Volume 32 — New York Reports

This action was brought in the Superior Court of New York to recover the sum of $32’,321.24, being an amount standing to the credit of… Held: that where the payee of a promissory note, which is made by one citizen of that State to another citizen of that State, indorses it specially to a citizen of another State, who dies and whose will is admitted to probate in the latter State before the note falls due, and his executor, without taking administration in the State of-…

This was a suit in equity, to enforce in favor of creditors a statutory trust, against the grantee of lands, purchased with the debtor’s means, but conveyed to his wife by the vendor, and afterwards transferred by her to the respondent, with full notice of all the facts. The question arises on demurrer to the complaint, which shows the following state of facts: The plaintiffs, in.1856 and 1857, sold goods to the defendant, A. W. Bostwick, to the amount of about $4,000.

The complaint in this action is by the plaintiff, as receiver, appointed in supplementary proceedings instituted against the defendant, William H. Hazard and one Horatio Eagle. It sets forth his appointment, the recovering of judgments by certain creditors against the firm of Eagle & Hazard, the issuing of executions thereon, and return thereof unsatisfied.

Action to exempt improvements from the operation of the lien of a judgment upon lands. The cause, was tried before Mr. Justice Johnson at a Special Term of the Supreme Court, held in the county of Steuben, in July, 1861.

<p>This is an action of ejectment brought by the heirs of one Joshua Pettit to recover a lot of thirty-five acres of land—■ part of lot No. 76, which lot, among others, was conveyed by letters patent from the State in 1815, to James Emmott—■ and was a part of the unappropriated lands of the State lying on the easterly side of the Niagara river, and which had been surveyed and described in a field book and on a map on file in the office of the secretary of state. Lot No. 76 was con- • veyed, in the same year, by Emmott to Joshua Pettit, and was described as containing one hundred and seventy-five acres, more or less. In 1829, Pettit conveyed to one Lewis Anguish ninety acres of this lot, to be taken from the east side, bounded on the east, north and south by the lines of the lot, and on the west by a line parallel to said east line, and so far distant as to include ninety acres. Joshua Pettit continued in possession of the residue of the lot, and cultivated the southern portion of it up to the Anguish line. Along this line there was a fence, extending from the east line of the lot north about forty rods, and thence to the north line of the lot by stakes and marked trees. In 1829, also, Joshua Pettit mortgaged to Peter B. and Augustus Porter eighty-five acres, to be taken from the west end of lot 76, and in this mortgage described the land as bounded on the east by the land conveyed to Anguish. In 1835, Joshua Pettit sold and conveyed to one Gustavus Grimard, “All that certain piece or parcel of land situate in the said town of Niagara, being the west part of lot No. 76, lying on the easterly side of the Niagara river, containing eighty-five acres, be the same more or less.” Under this deed, Grimard went into possession of all the land up to the Anguish line, being the whole of lot 76, except the ninety acres'; and he and his grantees continued in possession for nearly twenty years, when this action wTas brought against the defendant, who claims under Grimard, to recover about thirty-five acres lying directly west of the ninety acres sold to Anguish ; it appearing that lot No. 76 contained over two hundred acres, instead of one hundred and seventy-five according to the State survey ; and the plaintiffs, as heirs of Joshua Pettit, claim that his deed to Grimard of.“ the west part of the lot,” describing it as containing eighty-five acres more or less, did not convey the whole residue of the lot after taking off the ninety acres, but only eighty-five acres. On the trial, the deeds and the mortgage to Porter were put in evidence, and Grimard gave testimony to the effect that when he purchased, Joshua Pet-tit went with him on to. the premises, and pointed out the boundaries, and explaining to him that this west part of the lot extended up to the Anguish line. This testimony, and the admission of the mortgage as evidence, was received under plaintiffs’ objection and exception. The question of fact was then submitted to the jury, whether Joshua Pettit’s deed to Grimard covered and conveyed the premises in com troversy. To this there was an exception by plaintiffs. The jury found in favor of the defendant, and the judgment was affirmed by the Supreme Court in the 8tfi district.</p> <p>I. It was improper to admit parol evidence, and evidence of facts outside of the deed from Pettit to Grimard, to show 'what land was intended or “ designed to be designated by the west part of lot 76.”</p> <p>1. The description of the land in the deed was certain and unambiguous. Three of the boundaries were given and the fourth was ascertainable, from the deed, by a mathematical calculation. The description, when written out in full, would read, “the west part of lot 76, bounded on the north, west and south by the lines of the lot, and on the east by a line parallel to the west boundary, so far east therefrom as to include eighty-five acres.”</p> <p>2. When quantity is added to a description it forms a part of the description (Laub v. Buckmiller, 17 N. Y., 620; Mann v. Pearson, 2 Johns., 37), and wdien the other terms of the description are not sufficiently certain and demonstrative, the quantity is an essential part of the description. (Kirkland v. Way, 3 Rich., 4.) The words “more or less” are always surplusage, and particularly is that so when the quantity becomes an essential part of the description. (Brant v. Ogden, 1 Johns., 156; Cutts v. King, 5 GreenL, 482.)</p> <p>3. Effect is to be given to every part óf a description, unless different parts are repugnant to each other, or by such a construction the grant would fail or be defeated. (Seaman v. Hogeboom, 21 Barb., 398; Hathaway v. Power, 6 Hill, 453; Clarke v. Baird, 5 Seld., 183; Law v. Hempstead, 10 Comst., 23.)</p> <p>In eases of repugnancy or ambiguity, the less certain calls yield to those which are more certain. If all cannot stand together, quantity yields to courses and distances, and they in turn yield to fixed monuments and natural boundaries, but neither are to be rejected when there is no conflict, and when the grant can be upheld by giving effect to all. (7 Mass., 497.)</p> <p>4. If the whole lot had been unoccupied and all owned by Pettit at the time he conveyed to Grimard, it would not have been contended that the deed conveyed the whole lot, nor that the deed was void for uncertainty of description, but effect being given to quantity, it would have been held to convey eighty-five acres off the west part of the lot. (Allerton v. Johnson, 3 Sandf. Ch., 72.)</p> <p>5. When the description is certain or can be made certain from the deed itself, and the land can be located from the calls in the deed, it is error to permit evidence of the acts or declarations of the parties or of other facts outside of the deed to be given to show what land was intended to be conveyed. The intention of the parties in such cases is to be drawn from the deed, and not elsewhere. (Van Wyck v. Wright, 18 Wend., 157; Luiscott v. Fernald, 5 Greenl., 496; Bell v. Morse, 6 N. H., 205 ; Seaman v. Hogeboom, 21 Barb., 398; Clarke v. Baird, 5 Seld., 183.)</p> <p>II. The court erred in submitting it to the jury to find whether the land in dispute was included in the deed under the designation of the “ West part of lot 76.”</p> <p>1. The description of the land in the deed being complete and certain, it could not be enlarged by evidence outside the deed, and by a finding upon such evidence.</p> <p>2. There was no proof wanting such a submission. There is no proof whatever tending to show that the lot or land west of the Anguish line, had ever received, or been known by, or designated or called by the cognomen of “ the west part of lot Ho. 76.” The mortgage to Porter described particularly all the land west of the Anguish line, and called it eighty-five acres to be taken off the west end of the lot. If that tended to prove anything, it tended to prove that Pettit, at that time, supposed that part of the lot contained eighty-five acres only, but it did not tend to prove that the land was known by or called “ the west part of the lot,” or had any designation or name.</p> <p>3. The possession had not continued twenty years. (Clarke v. Baird, 5 Seld., 183.)</p> <p>III. The Supreme Court proceeded upon the idea that the whole of Pettit’s land was conveyed by the general appellation or designation of the “ west part of lot Ho. 76,” and that all other parts of the description were subordinate to that general description. The deed does not purport to do any such thing. It does not convey “all that certain tract of land known as the west part,” &c.; nor “ all the grantor’s land oil the west part,” &c.; nor “ the grantor’s farm, being the west part, &c. It does purport to convey “ all that certain piece or parcel of land, situate,” &c., “being the west part of lot Ho. 76, containing eighty-five acres more or less.” It conveys a certain piece of land, located on a certain part of the lot, and containing a certain quantity of land. From that description any surveyor could locate the land hy the calls in the deed without resorting to any extrinsic fact. If he could, the description is certain, and cannot he enlarged, changed or limited by the declarations or actions of the parties. (Clark v. Baird, supra.)</p> <p>The plaintiffs’ ancestor, the grantor of G-rimard, in his deed, by the expression, “be the same more or less,” to which it is necessary to ascribe meaning, if possible, has clearly declared, by the apt and usual language, that the quantity specified was not intended as the controlling part of the description. In other words, he says by his deed, “ I convey the west part of lot 76, supposed (or assumed) to contain eighty-five acres, but the west part of lot 76, which may contain either more or less than eighty-five acres, and whether it shall be found to contain more or less.” And, in case of any doubt, the construction is to be against the grantor.</p> <p>Upon this subject evidence that the parcel claimed and occupied by the defendant, had been- generally known and designated as the west part of lot 76, would have been admissible. And evidence that the grantor himself so designated it and pointed it put, and put his grantee into possession of it, as such, pointing out the boundaries, is moré clearly admissible and more satisfactory. (Reed v. Proprietors of Locks, &c., 8 How. U. S., 274; Lessee of Atkinson v. Cummins, 9 How. U. S., 479.)</p> <p>There can be no dispute but that the grantor intended to convey “ the west part of lot 76.” The evidence was not as claimed by the plaintiffs, to vary or contradict the deed, but simply to identify the subject matter. If the grantor intended to convey by that description all that part of lot 76 not conveyed to Anguish, then it is clear that the mistake as to quantity did not operate to restrict the grant. (Hathaway v. Power, 6 Hill, 453.)</p> <p>Pettit had conveyed off the east end of the lot ninety acres, more than one-half the supposed quantity; the remainder was the “ west part ” of the lot.</p> <p>The testimony of the witness, Grimard, was solely to the effect that the grantor showed him, by bounds, the west part of lot 76, not to show by parol that the grantor declared the bounds to be different from those stated in the deed. Hor did the testimony of Grimard show that his grantor by parol contradicted anything stated in his deed.</p> <p>a. The declarations of the grantor, together with all the surrounding circumstances and facts, were admissible to identify the subject matter; they are collateral to the question of intention, but are admissible to aid in the interpretation of the deed. (1 Greenl; Ev., §§ 287, 2.88.)</p> <p>5. The declarations of a party in possession, as to the location, boundaries and division lines of land are admissible in evidence against him and those claiming under him. (Rockwell v. Adams, 6 Wend., 467; Jackson v. McCall, 10 Johns., 377; 1 Cowen & Hill’s Notes, page 266.)</p> <p>Especially where the statements have been followed by long acquiescence in the location, though short of the time necessary to raise the statute bar. (Jackson v. Van Corlaer, 11 Johns., 123; Jackson v. Smith, 9 Johns., 100; McCormick v. Barnum, 10 Wend., 105; Rockwell v. Adams, 7 Cowen, 761.)</p> <p>c. The plaintiffs are prevented by a clear estoppel in pads, from alleging that the “ west part of lot 76 ” is other than as their ancestor represented it. See this principle applied to an erroneous location. (Jackson v. McCornnell, 12 Wend., 421.)</p> <p>That which operates in the nature of an estoppel in pads is always admissible in evidence.</p> <p>d. The declarations of Pettit accompanying the act of putting his grantee, in possession, were admissible as part of the res gestae. (1 Greenl. Ev., §§ 108, 109.)</p>

James Spickerman, the former hush and of the defendant, Catherine Seely, died seized of certain lands in the county of Kensselaer, described in the complaint, on or about the 7th December, 1839.

.Appeal from judgment by the General Term of the Supreme Court of the 1st district. The action is upon a promissory note, made by the two defendants, Anson B. Hoyt and George Hoyt, copartners, of the firm of Hoyt & Brother, payable to the order of Belding Hoyt, another defendant, and indorsed by him and also by the other defendants, dated 22 June, 1861, payable at the People’s Bank. The note was discounted by the plaintiffs. The defense is usury.

The actiou was for the recovery of toll by the turnpike company, against the defendant, who repeatedly passed the plaintiff’s toll-gate, and refused to pay the rates prescribed by law. The plaintiff recovered.

Writ of error to the Supreme Court to review a judgment of that court, reversing a conviction of the defendant in error, in the Court of Sessions of Saratoga county, of the crime of. arson, and ordering a new trial. The. present writ of error was brought by the district attorney, pursuant to the act of 1852, ch. 82. The indictment was for the burning of a barn of one Henry Marshall, in Stillwater, in night time, on the 27th August, 1863.

The plaintiff in error was indicted, and in February, 1864, tried, in the Flew York Court of General Sessions of the peace, for the murder of Fíancy E. Vincent. The homicide occurred under the following circumstances : The deceased had been living in a house of prostitution in Centre street some four weeks before the homicide.

This was an action on a promissory note; defense, usury. The action was brought by one Charlotte Earle, the payee of the note. Since the recovery'and affirmance of the judgments in the courts below, Mrs. Earle has died, and the appellants, who are her administratrices, have been substituted. It appeared in substance on the trial that Mrs. Earle had one thousand dollars in gold, which she desired to loan on bond and mortgage.

Mandamus to compel the defendant to -admit the relator to membership. He was a licensed physician, practicing in Buffalo, and a graduate of the Hew York Medical College.

These cases are appeals from judgments rendered in the Superior Court of the city of Buffalo. They are identical in all respects, except the names and number of the plaintiffs, and involve the same identical legal principles.

The action was in the nature of a creditor’s bill, to set aside a general assignment, executed by Steams, Hutchinson & Co., a mercantile firm in the city of Hew York. It was claimed by the plaintiff that the assignment was fraudulent upon its face, and also that it was fraudulent in fact.

The action was brought by the plaintiffs to set aside a voluntary assignment made by one George Benham in trust for his creditors. I. The referee was correct in holding the assignment fraudulent and Void upon its face as against creditors of the assignor, because: 1.

Action for the seduction of the plaintiff’s daughter and servant. She was about twenty-nine years of age, and resided generally in the family of her father, who was a farmer, performing such services about the dairy and housekeeping as are usual under such circumstances, and being provided for and supported by him. The defendant kept a tavern, and was a practicing physician, living about three-quarters of a mile from the plaintiff.

The plaintiff in error was tried and convicted at the February term of the Oyer and Terminer, held in and for the county of Livingston, in 1863, upon an indictment charging him with the crime of murder in the first degree. The offense was committed on the 18th day of November, 1861, and the indictment was presented in October, 1862. After conviction the counsel for the prisoner moved in arrest of judgment: First.

The action was against the American Express Company, as common carriers, to recover the value of a package of money ($858) alleged to have been lost by the company. The cause was tried at the Erie Circuit in October, 1859. The principal facts were admitted, or in respect to which there was no conflict of evidence.

This is an action to foreclose a mortgage upon certain lands in Westchester county. The title to the lands mortgaged was in Mary McGrath, the wife of the defendant, Charles E. McGrath, and the mortgage was executed as well by herself as her husband. The defendant, Yan Bokkelen, was made a party defendant as a subsequent incumbrancer.

<p>It seems, the rights of municipal corporations to property in lands, and to create and establish ferries, railroad franchises. &e., are distinct and separate from - ’ r their duties as legislatures, having authority to pass ordinances, &c.</p> <p>The latter are powers held in trust to be used and exercised for the benefit welfare of the whole community.</p> <p>The former rights have respect to property in the ordinary sense, to be acquired and conveyed in the same manner as natural persons acquire and convey property, and subject to the operation of such ordinances and by-laws as may be lawfully passed for the government and control of the city.</p> <p>Municipal corporations have no power as a party to make contracts which shall control or embarrass their legislative powers and duties.</p> <p>Municipal corporations can legislate only in respect to regulations of police and internal government, and not for the mere imposition of a duty or sum of money for revenue purposes.</p> <p>An ordinance imposing a license duty upon city cars, for revenue purposes only, is not an ordinance for police and internal government.</p> <p>The imposition of an annual tax by such corporation upon a railroad company, in derogation of its rights, for purposes of revenue merely, is unlawful and void.</p>

The action was for the conversion of a promissory note, executed by Stevens and others to the plaintiff, and by him pledged to the defendant. The plaintiff united with one Orydenwise in the execution of a bond to the defendant, accompanied by a mortgage from Orydenwise. Before the principal sum became due, the mortgagor, in the course of making improvements on the premises, cut ten of the trees then growing on the mortgaged property.

This case comes here by appeal from the judgment of the Court of Common Pleas of the city of Hew York, affirming a judgment entered on a verdict for the defendant directed hy the court on the trial. Held: and directed a verdict for the defendant. I. The sole question on this appeal is, whether the court erred in deciding that the defendant’s answer of res adyuddcata was sustained by the proof. ' This is a mere question of law.

This action was brought to recover damages against the defendant, a sheriff of Erie county, for taking and converting certain goods, &c., claimed to be the property of the plaintiff. Held: or which might thereafter be incurred or held by the plaintiff, on account of, or against said Ramsdell.

The defendants are millers and manufacturers of flour at the city of Troy, in this State. On the 18th of November, 1856, they sold and delivered to one Charles Poucher 125 barrels of flour upon a short credit. On the same day, Poucher sold 100 barrels of the same flour to the plaintiffs, who are dealers in the article at Victory, in the county of Saratoga.

This is an action for the recovery of dower and mesne profits, .before admeasurement. The plaintiff is the widow of Silas Tobias. The defendants are his heirs-at-law, his executors, and the occupants, at the time of the commencement of the suit, of the several parcels of land of which dower is sought.

This action was brought to recover damages for negligently causing the death of plaintiff’s intestate, Poplin Stinson. It was tried at the Niagara Circuit in June, 1861, before Mr. Justice Gboveb and a jury, and the plaintiff had a verdict for $2,500. On appeal to the Supreme Court the judgment was affirmed.

<p>Appeal from judgment of the Supreme Court.</p> <p>The action was for negligently communicating fire by the defendants to the plaintiff’s wood, fence and soil, and burning the same.</p> <p>The cause was tried at the Monroe Circuit in October, 1857, before Mr. Justice Johnson and a jury. It appeared on the trial that the plaintiff owned a farm of 40 acres, Similes west of Rochester, and contiguous to and north of the defendants’ railroad. In October, 1854, he had 167-i cords of wood piled in a field, some twenty-five rods from the railroad track, and remote from buildings or fire. On the night of the 7th of that month, fire communicated to this wood pile and burned 143i cords of it, valued at $3 per cord on the ground. The same fire also destroyed some rods of board and rail fence belonging to the plaintiff.</p> <p>The evidence tended strongly to show that the fire was communicated by the defendants’ engines. It caught in the night. At sundown the previous evening no fire was in the field. About half-past nine o’clock that evening, fire was seen raging within the bounds of the railroad, and making its way towards the wood, and the attention of one of the defendants’ agents was called to it. The course of the fire was governed by the direction of the wind, and could be traced along the soil and stumps. It was traced back directly from the burnt wood to coals found on the railroad track. The defendants were at the time running a great many engines hack and forth, night and day, over their road. Habitually their engines spattered fire upon their road about the time and near the place where the fire com plained of occurred. Four or five of the engines were with out any screens on the fire-pan to retain the fire.</p> <p>The plaintiff also gave evidence of another fire occurring on his premises in Hay previously. It originated about 9 o’clock in the morning, and from sparks or coals emitted from the smoke-stack of one of the defendants’ engines. As a train of cars passed along, the engine emitted sparks or coals of fire, which settled on the plaintiff’s land. In about a quarter of an hour afterward the fire made its appearance amongst' the stumps and chips in ten or fifteen different places. The fire spread over three-fourths of an acre of the plaintiff’s land, burning it in patches, and also burning about five .cords of wood; This injury was estimated at from $20 to $25. The plaintiff worked for awhile alone in endeavoring to put this fire out, and finally the defendants’ trackmen came and helped him.</p> <p>A witness named Hinchey, who traced the October fire back from the wood pile to the railroad track, testified that he “ had frequently seen coals on the track before and since; very common thing; have been on the track at night; cannot say I saw it drop, but saw live coals; not in large quantities, but sometimes a coal or two in a place; have seen-them frequently.” This testimony was objected to. Objection overruled and exception taken.</p> <p>As bearing on the question of negligence, it was shown by the testimony of two machinists, that the engines may be so guarded as to avoid scattering fire, and that if they do scatter fire they must be out of order.</p> <p>When the plaintiff rested, the defendants’ counsel moved for a nonsuit on the following grounds:</p> <p>1st. The plaintiff must establish that the fire which communicated to the wood pile was the fire from the defendants’ engine. That the. evidence given does not make a prima facie case; there being no evidence that the fire communicated to the wood pile was the fire from the engine.</p> <p>2d. That the plaintiff must establish by the evidence, that the fire that destroyed the plaintiff’s wood was fire from defendants’ engine, and that it escaped therefrom through negligence of the defendants. That the evidence wholly failed to show any such thing as negligence on the part of the defendants.</p> <p>3d. That the plaintiff wholly failed to give such proof of the origin of the fire, and negligence with which the fire was used, as to change the onus grobandi of negligence on the defendants.</p> <p>The court refused to nonsuit, and the defendants excepted.</p> <p>At the close of the case, the defendants’ counsel requested the court to charge the jury, that the plaintiff had not given evidence sufficient to charge the defendants with the origin of the fire, as matter of law.</p> <p>The defendants also requested the court to charge the jury, that the plaintiff had not given sufficient evidence that the defendants were careless or negligent in the use of fire in the engines.</p> <p>The court charged, that it was a matter of fact, and not a matter of law, whether plaintiff had given sufficient evidence to charge the defendants with the origin of the fire; and that it was a matter of fact, and not a matter of law, whether the plaintiff had given evidence sufficient to show the defendants were careless and negligent in the use of their engines. The defendants’ counsel excepted to the charge.</p> <p>The jury found a verdict for the plaintiff, judgment being entered on the verdict; on appeal to the General Term, the judgment was affirmed. The defendants appeal to this court.</p> <p>I. The court below erred in admitting evidence of fire and coals having been found on defendants’ track or been seen to have dropped from its engines, on other occasions than the fire complained of.</p> <p>And in truth such was not either its avowed purpose or actual use in the case. It was offered and used solely for the pwrpose of .raising a suspicion or inference of negligence on the pa/rt of the defendant in the management of its engines.</p> <p>The proposition involved in its admission upon this ground is simply this: is it competent upon the question of a party’s alleged negligence or misconduct at a given time, where no question of motive or intent is raised, to give evidence of that party’s alleged misconduct or negligence at another time or other times ?</p> <p>It is submitted, on the part of the appellant, that in the light of familiar and well established principles of law and rules of evidence, the proposition cannot be maintained. (Maltón v. Hesbit, 11 Eng. Com. Law, 318; 1 Carr. & P., 70; 1 Phil. Ev., 172, Cow. & Hill’s ed.; 1 Green. Ev., §§ 51, 52, 53; Cary v. Hotailing, 1 Hill, 311-316; Redfield on Railways, 359.)</p> <p>The precise point, as arising in cases of this character, has been passed upon in the courts of a sister State. (Baltimore & Sus. R. R. Co. v. Woodruff, 4 Mary., 242.)</p> <p>We ask the attention of the court to pages 253, 254, in the opinion of Ecolestoit, J. ■'</p> <p>' There is a class .of cases involving the ability of the defendants’ engines to have caused the damage, owing to the distance of the injured property from the defendants’ track, in which the plaintiffs have been permitted to show that on other occasions sparks or coals had been carried to an equal or greater distance from the track. (Piggot v. Eastern Counties R. R. Co., 54 Eng. Com. Law [3 Man. Gran. & Scott], 228; Sheldon v. Hudson River R. R. Co., 4 Kern., 218; Hinds v. Barton, 11 Smith, 544.)</p> <p>II. The motion for a nonsuit ought to have been granted for the reason that a case of negligence was not made out.</p> <p>In England, the fact of the injury having been caused by the defendant establishes the plaintiff’s case and throws upon the defendant the burden of explanation. (Aldridge v. Great Western R. R. Co., 2 Eng. Railway and Canal Cases, 852; Piggot v. Eastern Counties R. R. Co., 54 Eng. Com. Law, 228.)</p> <p>In this country, however, a less stringent rule prevails. The plaintiff, in addition to showing the defendant to have been the offending party, must also convict him of negligence in the particular instance. (R. R. Co. v. Teiser, 8 Barr., 366; Burroughs v. Housatonic R. R. Co., 15 Conn., 124; Rood v. N. Y. & Erie R. R. Co., 18 Barb., 80; Sheldon v. Hudson River R. R. Co., 4 Kern., 218, 224, 225, per Hubbard, J.; Redfield on Railways, 356, 357, 358, 359; Baltimore & Sus. R. R. Co. v. Wooodruff, 4 Mary., 242.)</p> <p>Did the plaintiff establish negligence on the part of the defendant ?</p> <p>Hegligence in this class of cases is want of reasonable care and diligence. “ Reasonable care and diligence is the having engines properly constructed and in good order, with suitable fixtures for preventing injuries by fire, * * * and the exercise of such care and diligence in using the locomotive upon the road as would be exercised by skillful, prudent and discreet persons, having the control and management of the engine, regarding their duty to the company, and having a proper desire to avoid injuring property along the road.” (Baltimore & Sus. R. R. Co. v. Woodruff, 4 Mary., 242, 257, 258; Bradley v. Boston & Maine R. R. Co., 2 Cush., 541, 542.)</p> <p>I. The evidence was very strong to show that the fire complained of was communicated by the defendants’ engines.</p> <p>The wood burned was in a field remote from buildings or five.</p> <p>The fire caught in the night. At sundown the previous evening, no fire was in the field.</p> <p> The defenda/nts were .rumwng a great ma/ny engines back a/ndforth over thevr road at the time when his fire occurred. </p> <p>Habitually, the defendants’ engines scattered fire upon their road at about the time and near the place where the fire complained of occurred. Four or five of the engines were without a/ny screens on the fire pans to retai/n the fii'e.</p> <p>The course of the fire was governed by the direction of the wind, and could be traced along the soil and stumps.</p> <p>It was traceable back directly from the burnt wood to the coals found on the railroad track.</p> <p>The fire was seen raging within the bounds of therail/road at 9^ o'clock in the evening, and making towards the wood, and the attention of the defendants' agent was called to it.</p> <p>II. A legal presumption arises from the facts stated in the first point, that “there was something unsuitable and improper in the construction or management of the engine which caused the fire.” (Sheldon v. Hudson River R. R. Co., 4 Kern., 218; Ellis v. R. R. Co., 2 Iredell, 138; Holbrook v. N. Y. C. R. R., 12 N. Y., 237; Hegeman v. Western R. R. Corporation, 13 id., 9; Fero v. Buffalo & State Line R. R., 22 id., 209.)</p> <p>III. The first point, as to the admissibility of Field, is res adgudicata. (La Fange v. The Ex. Fine Ins. Co., 22 N. Y., 352; 29 Barb., 176; 28 id., 80; 32 id., 276.)</p> <p>IV. The objection to the testimony of witness Hinchy, as to seeing coals on track, was proper, and is met by the case of Sheldon v. The Hudson River R R. Co.- (4 Kern., 228).</p>

This was an action of trespass; guarne clausum fregit, commenced in a justice’s court. The jury gave a verdict for defendant. On appeal the county court reversed the judgment entered thereon. On further appeal, the General Term of the Supreme Court reversed the judgment of the county court and affirmed that of the justice; and an order was subsequently made allowing an appeal to this court.

The statement of the case will be found in the opinion of Davies, J., given at length. I. The only question in the case is as to the authority of the comptroller of the city of New York to exercise the power of appointment of commissioners of taxes and assessments more than once, under the Laws of 1859 (ch. 302). 1.

Action in the nature of quo warranto, brought to test the title of the defendants to the office of “ metropolitan fire commissioners,” to which office they were appointed by the governor, by and with the advice and consent of the senate, under the act entitled “ An act to create a Metropolitan Fire District, and establish a Fire Department therein,” passed March 30, 1865: • The complaint alleges that at the time of the passage of the act referred to, the “Fire Department of…

This is an action to restrain the defendants from intermeddling with the property pertaining to the fire department of the city of New York.

<p>Where the policy of insurance describes the property insured as being “ a two-story framed building used for winding and coloring yarn, and for the storage of spun yarn,” it does not thereby warrant that such building is to continue to be thus used.</p> <p>Such statement in the policy is a warrant as to the use in presentí only, and is not to be deemed a continuing warranty as to the future use of such building.</p> <p>The insurer wishing to protect himself by a continuing warranty, as to the future use of such building, must do so by language plainly importing such intent.</p> <p>Where, on account of the character of the use of the property insured, special rates are required to be paid, and the policy contains no warranty of continued use, a change of such use, keeping within the same character of risk, calling for the same special rates, will not avoid the policy where the risk is not thereby increased.</p> <p>In such cáse, it is for the jury to find the fact whether the risk has been increased by such change.</p> <p>Evidence on the part of the insured, tending to show that by such change the risk was greatly decreased, is competent.</p>

The action was on a policy of insurance for $6,000, issued in February, 1861, to Hoffman, Place & Co., of Hew York, covering their stock of merchandise, including not only their own goods, but those held by them in trust or on commission, or sold hut not delivered, in their brick and marble store in Broadway.

The action was in the nature of replevin for a quantity of undressed flax and the seed upon it, which had been levied on by the defendant Wells, as sheriff of Rensselaer county, on execution against Leonard and Reed, in favor of the defend ant Newcomb. The plaintiff claimed title under a bill of. sale of the flax executed to him by William Ray.

I. The conveyance by Catharine. M. to Corbet Peebles, her husband, is invalid at common law. ( White v. Wager, 25 N. Y., 328.) II. The disability of Mrs. Peebles, a married woman, to convey land to her husband was not removed by the “Act for the more effectual protection of the property of married women,” passed in 1848, and amended in 1849. (See White v. Wager, supra.) III.

' The action was on a policy of insurance upon the ship Senator, on a voyage from Hew York to Liverpool: The defense was, that the vessel was unseaworthy at the inception of the risk. It was 15 years old at the date of the insurance, and an extra premium was taken for that cause. The ship had been successful in all its previous voyages, and had delivered its cargoes in good condition.

<p>No exceptions or cases contained in the printed papers.</p>

The facts in this case are sufficiently stated in the opinion of Judge Campbell to enable the profession to understand the principles decided.

Motion by Mr. John Sessions, oh behalf of the plaintiff, to dismiss an appeal taken by the defendant. Judgment for the plaintiff after a trial had had been entered for §2,966.88. The action was against the defendant as sheriff of Kings county, for the escape of one Cornwall, who had been committed to jail on final process, in a civil action, at the suit of the plaintiff.

This cause was heard on an appeal from the judgment of the Supreme Court, at General Term, affirming the decision of the Special Term. The facts sufficiently appear in.the opinion of this court, as delivered by Weight, J.

<p>It is only in clear cases that this court will reverse a judgment for the refusal of a referee to nonsuit the plaintiff when the findings of fact have been approved by the court below.</p>

<p>It is a general rule that if the prosecutor prove the defendant guilty of a criminal •offense plainly charged in the indictment, they should be convicted of that offense, though other facts are stated which, if proved, would show them guilty of an offense of a different, or even of a higher, grade of crime.</p> <p>It is enough to prove so much of the indictment as shows that the defendant has committed a substantial crime, and any other statement not proved will not vitiate.</p> <p>It seems that all defendants who are convicted must have been guilty of the same offense, though they may have been guilty in different degrees.</p> <p>In an indictment against several defendants for an assault and battery, some may be convicted of an assault and battery, and others, of an assault only. An indictment for an assault and battery upon a person to the jurors unknown is not sustained, it seems, by evidence that the name of the person assaulted was known to the jurors finding the indictment.</p> <p>But such an indictment is sustained by evidence before the petit jury, disclosing the name of the person assaulted. It is the ignorance of the grand jury, and not of the petit jury, which authorizes the statement that the person is unknown.</p>

<p>Death of respondent made to appear by affidavit.</p>

The case arose on an application for a mandamus to compel the hoard of supervisors to audit an account of the relator, for sheriff’s fees paid by the district attorney of the city and county of Hew York, in suits for penalties, which he was required to prosecute under the provisions of the metropolitan police act. The facts alleged by the relator were not denied by the. respondents. A great number of suits were brought, pursuant to the act, by Hr.

, The facts appearing by the appeal papers are these: The action was at issue, and had. been noticed by the defendant for trial at a Circuit Court in February, 1863. The cause was called in its order on the 26th February, and moved for trial by the defendant. The plaintiff, although present with counsel, offering no evidence, the defendant moved for and obtained a dismissal of the complaint; and thereupon moved for an extra allowance, the counsel for plaintiff being in court.

<p>Where the holder and owner of a certificate of withdrawn stock issued by the National Bank of Albany, assigned the same in good faith to the Manufacturers’ Bank of Troy, the title thereto was vested absolutely in the assignee.</p> <p>Any transaction had between the assignor of said certificate and the National Bank subsequent to said assignment, not made with specific reference to said certificate, would give to the National Bank no lien thereon, though it had had no notice of such transfer.</p> <p>Subsequent to said assignment, and in ignorance thereof, the National Bank discounting a note for the assignor, in the belief that he was still the owner of such claim against the bank, thereby acquires no general or specific lien on said certificate, and no equity as against the real owner thereof.</p>

<p>A municipal corporation [of a village or city] is not liable to a private action for damages accruing for not providing sufficient sewerage for draining the plaintiffs premises.</p> <p>The duty of draining the streets, &c., of a city, although not a judicial one, is of a judicial nature, requiring the exercise of qualities of deliberation and judgment.</p> <p>Where duties purely of a ministerial character are cast upon an officer, although his chief duties are judicial, and he violates his ministerial duties, he is civilly responsible; but in respect to judicial duties, it is otherwise.</p> <p>Where the authorities of a city caused ■ a sewer to be constructed for a locality which included the plaintiff’s premises, but which, though not in itself a nuisance, was insufficient to carry off the water, held, that the city corporation was not responsible for plaintiff’s damage occasioned by the overflowing.</p>

<p>Members of a copartnership association who have assigned then- interest therein to other solvent parties, with the assent of their copartners who accept such assignees as copartners in their stead, and recognize and treat them as such, as between themselves, are not liable for the debts of the copartnership existing at the time' of such assignment; and they cannot be required to contribute for their payment to those continuing partners who have been required to pay the same.</p> <p>At most, such partners who have thus assigned their interest in, and have ceased to be members of, such association, stand in the relation of sureties for the continuing member's, to their partnership creditors, to be liable on condition ’ as such sureties. And when the continuing partners pay such debt, they pay the same as principals, and their sureties are thereby discharged.</p> <p>An express provision in their articles of association or copartnership that each partner should pay his share of the indebtedness of the association in proportion to his amount of shales of stock does not alter, enlarge or modify the legal liability or relation of the members thereof to each other, It only declares, in terms, what the law implies.</p>

<p>Where the prisoner was pursued in the night season by a shouting mob, threatening his life, and he was seeking to escape under just apprehension of great bodily harm if overtaken by them, and in his flight was seized by some person whom, in self defense, he jnstantly kills, and the person thus killed proves to be an officer seeking his arrest, on trial of the prisoner for the crime of murder in killing such officer, it becomes material for the prosecutor to fix upon the prisoner, at the time of the killing, presumptive knowledge of the official character of the deceased. »</p> <p>This presumptive knowledge of the prisoner at the time of the killing, that the deceased was then and there an officer, etc., may be established by circumstantial evidence, such as that the deceased was clad in the uniform and insignia of his office, and that it was so light at the time that the prisoner must have seen such uniform, etc.</p> <p>But circumstances, to be competent evidence for such purpose, must have specific connection with the time and place of the killing, so that the circumstances being true, the presumption of knowledge would arise therefrom.</p> <p>The condition and power of a street lamp to diffuse light four months after "the killing, is not competent evidence of its condition and power in that respect at the time of the killing, without showing all other conditions affecting its power to be the same.</p>

<p>The facts of the case will sufficiently appear in the opinion of the court, as delivered by Brows-, J.</p> <p>Brabin, the plaintiff, was in actual possession of the property at the time it was taken by the defendant. That such possession was sufficient evidence of title to maintain the action against all the world, except the true owner, and as the defendant set up' title in himself only, title in any other person was of no. avail to him. (Pangburn v. Patridge, 7 Johns., 140; 3 Hill, 168; 20 Johns., 465; 3 Wend., 240; 1 id., 109; 10 id., 349; 14 id., 335; 15 id., 631; 6 Barb., 79.)</p> <p>The judge charged the jury as follows: “ The defendant gives evidence of a prior bargain.” It was objected by the plaintiff that this contract was void by the statute of frauds. The judge then read and explained the statute, and further charged, “that, according to the defendant’s narrative of facts, the contract rested solely in words. There was no other evidence of it.; there was no delivery of the property • there was no memorandum made as the contract was narrated by him; nor any payment; nor was the property present at the time; nor anything to save it from the statute of frauds.</p> <p>I advise you that the contract for the purchase of.the. horses by the defendant, as narrated by himself, is invalid.”</p> <p>The principal question is as to the correctness of this charge by the judge. The charge was proper. The transaction was clearly void within the statute of frauds, and the judge at the circuit was right in so charging. The statute provides (3 E. S., p. 221, § 3, 5th ed.), “that every contract for the sale of any goods, &c., for fifty dollars, or more, shall be void unless a note or memorandum of such contract be made in writing and be subscribed by the parties to be charged thereby; or unless the buyer shall accept and receive part of such goods; or unless the buyer shall, at the time, pay some part of the purchase-money;” none of which conditions were complied with by the defendant and Blackmer, at the time of the pretended purchase and sale of the horses set up by the defendant.</p> <p>The object of the statute -is to furnish evidence other than words, of the agreement, that is, overt acts of the parties.</p> <p>(Archer v. Zeh, 5 Hill, 200; Clark v. Tucker, 2 Sandf., 157; Sprague v. Blake, 20 Wend., 61.)</p> <p>The statute requires payment at the time; that is, during the continuance of the interview. (See 40 Barb., 98.)</p>

The defendant in error-was indicted for an assault and battery on Ida Klube. He was convicted by the Onondaga Court of Sessions, and sentenced to imprisonment for one year and a fine of $250. At the time of the trial another indictment was pending in the Court of Oyer and Terminer, charging him with the same transaction as a rape. The accused was a haekman in Syracuse. He had pursued his calling in that city for over twenty years, and had always sustained a good character.

<p>It seems, that the payment by the mortgagor of money to the mortgagee, and the taking of an assignment of the mortgage, does not necessarily extinguish the mortgage, where the intent of the parties thereto is that the mortgage shall be kept alive, and where the equitable rights of innocent parties require that it should be. •</p> <p>But money paid to the mortgagee, designed at the time to be applied as a payment upon the mortgage, will operate to extinguish the mortgage to that amount.</p> <p>The union of the legal and equitable estate in the same person, does not necessarily effect a merger of the equitable estate, where the intent of the parties and equitable rights require them to be kept distinct.</p> <p>The debtor and creditor becoming the same person, equity will preserve the equitable distinct from the legal rights, according to the intent of the parties and the just requirements of the case.</p>

<p>Where an agent of a firm, authorized to draw its moneys from the bank and apply the same to the uses of the firm, continues to do so after the death of one of the members thereof, without knowledge on his part or on the part of the bank, of such death, he acts within the scope of his authority, and his acts bind the firm.</p> <p>The authority of such agent to draw out and apply the money of such firm to the uses thereof, continues in a qualified form after the death of one of the members of such firm.</p> <p>An indorsee of a negotiable promissory note, receiving it in the usual course of business, without notice that it was made for a specific purpose, or of any equities between the parties, is a holder in good faith; and taking the same as collateral security, he will be deemed a holder for value.</p>

The action was trespass, for cutting a tree on plaintiff’s land, commenced before a justice of the peace. The defendant interposed a plea of title. The action was thereupon discontinued and commenced in the Dutchess County Court, and was tried there. The plaintiff recovered a verdict for twenty-five dollars. This judgment was appealed to the General Term, where it was affirmed, and an appeal was taken to this court. The plaintiff and defendants were owners of adjoining farms.

<p>An essential characteristic of bottomry is, that the money lent is at the risk of the lender during the voyage; and the repayment thereof with interest agreed upon, depends upon the successful termination of such voyage.</p> <p>Where, by the terms of the contract, the money loaned is to be repayed at all hazards, it is not bottomry; for the principal and extraordinary interest reserved are not absolutely at the risk of the lender by the perils of the voyage.</p> <p>When, by the te'rms of the contract, the borrower assigns to the lender, as collateral security for the loan, two policies of insurance upon the vessel, of $2,000 each, and one upon the freight of $4,000, and besides gives him a bill of sale of the vessel, it is not .bottomry.</p> <p>And such a contract of loan, reserving to the lender a greater interest than seven per cent per annuih, claiming it as marine interest, is usurious and void.</p> <p>And the money collected by the lender on the collateral securities thus assigned to him in pursuance of such usurious contract, may be recovered by the borrower, in an action properly .brought for that purpose.</p>

This action was brought by the plaintiff, as holder and owner of a promissory note made by the defendant, as follows : “ $300.

The judge in this case, in addition to .the findings in Max* well’s Gase, found the note had been paid by the defendant and canceled by the insurance company before the transfer thereof to the plaintiff.

<p>The facts are substantially the same as in Ellis’ Gase. The draft was drawn and accepted after the note had been discounted by plaintiff.</p>

<p>Appeal from the Superior Court of the city of Hew York. On the trial, the court ruled that plaintiff was entitled to a judgment upon the pleadings, and thereupon directed a verdict for plaintiff. The complaint is upon a promissory note made by the testator for $8,000, and contains the averments necessary to show a right of action against the defendants. The answer alleges, in substance, that the note was given for the purchase price of certain lands situate in Brookline, in the State of Massachusetts, and sets forth a contract of purchase and sale between the‘said plaintiff and said testator, whereby the former agrees to convey the said lands to the latter on payment of said purchase price; and containing a provision to the effect that, in case of default of such payment, such plaintiff should have the right to sell said lands at public auction three months after said note should fall due, and apply the proceeds of such sale to the payment of such note and expenses of.the sale, and if any surplus should-accrue, to pay the same to .said testator. The answer also contained other allegations not material to any question now raised.</p> <p>By the terms of the contract of purchase, the equitable title vested in the purchaser, subject to be defeated only in case of non-payment of the note, and the exercise, by the plaintiff, of the power of sale contained in the agreement.</p> <p>The effect of the whole agreement, taking the note as a part thereof, was to vest in the plaintiff an equitable mortgage on the land, which could be foreclosed only by decree in equity or by the execution of the power of sale contained in the agreement.</p> <p>. Hence, the rights of the parties, and their remedies, were precisely the same as though the plaintiff had conveyed to the purchaser and taken back a bond and mortgage. (Story, Eq. Jur., § 1217, p. 440 ; 4 Kent. Com., § 58, p. 144, 151, 3d ed., and cases cited.) The case is to be treated, then, as an action against executors, on a bond secured by a mortgage. (Neate v. Duke of Marlborough, 3 My. & Cr., 407, &c.; Bac. Abr., Heir and Ancestor, H. 1; 2 Tidd’s Pr., 9th ed., 936, &c.)</p> <p>The testator being domiciled here, the law of this State affords the rule of administration of the personal assets. (See 2 Sandf. Ch., 173; Story’s Conf. of Laws, § 485-487; Lyman v. Parsons, 2 N. Y., 103.)</p> <p>The effect of the statute (1 R. S., 749, § 4), is to throw the payment of the mortgage in the first instance, on the land as the primary fund, so that the holder of the mortgage must exhaust his remedy upon the land before resorting to the personal estate.</p> <p>The only question in this forum is whether the note was a valid obligation of the testator, imposing a personal liability upon him, and whether the matters stated in the answer discharged the obligation.</p> <p>Although the Code admits equitable defenses in what are properly termed actions at law, the answer herein does not set up even an equitable defense. At most it only asserts, by way of bar to an action on a promissory note, that a state of facts may exist which require the testator’s assets to be marshaled, so as to exonerate his personal estate, in whole or in part, from the payment of this demand.</p> <p>This case is not within the terms of the section of the statute (1 R. S., 749, § 4). There is no mortgage executed by the ancestor, etc.</p>

The action was brought on a promissory note for $500, dated 8th November, 1855, made by defendant, payable six months after date to his own… Held: in substance, that the note in suit was a valid security in the hands of the company notwithstanding the condition of the subscription as to the amount to be subscribed thereto was not fulfilled, because the defendant had received from the company a full consideration therefor in the policies taken on its credit by him; that the…

<p>Por a railroad company to make what is denominated “ a running switch”* over the crossing of the track by a public road, in the populous part of a village, is of itself, an act of gross and criminal negligence on the part of such company.</p> <p>Any person who, without negligence on his part, is injured at such crossing by the act of the running switch, may recover of such company for the damages sustained, without other proof of negligence than the act of making such running switch.</p>

The action was on a note of Murray & Mattimore for $356.97, made on the 16th of September,' 1857, and payable two months from date. The defense was usury. The cause was tried before Judge Johhsoh at the Steuben Circuit, and the jury found a verdict for the plaintiffs. Bo motion was made for a new trial on the facts; but the judgment was reversed on appeal for supposed errors in the charge and refusals to charge.

The action was on a policy of insurance, bearing date on the 2d of August, 1855, and covering property of the plaintiff in Williamsburgh, which was destroyed sixteen days afterward by fire. The defense was, that the policy never became an operative instrument; that it was not accepted by the plaintiff; that it provided, in terms, that the instrument should not be binding upon the company until the payment of the premium, and that the premium was never paid.

<p>An oral agreement to marry, and pay the then existing debts of the proposed husband, in consideration that he convey to the proposed wife certain premises of which he is the owner, if fully performed by the wife, is valid and binding in equity upon the husband; and a conveyance made to her of the premises in pursuance thereof, is upon a good and sufficient consideration.</p> <p>Every agreement, promise or undertaking, made upon consideration of marriage, unless in writing and subscribed by the parties, is void; and a settlement made subsequently in pursuance of such void agreement, is invalid as against creditors.</p> <p>A judgment creditor of the husband who became a creditor subsequent to such agreement, but who obtained judgment prior to the conveyance of the premises, cannot impeach such conveyance.</p> <p>A voluntary conveyance is not per se fraudulent as to creditors; whether it be fraudulent is a question of fact for the jury.</p>

<p>Plank road companies formed under the act of May 7, 1847, and the acts amending the same, under the act of March 28, 1854, do not forfeit their powers and franchises by any acts or omissions not willful or malicious on their part.</p> <p>Where any plank road or turnpike company organized under the laws of this State shall have been in actual operation, and in possession of the road upon which it has taken tolls for five copseoutive years next preceding the commencement of the action, parol proof of its corporate existence and use, is sufficient for all purposes of the action, unless the opposing party, by answer duly verified, stating the nature of his title and right to immediate possession and use, set up title in himself to the road or to some part thereof.</p> <p>The provision of the statute of April 18, 1855, operates as a limitation upon the right of the defendants to put in issue or controvert the regularity of the company’s organization, or its title to its franchises, after a possession and enjoyment of five years, except in the case of setting up title in himself, etc. This title to the road, it seems, is not a mere easement, such as every member of community has to pass over a highway; but is of a nature giving the claimant the right to the immediate possession and use of the road.</p>

The action was by the plaintiffs, a plank road corporation, to recover the penalty given by statute for forcibly passing one of their gates without having paid the legal toll. The trial was had before Mi’. Justice Parker without a jury, at the Schuyler circuit, in December, 1860.

The action was upon a bond of indemnity against a mechanic’s hen, alleged to have been executed by defendant Maylor as principal, and defendants Osborn and Calrow as sureties. Calrow was not served with process. Maylor and Osborn answered, denying in general form the allegations of the complaint. The cause was tried before Mr. Justice Mohell, and a jury, in May, 1863, and a'verdict rendered against both defendants.

<p>, Motion to postpone the argument because of inconvenience of one of the parties.</p>

This action was brought in the Superior Court of the City of Yew York by four persons, claiming to be part owners of the brig Crimea, J. P. Stinson, master, to recover against the defendants the plaintiffs’ proportion of the freight and demurrage earned by the vessel on a voyage from Cardenas to the port of Yew York, where she arrived in June, 1857; and which money had been collected by the defendants as agents of the owners of the vessel.

<p>Where the plaintiff holds as collateral security for the payment of a debt, tho receipt of a bailee for stereotyped plates, and by an understanding and agreement with the parties in interest, looking to their mutual advantage, he transfers his interest in the plates, and gives an order for their delivery to the vendee, who undertakes to pay his demand from the proceeds arising from the use of the plates, and who gives security for the fulfillment of his undertaking, the plaintiff still retaining a lien upon the plates for his further security, the transaction is not to be deemed a payment.</p> <p>The giving of further time for the payment of the debt due the plaintiff, with the knowledge and assent, and for the benefit of those who stood in the relation of sureties, does not discharge them from their liability as sureties.</p>

<p>Motion for a re-argument.</p>

<p>Where the language of an instrument is ambiguous and susceptible of more than one construction, that construction will be adopted which, in the light of surrounding circumstances, and upon a view of the whole instrument, is in accordance with the apparent intent of the parties.</p> <p>Under this rule the words “all lawful debts, dues, demands and claims now due, or to grow due hereafter, from said John J. Springsteen,” interpreted to mean “from the estate of John J. Springsteen, deceased.”</p> <p>Held, That the term “ debts, dues, demands and claims now due or to grow due hereafter, etc.," included legal costs and charges against the estate afterwards incurred in the settlement of said estate.</p>

<p>Where the language of an instrument is ambiguous and susceptible of more than one construction, that construction will be adopted which, in the light of surrounding circumstances, and upon a view of the whole instrument, is in accordance with the apparent intent of the parties.</p> <p>Under this rule the words “all lawful debts, dues, demands and claims now due, or to grow due hereafter, from said John J. Springsteen,” interpreted to mean “from the estate of John J. Springsteen, deceased.”</p> <p>Held, That the term “ debts, dues, demands and claims now due or to grow due hereafter, etc.," included legal costs and charges against the estate afterwards incurred in the settlement of said estate.</p>

Writ of error to the Supreme Court, to review a judgment of that court, affirming the conviction of, and judgment against the plaintiff in error in the Court of Oyer and Terminer of the county of… Held: according to the written opinion, that such a motion, made upon affidavits, could be entertained by the court, it was considered that it was not shown that Shaw was incompetent to sit as a juror for the causes alleged.