour's New York Supreme Court Reports

THE complaint in this case alleged that the plaintiff, Cornelia J. Bergen, was the daughter of the defendant, Richard A. Udall) of his first marriage.

MOTION by a judgment creditor of the defendant, to set aside the judgment in this case for a defect in the statement of indebtedness. The judgment was entered on a confession.

<p>APPEAL from a judgment entered at a special term after a trial at the circuit.</p>

<p>APPEALS by tbe plaintiff from three orders made at a special term, Tbe facts appear' in tbe opinion of the court.</p>

<p>THE facts in this case are sufficiently set forth in the opinion of the court.</p>

THE complaint in this cause was filed by a wife against the defendant, her husband, for a divorce a vinculo matrimonii. The parties being residents, of this state, were married here on the 12th of September, 1856. They lived together but a few weeks, and then separated. In January, 1851, the defendant filed his complaint against the plaintiff, claiming to have the marriage annulled, on the alleged ground of the physical incapacity of the plaintiff to consummate the marriage.

<p>Trial by the court.</p> <p>The facts of the case are fully stated in the opinion.</p>

<p>A testator, by his will, among other things, devised to his executors all hia real estate, excepting the farm devised to his wife, in trust to receive tho rents and profits, and after providing that the same should be paid to hia wife, and, on her death, in part to his daughter during her life, or until a division of the estate should tal^e place, as thereinafter provided, directed thg executors, from the residue of such proceeds, to pay on account of the moneys due on bonds and mortgages such payments as they could, and to pay all indebtedness of the estate until the estate should be free, clear and discharged of and from all liens and incumbrances ¡ and until such payments could be made, the executors were authorized to invest such proceeds, from time to time. He also directed that after the estate was free of all liens and incumbrances, the executors should continue to receive all the rents and profits thereof, and to divide the residue of such proceeds among his children, and the issue of any that might be dead, yearly and every year, until all the issue then living, of his children, should have arrived at the age of twenty-one years i</p> <p>Held that none of the provisions of the will, for the accumulation of the rents and profits, were within the terms of the statute relative to accumulations j and that the whole devise to the executors, in trust, was therefore void, and the estate vested in the children of the testator, in fee.</p>

DEMURRER to complaint, The complaint alleged that the plaintiffs were copartners under the firm name of Dennis Perkins & Co. at the city of New York, in the business of commission merchants and factors. That the Merchants’ Bank was a banking corporation located at Madison in the state of Wisconsin, and incorporated under the laws of that state, pursuant to the provisions of “ An act to authorize the business of banking in the state of Wisconsin,” approved April 19, 1852.

Adjustment of sheriff’s fees on attachment issued as a provisional remedy under the Code of Procedure. The facts are stated in the opinion.^

<p>In case of a guaranty, the obligation to prosecute the principal debtor within a reasonable timé, and with dtie diligence, is a condition precedent to the liability of the guarantor.</p> <p>There is a material distinction between ah omission to prosectitd the principal debtor, altogether, and an omission to prosecute within a reasonable time, and with due diligence.</p> <p>A reasonable time is not a definite timé, and miist always depend Upon the particular circumstances of the case presented.</p> <p>If a guarantor intends to rely upon a want of diligence in collecting, or in efforts to collect, the money due frtim the principal debtor, as a real and substantial defense, he should raise and present the question distinctly, for the judgment of the court, by asking for specific instructions to be given to the jury.</p> <p>Where a subsequent holder of a promissory note stiés upon a guaranty indorsed thereon, claiming that the guaranty passed to him on the transfer of the note, it is competent for the guarantor to show that it was not the intention of the parties that the guaranty should accompany the note, on the transfer pf the latter to the plaintiff, hut that on the contrary, it was expressly agreed that he should take the note at his own risk.</p> <p>8. made a note, payable to W. or bearer. W. transferred the note to B,, in part payment for a piano, at the same time guarantying its collection, by an indorsement upon the back thereof. 8. failing to pay the note, at maturity, W. took it up from B. He subsequently transferred the note to the plaintiff, who expressly agreed to take the same at his own risk. Through inadvertence, however, the guaranty was not erased, at the time of the transfer. Held that the guaranty being a contract between W. and B. when W, paid B. the amount of the note and took it up, the guaranty was funetus officio ; and having performed its office, its force and vitality was gone; and that consequently the plaintiff could not maintain an action thereon.</p>

<p>Where the defense of usury is set up. the defendant is required to show a cqr= rupt and illegal contract by which more than seven per cent was taken, for the pse or loan of the money advanced.</p> <p>He is bound to set up the contract in his answer, giving its terms, and the amount of the usurious premium or interest taken by the lender. And the usury must be proved as set up in the pleading.</p> <p>Where an answer set up one entire contract for the discounting of two drafts for $1260 each, and the taking of the siim of $126 as premium or interest, and the proof made opt two contracts, each at a discount of one-eighth of one per cent, for the time which would elapse before maturity, but the time for which the discount was taken, or the sum taken was not shown; ii was held that the variance was fatal to the defense.</p> <p>A decision of the court, at the trial, imposing terms as a condition of granting leave to amend an answer, will be deemed to be acquiesced in, unless an exception is taken, at the time,</p> <p>Where two drafts were drawn in blank as to the amount, upon the defendants, and accepted by them, payable to the order of W., the maker, with the express understanding that the sums to be inserted should not in the aggregate exceed $1000, and W. exceeded and disregarded this limitation of his authority, and filled in the blanks in the drafts with the sum of $1250 each, and negotiated the drafts to the plaintiffs, before maturity, who paid him the money upon them without notice that W. had exceeded his authority; Sold that under the circumstances, the plaintiffs were to be deemed bona fide holders for value, and that the commercial character of the paper would protect it, in their hands, from the defense that W. exceeded his authority.</p> <p>Held also, that the acceptors having, themselves, put it into W.’s power to do the wrong, they could not be allowed to shift the loss from themselves, and cast it upon a bona fide holder for value. That of the two they were the least innocent.</p>

<p>In an action for slander, where the words spoken are not actionable in themselves, but they may become so by reference to the extrinsic circumstances in relation to which they weré spoken, as that they were uttéred of and concerning the plaintiff’s testimony as it Witness on the trial of a cause, the plaintiff must show that they were spoken in réferéncb to a judicial proceeding, before a court or. officer of competent jurisdiction.</p> <p>It must be proved that the court or officer before whom the action was pending had jurisdiction of the subject matter of it, with power to administer an oath and to examine and take the testimony of the witness.</p> <p>No referee should proceed a step in the exercise of his duties without a certiBed copy of the rule or order appointing him, in his hands. This is his commission, and without it he should not proceed to act. Per Bbown, J.</p> <p>íhe power of a referee to administer a judicial oath can only he derived from an order of the court appointing such referee. A memorandum “ referred to 1. K. M.” made by the judge on his calendar, at the circuit, is not sufficient to constitute an order. An entry at least in the minutes of the court is required for that purpose.</p> <p>Some action of the court, shown by its records, is necessary.</p> <p>An order of reference, made after the report of the referee is filed, with the consent of both parties that it he entered nmc pro tunc, will not relate back, so as to give to an extra-judicial oath the effect of an oath legally administered, on which a charge of perjury can be sustained,</p> <p>the city court Of Brooklyn, béing a court of spécial and limited jurisdiction, a referee appointed by it has no power to try a tiailse in the city of New York.</p>

THIS was an action of ejectment, to recover possession of certain premises in Rockland county, demised by the plaintiff to the defendant, by lease dated February I9th, 1852. The complaint alleged non-payment of thirteen months' rent of premises demised by said lease, which was due to the plaintiff from the defendant at the time of the commencement of this action ; also an underletting of said premises by the defendant, in violation of a covenant contained in said lease.

<p>In an action to recover damages for fraud and deceit on a sale of stock to the plaintiff, by the defendant through one H. as his agent, and to enforce the plaintiff’s lien as vendor upon the land conveyed by her in payment for such stock, it appeared that H. acted only as the agent of the defendant; that the stock purchased by the plaintiff was in fact purchased of the defendant, and that the land conveyed by the plaintiff was received by H. for the defendant, and subsequently, and before suit brought, conveyed to the latter. Eeld that H. was not a necessary party.</p> <p>An action brought by a married woman, for fraudulent representations, whereby the plaintiff was induced to sell, and part with, certain lands of which she was seised to her separate use, and in which she had a separate estate, and with this separate property to purchase certain worthless stock, relates to her separate estate, and is properly brought by her alone, without joining her husband.</p> <p>Where a party, through the fraúd and deceit of another, has sold and conveyed land to the latter, in'exchange for worthless stock, he may maintain an action to recover damages for the fraudulent representations whereby he was induced to epter into the contract, without rescinding the contract or restoring the property which he has received under it.</p> <p>Where the complaint, in such an action, stated a number of representations made by the defendant, as to the property and condition of the company with which he was connected, and as to the value of its stock, and charged that these representations were false, to the knowledge of the defendant, and that they were made with intent to defraud the plaintiff, to induce her to believe that the stock was of great value, and to part with her real estate in exchange for certain shares held by the defendant; and that stich representations were uttered in published reports and statements of the condition and property of the company, made and signed by him as one of its officers, and generally and publicly circulated and advertised; Held that the action would lie, although the false representations were published to the world, and not made in the course of the déalingb with the plaintiff; the defendant being privy to the contract made by the plaintiff, and interested in the sale which was induced by his false representations.</p> <p>Although it is not alleged in the complaint, in terms, that the defendant’s representations were read by, or came to the knowledge of, the plaintiff, yet if it is alleged that she was induced by these representations to purchase a certain number of shares of the stock, and to give in exchange for them a conveyance of her lands, this is sufficient; inasmuch as it involves the knowledge of the defendant’s statements by the plaintiff, and connects her contract, and subsequent loss, with those statements, as effect and cause.</p>

<p>APPEAL from a judgment entered upon the. report of a referee. The action was upon a .promissory note.</p>

<p>Where the act of an attorney, in appearing in an action without authority and suffering or confessing a judgment against a person who has not employed him, results in charging an innocent party with a débt which he does not owe, and in creating a lien which ihay deprive him of his property against his will, and without his fault, if is a wrongfúl act, and one which the courts are bound to redress.</p> <p>In such a case the party will not he compelled to seek his remedy against the attorney.</p> <p>The court will stay all proceedings upoh the judgment, hut it will preserve the lien which the plaintiff has acquired by his judgment, and give the defendant an opportunity to plead, if he has any plea to make, to the merits.</p>

CERTIORARI to remove the proceedings of the defendants, as commissioners of highways of the town of Cortlandt, Westchester county, in assessing the Hudson River Rail Road Company, for highway labor, and the subsequent proceedings of the overseer of the district,

The action was brought to recover a balance claimed to be due to the plaintiff, as assignee of James Collins, on a contract made by said Collins with the defendants, for graduating, regulating and forming an arch in Clinton avenue, from Wallabout road to the bulkhead.

<p>APPEAL from a judgment of the city court of Brooklyn. The opinion of the court contains the material facts.</p>

THIS was an action brought to recover the possession of a house and lot, situate in Springfield, Otsego county. The plaintiff claimed and proved title by virtue of a sheriff’s deed, conveying to him all the right and title of Benjamin Barrett to the premises, dated January 6,1854. The defendant claimed the right to the possession of the premises, under and by virtue of a quitclaim deed from Barrett to one Calvin P. Smith, dated June 14, 1848.

THIS was an appeal, by the defendant, from a judgment entered in favor of the plaintiffs, upon the report of a referee. The action was brought in March, 1845, upon a bond executed by the defendant and one George Smead, to the plaintiffs, upon an application being made by Smead to a justice of the peace of St. Lawrence county, for an attachment against the property of the present plaintiffs, under the “ act to abolish imprisonment for debt and to punish fraudulent debtors.

Spencer, referee. The action was upon a promissory note. Defense, usury. Defendants called, the lender of the money, and he refused to testify, on the ground that it might criminate himself. Other exceptions were also taken, The referee reported in favor of the plaintiff, for the amount of the note, and interest,

The plaintiffs ■ sued to recover the value of a horse, which one Michael B. Hutchins had mortgaged to them, to secure them as his indorsers on a bank note for $150, dated November 9, 1855, which horse the defendant had caused to be taken and sold on an execution in favor of himself and partner, against said Hutchins and partner, and which was bid in by him and converted to his own use.

The action was brought to recover the value of certain household furniture and other articles, of the value of $100. The property in question consisted of articles exempt by statute from execution; the plaintiff, at the time the property was taken, being a householder, having a family for which he provided.

<p>MOTION to set aside a nonsuit, upon a case. The action was upon Contract. The case does Hot state whether the action was tried before the court or a jury. There were several objections taken to the admission of testimony, during the trial, but no exceptions were taken until the trial closed and the court nonsuited the plaintiff. The case then states, “ to all which decisions áUd rulings of the court the plaintiff’s counsel excepted.” The court then ordered the case to be heard at the general term.</p>

THE plaintiff sued as receiver of the Globe Insurance Company, a mutual company incorporated under the act of 1849, upon a premium note given by the defendant on effecting an insurance with the company. The complaint contained two counts; the first count was to recover the amount of two assessments made by the directors, before a receiver of the property and effects of the company was appointed. The second was for the amount of an assessment made by the receiver.

ACTION of ejectment for about 60 acres of land in Herkimer county, part of lots 9 and 11 in Susannah Johnson’s 3000 acre tract in the 4th allotment of the royal grant, in the town of Salisbury, Herkimer county. The tract known as the “royal grant” embraces a portion of the town of Herkimer, and the principal portion of Fairfield and Newport, parts of Eussia and Manheim, and all the settled part of Salisbury.

THE plaintiff brought this action to restrain the defendants from transferring or enforcing the collection, as against the plaintiff, of two bills of exchange, one for $2000, and the other for $2500, dated January 17,1856 ; the former payable c sixty, the latter seventy-five days after date, drawn by S. Osborn, jun.; Herkimer, oh Osborn, Trumbull & McDonald of Hew York, payable to the order of, and indorsed by, the ' plaintiff; and to compel the defendants to cancel the…

<p>Forwarders and warehousemen are, like other agents, bound by the directions of their principals. The directions constitute a part of their authority, and operate as a limit upon it,</p> <p>Any unnecessary deviation or departure from the instructions is at the peril of the agent, and renders him liable for any loss, resulting from it.</p> <p>But a deviation from the course marked on* by the principal, which is render-, ed necessary by the circumstances of the case, which were not foreseen by the principal, is justifiable, jf tb agent exercises the care and skill which the character of his agency calls for; unless the instructions amount, in substance, to a prohibition of the act in any other than the prescribed method.</p> <p>The plaintiffs shipped, at Little Falls, on the defendants’ pars, certain goods consigned to a person in New York, with directions to the defendants to forward from Albany by the People’s Line” of steamboats. On the arrival of the cars at Albany the People’s Line refused to tnk the freight. The navigation of the Hudson river being about closing, tho defendants shipped the goods by fhe Rckford line of tow boats, a responsible line and in good reputation, which was the usual mode of conveying freight, of that kind. The property being lost op its passage from Albany to Eew York, by the perils of navigation; it was held that the defendants, in consequence of the refusal of the People’s Line-to carry the freight, were in possession' * of it as fqr-warders -without any directions as to the route or pieans of conveyance, and were therefore bound to exorcise their discretion, and select the best that presented; that the established usage and course of business became the rule of duty governing them ; and that having forwarded the goods by the custopiary method, they were not liable for the loss.</p>

Wheaton and wife to Horace Wheaton, to secure the payment to him of the sum of $10,000 in two years, with interest annually. The bond and mortgage were assigned by Horace Wheaton to the plaintiff on the same day, to secure the payment of his three promissory notes of $5000 each, held by the plaintiff. The mortgage and assignment were properly recorded April 24, 1854.

<p>APPEAL from a judgment entered at a special term, upon the report of a referee. The action was brought to foreclose a mortgage executed by the defendant, Bodney 0. Paine, on the 27th day of July, 1841, to the Farmers and Mechanics’ Bank of Michigan, to secure the payment of the sum of $2500. The mortgage was recorded in August, 1841, and was assigned to the plaintiff on thé 20th of November, 1851. The condition of the mortgage was as follows: That in case the mortgagor should pay “the just and full sum of all moneys which he may owe to the said parties of the second part, either as maker or indorser of any note or notes, or any bills of exchange, bonds, checks, overdrafts or securities of any kind, given or indorsed by the party of the first part, [the defendant,] together with the interest on the same, according to the conditions of any such writings obligatory, executed by the said party of the first part, to the said parties of the second part, as a collateral security, then these presents, and the said writings obligatory, shall cease and be null and void. But in case of the non-payment of the said writings obligatory, of whatever nature, or of any part thereof, according to their respective conditions, or of the interest thereon, or any part thereof, at the times limited for the payment thereof, then and in such case ” the premises may he sold, &c. The complaint alleged, on information and belief, there was due on the mortgage on the 30th day of July, 1842, $2500 and interest, “for and by reason of the failure of the defendant to comply with the conditions of the mortgage* and that said indebtedness accrued to the Farmers and Mechanics’ Bank against the defendant as maker or indorser of notes or bills, or by reason of bonds, checks, overdrafts or securities given by or indorsed by said defendant, on or before July 27, 1841, the day the mortgage hears date.” That the defendant failed to Comply with the conditions of the mortgage, by omission to pay the said $2500 due thereon July 30, 1842. There was no allegation in the complaint that any written evidence of the debt, or any debt save what was evidenced by the mortgage itself, was transferred to the plaintiff, or that the plaintiff owns any other. The answer alleged that no consideration was in fact paid by the bank for said mortgage, at any time. It denies that the defendant is, or was at any time* indebted to the hank in any sum, either as maker or indorser of any note or notes, or of any bills of exchange, bonds, checks, overdrafts or securities of any kind, given by or indorsed by the defendant, according to the conditions of any such writing obligatory executed by the defendant to the bank. It alleged that when the mortgage was executed, the defendant did not owe the bank any sum on any such securities, nor any sum according to the condition of any such securities, and that there is nothing due to the mortgagee or plaintiff on the mortgage. That the Bank of Michigan never assigned or transferred to the plaintiff any securities named in the condition of said mortgage, or any debt or demand the mortgage was security for; and that the defendant had not failed to comply with the conditions of the mortgage.</p> <p>The action was brought against Paine and wife, and the Farmers’ and Mechanics’ Bank of Michigan. It was subsequently discontinued, as to all the defendants except Paine. The cause was referred to Timothy Jenkins, as referee, who by his report found the following facts, among others: That the defendant, Paine, executed to the said Farmers and Mechanics’ Bank of Michigdh the mortgage .referred to in the pleadings, of the date of July 27, 1841, and for the purposes set forth in the condition of the said mortgage, which mortgage was duly acknowledged and recorded at the times indicated by indorsements thereon. That in 1834 the Farmers and Mechanics Bank, being authorized so to do by the legislature of the state of Michigan, established an agency at St. J oseph in said state, and continued to transact business at its said agency to 1844, when said bank, under like authority, established an agency at Niles in said state. That the defendant, Paine, was cashier of said agency at St. Joseph, from 1836 to 1844, and afterwards of the said agency at Niles, from 1844 to some time during the year 1851. He was in the employ of said Farmers and Mechanic's' Bank, as such cashier, upon a salary; and during several of these years, in addition to Ms business as cashier, he laid out large sums of money belonging to the bank, in produce business and otherwise, for the benefit of the Farmers and Mechanics’ Bank, and under its authority. That in 1851 the said bank agencies were brought to a close, and Paine surrendered, in the spring of that year, and delivered over to the parent bank at Detroit, the books, evidences of debt and the effects belonging to the bank. Among other things so surrendered he delivered over mortgages to the amount of $10,214.14, and included among these mortgages was the mortgage of the date of 27th July, 1841, above mentioned ; and also the mortgage bearing date February 15,1842, referred to in the pleadings, was also delivered over at the same time by Paine to the parent, bank. That on the 30th day of July, 1842, Paine was indebted to the Farmers and Mechanics’ Bank in the sum of $2500, which was proved by Ms entries in the books of the Farmers and Mechanics’ Bank, kept at the establishment at St. J oseph, which sum, leaving out of consideration his claim for extra services, has never been paid by him. That this sum of $2500 was indorsed upon the wrapper by Paine, covering the two mortgages, and the same indorsement was on the wrapper covering the mortgages, when Paine delivered them- to the parent bank, and was embraced in the'account of the sum of $10,214.14 above mentioned. That the said two mortgages were- transferred to the -plaintiff on the 20th day of -November, 1851> and the plaintiff is now the -lawful ownér of them and each of them. The referee found, as conclusions of law, 1. That the evidence of the indebtedness of. Paine - to the ' Farmers and Mechanics’ Bank, was equivalent only-'to a parol admission by him that he owed the said bank the $2500. 2; That the condition of the mortgage bearing date July 27th; 1841, contemplated and- covered no other indebtedness than such as might be evidenced by some "written instrument, signed or indorsed by said Paine, and did not contemplate 'and does not cover, "in terms or effect, the said- $2500, or any part thereof; 3. That- the defendants'Rodney C."Paine and.Abigail W. his wife were entitled to judgment in their favor against the plaintiff, and for their costs of this action. ■ . - - • ' •</p> <p>The plaintiff appealed from the judgment.</p> <p>Upon the facts clearly proved before the referee, and concerning which there was no conflict of evidence, the plaintiff was entitled to recover, and the report in favor of the defendant was erroneous. I. The proof made out a prima facie case for the plaintiff, and the report for the defendant was therefore erroneous as matter of law. The evidence raised three legal presumptions : Paine’s acts and admissions ; the indorsement, “bonds and mortgages,” upon the wrapperthe judicial notice which courts take of ordinary commercial usages, (10 Barb. 406;) raised the presumption that the instruments called for by the mortgage had at one time been executed by Paine. The affirmative proof that all the securities remained in his hands for nine years, and that in 1851 he surrendered nothing except these mortgages, coupled with the same acts and admissions, raised the presumption that he still retained the other instruments, or had destroyed them; or, to say the least, the affirmative proof that he did not surrender them to us, cast upon him the onus of accounting for them. And the presumption arising from their suppression, or the failure to produce or account for them, would be that, if produced, they would satisfy the condition of the mortgage. The report was a finding in opposition to these legal presumptions, and was therefore erroneous as matter of law. (1 Greenl. Ev. § 33. 1 Cowen & Hill’s Notes, 308, 309. 6 Peters, 622, 632, 633. 14 Barb. 284, 303, and cases cited.)</p> <p>II. The defendant was estopped as against the Farmers and Mechanics’ Bank, our assignor, from interposing the defense that no such securities existed. The correct definition of an estoppel is contained in 3 Hill, 215, 222, and 12 Barb. 128. This case contains all the requisites of an estoppel. The admissions made by him are inconsistent with the claim he now sets up. The other party acted upon these admissions; and the other party will be injured by allowing the truth of the admission to be disproved. These two propositions belong together. Belying upon these admissions, the Farmers and Mechanics’ Bank settled Paine’s account, both expressly and by acquiescence. (1 Kern. 170.) This settlement is conclusive, and can only be opened by the bank on an allegation of fraud or mispresentation by Paine, which certainly he cannot call upon the bank to make. The bank therefore lost its action against Paine, and confined its remedy to these mortgages as representing the debt. Can he be heard now to say that they represent nothing ? Belying on the admissions made to John A. Welles, the cashier before 1845, the bank suffered the statute of limitations to run against the debt. This appears by an irresistible implication. On the faith of the same representations, they transferred the mortgages and guarantied their collection. They will thus be compelled to pay a heavy bill of costs, if the plaintiff fails. And the mere bringing a suit on the faith of the representations, satisfies the rule. (Presbyterian Church v. Williams, 9 Wend. 147.)</p> <p>III. If the question is still opeti, we contend that the indebtedness which we proved satisfied the condition of the mortgage. The referee erred in his conclusion that the mortgage (schedule A) called for a written security. The provisions of its condition are so repugnant to each other, that it can hardly be said to have any legal construction; but a careful analysis of the language used, results in establishing the following propositions: The debts -which it is conditioned to pay are such as accrue against Paine as “maker or indorser” of the articles enumerated. He could not be a maker (in a technical sense) of a “bill of exchange,” “bond,” “ check,” “overdraft,” or “security,” (other than a note,) nor could he be the indorser in any sense of a “ bond,” “ overdraft ” or “ security.” Therefore the word “maker” must be used in its popular and not its technical sense. They are to be “ given or indorsed by” Paine. It is manifest that “ given ” is the verb applicable to “maker,” as “indorsed” is to “indorser.” “ According to the condition of any such Writings obligatory.” A “writing obligatory” is a bond or other sealed instrument, (1 Parsons on Cont. 6; Chitty, 1;) so that this phrase makes nonsense of what precedes it, unless the words “ when they are writings obligatory” are added. The mortgage then clearly includes in its condition the case where Paine is the '“maker of an overdraft.” The mortgages were given July 27,1841, and February 15, 1842. They manifestly embrace past debts and future debts. On or before the 30th July, 1842, Paine had taken out of the bank $2500, which he had not accounted for, as a careful examination of the extracts from the books will show. Was not this an “ overdraft P" An “ overdraft,” in the banking business, is an excess of debtor over creditor in a customer’s or officer’s account. Usually it is caused by too many checks being drawn; but even then the checks are not the “ overdraft,” but only evidence of it. Sometimes it is caused by charging a note, &c.; sometimes by oral directions to charge expenses in matters in which a depositor is interested. In each case the account is overdravra. Has not a bank officer overdrawn his account when he takes money from the till, beyond his salary, and charges it to himself ? The mortgage (schedule C) stands admitted of record, and proved in fact, to have been given as collateral security for the same debt as schedule A. Limiting as before the provision as to “writings obligatory,” and there remains a condition to pay “ debts of any and every nature.” These two mortgages being a part of the same transaction are to be read together though they bear different dates, and schedule C qualifies and enlarges schedule A as between the parties, the rights of no third person having intervened. (Coddington v. Davis, 3 Denio, 16. 1 Comst. 186. 18 John. 420. 1 John. Cases, 91. 5 Cowen, 468. 21 Wend. 202. 1 Paige, 455, 3 id. 254.) Schedule A, therefore, included the debt in question: Because schedule 0 is to be read as if its condition was incorporated in schedule A. Because it was admitted of record, and proved that such was the intent of the parties. And upon the following general principles: The "construction of the instrument is doubtful; and the court will resort to the extrinsic circumstances disclosed by the proofs-, and construe the mortgage according to the intent of the parties apparent upon the proofs. (1 Barb. 635. 22 Barb. 326. 1 Greenl. Ev. §§ 277, 282, 286-288, 297. 2 Cowen & Hill’s Notes, 1361, 1370, 71, 1404-1406.) In aid of the extrinsic facts the whole instrument is to be considered together, (in this case the two instruments,) and, in doubtful cases, the construction most favorable to the covenantee is to be adopted. (3 John. 375. 2 Cowen, 781. 6 Barb. 258. 16 John. 172. 8 id. 394.) Especially will such a construction prevail where the covenantor was the draughtsman, and at the same time the agent of the covenantee in the transaction. Finally, that construction is to be adopted which, upon the whole case, will enable the instrument to stand, rather than to fall. (3 Cowen, 384.) The entries in the books, and the indorsement on the wrapper, satisfied the terms of the mortgage. The referee does not disclose upon what clause of the instrument he bases his conclusion that a written instrument must be produced,' nor what must be the character of that instrument; but if a mere writing, creating or evidencing a liability to pay, is - necessary, we contend that we "-showed such a writing. The entries were in Paine’s handwriting, and the wrapper was adopted by him. The transaction amounted to this: In 1841 Paine gives a mortgage'conditioned to pay any debt thereafter to arise upon a written instrument: "In 1842 he acknowledges in writing that he has borrowed, on the security of the mortgage, $2500. In 1851 he repeats that acknowledgment. Has he not satisfied the condition of the mortgage? The entry was, at least, - equivalent to-an I. O. U., which contains no promise to pay. -But an I. O. U. is evidence of money lent. (Douglas v. Holme, 12 Ad. & El. 641. 20 E. C. L. 320.)</p> <p>I. The condition of the mortgage which this action was brought to foreclose, covers no other indebtedness than such as might be evidenced by some written instrument, signed by or indorsed'by the defendant, Paine. This condition is written in a printed blank mortgage; its terms, therefore, are not accidental, but- designed and considered. It was competent" for Paine, and it is not unusual, to secure a certain kind of indebtedness, and in clear and express term's this condition limits the security to particular kinds of debts. ' If designed to • secure all debts he might Owe the bank, why add the qualifying lines ? The first two lines of the condition, “ all moneys which he may owe to the said parties of the second part,” would cover, without addition, all debts, but they are followed by express words of limitation. There was no use of the subsequent part of the condition, except to qualify and limit the first two lines above quoted, and they have no other effect. The words “ made or indorsed” are used in their ordinary acceptation, when speaking of a note or bill. They do not refer to the person who filled out the instrument, but in some sense he is the maker. The terms refer to persons who in a particular manner and way put their names to an instrument. The maker of any note, security or demand, is the person who signs, in contradistinction to a man who puts his name on the ¡back, and indicates the man on the paper primarily liable. It is a common term, used in the manner and way it is in the condition, with a well defined signification. The words “given by, or indorsed by,” are equally common, and have a well understood signification when used with reference to money demands. No matter how many hands a note has passed through, or how many may have indorsed or guaranteed it, or who held it; when the terms, “ the person who gave the note,” “ the person by whom the note was given,” are used, the person who signed it is intended. All demands by the terms of the condition which the mortgage was given to secure, are such as are,signed or indorsed by the mortgagor. The words are, which he may owe, “ as maker or indorser of any note,” &c. or securities of any kind, “ given by or indorsed by said party of the first part.” The terms apply to each and every class or kind of indebtedness mentioned in the condition, and qualify and characterize them. Those terms properly apply to written instruments only. They apply in the condition only to written instruments which contain an agreement to pay money—instruments on which the defendant, as maker, or indorser, may owe money. The complaint does not claim or allege that the mortgage secures any debt, except such as is evidenced by some written instrument made or indorsed by Paine. The plaintiff and his counsel so understood and construed the mortgage at the time when the pomplaint was drawn.</p> <p>II. When the terms of an instrument are plain and unambiguous, as the terms of this mortgage are, it must be construed by itself, and the rights of the parties determined by its language. In such case, neither the acts nor the declarations of the parties, not contained in the instrument, can effect its construction. (Norton v. Woodruff, 2 Comst. 155. Jackson v. Sill, 11 John. 212. Meads v. Lansing, 1 Hop. Ch. 124, 134. Lowber v. Le Roy, 2 Sand. 202, 215.) The condition of this mortgage being plain and unambiguous, it is to be construed by its own language, and not by extrinsic evidence. It is the settled rule in England and in this country, that a regularly executed mortgage cannot be enlarged by tacking subsequent advances to it in consequence of any agreement by parol. (4 Kent’s Com. 185, 8th ed. 19 Ves. 477. Walker v. Snediker, 1 Hoff. Ch. R. 146. 1 Merivale’s R. 7. 2 Kent’s Com. 731, 732.)</p> <p>III. The extrinsic evidence, then, insisted on in this case to qualify or vary the terms of the mortgage so as to make it security for demands not included in or covered by its terms, effects nothing, and leaves the case as it stood without it, to be determined by the language of the mortgage itself.</p> <p>IY. The mortgage in suit was not given or received by the Farmers and Mechanics’ Bank in fact to secure any demands, except such as are named and stated in its condition. (1.) It»is so alleged in the complaint. (2.) It is so found as a fact by the referee on the evidence, and that finding is not excepted to. (3.) If any debt has then been found owing by Paine to the bank, not evidenced by a writing, signed or indorsed by Paine, it is not to be considered in this action.</p> <p>Y. If the plaintiff recover in this case, he must recover on the cáse made by his complaint. If he alleges a certain breach of the condition of the mortgage by which he claimed a right of action, and claims to foreclose for that reason, he must prove it, or fail in his action. (Brazill v. Isham, 2 Kern. 9, 17. Oakley v. Morton, 1 id. 25, 33. 2 Seld. 179. Bristol v. Rensselaer R. R. Co., 9 Barb. 158. Parker v. Rensselaer and Saratoga R. R. Co., 16 id. 316. Coan v. Osgood, 15 id. 583.)</p> <p>YÍ. The cause of action stated in the complaint was not proved, and it cannot fairly be pretended the plaintiff was entitled to any judgment on the case made by his complaint. (1.) This action was brought to foreclose the mortgage dated July 27, 1841, on the ground there had been a certain alleged breach of its condition—not of any contract outside of the terms of the mortgage, but of its condition. The breach of the condition of the mortgage alleged in the complaint, by reason of which alone it is therein claimed the plaintiff has a right to foreclose, is stated in the complaint as follows, to wit: “ On the 30th day of July, A. D. 1842, there was due to the said corporation on said two mortgages, and by reason of the failure of the defendant, E. C. Paine, to comply with the conditions thereof, the sum of $2500, and that the said Paine was personally liable therefor; the same having accrued to the said corporation against the said Paine as maker or indorser of notes or bills, or by reason of bonds, checks, overdrafts or securities given by or indorsed by the said E. 0. Paine, on or before the 27th day of July, A. D. 1841. The defendant, E. 0. Paine, has failed to comply with the conditions of the said mortgage by omitting to pay the sum of $2500 due thereon on the 30th day of July, 1842.” It will be observed no omission to pay any debt not mentioned in the condition of the mortgage is alleged, and that the allegation is an omission to pay $2500 which accrued or became due to the bank on certain instruments signed or indorsed by the defendant, and held by the bank J uly 27, 1841. bio such breaches are proved or found by the referee, and there is no exception to the referee’s finding or omission to find on that point. There is no evidence any where that the bank had any such securities of the defendants, J uly 27, 1841. There is no evidence that Paine owed the bank any sum July 27, 1841, or before that time. There is no evidence that the Farmers and Mechanics’ Bank held or owned any such securities signed or indorsed by Paine when it assigned the mortgage; or that either bank has held any since; or that any sum is due by the terms of any such instrument. In fact it is nowhere proved that there is any debt owing to either bank by Paine, on which there is any thing due, or for which there is a present right of action. The referee finds that Paine owed the Farmers and Mechancis’ Bank $2500, J uly 30, 1842, which he finds is proved by the entries in bank books copied into the case, not covered by the mortgage. But on what terms was that debt contracted ? When was it due ? The evidence of that debt was, and the referee so reports, the entry in the books of the bank, signifying that the bank, July 27, 1842, loaned on a bond and mortgage of Paine, to some person, $2500. When and on what terms that $2500 was payable, will depend on the terms of that bond and mortgage. The Farmers and Mechanics’ Bank assigned to the plaintiff a bond of Paine’s. Perhaps that would show, when given in evidence.. But the fact that the bank made a loan on a bond and mortgage made by Paine, by no means shows a present right of action, hi or can the debt created by the loan be proved otherwise than by the bond and mortgage. The debt is all merged in them.</p> <p>VII. It was claimed on the trial that the entries in the books of the bank in evidence constituted a security, a written obligation within the condition of the mortgage. That claim is untenable. There is no charge in the bank books, to Paine. The bank kept what is called a bond and mortgage account; that is, an account with its bonds and mortgages, in which charges and credits were made to bonds and mortgages. When the bank purchased a bond and mortgage, that account was charged with the amount which was paid for it, signifying that the bank had invested so much in the bond and mortgage, and the cash account was credited that amount, showing that that amount had been invested out of the money on hand. The bank has a bills receivable account; when it discounts a note, it charges the amount paid to bills receivable, and credits the amount to cash out of which the discount is paid. In neither case is it a charge to or an account against any one. In the one case the note is the only debt, security or demand the bank has for its money, and in the other, the bond and mortgage. The entry in the book is the bank’s minute of its transactions for its own convenience, showing what it has paid out and what it has received. These entries, then, are not even an account against Paine; but if it was a party’s own account against another, it is not such a security or obligation as is named in the condition of the mortgage. If any such entry could be tortured into a writing obligatory, this is neither signed by or indorsed by Paine, and for that reason would not come within the condition of the mortgage; nor does it contain any terms or conditions, &c. The non-payment of it, then, is no breach of the condition of the mortgage. A security, in the sense used in the condition, is an instrument by which one party secures by his own agreement the payment of money. A writing obligatory is technically a sealed instrument; it means, in this condition, a written instrument containing a promise to pay money. The entries in the books are not in any respect evidence that Paine owes the bank any sum, but they indicate that the bank loaned some person not named #2500 on a bond and mortgage made by Paine.</p> <p>VIII. It was claimed on the trial that an overdraft was proved. That claim is untenable. When a man draws a draft on another for more money than the other owes him, it is an overdraft. Ho such thing is proved or attempted to be proved here. Certainly an overdraft is something besides getting a note or bond and mortgage discounted.</p> <p>IX. The plaintiff has not excepted to the finding of the referee on questions of fact, but to his conclusions of law. Those conclusions of law excepted to are warranted by the facts found, and are right. The evidence that Paine owed the bank #2500 is equivalent only to a parol admission by him that he owed the bank #2500. That evidence was the entries on the bank books and the indorsement on the wrapper; neither of which were signed by Paine, or expressed any promise to pay. Certainly that is no more than an admission by Paine that he owed the #2500. It is not that. The condition of the mortgage of July 27, 1841, covered no other indebtedness than such as might be evidenced by some written instrument, signed or indorsed by Paine. That conclusion was right, for the reason stated in our first point, that the condition of the mortgage did not cover the said sum of #2500. This conclusion follows of course from the first two conclusions found by the referee above stated. It was not pretended on the trial that it was due or owing upon any instrument signed or indorsed by the defendant, of which any evidence had been given. The exception that the referee did not find as a fact proved by the evidence that it was the intention of the parties the $2500 should be secured by the mortgage, is not tenable, as there was no such issue, and he was not called upon to find one way or the other on that point. The mortgage is alleged in - the complaint to have been executed and delivered to the bank, July 27, 1841. The $2500 debt, if contracted at all, was contracted July 30,1842, a year after the mortgage was executed. The entry in the bank books of that date, where he is charged with $2500, shows that there was no such debt,, existing prior to that, in such se-= curities; but the demand is on a debt then created, if any.</p> <p>X. The plaintiff was not entitled to recover on the evidence, even if securities covered by the condition of the mortgage had been given for the $2500. (1.) They were not transferred to the plaintiff. The mortgage is an incident and passes with the debt it is given to secure. (9 Wend. 80 and 84. 5 Cowen, 202 and 6.) It is nothing without the debt. It could be enforced only to pay the debt. It is alleged by the plaintiff that the Farmers and Mechanics’ Bank had no such securities when the assignment was made \ if there were any, they may be owned by persons who can collect them. (2.) They were outlawed. The mortgage contains no personal covenant to pay them, and does not take them out of the statute of limitation. (3.) They were not proved. Their loss "was not proved, nor their contents shown, &c.</p>

<p>APPEAL from a judgment entered at a special term, by which the plaintiff was nonsuited, and the complaint dismissed. The following are the allegations in the complaint: In the early part of 1852, the plaintiffs were incorporated under the general banking act, and in August of that year commenced, and thence carried on the business of banking at the village of Ilion. The articles of association provided that the bank should be managed by eleven directors, who were to be elected annually, and who should be stockholders. That Benjamin Carver was one of the directors of the institution, and B. E. Carver its cashier, whereby it became and was the duty of the one as director, and the other as cashier, faithfully to discharge the duties and obligations of their respective offices, and faithfully and for the best interest of the bank, and pursuant to the laws of the state and the by-laws of the bank, to administer and use its funds, and to obey all lawful rules, regulations and by-laws of the bank. That at a meeting of the board of directors in July, 1852, a resolution was passed in the following words: “ Resolved, that the Ilion Bank will not discount any note without two indorsers which resolution thereafter remained in force, forbidding the discount of the paper thereinafter mentioned; That the defendants had notice of this resolution. That in January, 1855, there, was dissatisfaction among the stockholders and directors of the bank, at the course theretofore pursued by the Carvers, in the discharge of their duties as director and cashier; and a party among the stockholders was forming to oust the elder Carver from his place as director, at the ensuing election in February, and elect a board of directors which should remove Benjamin F. from the office of cashier, if the new board should deem that proper; all of which was accomplished by Benjamin Carver ceasing to be a stockholder, and the resignation of Benjamin F. That Benjamin Carver held and owned 150 shares of the capital stock of the bank, until he disposed of it as thereinafter stated, of the par value of #100 per share. That on the 5th of January, 1855, the two Carvers fraudulently combined with Prescott to accomplish the wrongful and fraudulent purposes thereinafter stated; and thereupon the three defendants, contriving and intending to defraud and injure the plaintiffs, and to sell the said stock of Benjamin Carver to, and impose the same upon the plaintiff, at a great premium, and at a price above its then value, and to convert to the use of one of them the money of the bank, the said Benjamin and Benjamin F., not regarding but violating their duty as such officers, and abusing the several trusts reposed in them, conceived and carried out a fraudulent and wrongful scheme, to accomplish such end and purpose; in pursuance whereof, on the 5th of January, 1855, Prescott bought from and Carver sold to him, his stock in the bank, at a price to the plaintiffs unknown; and thereupon, as a transfer of the same, said Benjamin Carver indorsed his name on the scrip and delivered it to Prescott. That on the same day, or within a .few days thereafter, Prescott attached the scrip for the stock to an instrument executed by him, in the words and figures following, to wit:</p> <p>“ 307.65 Interest.</p> <p>$17,250.</p> <p>Mohawk, January 5th, 1855.</p> <p>Ninety days from date, I promise to pay Bliphalet Bemington, as president of the Ilion Bank, at the banking house of said bank, in the village of Ilion, for value rec’d, seventeen thousand two hundred and fifty dollars, with interest at the rate of seven per cent per annum, having deposited with find pledged to said president, as collateral security, one hundred and fifty shares of the capital stock of the said Ilion Bank, with authority to sell the same on condition this note is not paid at maturity; provided that the said one hundred and fifty shares of stock shall not be sold for less than the amount of this note and the interest which may have accrued thereon; and provided, also, that the said bank as aforesaid shall have recourse to the said stock hereby pledged only and solely for the payment of this note. (Signed) Amos H. Prescott.” That he delivered the same to B. F. Carver as cashier of the plaintiff;; “who thereupon, as such cashier, and assuming to act for the plaintiffs in said transaction, without any indorser or surety, and without any other or further instrument or security for the repayment of the funds and money so advanced or delivered to Prescott, as hereinafter mentioned, pretended to discount the said instrument, and did thereupon pay, deliver and furnish, upon such instrument, to the said Prescott, or to some other person for the use of one of the defendants, the sum of $17,250 of the moneys and funds of the bank, or did credit said Prescott upon the books of the bank with said sum of $17,250 as deposited by him on that day, without the same having been deposited by him, except as aforesaid; and the said Prescott thereupon, either personally or by or through the medium of some other person, did pay to the said Benjamin Carver, in money or otherwise, the said sum of $17,250, so received by him, the said Prescott as aforesaid.” That the market value of the plaintiffs’ stock, and the price for which it could have been fairly sold at the time of said transaction, and at the expiration of ninety days, was a much less sum than the amount at which it was so pledged to the plaintiffs. That immediately upon the transaction coming to the knowledge of the board of directors, and on the 1st of February, 1855, the said board passed resolutions, which are set out. That the transaction referred to in the resolutions is the same complained of; and that before the resolutions were passed, B. F. Carver had ceased to be cashier. That shortly after and on or about the 6t.h of April ensuing, copies of these resolutions, with a notice annexed, were delivered to the defendants respectively. That on the 14th of April, the money advanced upon the security remaining unpaid, the plaintiffs gave notice that the stock would be sold at auction on the 30th of April; at which time the plaintiffs did sell the same at auction to the highest bidder, for the sum of $15,195, which fell short of the amount payable by the terms of the instrument, $2362.65; and that this sum remains unpaid. The residue of the complaint consisted of allegations of special damages, &c. sustained by the plaintiffs; concluding with a demand for judgment for $20,000.</p> <p>The answer of the defendants B. Carver and Prescott severally denied the material allegations of the complaint. They alleged that Carver sold his stock to Prescott at its fair value, and that the latter, without the aid, privity or knowledge of the former, applied for and obtained the discount; and that B. F. Carver had authority to make it. They further alleged that the board of directors had notice and knowledge of the transaction on the 8th of January, and that they ratified and confirmed it.</p>

<p>THIS was an appeal from a judgment of the Oneida county court, reversing the judgment of a justice of the peace. Abbe, the plaintiff, and one J. E, Dunning, who were partners in, or joint owners of, a horse, exchanged horses with the defendant, in October, 1858; in which exchange it was alleged that Abbe & Dunning were defrauded by the defendant. On the 13th of February, 1855, Dunning sold and assigned his right and interest in the claim or right of action against the defendant for the fraud. The plaintiff, Abbe, thereupon brought an action before a justice of the peace, for the fraud, in his own name; setting forth the assignment from Dunning, in his complaint, and demanding judgment for $100. The defendant put in a general answer, denying the allegations of the complaint. The answer was not accompanied by any notice of special matter constituting a defense. The plaintiff recovered a judgment for $100, besides costs. This judgment was reversed by the county court; and the plaintiff appealed to this court.</p>

The complaint contained four causes of action. Held: that where the holder of a valid note sells it for less than its face, and indorses it, the transaction is not, per se, usury, proceed upon the ground that in form the transaction is the sale of a valid obligation, and there is no agreement by the party receiving the money to repay more than the sum advanced, and legal interest…

The action was brought to recover $1000 and interest, being the balance of a subscription of $2000, alleged to have been made by the defendant to the capital stock of the plaintiffs’ company. The referee reported in favor of the plaintiffs for the balance claimed to be due, and the defendant appealed.

The action was brought by the plaintiff, as administrator of his deceased wife, Eliza Green, under the act of 1847, (Laws of 1847, p. 575,) to recover damages of the defendants for causing the death… Held: that if the plaintiff’s wife had not died, the defendant would have been liable to an action for the damages occasioned by the injury.

APPEAL by the plaintiff from a judgment of the special term, on a report of a referee in favor of the defendant. The action was brought by the plaintiff, as president of the Ontario Bank, on a promissory note made b.y Henry L. Barker, dated June 1, 1857, for $427 and interest) at three months, payable at the Ontario Bank to the order of Andrew J. McIntosh, and indorsed by him. The action was against both maker and indorser. The answer of McIntosh set up several defenses: 1.

THIS was an action brought by the plaintiff, William Bracy, against the defendant, for debauching Alvira Bracy and getting her with child, she being at the time, and from hér infancy up, the plaintiff’s servant, by reason whereof he not only incurred expenses for her lying in, but lost her services.

<p>APPEAL by the plaintiffs frdm a judgment entered upon the report of a referee, dismissing the complaint.</p>

THIS was an action of trespass on the case, for debauching and getting with child, Jane, the minor daughter of the plaintiff, and for imparting to her a venereal disease, by means of which the plaintiff lost her services, and was obliged to expend a large sum of money for the expenses of her lying in, &c. and for procuring her cure of said disease. The defendant, by bis answer, denied the allegations of the complaint.

The action was brought for the violation of an ordinance of the city of Brooklyn. The complaint contained 104 counts, and sought to recover 104 penalties of $50 each, amounting in the aggregate to $5200, for exposing for sale, and selling, liquor on the sabbath, in violation of the ordinance. The verdict was for $800, the aggregate of sixteen penalties; one moiety thereof being for the salé of the liquor, and the other moiety for •exposing it in the act of sale.

The plaintiffs are infant children of J ohn A. Sylvester, late of Denmark, Lewis county, deceased, who died in September, 1850. This suit was commenced about January 23d, 1854, to recover for use and occupation of certain lands, inherited hy the plaintiffs from their father. Lucy Ann Sylvester, the mother of the plaintiffs, was living when the suit was commenced, having intermarried with Alvin H. Hall on the 30th day of March, 1853.

THE question presented in this case was, who was entitled to the surplus moneys arising upon a mortgage sale of real estate owned jointly hy Daniel Mason, Henry C. Johnson and Peter J. Hotaling, which they purchased April 24, 1856, of John Stillwell, and for which they gave the mortgage by virtue of which the sale was made. The surplus moneys amounted to $985.07.

<p>APPEAL by the defendants from a judgment entered upon the report of a referee. The plaintiffs, in 1857, consigned to the defendants salt for ■ sale, upon commission, on account of and as agents for the plaintiffs. The recovery was for moneys received by the defendants upon the sale of salt, under this arrangement, and not accounted for. The referee found that the Onondaga Fine Salt Company sold and delivered the salt to the plaintiffs, in pursuance of a written contract, and that,the said company was an illegal organization, and that the contract was void on the ground that it was made for the purpose of increasing, regulating and fixing the price of salt, contrary to the statute. He further found that the defendants" were not connected with the Fine Salt Company; and that in selling salt, they acted solely under then: contract with the plaintiffs, as commission merchants. He reported in favor of the plaintiffs for the amount claimed.</p>

The plaintiffs (successors of Henderson, Kennedy & Kneeland, iron merchants, &c., Albany) instituted this action to recover of defendant, as surety (on contract made November 22, 1855), to pay not exceeding $500, which should be unpaid on January 1, 1857, of goods sold his principals on a credit of six. months; but which credit was, by consent of one of the principals, after the sale, extended beyond the six months, on part of the goods, by accepting two notes, one of which…

<p>MOTION" to dismiss the complaint. The facts, appear in the opinion of the court.</p>

Petition to be discharged from a purchase of lands at a sale under a judgment in a partition action. This action was for a partition of lands.

75 damages, and $4.59 costs; which judgment the defendants paid. The action was for trespass in taking the plaintiff’s cow. The defendants justified the taking, under and by virtue of a warrant for the collection of a school tax, signed by two of the trustees of a school district. The warrant was issued in pursuance of an order, made by the board of supervisors of Broome county, under the act of May 1, 1847, in relation to suits against district school officers.

<p>DEMURRERS to complaints. The complaint in the first action alleged that on the 16th of April, 1858, by indenture of lease, of that date, between the plaintiffs of the first part, and the defendants of the second part, under seal, the plaintiffs did grant, demise and to farm let to the defendants, and the defendants did take and lease of and from the plaintiffs certain premises therein described, situate in the 18th ward of the city of Hew York, from the first day of May, 1858, for the term of five years, at the yearly rent of $3500 and the'taxes. The said sum of $3500 payable in equal quarter yearly payments on the first day of each of the months of August, Hovember, February and May¡ Which rent and taxes the defendants jointly and severally covenanted and agreed to pay, to wit, the said sum of $3500 at the times and in the manner above specified, and the said taxes as they should become due and .payable. The complaint further alleged that the said Catharine Gori, at the making and execution of' the said indenture of lease, was, and still is, the wife of the said Ottaviano Gori; that at the time of executing the lease she had, and still has, separate property and estate in her own sole right, viz. certain lots situate in the city of Hew York, particularly described. That on the said first day of May, 1858, the plaintiffs suffered and permitted the defendants to enter upon the said demised premises; who thereupon did, as well the said Catharine to her several use and benefit, as the said Ottaviano to his several use and benefit, under and in virtue of said lease, enter into and have ever since remained in the peaceable possession, occupation and enjoyment thereof. That as well the sum of $513.90, being part and portion of the quarter’s rent for the demised premises which became due and payable on the first day of May, 1859, as the further sum of $875, being the entire quarter’s rent of the premises which became due and payable on the 1st of August, 1859, have, not been paid to the plaintiffs by the defendants, or either of them, and that the said several sums of money, together amounting to ,$1388.90, with interest from the 8th day of August, 1859, still remain due and owing from the defendants to the plaintiffs, in virtue of the lease and the common occupation of the demised premises thereunder by the defendants, each to his or her several use, benefit- and behoof as aforesaid. Wherefore" the plaintiffs demanded judgment against the defendant Gitaviano Gori for the said sum of $1388.90, with interest from the 8th day of August, 1859, and the costs. And for a further judgment that the said sum of $1388.90, and interest and costs, he made and satisfied out of the separate estate whereof the said Catharine Grori is seised and possessed as aforesaid; and to that end, that the same, or so much thereof as would pay the said sum of money, with interest and costs, be sold, by and under the direction of the court; and for general relief.</p> <p>To this complaint the defendants demurred separately, on the grounds that it appeared on the face of the complaint, 1st. That there was a defect.of parties defendant. 2d. That several causes of action had been improperly joined. 3d. That the complaint did not state facts sufficient to constitute a cause of action against the defendants.</p> <p>The second suit was for rent upon the same lease. The complaint differed from that in the first suit, in three particulars : (1.) It alleged that by her covenant in the lease, Mrs. Grori did intend and undertake, and did appropriate and appoint.to and charge with the payment of the rent and taxes, her separate estate. (2.) That she had enjoyed the whole of the demised premises to her sole, separate and several use and benefit. (3.) Ho relief was asked against Ottaviano Grori, the husband.</p> <p>The defendants also demurred separately to this complaint; assigning the same causes of demurrer as in the first suit.</p>

THIS was an action for the foreclosure of a mortgage, and was tried at the circuit, before Leonard, justice, without a jury; and the following facts were found by him : The defendant Alexander Davis subscribed for a large number of shares of stock in the Hydeville Marble Company, and being indebted to the said company thereon, in the sum of $1675, by arrangement with the said company, executed his bond for that sum, secured by a mortgage from himself and wife, to Peter W.…

<p>DEMURRER to complaint. • The action was brought to restrain the prosecution of a foreclosure suit.</p>

<p>The words “ such circumstances,” in the 4th subdivision of § 42, 2 R. S. 146, which declares that although the, fact of adultery be established, the court may deny a divorce, “ when it shall be proved that the complainant has also been guilty of adultery under such circumstances as would have entitled thé defendant, if innocent, to a divorce,” do not refer to the circumstances, (of inhabitancy, &c.) mentioned in section 48 as defining when the court may decree divorces for adultery, but to the circumstances of procurément or connivance alone, mentioned in subdivision one of section 42.</p> <p>The section virtually declares that although the court may have jurisdiction and power to grant the divorce, and the adultery on the part of the defendant shall be proved, yet the court shall not grant the divorce if the complainant has been guilty of adultery committed without the procurement or "connivance Of the defendant.</p> <p>An answer setting up the adultery of the plaintiff, as a defense, need not allege either that the parties were inhabitants of this state, at the time of the commission of the offense; or that the defendant, at that time, and at the commencement of the action, was an actual inhabitant of this state.</p>

<p>THIS was an action for the partition of real estate, and was submitted to the court upon the complaint, answers, and points of counsel,</p>

Demurrer to complaint. The plaintiff alleged that he was a trustee under a trust-deed from the Cleveland, Zanesville, and Cincinnati Railroad Company, conveying the track, equipments, tolls, and income of the road to secure the holders of the first mortgage-bonds of the road, amounting to $500,000, and was authorized thereby to take possession of the road and equipments, carry it on, and apply the proceeds to the payment of the bondholders, after deducting expenses, in case…

THIS was an action on a guaranty. The plaintiff executed a lease to Joseph A. Weibel and William S. Glirehugh, for the term of five and a half years, and the defendants executed a guaranty on behalf of the lessees. The premises were certain rooms in the La Large Hotel. The lease provided that, if the premises should be rendered untenantable by fire, the term should thereupon immediately cease.

<p>THIS was an appeal from a judgment entered on the report of a referee. The action was brought to recover of the defendant three several penalties of $50 each, for violation of section 70 of title 2, part 3, ch. 3, and art. 3 of the revised statutes, (3 R. S; 477,5th ed.) which is as follows, viz: “If any attorney or solicitor shall knowingly permit any person, not being his general law partner, or a clerk in his office, to sue out any process, or to prosecute or defend any action in his name, such attorney and solicitor, and every person who shall so use the name of any attorney or solicitor, shall severally forfeit to the party against whom such process shall have been sued out, or such action prosecuted or defended, the sum of fifty dollars.”</p> <p>The cause was tried hy and before a referee, who found the following facts: That in November, 1856, and subsequently, Bartholomew Skaats was an attorney and counsellor at law, practicing in the city of New York, and having.but one office, at 111 Broadway. The defendant,. Peck, was never a general law partner in the practice of the law with said Skaats, nor was he ever a clerk in his office. ' About the time mentioned, Skaats, as attorney, had recovered in this court, in favor of Ambrose Stevens, as plaintiff, against Anthony Yorks, defendant, a judgment, upon which he issued an execution, directed to the sheriff of Livingston county, and inclosed the same in a letter to the defendant in this action, who then resided in Lima, in said county, where he has ever since continued to reside. That the sheriff of Livingston county afterwards duly returned the said execution, wholly unsatisfied. That proceedings were thereupon instituted, supplementary to execution, under the provisions of the code of procedure, against the said Anthony Yorks, and were pending before a referee appointed by an order for that purpose, when the defendant in this action, on the 7th of March, 1857, sued out of this court the subpoena first mentioned in the complaint, and signed thereto the name of the said Skaats, as attorney, and caused the same to be served on the plaintiff in this action. This was a subpoena commanding the plaintiff to appear before 0. 0. Davison, Esq., a' referee, and be examined as a witness in said action brought by Ambrose Stevens against Anthony Yorks, and to produce certain papers in the subpoena specified. That afterwards, such proceedings, supplementary to execution as aforesaid, were again instituted, and were pending before another referee, by order, for that purpose, when the defendant in this action, on the 21st of ¡November, 1857, sued out of this court the subpoena secondly mentioned in the said complaint, and signed thereto the name of the said Skaats, as attorney, and caused the same to be served on the plaintiff in this action. That the plaintiff in this action did not appear in obedience to the subpoena last hereinbefore mentioned. That the defendant in this action thereupon, and for that cause, sued out of this court an attachment for contempt of court, in not obeying said subpoena, and signed the name of the said Skaats, as attorney, thereto, and issued the same in his name, as attorney, which was served by the sheriff of Livingston county, on the plaintiff in this action.</p> <p>As a conclusion of law, from the foregoing facts, the referee found and reported that the defendant in this action had violated the provisions of the 70th section of title 2, ch. 3, part 3 of the revised statutes, and had, in three several instances, used the name of an attorney of this court, not being the general law partner of such attorney, or a clerk in his office, to sue out process against the plaintiff in this action, and had forfeited to the plaintiff three penalties of the sum of $50 each. He therefore adjudged and decided that the plaintiff was entitled to recover of the defendant the sum of § 150 besides costs; and from the judgment entered upon the report the defendant appealed.</p>

In the matter of the admission of the graduates of the Law Department of the University of the city of Hew York to practise as attorneys and counsellors of this court.

mHB plaintiff, Williams, and the defendant Chamberlin, in 1 the spring of 1854, entered into an agreement with the defendant Ayrault, to borrow of him a large amount of money, to enable them to make a purchase of land in Cleveland, Ohio, for which they were to pay interest at the rate of not less than 10, nor over 14 per cent per annum. The rate of interest was to be fixed when the final arrangement should be made for the loan.

SEVERAL years prior to the passage of the “act for the more effectual protection of the property of married women,” passed in 1848 (Laws of 1848, c/i. 200) and amended in 1849, (Laios of 1849. p. 528,) Catharine M. Winans, being a widow and having two children by her former husband, married Corbet Peebles, one of the defendants in this action.

ACTION brought to recover wages, under a contract to work for the plaintiff for three years, from August 1st, 1857, <- payable quarterly, and damages for a breach of the contract by the defendant, in discharging the plaintiff from his employment, on the 26th December, 1857, without cause.

THIS was an action to recover damages for injuries sustained by the plaintiff in consequence of the carelessness and negligence of the defendant, its servants and agents. The plaintiff, on the 21st of October, 1858, had employed one Thomas, the owner and driver of a stage coach running from Albion to Batavia, to carry her to Elba, a place between those villages, and had taken her seat in the stage with other passengers.

The complaint alleged that during the year 1856, the plaintiffs were copartners, doing business as such in the city of St. Louis, in the state of Missouri, as wholesale grocers and dealers in wines and liquors.

<p>THIS action was brought to recover the amount of a promissory note for $1000, made by the defendant McMillen as principal and the other defendants as his sureties, and was tried at the Ontario circuit in April, 1859. It was proved on the trial that the plaintiffs, who were assignees of one Cuyler Trask, on the 21st April, 1857, entered into a contract with McMillen to sell to him a farm in the town of Victor, containing about 96 acres of land, at $34.50 per acre. By the contract McMillen agreed to pay $1500 of the purchase money as follows: $300 on the 15th May, 1857; $200 on the 1st day of ¡November, 1857, ánd $1000 on the 1st day of May, ,1858. A deed was then to be executed aúd a bond and mortgage given by Mc-Millen for the residue "of the purchase money. The note in suit was given as a further collateral security for the payment of the $1000 installment, payable the 1st day of May, 1858. McMillen entered into possession of the farm at or about the date of the contract, and paid the first two installments of $300 and $200 promptly. Before the 1st of May, 1858, Mc-Millen had discovered that as to 18 acres of the farm the plaintiff had no title. And on that day McMillen tendered to the plaintiff the amount of the installment then due, and required the plaintiffs to give him a conveyance which should vest in him the title to the whole land purchased. This the plaintiffs declined to do, on the ground that they-were unable to give a perfect title. McMillen, who offered to give the bond and mortgage specified in the contract, after the refusal of the plaintiffs to give the deed, further offered to surrender the possession of the premises, and required the plaintiffs to refund what he had paid. This the plaintiffs declined. At this interview it was agreed between the parties, that they would postpone the time for performance of the contract to the 5th day of May, and would meet on that day at Canandaigua. On the 5th May the parties again met, at Canandaigua, and the plaintiffs offered to execute a deed of the farm, but did not claim, then, that they had any title to 18 acres of the land. It was proved on the trial, that the farm was occupied by one Norman Brace, who claimed the same as owner, prior to 1808, in which year he died intestate, without issue, leaving a widow. The land then passed by inheritance to Joseph Brace, the father of Norman. Joseph Brace, in 1809, conveyed the undivided half of the land to Joanna Brace, the widow of Norman; and in 1813 died intestate, leaving several children his heirs at law. There was a parol partition between the heirs of Joseph Brace and Joahna Brace, by which one half the farm, including the 18 acres, was set off to the heirs of Joseph Brace in severalty. Joseph Brace being indebted at the time of his death and his personal estate being insufficient to pay his debts, the half of the farm so set apart to the heirs of Joseph Brace was ordered by the surrogate of Ontario county, to be sold by his administrators. The administrator sold under his order, all except the 18 acres above mentioned, and realized sufficient from the sale to pay the debts, leaving the 18 acres the property of Brace’s heirs. Joanna Brace, after the partition, married one Isaac Marsh, and with her husband continued to occupy the half of the farm set off to her, until her death. The 18 acres above referred to was not cultivated. It was wood land. Mrs. Marsh occupied some part of it during her life, but uniformly disclaimed any title or ownership to it. The judge at the'circuit decided that the defendants had failed in their defense; that before McMillen could set up the breach claimed, by reason of the defect in the plaintiffs’ title, he must surrender the possession of the premises to the plaintiff; that so long as he continued in possession he must be deemed to have elected to continue the contract in force, and directed the jury to find for the plaintiff, and they found accordingly.</p> <p>The defendants’ counsel excepted to the ruling and decision of the judge. The exceptions were ordered to be heard in the first instance at the general term.</p>

ACTION to recover the value of a span of horses belonging to the plaintiff, which were killed by a locomotive, on the defendants’ rail road. The cause was referred to a referee, who found the following facts, viz : That the defendants, during the year 1857, were and still are a corporation, engaged in operating the rail road mentioned in the complaint.

THIS was an appeal from a judgment ordered at a special term, after a trial at the circuit by the court, without a jury. The action was brought against the defendant, which is a manufacturing corporation, incorporated under the general manufacturing law of this state, as the drawer of a bill of exchange, drawn upon the firm of A. Yerrington & Oo. The defendant had its place of business in the city of Rochester. A. Yerrington & Oo. resided at Cobourg, in Upper Canada.

<p>The creditors of a dissolved insolvent corporation have an equitable lien upon its assets, in the hands of another, for the payment of their debts.</p> <p>And it matters not whether the person holding the assets sought to he charged came by them fairly, or by force or fraud; unless he has acquired a higher or better equity to such assets than the creditor.</p> <p>When a fund exists in this state, which our own citizens are entitled to have applied to the payment of their debts, the courts will detain and appropriate the fund, although the persons holding it may be accountable to a foreign jurisdiction, in reference to it.</p> <p>The court will not, in such a case, disregard the rights of other parties, but it will ascertain them, and apply that portion which, after such investigation, is found to belong to our own citizens.</p>

<p>APPEAL from a judgment entered at a special term. The plaintiff, Abigail Dodge, was married to Josiah Dodge, December 29th, 1846. On the 20th day of March, 1855, Dodge died, at Troy, in the state of Hew Hampshire, where he then resided, leaving him surviving Sarah E. Elagg and Josiah Dodge, children of a former marriage, and Henry Dodge, an infant, the issue of the marriage with the plaintiff. At his decease, he was seised in fee of real estate, in Hew York and Hew Hampshire, being dwelling houses and lots, numbers 89, 91, 93 and 95 West Eleventh street, in the city of Hew York; also, three unimproved village lots in South Fordham, Westchester county, in this state. Also, a piece of land, with the buildings thereon, known as the Homestead, situate in Troy, Cheshire county, Hew Hampshire. Also, two other parcels of land, situate in Troy aforesaid. Josiah Dodge made his last will and testament, by which he devised to the plaintiff a life estate in the homestead at Troy, and bequeathed to her an annuity of four hundred dollars, chargeable upon the rents of the four houses in West Eleventh street. By the terms of the will the real estate is devised as follows : To Sarah Elizabeth Flagg, houses and lots Hos. 89 and 93 West Eleventh street; also, lots 67 and 3 South Fordham, in fee. To Josiah Dodge, lot 39 South Fordham, in fee ; also, house and lot number 95 West Eleventh street, in trust during his natural life, with the qualifications and conditions by said will imposed. Elbert L. Burnham was appointed trustee by the supreme court, Oct. 30, 1856. To Henry Dodge was given the house and lot number 91 West Eleventh street, Hew York; also three parcels of land in Troy, New Hampshire, including the homestead, in fee, subject to the charges in said will mentioned. The pecuniary allowance provided by the will for the widow has been at all times punctually paid to her. This action was commenced to procure an admeasurement of dower, which the plaintiff claimed, notwithstanding the provisions of the will. The action came on for trial before Justice Roosevelt, at a special term, in December, 1857, and judgment was given in favor of the plaintiff for the reason that although there was no probability that the testator intended that the plaintiff should have both the annuity and her dower, yet, as he had not said so, in terms, and as there was no absolute incompatibility, she was entitled to both, and was not required to elect.</p>

THIS was an appeal from a judgment of the city court of Brooklyn in favor of the plaintiff, for $5453.62, and from an order of that court denying a new trial, applied for, on the ground that the verdict was against evidence, and the damages excessive.

<p>Where a child has been duly surrendered by its father and natural guardian to the Brooklyn Industrial School Association and Home for Destitute Ohil- ' dren, pursuant to the charter of that association, by an instrument in writing signed by the father, such surrender will not be superseded, and rendered inoperative and void, by an order subsequently made by the surrogate, appointing an individual the general guardian of the infant.</p>

THIS was an application made by Susan Yan Tassel, a defendant in this action, for an order that Benjamin D. Miller, formerly sheriff of Westchester county, make and file his report of his .proceedings upon the judgment for partition in this action, subsequent to his report of sale; and that he distribute and dispose of the proceeds of the sale according to the terms of the judgment, or that an attachment issue.

APPEAL by the defendants from an order made at a special term, granting an injunction against the defendants, according to the prayer of the complaint.

CASE submitted for the opinion of the court, as to the disposition to be made of a fund realized by executors from the sale of real estate. The rights of the several parties claiming an interest in the fund depended upon the construction of the will of the late Elizabeth Van Wyck, deceased.

The complaint was as follows: First. That at the times hereinafter mentioned, and for some time previous thereto, the plaintiff was a resident of the city of ¡¡Brooklyn, and was engaged in the business of commission merchant and ship chandler, at No. 39 South street, in the city of New York, and was deriving profits and emoluments. therefrom, for the support of himself and his family. Second.

APPEAL by Joseph Hegeman, one of the executors of Austin D. Moore deceased, from a decree of the surrogate of the county of Kings, made upon a petition of the respondent, the widow of the testator, for a share of the testator’s personal property. The surrogate decreed that she was entitled to one third of the personal property, as claimed.

APPEAL by the defendant Maximo M. Ludlam, from a judgment entered at a special term, after a trial at the circuit, before Justice Lott, without a jury.

THIS action was brought, in the city court of Brooklyn, to recover from the city of Brooklyn certain moneys paid to the collector of taxes of said city, for the plaintiff’s benefit, by other parties, for the purpose of redeeming premises which the plaintiff had previously purchased at sales for taxes or assessments; and which moneys, it was alleged, the defendant had refused to pay over to him, on demand made.

ACTION to recover possession of land at New Rochelle, in Westchester county, which Samuel B. Broad, being in undisturbed possession under claim of title, on March 25 th, 1844, mortgaged to one Clinton Roosevelt. Soon after he gave permission to William Broad, his brother, to occupy a room in the house on the premises, and under a verbal license from him, in April or May, 1844, Albert Badeau forcibly, as against Samuel B. Broad, entered.

<p>APPEAL from a sentence or decree of the surrogate of the county of Suffolk, made upon the final accounting of Eleazer Z. P. Dayton, administrator of, &c. of Eleazer Dayton, deceased.</p>

APPEAL, by Eliza Ann Dederer, from a judgment entered at a special term, after the second trial of the case. The first trial is reported in 21 Barb. 286. The judgment there ordered was affirmed at a general term, but reversed in the court of appeals, (18 N. 7. Rep. 265.) The action was brought to charge the separate estate of Eliza Ann Dederer, the wife of Nicholas A. Dederer, with the payment of a promissory note, in the words and figures following : “ f998.

<p>The law implies an undertaking, on the part of a physician or surgeon, that he has ordinary skill, and that he will execute the business intrusted to him with ordinary care and skill. If he fails in this duty, he is guilty of a default in his undertaking, and cannot collect the pay for his services, but is liable in damages to the person who employed him.</p> <p>Where a physician was employed to treat a broken limb) and made several visits in the course of his employment; held that the contract was entire, and that performancé must be shown, to entitle him to recbver any thing for, his services.</p> <p>In the absence of evidence that the physician has failed in his duty, it seems that performance will be inferred, upon the principle that the law will not presume a party guilty of a breach of duty, or of negligence or fraud.</p> <p>A fact impliedly averred, may be traversed in the same manner ás if it was expressly averred ; and the general denial, of the code, puts all the allegations of the complaint in issue, whether expressed or implied.</p> <p>Where a physician sued a party, before a justice of the peace, for services rendered by him in treating a broken limb, and the defendant appeared and put in an answer containing a general denial; held that the fact of performance of the contract, by the plaintiff, was impliedly averred in the complaint and denied by the answer; and that the judgment of the justice in favor of the plaintiff, for his services, necessarily included the fact of performance on the part of the plaintiff, so that it could not be again litigated between the same parties.</p> <p>Where a defendant went to trial, in a justice’s court, on his general denial of a complaint for professional services as a physician, and withdrew all claim for malpractice ; held, nevertheless, that the question was necessarily included in the issue, and determined by the judgment.</p> <p>A claim for damages for malpractice, in such a case, is not new matter. New matter admits the plaintiff’s demand, but such a claim denies its existence altogether.</p> <p>It is not a counter-claAm. Strictly speaking, where the plaintiff has no claim, the defendant cannot have a Cotinter-claim.</p> <p>The two claims, in such a case, cannot co-exist; and a recovery by either party will effectually bar the action of the other party.</p>

THE plaintiff brought this action in 1857, to recover the price he paid the defendant for a horse, in 1852. The plaintiff purchased the horse of the defendant in December, 1852, and paid him $80 therefor. The plaintiff sold the horse, soon after he purchased him, to one Furman. The horse during this time belonged to Joseph Dysart, from whom he had been stolen by some person, within a few months prior to December, 1852.

Whiton, executor of the last will of Elias Eraser, deceased. The order was made in proceedings instituted before the county judge, acting as surrogate, hy the appellant, to compel the sale of the real estate of the deceased, by his executor, for the purpose of paying his debts. The judgment was recovered by Joseph Proude, in the supreme court, upon two promissory notes made hy the testator, and it was docketed on the 9th day of December, 1857, for $403.95.

THIS was an appeal from an order made at a special term, denying a motion for a new trial; also an appeal from the judgment; the parties having agreed that both appeals might be heard together.

The action was to recover damages for an assault, and for ejecting the plaintiff from the cars of the New York Central Bail Eoad Company. The defendant was a conductor on the cars. The plaintiff, August 12th, 1858, purchased of the Hudson Eiver Eail Eoad Company, at its depot in New York city, a ticket for a passage to Buffalo.

Bela D. Coe made and published his last will and testament, and died in November, 1852, leaving a widow him surviving. He devised to his wife, for and during her natural life, certain real estate.

<p>APPEAL from a judgment entered upon the report and decision of a referee. The facts appear sufficiently in the opinion.</p>

Motion to compel a referee to prepare a statement and case, and the other parties to furnish the necessary papers therefor. This was a proceeding instituted under chapter 489, of the Laws of 1859, by the comptroller of the city of ¡New York, to open a judgment recovered against the city. The action was by a lessee of a ferry to recover from the Corporation, the lessor, damages for an alleged failure of title.

THIS was an appeal from an order made at a special term, vacating a judgment recovered by the plaintiff, Sharp, against the defendants, the mayor, aldermen and commonalty of the city of New York, for $41,425.88.

APPEALS by the plaintiffs, and by the defendant Patchin, from a judgment entered upon the report of a referee. The action was brought to foreclose a mortgage executed by the defendant, The Buffalo and New York City Bail Boad Company, to the plaintiff John A. Stevens, as trustee for the holders of certain bonds issued by the said rail road company, to secure the payment of which bonds the mortgage was executed.

THIS was an action to foreclose a mortgage, given by the Black Biver and Utica Bail Boad Company to the plaintiffs, ak trustees, to secure the payment of bonds to the ambunt of $1,200,000 issued by the company for the purpose of completing their rail road. The mortgage was executed June 21, 1854, and was in its terms a mortgage of the rail road, real estate, chattels real and franchises of the company.

THIS was an action commenced before D. W. Gole, esquire, justice of the peace of the village of Medina. This office was created by an act of the legislature of the state of Hew York, passed April 10, 1855, (Sess. Laws of 1855, oh. 285, §§ 2, 27,) and under that law Cole was elected and assumed to act as justice of the peace. The plaintiff’s complaint was upon a promissory note for $23.

THIS case comes before the court upon an agreed statement of facts, under § 372 of the code. “ The Herkimer Manufacturing Company” was incorporated by special act of the legislature, in 1833, “ for the purpose of erecting a dam across West Canada creek in the town of Herkimer, in the county of Herkimer, at some convenient point northwardly from the village of Herkimer, and to conduct the waters of the said creek in such canal as they may construct near to the said village,…

THE plaintiff brought this action to recover certain -moneys claimed to have been deposited by her with the defendant, for á special purpose, to which the defendant has failed to apply them.

<p>THE plaintiff brought trover, before a justice of the peace, for parts of two barrels of whisky and part of a keg of gin, seized and taken by the defendant as a constable, on an execution against one Hackett. The plaintiff claimed title as owner, and that the liquors were part of a large quantity which l>e had sold conditionally to Hackett, to become his when paid for. The residue of the liquor had, prior to the levy, been sold by the defendant at retail, contrary to law. The judgment tinder which the defendant justified was in favor of the commissioners of excise, for a violation of the excise law. The justice gave judgmetit against the defendant for the value of the liquors, ahd the county court of Oswego county affirmed such judgment on appeal, and the defendant appealed to this court.</p>

<p>APPEAL from the judgment of Johnson, J. at special term, declaring the rights of the respective parties to moneys in court, the proceeds of a sale of real estate of infants. F. H. Valentine died intestate in 1840, seized of the premises in fee, leaving him surviving a widow and three children, to wit: Hannah E., Catharine L., and Ananias.</p> <p>The widow married Harlow 0. Wetherill, and by him had one child, Harriet Wetherill, who is now living and under age, hut who is not a party to the suit. Harlow 0. Wetherill is a party as her guardian. The widow died before the commencement of this suit, and about March, 1853. Ananias Valentine died intestate and under age in 1845. Hannah B. Valentine was married to Theodore Wetherill, and by him had one child, born living, since deceased, and died in 1853, under the age of 21 years. Catharine L. Valentine died in 1856, unmarried and under the age of 21 years.</p> <p>The premises were sold in 1852, under the statute, by the direction of the county court of Cayuga county, and upon the petition of the infants, Hannah B. Valentine and Catharine L. Valentine, and the. fund in court was realized upon such sale. The plaintiffs claim as the brothers and sisters of the original owner F. H. Valentine, to the exclusion of the half sister of Catharine L. Valentine and the claims of Theodore Wetherill as tenant by the curtesy in the share of Hannah B. Wetherill. The court, at special term, gave judgment for the plaintiffs, and declared them entitled to the whole fund.'</p>

THIS was an appeal from the decree of the surrogate of Saratoga county, refusing to admit to probate in that county the last will and testament of Thomas Bumstead, deceased.