Volume 34 — Barbour's New York Supreme Court Reports

ACTION of trespass, for taking and carrying away a quantity of cheese, the property of the plaintiff. The defendant justified as a constable, under a judgment and execution against one Nicholas Smith.

ACTION to recover against the defendants, jointly, $55, as pew rent on an assessment upon pew No. 18 in the plaintiffs’ church, valued on making the assessment at $275. The action was tried before Allen, J. and a jury, at the Onondaga circuit, in June 1860.

MOTION to discharge an order of arrest. The complaint alleges that the plaintiff, at divers times in the month of November, 1860, to wit, on the 6th, 9th and 12th days of said November, by his agents, delivered to the defendant, who was doing business in the city of New York as a broker, divers bills of exchange on parties in England, for the aggregate sum of £9600 sterling,, upon an agreement made with the defendant, whereby he agreed to sell said bills of exchange at…

<p>ÁPPEAL from a judgment entered upon the report of a referee. The complaint alleges that the parties made an agreement, whereby the plaintiff was to work for the defendants for a year, commencing January 1st, 1857, and the defendants were to pay the plaintiff $75 for each and every month therefor; that the plaintiff had performed his part of the contract, and had tendered his services for the months of November, and December, 1857, which the defendants rejected; and. that there is $150 due him from the defendants. The answer denies that the plaintiff worked for the defendants during said months of November and December, and puts in issue the alleged tender by the plaintiff of his services for the two months. The answer also sets up as a defense, that on the 15th of April, both parties entered into an agreement with each other, whereby the said agreement for a year was terminated, and the employment of the defendant ceased.</p> <p>The action was referred to the Hon. William Mitchell, and tried before him. The referee found that the plaintiff was employed by the defendants for a year, commencing the 1st of January, 1857, at $75 a month, payable monthly; that he continued in their employment until the 15th of April, 1857, when he was paid in full to that day, and was at his own request and with the consent of the defendants, discharged from their employment, and went into the employment of another company; in whose employment he continued until September 1st, 1857; that on the last mentioned day, he tendered his services to the defendants, and tendered the same almost daily from that time to the end of the year 1857. The referee also found, as matter of fact, that the plaintiff sued the defendants, in November, 1857, on a complaint similar to the complaint in this action, for two months’ wages, viz. for September and October, 1857; that the defendants putting in no answer, judgment was taken against them by default, and the amount of the judgment levied on execution.</p> <p>The referee found, as matter of law, that the defendants were not estopped from showing in this action that the agreement for a year was vacated by mutual consent; that under the facts proved in this case, it was so vacated, and that the defendants were entitled to judgment.</p>

THIS actien was.brought by the plaintiffs, as judgment creditors of Bassett & Aborn, formerly copartners in business, to set aside an assignment executed and delivered by them to 'the defendant Thomae, on the 15th day of August, 1854.

<p>Where the common council of the city of New York enters into a specific agreement with a rail road company, prescribing the regulations to which the latter shall be subject, requiring no further license, and reserving no right to require one, they are concluded by their contract from afterwards passing an ordinance requiring the taking out of a license and the payment of a fee by the company, as a condition precedent to the right to run its cars. Inqraham, J. dissented.</p> <p>Such an agreement is neither more nor less than a license; and if it confers the right to run cars in a certain manner, through a specified portion of the city, no subsequent enactment can curtail that right.</p>

<p>MOTION, by the respondents, that an appeal be heard out of its order on the enumerated calendar.</p>

<p>APPEAL by the defendant from a judgment entered on the report of a referee, upon exceptions taken on the trial and after the making of the report. The action was commenced by the plaintiff, Dennis McMahon, jun. as assignee, under an assignment executed by Charles T. Harrison, in trust for the benefit of creditors, and was brought for the purpose of setting aside a conveyance previously executed by Harrison to the defendant of certain real estate therein described. The referee found—1: That Charles T. Harrison, on the 22d day of March, 1852, was owner of a life estate in the lot and buildings known as Ho. 694 Houston street, in the city of Hew York, as tenant in common with his brother Samuel C. Harrison, on which premises was a mortgage of $5000, and they were worth, over and above said mortgage, $5000; and the value of said Charles T. Harrison’s life interest in / the same was about $1800. 2. That on the said 22d day of March, the defendant was indebted to Charles T. Harrison in about the sum of $500, for moneys received by the defendant belonging to the said Charles T. Harrison, being in part proceeds of the interest of the said Charles T. Harrison in a surplus arising from the sale of certain mortgaged premises, H o. 14 Charles street, in the city of Hew York, in which said Charles T. Harrison had an estate in fee simple, and in part of rents of said premises, and of said lot Ho. 694 Houston • street, collected by the defendant for said Charles T. Harrison, without any express authority for so doing, but in collecting which he assumed to act and did act as his agent. 3. That on said last mentioned day, Charles T. Harrison owned an interest in certain trusts under his mother’s will of personal estate, which might under some circumstances be of considerable value. 4. That at the time last mentioned, and for about seven years previous thereto, the said Charles T. Harrison was and had been a mariner, following the navigation of the high seas for a livelihood; was about 25 years of age, and had acquired, reckless and improvident habits; was unacquainted with business affairs as transacted on land; was easily led and persuaded to do foolish and improvident acts, and on said 22d day of March, 1852, was needy and in want. 5. That at and before said 22d day of March, 1852, the defendant stood in a fiduciary relation to said Charles T. Harrison, having assumed to act, and having acted as his agent in the collection of his interest in the rents of 694 Houston street and Ho. 14 Charles street, and in receiving the surplus aforesaid, though without express authority for so doing, and had been the agent in fact of the executor of the will of the mother of Charles T. Harrison, and which executor, by the will, was trustee of various personalty directed to be invested for the said Charles T. Harrison and his brother. 6. That the conveyance and deed, mentioned in the pleadings, executed by Charles T. Harrison, bearing date the 22d of March, 1852, was obtained by the defendant by unjust and inequitable means; that Charles T. Harrison was ignorant of business, ignorant of the situation and value of his property} unacquainted with the state of accounts' between him and the defendant, and utterly unable of himself to investigate and ascertain his rights; that he had no counsel to advise and assist him; that all those circumstances were known to the defendant; that the defendantdid not disclose, hut concealed the txue state of the account's between him. and Charles T. ■Harrison; that Charles T. Harrison was destitute of money, and a reckless, improvident and dissipated sailor, all of which was known to the defendant; that Charles T. Harrison was drawn into the bargain, which resulted in the deed of March 22, 1852, by the defendant; and that the consideration paid by the defendant for the said deed was grossly inadequate; and finally, that the conduct of the defendant in obtaining and taking said deed was inequitable and fraudulent. 7. That the sums actually paid by said defendant to Charles T. Harrison therefor were, in gross, about the sum of $1100, of which Harrison received about $700 in money, $150 in a gold watch, and $250 was paid to the counsel of the defendant, for which Harrison derived no benefit or value. That the actual value of the estate so conveyed, in addition to the indebtedness so existing from the defendant to the said Charles T. Harrison, was at least $2300, and under some contingencies was worth a much" larger sum. That at 'the time of such -conveyance to'the defendant, there were creditors of the said Charles T. Harrison, amounting to at least $600, who were prejudiced thereby, the said Charles T. Harrison himself being guilty of no fraud in making such conveyance. 8. That on the’ sixth day of August, 1852, the said Charles' T. Harrison, by deed of assignment, conveyed to the plaintiff, for the benefit of his creditors, all and singular his estate, real and personal, and his rights of action, with full power to sue for, and collect the same, which assignment the plaintiff accepted and acted upon. 9. That on the third day of September, 1852, the defendant, by a further imposition and fraud practiced upon the said Charles T. Harrison, procured from him, for a trifling consideration, a paper writing, attempting to revoke said assignment to the plaintiff. From which facts the referee found as conclusions of law: 1st. That Charles T. Harrison possessed a vendible interest in the premises 694 Houston street, above described; also in the indebtedness due him from the defendant; also in the personal estate of his mother under her will and codicil, which he could convey and release; and that even if ho had no such vendible interest, that the defendant was estopped by his acts and declarations from averring that Charles T. Harrison had no such right to convey or .release. 2d. That the conveyance and release by Charles T. Harrison of such estate, interest and indebtedness to the defendant was void, because of the fraudulent acts and concealment of the defendant, in inducing and procuring the same to be made; and' also because of the fiduciary relation in which the defendant stood to the said Charles T. Harrison, the consideration being inadequate; and also because the said Harrison was a mariner, and the bargain was a bargain made with an inadequate consideration; and also because at the time the same was made the said Harrison was needy and in want, and was unacquainted with the nature and extent of his said interest in his mother’s estate; and the defendant took advantage of the same, and concealed from him the true situation and value of said interest, and that the allegations of the complaint in that behalf, in this cause, are fully proven therein. 3d. That the plaintiff, as assignee for the general benefit of creditors, under the assignment to him by said Charles T. Harrison, was entitled to maintain this action, and to have the said conveyance set aside,"and the property and rights reconveyed by the defendant to the plaintiff, as such assignee, and . to have the defendant account and pay over to him, as such assignee, the sums of money which the defendant owed said Charles T. Harrison at the time of such conveyance, and also any sums of money, rents, or interest of moneys which the defendant had received of and from the said premises so conveyed, before or since that conveyance, belonging to the said Charles T. Harrison, or to the plaintiff, as his assignee, after deducting the moneys and value of the watch received by Charles T. Harrison, of the defendant, as a consideration for such conveyance thereby set aside; the principles of which accounting, and the decree thereon, were settled in the report. 4th. The referee further found, as a matter of law, the paper-writing procured by the defendant, of the said Charles T. Harrison, the third of September, 1852, revoking such deed of assignment, to be fraudulent and void, and inoperative, and ineffectual for that purpose. 5th. That the plaintiff was entitled to recover his costs and disbursements in this action against the defendant, to be adjusted.</p>

APPEAL by the defendant from a judgment entered at a special term upon the verdict of a jury. The opinion of the court sets forth the material facts.

<p>Whether the legislature had, or had not, the constitutional power, originally, to appoint the commissioners of records for the city and county of New York, under whose direction and superintendence certain work has been done, yet the work having been performed, and the legislature determining that the same was a service rendered to the county, they had the right to tax that portion of the state to pay for it.</p> <p>Although the legislature cannot authorize the taking of the property of an individual, for public purposes, without compensation, or for private purposes with or without compensation, yet it has the absolute power to determine what sums shall be raised by taxation, and the purposes to which they shall be applied.</p> <p>It can apportion the public burthens among all the tax paying citizens of the state, or among those of a particular section or territorial division.</p> <p>Where the legislature has deemed it proper to determine that certain work performed by individuals, for a county, is for the public good, and, without any reference to the mode by which they are authorized to enter upon the performance of the work, it has enacted that they shall receive compensation for it, and has taxed the inhabitants of the county for that purpose, it is not a ground of objection that the legislature has not declared the precise amount of the claim, if it has specified a maximum amount of compensation, and has indicated the method by which the actual amount due shall he ascertained.</p> <p>The legislature, by the 6th section of the act of April 17,1860, empowered the board of supervisors of the county of New York to cause to be raised and collected a sum not exceeding §80,000, to meet and pay whatever sum, up to that amount, might be found due to the contractors with the commissioners of records; and authorized the comptroller “ to pay said amount when the same ” should “ be judicially determined.” Held 1. That the legislature did not intend, by the terms “judicial determination," a determination by action commenced against the board of supervisors, and a judgment recovered in it, before the comptroller should pay the amount; inasmuch as such a remedy did not exist, in favor of the contractors.</p> <p>2. That the contractors could have no judicial determination, except in a proceeding by mandamus; and that in the absence of any .specific directions in the act, as to the manner of that determination, it would be unreasonable to infer that any other mode was intended than that attainable by mandamus.</p> <p>3. That the proper remedy of the contractors, upon the refusal of the comptroller to pay them the amount certified by the commissioners of records to be due to them, was by mandamus.</p> <p>There can be an appeal-only from a jinal judgment.</p> <p>Whenever a case is referred, at a special term, even when the order of reference settles all the essential points at issue-, it is nothing but an interlocutory order; and no final judgment can be entered until the coming in of the report. If the party appeals from the order of reference, the appeal will be dismissed.</p>

A PPBAL from a judgment entered upon the report of a Ü referee. The defendants were the owners of the schooner S. H. Smith.; the defendant Smith owning one-fourth, and each of the other defendants one-eighth; the whole vessel valued at $5500. The plaintiffs were shipping and commission merchants, and in 1854 and 1855 were acting as agents of the schooner above named, being constituted such agents by the defendant Smith and one Justus Ryder, some time captain. In.

<p>Upon an answer setting up the non-joinder of other persons as co-defendants, articles of copartnership are admissible to prove a partnership between the defendants and the persons omitted.</p> <p>But where the answer alleged that two persons not joined were partners of the defendants, and the articles produced showed that there was only one partner not joined, it was held that the articles were properly excluded.</p> <p>Where vendees have been guilty of a fraud, upon a purchase of goods on credit, the vendor may, without waiting until the time of credit has expired, reclaim the goods, or he may waive the tort and recover in assumpsit for the value. ,</p> <p>In the latter case, it is sufficient for him to allege, in his complaint, that he sold to the defendant goods to the value of so much, and that the defendant has not paid, &c.</p> <p>A party to an instrument under seal, having a subscribing witness, is not a competent witness to prove its execution. Per Clebke, J.</p> <p>To lay the foundation for the admission of any other evidence than that of tho subscribing witness, it is necessary to prove that the latter was not capable of being examined, as that he was dead, or incompetent to give evidence from insanity or infamy of character, or absence in a foreign country, or that he could not be found, after strict and diligent inquiry. Per Clebke, J.</p>

THIS is an appeal brought by the plaintiff, from a judgment of this court dismissing the complaint, rendered at a trial term thereof, held by Hon. William F. All,en, on the 8th day of March, 1859. The complaint alleges a retainer of the plaintiff as a real estate broker, by the defendant, to negotiate the sale of the large block of ground bounded on the Fifth avenue, Twenty-third and Twenty-fourth streets, in the city of Hew York, known as the Hippodrome property.

<p>The statutory proceedings for acquiring jurisdiction of absent defendants must be strictly complied with, in order to.give the court jurisdiction.</p> <p>The jurisdiction is strictly statutory, and can only be acquired in the mode prescribed by the statute.</p> <p>Where an infant defendant, at the time of the commencement of an action for partition, resided in the state of California, and an order for the service of the summons upon her, by publishing the same, was granted, upon an affidavit which did not show that the residence of the infant was unknown to the plaintiff, and could not with reasonable diligence be ascertained; it was held that the infant defendant was not properly served with process, so as to give a good title to a purchaser at a sale under the judgment or decree of partition.</p>

THE complaint in this action alleged that the defendant contracted with the plaintiff for the construction hy the plaintiff of a gold crushing machine, and that the defendant agreed with the plaintiff to pay to the plaintiff therefor the sum of $2500. And also that the defendant contracted with the plaintiff for the making hy the plaintiff for the defendant of a fly-wheel, to he attached to said machine, for the sum of $ 125.

THE complaint in this action. alleged that the plaintiff, Harriet C. Onderdonk, was an infant under the age of 21 years, and. that William H. Onderdonk had been duly appointed her guardian for the purposes of this action. That Eobert W. Mott, late of Queens county, now deceased, on the 6th day of August, in the year 1844, duly made and executed his last will and. testament, which was set out in the complaint at length.

THIS action came before the court by virtue of an order made by Justice Lott, at the trial, directing the defendant’s exceptions to be heard at the general term, in the first instance, with a stay of the plaintiff’s proceedings in the meantime.

THIS action was brought for the recovery of tolls upon freight transported by the defendant, upon its rail road, since December 1, 1851.

ripHE surrogate of Tioga county adjudged and decreed that JL a paper executed by Wait Smith, deceased, was his last will and testament, and that it was duly executed and valid. Also that no part of said will was revoked by the deceased during his lifetime; that the deceased, at the time of executing said will, was in all respects competent to make a last will and testament and to devise real estate, and not under any restraint.

ACTION brought to recover the value of property claimed to belong to the plaintiff, and alleged to have been wrongfully converted by the defendant. The defense was that the defendant caused the property to be taken and driven away by virtue of an attachment issued out of a justice’s court, and that he caused the property to be sold by virtue of an execution issued on a judgment rendered in said attachment suit.

The complaint alleged that on the 18th day of J une, 1850,- the plaintiff and the defendants, except David Eeese, together with Michael Williams and John H. Ashley, entered into copartnership together as rail road contractors, and continued together as such until June 17, 1851, when said co-partnership was dissolved, and a copartnership was then formed and the copartnership business was continued by the plaintiff and said defendants, except David Eeese, until'about January…

APPEAL by the defendants from a judgment entered at a special term, upon the verdict of a jury. The action was brought to recover the amount of a promissory note for $356.97 made by Murray and Mattimore, and indorsed by the other defendants, dated September 16, 1857, and payable two months after date at 'the Atlantic Bank in the city-of Mew York.

APPEAL by the defendants from an order made at a special term, whereby judgment was ordered for the plaintiff upon separate demurrers of the defendants to the complaint, with leave to the defendants to answer on payment of costs. From the complaint, it appears that in March, 1857, one William Burrows was the owner of a piece of land in the city of Rochester. He had received a deed of it to himself alone from the former owner.

APPEAL by the defendants from an order made at a special term, overruling a demurrer to the amended complaint. On the 5th of November, 1847, Abner Adams and the defendant Green made and executed the agreement set forth in the complaint, whereby Adams covenanted to convey the premises therein described to Green, his heirs and assigns, on payment of $1050 and interest, in ten installments, the last of which became due on the 1st day of January, 1857.

THIS was an appeal by the defendant Eiley from a judgment entered upon the report of a referee. The action was brought to compel the specific performance of a parol contract for the sale to the defendants of a flouring mill, situate in the city of Eochester.

APPEAL by the plaintiff from a judgment entered upon the -report of a referee. The action was brought against the defendant as survivor of himself and Hosea King, deceased, upon a note given by them as copartners, and payable one day after date, dated October 9th, 1852. The action was commenced October 16th, 1858. On the 13th day of October, 1858, six years had elapsed from the time the cause of action accrued.

THIS action was commenced to recover the amount of a promissory note alleged to have been made by the defendant, payable to the order of one William Groodwin, and by him indorsed to the plaintiffs. Issue was joined by the answer of the defendant, who by it denied all the allegations in the complaint.

APPEAL by the defendant from a judgment entered upon the verdict of a jury. The action was founded upon a contract of the defendant for the sale to Smith & Mathews of his crop of corn of the year 1858. The plaintiff is the assignee .of the contract from Smith & Mathews, and sues for damages for the non-delivery of the corn, pursuant to the contract. The contract was in writing, and is as follows : . “ $50.

THIS was an action upon a special contract of guaranty. The complaint alleges, that “ on the 20th day of December, 1854, by a lease of that date, the plaintiff leased and rented to Thomas Beynolds and Patrick Tague &c., his farm &c., and certain articles of personal property, for five years, at $200 per year, payable on or before the 15th day of November in each year.

ON the 16th of April, 1855, the defendant insured the plaintiff against fire for five years from April 9, 1855, in the sum of $1060.

THIS action was brought to recover the sum of $978.52 paid by the plaintiff for and on account of the defendant, in September, 1853. In 1850, the defendant, a resident of Buffalo, New York, was the owner of the steamboat A. D. Patchin, whereof one Whittaker was master. She was engaged in running from Buffalo to Chicago.

The defendant, on the 29th day of July, 1857, executed and delivered to the Tates County Bank his note for $500, payable in forty-five days from that date, with interest. Held: by him, he was bound to prove affirmatively what, particular bill or bills he had at the time of presenting the petition for the appointment of a receiver. II.

The action was for the foreclosure of a mortgage made by the defendant, John Crombie, to John Fairbanks and the defendant, James Connolly, for the purchase money of the property therein described. The complaint alleged the transfer by John Fairbanks of his interest in the mortgage, to James Connolly, and the assignment of the same by James Connolly to the plaintiff, with a guaranty of payment.

APPEAL by the defendant Beeman from a judgment entered at a special term, upon the judgment of a referee.

THIS was an action upon a draft drawn by the defendant, at Cincinnati, upon the Ohio Life Insurance and Trust Company, New York, for $250, payable to Henry A. Hurl-but or order, and dated August 17, 1857. The draft was given in payment of a dividend upon stock in the defendant’s company, owned by William Y. Brady. Brady being absent in Europe, sent a written authority to Hurlbut to receive the dividend.

THIS was an appeal from a judgment entered upon the verdict of a jury, after a trial at the circuit, in an action for work and labor. The jury found in favor of the plaintiff, and the defendant appealed.

The action was brought to recover damages sustained by the plaintiff in consequence of an accident occurring upon the railway of the defendant, on which he was a passenger, in March, 1859.

PPEAL from a judgment entered at a special term, dismissing the complaint, with costs. The action was brought to rescind a sale of certain stock, to the plaintiff, by the defendant. Held: one object at least of the agent has been, either to sell his own property, or to purchase that of his principal. (2.) In this case, the defendant, in January, informed the plaintiff that he did not want to sell any of his stock, although the plaintiff then wanted to purchase.

ACTION against the defendant as joint maker of a note with one Anderson, tried before Mullís, J. at the Oneida circuit, in dune, 1859, and a verdict rendered for the defendant. The defense was that the signature of the defendant’s name was a forgery. The note, shortly before the J une circuit in 1858, was put in the hands of Mr. Hillis, a counsellor of the court, with a view to a preparation for a trial at that circuit.

THE plaintiff brought his action before a justice of the peace, to recover $75 deposited with the defendant by one Thomas C. Hyland. The defendant alleged that the money was deposited by Hyland in part payment of a note of Hyland held by the bank and past due, and by way of counterclaim set up a judgment recovered in this court against Hyland, upon the note.

THIS was an appeal from a judgment of the county court of Washington county. The action was commenced in a justice’s court. The plaintiff alleged, in his complaint, that on the 1st of June,' 1859, he contracted to sell, and did sell, to the defendant, twenty-four lambs, at $2 each, to be taken away by or before the last day of August thereafter.

THIS action was brought to charge the defendants with a debt of “ The Hudson Elver Stone Dressing Company,” a corporation organized under the act of this state of February 17th, 1848, authorizing the formation of corporations, for manufacturing and other purposes.

THE parties entered into a contract, in August, 1857, by which the plaintiff agreed to purchase certain real estate of the defendant, consisting of ten lots of land in the city of Hew York.

THE complaint in this case alleged that the plaintiff was the owner, by lawful title in fee and in possession, of certain premises therein described, subject to the dower right of the defendant; that the defendant is the widow of William Graham, deceased, who, at the time of his death, was the owner of two lots of land on the southeasterly corner of the Eighth avenue and Thirty-fifth street in the city of Hew-York, being in front on the Eighth avenue forty-eight feet four…

<p>The words “ personal representatives,” used in the statute relative to the foreclosure of mortgages by advertisement, passed May 7, 1844, requiring the notice to be served upon the mortgagor or his personal representatives, means “ executors or administrators,” and not heirs or devisees.</p> <p>Where there is no personal representative to be served with notice, that provision of the statute is inoperative, and the foreclosure will be good if conducted in the mode otherwise prescribed in the statute.</p> <p>Where mortgaged premises consist of two or more parcels which had previously been held, used and conveyed together, as one farm, a sale of the whole in one parcel is good.</p>

APPEAL by the defendant Bliss from a judgment entered upon the report of a referee.

THIS was an action against the defendants as indorsers of a promissory note. The cause was tried at the Hew York circuit before Justice James, without a jury. The court found the following facts: That the plaintiffs are a banking association duly organized under the laws of the state of Hew York.

THE action in this cause was. brought upon the following contract. “ Mr. J. Conover agrees to deliver to S. B. Conover all the peach-blow potatoes he raises the coming season, in good merchantable order, delivered on the boat at 12s. per barrel. He agrees to plant ten acres or more. New York, March 6th, ’57. Joseph Conover. New York, March 6th, 1857.

<p>ACTION to recover damages for breach of a contract, for the formation of a partnership. The plaintiff, a dentist of Brooklyn, and the defendant, a dentist of Havana, Cuba, entered into a written agreement at the latter place, March 12, 1853, by which they were to prosecute dentistry, as partners, at Havana; to begin some time in .October or November thereafter, if plaintiff should present himself. The agreement was silent in regard to the duration of the partnership. Thereupon the plaintiff sold out his business at Brooklyn to Dr. Marvine, and entered into bonds not to resume practice there, and made all preparations for carrying out his agreement. After this, and on the 15th day of May, 1853, he received a letter from the defendant declining to carry out the agreement on his part. Other letters followed. The plaintiff nevertheless went to Cuba, arriving there December 15, 1853, and offered to perform the agreement, but the defendant refused, referring the plaintiff to his letters. The plaintiff returned home, but did not resume .practice. The plaintiff claims that he sustained large damage by reason of the defendant’s violation of the agreement. On the trial at the circuit the plaintiff proved the agreement, his sale of his business at Brooklyn &c., the defendant’s refusal to perform, the plaintiff’s readiness and offer to perform, and the damages the plaintiff had sustained by reason of the defendant’s violation of the agreement. The defendant moved to dismiss the complaint, on three grounds, viz : 1. That the contract was incomplete on its face, and contemplated other and further provisions before it could be binding upon either of the parties, and was therefore an imperfect agreement and void. 2. That it was not written on stamped paper, and being a Cuban contract, was controlled by the laws which govern that island, which require a government stamp. 3. That the plaintiff did not present himself to the defendant at the time stipulated in the alleged contract. The court denied the motion on each of the above points, and the defendant excepted.</p> <p>The jury rendered a verdict in favor of the plaintiff, and assessed his damages at $4000. Judgment was suspended, ■ until the exceptions taken should be reviewed at a general term of the court.</p>

BOTH of these actions were brought to foreclose a mortgage executed by Fitzhugh and Littlejohn to the City Bank of Oswego, upon different pieces of land, to secure the same demand, and were tried together.

<p>THIS cause was tried before Justice Allen, as referee, upon an agreed statement of the facts, who reported in favor of the plaintiffs. Judgment having bben entered up, on the report of the referee, the defendant appealed to this court. The facts, so far as they are necessary to an understanding of the questions decided, are stated in the opinion of the court.</p>

<p>ACTION to recover the penalty of $50, under the provisions of an act of the legislature of this state, entitled “An act to prevent extortion by rail road companies.” (Laws of 1857, p. 432.)</p> <p>The cause was tried before Justice Morgan and a jury, at the Onondaga circuit, in February, 1861. The defendant’s counsel requested the court to charge the jury : (1st.) That the company was not responsible for the penalty, for the act of the conductor in taking excessive fare, without affirmative proof that they authorized it. Befusal and exception. (2d.) That the defendant was only required, by statute, to keep the ticket office open for one hour previous to the time fixed for the cars to leave by the time table. (3d.) That if the agent had occasion to step out a minute or two, a reasonable time, after an application for a ticket, should be allowed, to call him.</p> <p>The court charged that if, when the plaintiff applied for a ticket, the ticket drawer was locked and the key in Curtis’ pocket, the plaintiff was not bound to' wait until Curtis could be called, or the key obtained ; that in such a case the office was not open, within the meaning of the statute ; and that if there was time enough after the plaintiff applied for his ticket to make the change and give him his ticket, and enable him to get on the cars with safety before the train started, had the drawer been unlocked, then the plaintiff was entitled to recover. To which charge, and refusal to charge, the defendants’ counsel excepted.</p> <p>The jury having. returned a verdict for $50, judgment was perfected thereon; and the defendant appealed to this court.</p> <p>The character of the evidence is sufficiently given in the opinion of the court.</p>

THIS action was upon a promissory note of the defendants for $2000, dated October 20,1853, payable to the plaintiff or bearer, on demand. It was for money borrowed by Thorn. Potter appeared and set up the statute of limitations. There appeared, among others, the following indorsements : “ $140. Received the interest on this note up to October 20, 1857.. $200. Received on the within note $200. October 8, 1858.

<p>EXCEPTIONS ordered to be heard at general term, in the first instance;</p>

<p>To prevent a recovery for a breach of warranty upon the sale of property, on the ground that the defects existed, and were visible, at the time of the sale, it must be shown that the defects were such as could be discerned by an ordinary observer examining the property with the view of trading for it, and were such as not to require skill to detect them.</p> <p>Where, on the trial of such an action in a justice’s court, the question whether the defects complained of were visible at the time of the trade, so as to take them out of the operation of the warranty, is before the justice, and is passed upon by him, his finding is conclusive.</p> <p>The question whether the defects were visible, and therefore not reached by the warranty, is not one of law merely, but is, it seems, a mixed question of law and fact; and is therefore, so far as the fact is involved, within the rule that forbids the reversal of the judgment of a justice, rendered on conflicting evidence.</p>

THE complaint in this case alleged that the defendant, on or about the month of May, 1859, contracted and agreed to and with the plaintiff, to sell to the plaintiff and deliver to him, at the Hew York Central Bail Boad depot, at Oneida, all the cheese he then had on hand, made from a dairy of forty cows, and also the cheese made from the said dairy thereafter, during the season of 1859; and in consideration thereof, the plaintiff was to pay the defendant therefor the sum of…

<p>ÁPPEALfvom a judgment entered at a special term. On the- 8th day of September, 1854, Bussell Forsyth, of Albany, physician, executed under his hand and seal, and made and published his last will and testament, bearing date that day, by which he devised and bequeathed as follows :</p> <p>“ First. I direct that all my just debts, funera¡l expenses and charges be paid out of my personal estate, by my executors hereinafter named. Secondly. I give, devise and bequeath to my wife Sarah, all my household furniture, together with niy plate, books, pictures and ornaments, and all my wearing apparel; also all my horses, harness, carriages, wagons and sleighs; also all my farming and garden implements that I may have, with all my cows and young cattle that I may have, upon my homestead place where I reside in Livingston, in the county of Columbia, with full power to dispose of the same by will or otherwise as she shall see fit, and I desire that no inventory be taken of the same. Thirdly. I also give, devise and bequeath to my said wife Sarah, my household farm, situate, lying and being in the said town of Livingston, as I purchased the same of Carroll Livingston, containing about seventy acres, be the same more or less, to have and to hold the same to her, my said wife, her heirs or assigns forever, unless I happen to sell and dispose of the same in my lifetime, in which case this devise to be null and void. Fourthly. I also give and bequeath to my said wife Sarah, yearly, and every year during her natural life, the sum of five thousand dollars; which sum I do hereby direct my executors hereinafter named, yearly to pay to my said wife, in quarterly payments of twelve hundred and fifty dollars every three months, out of a general fund which I will hereafter set apart for that purpose. This provision I have deemed ample and sufficient for the support of my wife during her life, and shall be in lieu of dower on my estate. Fifthly. In regard to my son, Douglass Forsyth, I desire to make ample provision for his support out of my estate. I do therefore give to my son Douglass, yearly, the sum of three thousand dollars ($3000) during his natural life; and I direct my executor to pay said sum yearly, in quarter payments of seven hundred and fifty dollars every three months, from the general fund belonging to my estate. And I desire that my son Douglass shall live with my said wife, and be a member of her family, so long as she shall continue housekeeping ; and I do hereby cancel and discharge all claims that I have against my son Douglass, and which may be found among my papers after my decease. Sixthly. I give and bequeath to my sister, Nancy Eathbone, the sum of five hundred dollars, to be paid to her in six months after my decease, by my executor. Seventhly. I give and bequeath to my niece, Julia Eathbone, daughter of my sister Nancy, the sum of five hundred dollars; which I direct my executor to pay to her within six months after my decease. Eighthly. I give and bequeath to Eliza B. Seymour, sister of my wife, and now wife of the Eev. Charles Gr. Somers, the sum of five hundred dollars; which I direct my executor to pay to her in one year after my decease. Ninthly. I give and bequeath to Catharine Seymour, widow of William H. Seymour, deceased, the sum of five hundred dollars; which amount I direct my executor to.pay to her within one year after my decease. Tenthly. I give and bequeath to Mary Seymour Concklin, daughter of my friend Alfred Concklin, Esq., the sum of five hundred dollars; which amount I direct my executor to pay to her one year after my decease. Eleventhly. I give and bequeath to the Hew York Baptist Union, for ministerial education, for the endowment of a scholarship in ' the theological school under its control, the sum of one thousand dollars; which amount I direct my executor to pay within one year after my decease, to the person legally authorized to receive the same. Twelfthly. Whereas, I have met with a grievous loss in the death of my son William, who died leaving his widow and four children him surviving; now I am desirous of making ample provision for the support of his said widow, and for the support, education and maintenance of his children: therefore, I give, devise and bequeath unto said grandchildren, the children of my son William W. Forsyth, late of the city of Albany, six brick stores which I own, situate in State street in the city of Albany, in one block, and which cost me sixty thousand dollar’s ; also one dwelling house situate in North Pearl street, which I purchased from Thomas W. Olcott, and which is now occupied by the widow and children of my said son William, and which said dwelling cost me the slim of twenty-five thousand dollars. It is my will and pleasure, and I do so order and direct, that my daughter-in-law, the widow of my son William, shall, so long as she remains. the widow of my said son, and until the youngest child of my son William shall attain the full age of twenty-one years, continue to occupy and enjoy my said dwelling house in North Pearl street in Albany, without any charge for rent; and I also direct that the rents arising from my said six brick stores in State street in Albany, shall yearly be paid to my said daughter-in-law, until the youngest child of my son William shall arrive to the age of twenty-one years, to enable her to support, educate and maintain my said grandchildren; and upon the arriving of the full age of twenty-one years of the youngest of my said grandchildren, then I direct that the said six stores ■and dwelling house shall belong to my said grandchildren, and be possessed and enjoyed by them, share and share alike. And upon the happening of' this event, instead of the rents, I give to my said daughter-in-law, so long as she shall remain the widow of my said son William, annually, the sum of one thousand dollars; which I direct my executor to pay to my said daughter-in-law in quarterly sums of two hundred and fifty dollars, out of the general fund belonging to my estate. The said six brick stores in State street, and the said dwelling house in Pearl street, in Albany, that I have given to my grandchildren, the children of my son William, I give the same to them and to their heirs and assigns for ever. Whereas, I have made large advances for my son William in his lifetime, now I direct that all claims due to me from the estate of my said son William shall be canceled; and I do hereby cancel the same, and direct that no claim be made upon the estate of my son William for any claim that shall be found among my papers after my decease. Thirteenth. Whereas, I am the owner of considerable real estate not devised to either my wife or my grandchildren: now I do hereby direct my executor, hereinafter named, to make sale of all such real estate at such times and for such prices as he shall in his judgment deem for the best interest of my estate. And for that purpose I do herein and hereby empower him, my said executor, to execute and deliver good and sufficient deed or deeds to the purchaser or purchasers thereof, as he shall from time to time make sales; and all the moneys arising from said sales, with all bonds and mortgages or other securities taken in payment thereof, shall go towards forming a general fund belonging to my estate. And to increase said fund, I direct that all demands due to me at my decease, when collected, and all my rail road and hank stock, and property of every description not herein specifically devised by me, shall constitute and form said general fund belonging to my estate, out of which I intend the yearly payments or annuities payable to my said wife Sarah, and to my son Douglass, and to my daughter-in-law the' widow of my son William, as mentioned and set forth in this my will, shall be paid by my executor. Fourteenth. Whereas, I have perfect confidence in the judgment and- prudence of my nephew John F. Eathbone, of the city of Albany, whom I intend naming as my executor, I therefore desire that he shall manage my estate in a prudent and judicious manner. And as I believe that I now own of good available stock, the profits from which will yearly meet all claims upon my estate, I therefore desire that my said executor shall not hasten the sales of any of my real estate any faster than he shall deem for the best interest of my estate; and I do further direct my said executor, in case there shall remain a surplus of profits arising from my stock and other property, after paying the yearly demands due to my wife and my son Douglass, and my daughter-in-law, to reinvest, either in good stocks or'on bond and mortgage upon good unincumbered real estate, such surpluses from time to time which shall be added to the general fund belonging to my estate. Fifteenth. It is further my will and pleasure, and I do hereby reserve the right, to pay any or either of the above legacies, if I shall deem it advisable só to do in my lifetime; and any entry, statement or memorandum upon my books of money having been paid to any or either of the said legatees, shall be deemed full and satisfactory evidence of the same having been paid to such. Sixteenth. Whereas, after the death of my wife, there will be and remain a large amount of stocks and property belonging to the general fund of my estate, now I order and direct that there be a sufficient amount of the best and most reliable stocks set apart as a fund, from the annual profits of which the yearly payments to my son Douglass and to my daughter-in-law shall be made; and the rest, residue and remainder of my estate not otherwise devised or disposed of in this my will, I give, devise and bequeath the same to all my grandchildren, share and share alike. And after the decease of my son Douglass and of my said daughter-in-law, all the rest, residue and remainder, of my estate, of every name-and nature, whether real or personal, I give, devise and bequeath the same to all my grandchildren, to he equally divided between them, share and share alike.</p> <p>I do hereby nominate, constitute and appoint my nephew John F. Rathbone, of the city of Albany, merchant, executor of this my will; and in case of his death during the lifetime of my wife and of my son Douglass and of my daughter-in-law, and before a final distribution of my whole, estate, then and in such a case I do hereby nominate, constitute and appoint my friend Ira Harris, of the city of Albany, and my friend Thomas W. Olcott, also of the city of Albany, if living, to act as my executors in the room of and in the stead of my nephew John F. Rathbone.</p> <p>In regard to my real estate situated in Livingston, Columbia county, not devised to my wife, as it will be inconvenient for my said executor to attend personally to the same, I do hereby nominate and appoint my friend Chas. Esseltine, of Livingston, to act as my agent or the agent of my estate, in leasing the same and collecting the rents from time to time, and making sale of the same under the direction of my said executor; and for all moneys he shall collect as such agent, or in case of a sale to be approved of by my said executor, I direct my said executor to pay one per cent on all rents so collected, and a like per cent on such sale, as a compensation for such agency.”</p> <p>On the 14th day of September, 1854, the testator executed and published the following codicil to said will:</p> <p>• “ Whereas doubts may arise in relation to the construction of the sixteenth section of the said will, now therefore, I do hereby declare, and it is my will, that upon the death of my wife the whole income of the general fund therein mentioned, except so much as shall be required for the payment of the annuities to my son Douglass and the widow of my son William, shall be reinvested and accumulate until my youngest grandchild mentioned in said will shall arrive at the age of twenty-óne years. That from and after that event the whole income of said fund shall be equally divided between my said grandchildren, until the death of my son Douglass and the widow of my son William; upon the death of both of them, the final division of my estate between my grandchildren shall be made.”</p> <p>On the 23d day of February, 1856, the testator executed and published this further codicil to his will:</p> <p>“ I authorize and empower my executor, in case of the marriage of either of my. granddaughters before the time arrives for the division of my estate, to advance to such granddaughter out of the share to which she will be entitled out of my estate, such sum as she may require, in his discretion, not exceeding six thousand dollars.</p> <p>I also authorize and empower my said executor, in case my grandson Eussell shall, upon arriving at'the age of twenty-one years, desire to engage in business, to advance to him on account of his share of my estate, such sums as he may think best, not exceeding ten thousand dollars.'</p> <p>I also direct that the annuity of one thousand dollars to my daughter-in-law, for which my will provides, be continued and paid to her during her natural life.”</p> <p>The present action was originally commenced by Douglass Forsyth against the executor, widow and heirs of the testator ; and the plaintiff having subsequently died, the action was revived and continued in the name of the present plaintiffs, his administratrix and administrator</p> <p>The complaint alleged that about October 28th, 1856, said Eussell Forsyth, then a resident of the city of Albany, departed this life at the age of eighty-three years, leaving Sarah Forsyth his widow, and Douglass Forsyth, the plaintiff, his son, Emily Hone Forsyth, Sarah Forsyth, Eussell Forsyth and William Forsyth, all under the age of twenty-one years; the youngest child being about nine years old at the time of the death of the testator; and children of his son William Forsyth, now deceased, by marriage with Cornelia Kane Forsyth, his only heirs at law and next of kin now living and interested in said will and the property of said testator, wlio are defendants herein ; and leaving a large real and personal estate, to wit, real estate of the value of about four hundred thousand dollars, and personal estate to the value of about one hundred thousand dollars. That said real estate consisted of improved property in the city of Buffalo, in property in Schoharie county, improved real estate in the city of Albany, consisting of stores and dwelling house, and other real estate, all in the state of New York. That about November 25th, 1856, said will and codicils were admitted to probate before the proper officer, in the county of Albany, and an inventory made of his said real and personal property, amounting to about the sum of $484,000, and duly filed in the proper office of said county. - That John F. Bathbone, the executor and trustee named in said will, qualified as such, and by virtue of said will and premises ttiok possession of all said property, except the six stores and dwelling house, and entered upon the execution of said trust. The plaintiff alleged that he was informed and believed that the first twelve sections of said will may be valid in the law, and the legacies therein contained, though he submitted the same to the court; but that he was advised and believed that the accumulations directed in the 13th section of said will, of the surplus profits of the general fund beyond the yearly demands due to the wife of said testator, his son Douglass, the plaintiff, and his daughter-in-law, as modified and altered in and by the first codicil, are illegal and invalid, inasmuch as they accrue to the benefit of all the grandchildren of the testator, and are not confined to the youngest child of William, and that they are illegal and void. The plaintiff farther alleged, that he was advised and believed, and so charged, that the disposition in the 16th section of said will, and in the first codicil, to all the grandchildren, of all and singular the residue of his estate of every kind, including the said surplus profits with the said accumulation as given therein, are illegal, inoperative and void, inasmuch as the same may bind up the residue and render it inalienable for seven lives at least, viz. the lives of the widow of the testator, the said widow of William, the said Douglass, and the said four children of William, and also for the life of any other grandchildren who may he horn and die in the meantime; and a trust results to the real and personal representatives in law of the testator, who are parties to this action, and who are entitled to have a conveyance thereof from the trustee and executor of said will, as well of the real as jjersonal estate.</p> <p>The plaintiff further alleges, that said John F. Rathbone, although he knows of the claims of the plaintiff, and of his rights and demands in the premises, as above set forth, claims that said will is in all respects legal and valid, and is proceeding to act in the execution of the trusts therein accordingly.</p> <p>And the plaintiff alleges, that it is necessary and indispensable, and he demand^ that this court should settle the true construction of said will, and declare and decree what are the lawful trusts thereof and the rights thereto. And he demands judgment, that when the trusts are thus settled, and his rights in the premises established, the trustee convey and deliver to him whatever he may he decreed to be entitled .to, as well under said will, as the lawful, real and personal representative of the testator, and that all necessary parties join in the conveyances; and that said plaintiff may have such other or further judgment or relief in the premises as shall seem fit to this court, together with the costs of the action.</p> <p>The answer of John F. Rathbone, executor, &c. admits the making, execution and publication of said will and codicils by said Russell Forsyth, the decease of said Russell Forsyth leaving him surviving the plaintiff and the co-defendants, his only heirs at law and next of kin now living. and interested in said will, as in the complaint in that' behalf is alleged ; hut' denies that the testator left real estate of about the value of four hundred thousand dollars, or exceeding in Value about one hundred thousand dollars. Admits that said will and codicils were admitted to probate before the proper , officer, and that an inventory was made and duly filed, as alleged in said complaint. Admits that he is the executor and trustee named in the will, that he qualified as such, and has entered upon the execution of the trusts, as alleged in the complaint. Defendant says that he is advised and believes that the said will and codicils are, in all respects, legal and valid, and denies that the same, or any part of the provisions therein contained, are illegal or invalid, or in any manner inoperative or void, and submits the same to the court.</p> <p>The answer of all the other defendants admits the execution and proof of the will and codicils as alleged, but denies that said Russell Forsyth died seised or possessed of real estate of the value of four hundred thousand dollars; and submits to the court, and insists, that the provisions of said will are all valid and legal, and denies that any of its provisions are void and illegal, as alleged in the complaint.</p> <p>The issue came on to ibe tried by the court, at a special term thereof, held at the city of blew York on the 23d day of June, 1857, before his honor Justice Roosevelt. The only question of fact being' the amount left by the testator at the time of his death of real and personal estate, it was admitted by the parties that the real estate was one hundred thousand dollars, and the personal property four hundred thousand dollars; whereupon the questions of law arising in the case were argued before the court by counsel for the respective parties, and the case submitted to said court for its decision.</p> <p>The following opinion was delivered by the justice before whom the issue was tried.:</p> <p>Roosevelt, J. “ The plaintiff, who is son of the late Russell Forsyth of the city of Albany, has instituted the present suit to set aside the material provisions of his father’s will, on the ground of their illegal non-conformity to the rules of law regulating the power of testators to fetter their estates after their decease.</p> <p>At the time his father’s will was made, (I mention the circumstance as throwing some light on its seemingly unequal provisions,) the plaintiff was, and for nearly forty years had continued to be, as he still is, a childless bachelor. His father also, without explanation, seems to have assumed it as a settled fact that the plaintiff, although certainly not too old to change, never would marry. For while he carefully provides for the widow and children then living of the plaintiff’s deceased brother, he makes no allusion to any possible wife, widow or children of the plaintiff himself—an omission still more significant, when viewed in connection with the following language:</p> <p>■ “ Fifthly. In regard to my son Douglass Forsyth, I desire to make ample provision for his support out of my es-r tate. I do therefore give to my son Douglass, yearly, the sum of three thousand dollars during his natural life; and I direct my executor to pay said sum yearly, in quarterly payments, &c.; and I desire that my son Douglass shall live with my said wife, and be a member of her family, so long as she shall continue housekeeping.”</p> <p>The plaintiff, although still a bachelor, and without avei> ring the slightest probability, or intention, of ever becoming a parent, complains of the preference shown to his deceased brother’s children, who were actually born and in being, and for that reason, but not on that ground, seeks to defeat his father’s testamentary intentions.</p> <p>Personal property, it is conceded, may be tied up by will , for two existing lives, and its income for two, or more, existing minorities. A parent, for instance, may place big stocks and mortgages in the hands of a trustee, for the benefit of his married daughter during her life, and of her husband, after her death, with directions, on the death of both, to transfer the securities to such of their children as may then he living—a contingency which, as it cannot be determined till both are dead, necessarily leaves the ownership uncertain, and of course the power of absolute disposition suspended, during their two lives.</p> <p>Or in case of a minor child, otherwise well provided for, he may direct that the income given to him shall be accumulated for his benefit; in other words, that neither he nor his guardian for him shall spend it, or have the power of dping so, till he arrives of age. But all attempts by testators, except in one instance of real estate, to exercise a post mortem control over their worldly goods beyond those limits, are illegal and void. And the question is, Does the will before us sin in this particular P</p> <p>Bussell Forsyth, the father, died in Albany on the 28th October, 1856, possessed of an estate, mainly personal, valued at half a million of dollars, and leaving, as already stated, a widow, one son, the plaintiff, unmarried, and about forty years old, and four children of a decased son, all minors,</p> <p>Ho dispute exists as to the capacity of the testator, or his due execution of the instrument. The only point presented relates to his intentions, and their alleged inconsistency with the rules of law.</p> <p>The leading object of the testator appears to have been to provide a liberal support, for life, for his widow and surviving son, and the widow of his deceased son, and subject to those charges or annuities, to give the whole estate to the grandchildren in fee.” Such a disposition, although seemingly harsh toward his only surviving son, of itself would be clearly valid.</p> <p>It is insisted, however, on his part, and these are made the only grounds of his complaint, first, that the accumulations directed in the 13th (meaning 14th) sections, of the surplus income, for the benefit of all the grandchildren, possible as well as actual, instead of the youngest one living, were for that reason illegal and void; and secondly, that the disposition in the 16th section (as modified by the codicil) in favor of all the grandchildren, of the whole residuary estate, including the supposed illegal accumulations, “ may hind up the residue, and render it inalienable for seven lives at least, and also for the life of any other grandchildren who may be born and die in the meantime,” and for that reason is illegal and void.</p> <p>The law, to a certain extent, permits testamentary accumulations. They can be directed “ for the benefit of one or more minors,” but the minors must be “ in being at the death of the testator,” and the accumulations “ must terminate at the expiration of their minority.” (1 JR. S. 726, 774.) In the present case the accumulations were directed to “be added to the general fund,” and that general fund, subject to the annuities, was afterwards given “ to all my (the testator’s) grandchildren, share and share alike.” They were, therefore, in the language of the statute, to be made for the benefit of “ one or more minors,” even if grandchildren afterwards to be born, should be considered as included in the bequest. Such after-born grandchildren, however, would, of course, not be minors “ in being at the testator’s death.”</p> <p>> But the whole tenor of the will shows that the testator did not contemplate any other grandchildren than the then born “ children of his son William,” whose death he lamented as “ a grievous loss,” and for the support of whose widow, and “ the support, education, and maintenance of whose four surviving children,” he expressed himself so “ desirous of making ample provision.” It is obvious, also, from the composition of the instrument, and the name of one of the attesting witnesses, that it was worded with distinguished professional skill, by a draftsman who knew the law, and knew that accumulations must be confined to minors in being.</p> <p>Both testator and counsel, for some reason unexplained, assumed that the bachelor son of forty would have no children, and that the children of his deceased brother would be the legal and natural representatives of their surviving uncle, as well as of their deceased father and grandfather. When, therefore, the will speaks of “ all my grandchildren,” it obviously means “ all the children of my son Williamthe property to he divided equally, as distinguished from any partial distribution among them. The testator intended not only that they alone were to be the- distributees, but that they were to be so, “ all equally, share and share alike.”</p> <p>Besides, were the meaning otherwise ambiguous, the law would require the court to' give to the language that interpretation which would render the provision valid, and not void; illegal intention is not to be presumed, but proved. Presumption, if resorted to at- all, is, in favor of innocence. If, then, to provide for accumulation to benefit unborn, possible grandchildren, would be an illegal direction-, we are not to presume that the testator, by the terms “my youngest grandchild mentioned in said will,” intended a person different from one of the four children of William actually mentioned, and in being—-a person, who, probably, perhaps certainly, never would come into being—a person different from “ the youngest child of my son William,” (see § 12,) the time of whose “ attaining the full age of twenty-one years” was to be the period-of division, and who, in the will, was indiscriminately called the youngest of William’s children, and “ the youngest of my said grandchildren.”</p> <p>The result, then, is that by the 16th section of his will, the testator gives the whole “ general fund” of his estate to the four “grandchildren” mentioned “by him in the will, and described as the children of his deceased son William, subject to the three annuities of $5,000, $3,000, and $1,000.” That this devise vested absolutely, in interest, “ in the said grandchildren” on the day of the testator’s death, and carried with it, as incident to the capital, an immediate right to the whole surplus income as it accrued, to be paid to the guardians of the minors, and to be accumulated by them for the benefit of their wards.</p> <p>That the effect of the codicil, expressly directing accumulation, was merely to substitute, in this respect, the executor for the guardian, and to continue, as to the older grandchildren, the accumulation of their income until the youngest should arrive at the age of twenty-one years. ■</p> <p>That as the statute allows an accumulation for the benefit of more than one minor to “ terminate at the expiration of their minority,” (§ 3,) the accumulation seemingly may continue till all are of age; but if not, and if the provision in the codicil should be construed as directing “ an accumulation for a longer term than the minority of the persons intended to be benefited thereby,” the consequence would ^be, “ not that the ‘ direction’ would be void wholly,” but “ void only as respects the time beyond such minority,” (§ 4,) leaving the rest to stand, and leaving to the adults, as they come of age, the right to take their respective shares, discharged from the void part of the direction, and to dispose of them at their own pleasure, without restraint, and without the intervention of a trust.</p> <p>That provision for the payment of annuities out of the interest and dividends of personal property, if the beneficiaries are actually in being, and not to be born, creates no suspension of the power of alienation. Such annuities are in the nature of trust mortgages, payable by installments, and may be released or sold for the sum in gross, and the capital may at any time be disposed of with the consent of the annuitants.</p> <p>That, although a direction to accumulate income may create, as it does, a partial suspension of the power of alienation, it does not, on that ground, come within the general laws of suspension, but is regulated by the special enactment in section 4, above cited, in relation to accumulations.</p> <p>A decree should be entered, dismissing the complaint, without costs, unless the parties should desire the insertion of special direction, in which case they will prepare a draft and submit it for settlement.”</p> <p>The court accordingly rendered its decision, adjudging the will to be, in all respects, legal and valid, and dismissing the complaint without costs.</p> <p>The plaintiff appealed to the general term.</p>

IN June, 1851, Thomas Lewis executed to the plaintiffs a bond conditioned for the payment of $20,000 and interest, which bond was secured by a mortgage upon five lots, in the county of Kings, made by the said Thomas Lewis and Clarissa C. his wife.

ACTION of trover for the illegal conversion by the defendant of the one quarter part of the schooner Ney, and also for damages for wrongfully depriving the plaintiff, of a “master’s interest” in said schooner, which was claimed to be the right to run her, as master, and to receive as such master, for so running her, 55 per cent of her gross earnings, in addition to his quarter dividends as part owner.

THIS action was brought by the plaintiff as receiver of the defendant George R. Hazewell, appointed in proceedings instituted against him by one Francis Kerter, a judgment debtor of said Hazewell, against Hazewell and his wife, and the complaint prayed for a discovery respecting certain property in Texas and Philadelphia alleged to belong to the wife, and for a judgment or order requiring the defendants to transfer said property to a receiver; that the same might be sold,…

<p>THIS action was commenced by the plaintiffs as judgment creditors of James Gordon, to set aside an assignment made by the defendant Gordon to the defendant McOrossan, of his (Gordon’s) property, for the benefit of creditors. The action was tried before his honor Justice Davies, at special term, without a jury, on the 17th of October, 1859. He adjudged the assignment to be fraudulent and void, by reason of the following provision in the assignment, viz: And with and out of such sales and collections, that the said party of the second part shall first pay and disburse all the reasonable expenses, costs, charges and commissions attending the due .execution of these presents and the carrying into effect the trusts hereby created, together with a reasonable and lawful compensation or commission for his own servicesthe court at special term holding, that by the provision in question, a commission or compensation was by the assignment to be paid to the assignee, over and above the just and reasonable commission for executing the assignment. The assignment also contained the following clause: “In trust nevertheless, to and for the use, intents and purposes following; that is to say, that the said party of the second part shall take possession of the property hereby assigned, or intended so to be, and shall, with all convenient diligence, sell and dispose of the same at public or private sale as he may deem most beneficial to the interests of the creditors of the said party of the first part, and convert the same into money,” &c.</p> <p>Judgment was given for the plaintiffs at special term, declaring the assignment to be void upon its face, with the usual provisions-in similar judgments, with costs.</p> <p>The defendants appealed.</p>

THIS was an appeal from an order made by Hon. Justice Sutherland, at special term, overruling the demurrers of the defendants to the complaint.

The complaint was for services rendered, and for money paid out and expended for the defendant, and demanded judgment therefor in the sum of $315.50 and interest. The answer denied any indebtedness to the plaintiff.

THIS was an action for the foreclosure of a mortgage, executed by the defendant to the plaintiff to secure the payment of $1500, a portion of the purchase money of a lot of land in the city of Hew York.

<p>Where promissory notes, payable to a foreign executor as such, are indorsed by him as executor, to himself in his individual capacity, and he sues thereon in his own name, he is not to be deemed the representative of a deceased person, according to the laws of this state, so as to exclude the defendant from being a witness in his own favor.</p> <p>He cannot sue, here, in a representative capacity, and can only be regarded as the indorsee of the notes.</p>

The complaint alleged that about October 23, 1857, the plaintiff left with Jacob Oohn nine hundred pounds sterling, to be deposited by Oohn with the defendants, for the plaintiff. That Oohn did deposit the same with the defendants for safe keeping, to be paid to the plaintiff on demand. That the plaintiff has demanded the same from defendants, who refused to deliver it. The plaintiff demanded judgment for $4356, with interest from February 3, 1858.

THE action was against the defendant as the second indorser of a promissory note. The cause was tried before the Hon. W. F. Allen, without a jury. Held: as matter of law, that there was no legal and sufficient consideration for such agreement; that is, that giving security to pay one liability and the costs of suit, and the expense of preparing the security, was not a sufficient consideration for the release of another liability.

THIS action is on a promissory note made by George G_ Johnson, and indorsed by E. F. Blydenburgh and the defendant, and was brought by the plaintiff as indorsee, against the defendant, as indorser. The note in suit was made by Johnson, payable to the order of Blydenburgh, indorsed by Blydenburgh, then by the defendant, then by Hoffman, Schubart & Kahn to the plaintiff.

<p>Where a composition deed contains a condition that if any one of the composition notes is not paid, at maturity, the original indebtedness shall revive, a mere notice from the makers, that the notes will not be paid, will not excuse the holders from demanding payment, at the place where the notes are made payable.</p> <p>If the makers of the notes place the money in the bank, to pay them, the failure to pay does not occur, and the original debt is not revived; notwithstanding such notice.</p>

THIS action was brought by the plaintiffs as indorsees, to recover from the defendant as first indorser, the sum of $510.39, being the balance due on a .promissory note, of which the following is a copy : • “ $708.69. Hew York, July 20, 1859. Sixty days after date, I promise to pay to the order of Hathaniel W. Smith, seven hundred and eight dollars and sixty-nine cents, value received. (Signed,) ‘ E. H. Bache. (Indorsed,) Hath.

THE plaintiffs are auctioneers, and as such, on the 5th day of August, 1859, at the store of Andre & Brother, No. 107 Water street, New York, they held a public sale of cigars belonging to Andre & Brother, which had been somewhat injured by being wetted. The building had been partially destroyed by fire, and was unrepaired at the time of the sale. The terms of the sale were these : “That they were damaged cigars, to be sold for cash.

THESE were respectively actions in the nature of the former actions of trespass or trover, to recover from the defendants the value of 41 iron safes, alleged to belong to the plaintiffs, and to have been wrongfully taken and carried away by the defendants. The safes were levied on by attachments sued out by the defendants, respectively, against John' W. Bates.

<p>THIS is a common law certiorari, directed to the commissioners ■ of highways of the town of Shawangunk,. Ulster county, to reverse the order made by said commissioners, laying out a private road on the application of Daniel Tears, through the lands of John E. Smith.</p> <p>The principal point made on the part of the owner of the land is, that the application for the road does not state the “ location, courses and distances/’ as required by the statute. Several other points are made by the owner of the land, depending however on the one just stated.</p> <p>A further ground of error is alleged in this respect, that the terminus of the road as laid is different from the terminus specified in the application. The terminus named in the former being “ Brown’s Turnpike,” and in the latter the “ Hokerback.”</p> <p>By the return of the commissioners, it appears that the application was addressed to the commissioners of highways -of the town of Shawangunk, and asked that a private road, “ eighteen feet wide, located as follows, and running on the courses and distances as hereinafter specified: Beginning on the south end of a lot I purchased of Alexander Cameron for a road, and following the east side of a swamp to a stone wall, being the west side of the stone wall, and running south along said wall through the woods to the public highway, known as the Hockabarick road, for eighty rods, more or less, through the land owned and occupied by John E. Smith, where said.road is proposed to be laid out, in the town of Shawangunk, in said county.”</p> <p>The commissioners further return, that they presented to the parties the names of eighteen persons who were competent to serve as jurors, &c., out of which number the parties agreed that the first six persons named upon such list should determine upon the application, and assess the damages. That the route of the proposed road was distinctly marked out upon the ground; that the jury viewed the route thus marked out. That after the jury had delivered their verdict, at the request of the oioner of the land, the commissioners made a new survey of the proposed road, upon the identical line marked out upon the ground, and described in the notice ; that the description of the road in the order is taken from such last survey made at the request of said Smith; that ■such survey and order is upon the precise line described in the application, and marked upon the ground; that the terminus of the road, called in the application the “ Hockabarick,” and in the order as “ Brown’s Turnpike,” is one and the same—the road referred to being known as well by one name as the other.</p>

<p>Where riparian proprietors own to the center of the stream, that entitles them' to have the waters flow in their natural channel, in the bed of the stream.</p> <p>Where one owns the land only on one side, and to the center of the stream, the right to use the waters, if there be a fall, is a property right which the law will regard as of some value, and which it will not suffer to be invaded or infringed without authority.</p> <p>A tenant cannot, while occupying and. enjoying the premises under his lease, origínate a possession hostile or adverse to his landlord. Nor can he, during the same period, continue an adverse possession previously commenced.</p> <p>By taking a lease from the landlord, and holding under it, he acknowledges the landlord’s title, and right to convey, and will be deemed to have waived any previous and imperfect rights which he has already acquired, under a prior, incipient adverse possession.</p> <p>The defendants, having a long lease of premises, embracing a water power, diverted the stream from its natural channel, for the use of their machinery. Held that there was no ground for the imputation of bad faith against the lessors, or of an implied consent to the perpetual diversion of the waters, from their not protesting against such diversion, at the time; inasmuch as the lessors might well have supposed that such diversion was only intended to be temporary, and the diverted waters were to be restored, at the end of the term. And that it was only upon the ground of bad faith, or implied consent, that the doctrine of equitable estoppel could arise, in such a case.</p> <p>And the plaintiffs having purchased the premises from the lessors long after the diversion had been made, and the expenditures of the defendants consequent thereon had been incurred, and having commenced a suit for damages, within a short time thereafter, it was further held that the doctrine of estoppel did not arise against them. Gould, J. dissented.</p> <p>And the plaintiffs having taken an absolute conveyance of the premises, without any reservation, it was held that the deed must be regarded as passing not only the title to the land, and the water, but the water power, and all the rights and privileges which belonged to the grantors as riparian proprietors.</p> <p>Held further, that neither the neglect of the plaintiffs to use or appropriate the water power, hitherto; the comparatively inconsiderable actual damagé which they lfad as yet sustained; nor the heavy expenditures to which the defendants would be subjected if enjoined from the further use of the diverted waters and compelled to restore them to their natural and accustomed channel, presented any insuperable objections to equitable relief to the plaintiffs, by injunction to restrain the defendants from diverting the water, and drawing and using the same by means of such diversion, and by decree compelling them to restore the waters to their natural bed or channel, and to pay damages to the plaintiffs.</p> <p>A party may resort to a court of equity, for relief, in such a case, instead of proceeding by action at law, for damages.</p>

THIS was an application by the plaintiffs against the defendants for an injunction, and came on to be heard upon an order granted by Justice Ingraham, requiring the defendants to show cause why an injunction should not be granted as prayed for in the complaint, and in the meantime enjoining the defendants and their agents from entering into, or upon, that portion of Greenwich street, in the city of New York, which lies between Fulton street and Yesey street, for the purpose…

<p>MOTION to vacate a judgment of the supreme court, entered at a special term, granting an injunction.</p>

Appeal by defendants from order of special term overruling demurrer to complaint. The complaint alleged that one Benjamin Marshall, in consideration of the services therein mentioned, made and delivered to the said plaintiff, then a single woman by the name and description of Miss Alice Yourt, his promissory note or instrument in writing, in the words and figures following; Troy, August 4th, 1846.

<p>THIS is an appeal by the plaintiffs from a judgment entered on the verdict of a jury, in a cause tried before Justice Hogeboom at the Rensselaer circuit, held in May, 1860. The action was ejectment, to recover a small tract of land containing about 4650 square feet, located partly on the south bank of the Wynantskill in the city of Troy, and partly in the bed of the stream and immediately in front of the extensive and costly iron works of the defendants. The case is voluminous, and several questions of law and of fact were discussed at the trial and at bar. It is unnecessary to state them at length, as those upon which the case is decided sufficiently appear in the opinion of the court.</p>

On the 25th day of July, 1845, the testator entered into a written agreement with the plaintiff and Thomas Machín, to pay to them one half of all moneys that might he granted by law or procured by an act of the legislature of the state of Hew York passing on the claim of Conradt Brown, deceased, who by his last will and testament devised and bequeathed to his son Marcus (the testator) a certain amount of property taken from him by Col. Willett in the revolutionary war, “on…

<p>Payment of a bond and mortgage extinguishes it. If the payment be of the whole amount secured by the instrument, it extinguishes the same altogether ; if of only a part, it extinguishes it pro tanto.</p> <p>There is no exception to this rule, as between the debtor and the creditor, although the security may sometimes, for equitable purposes, be kept alive as between the principal debtor and his surety, where the payment has been made by the latter.</p> <p>Whether a sum of money received by the creditor, upon the bond and mortgage, amounts to a payment, depends, ordinarily, upon the intent of the party paying or advancing the same.</p> <p>If intended and declared to apply on the instrument, at the time, and so received, at the time, in total or partial satisfaction thereof, it has that effect; and no subsequent change of intent by the debtor can retroact, or renew the security, without the consent of the parties interested, and without prejudice to third persons.</p> <p>Where a mortgage is executed by A. for the benefit of B., the latter is the real debtor, and a payment made by him is equivalent, in its effect upon the bond and mortgage, to a payment by A. It will be deemed a payment for the benefit of A. and by his direction ; and as far as it goes, is an extinguishment of the mortgage.</p> <p>Under such circumstances, the death of A. will terminate whatever agency there may be in B. It will not be presumed that after that event B. had any authority from A. to negotiate the mortgage, or to make any representations as to the validity and sufficiency thereof, which will bind or estop A.</p> <p>Ror will the fact that B. is the executor of A.’s will, give him authority to make such representations ; it not being an act for the benefit of the estate.</p> <p>Where the plaintiff took from B. a bond and mortgage thus made by A. for B.’s benefit, with an assignment thereof executed by the mortgagee, in part payment of a precedent debt; with knowledge that the bond and mortgage were long overdue ; that A., the mortgager, was dead ; that B., as executor of A., had no power to mortgage; that he was embarrassed in his circumstances, and was endeavoring to secure the plaintiff’s debt by means of securities which he did not own, and the very possession of which, by him, was some evidence that they were paid ; it was held that the plaintiff did not present herself with any special equities against A., and could not enforce the mortgage against A.’s estate.</p> <p>The payment by a debtor, of the amount due upon a bond and mortgage, will operate as a satisfaction, notwithstanding such payment be accompanied by a stipulation and an intent to have the instrument subsequently assigned and kept on foot as valid securities.</p>

THIS is an action brought by the plaintiff against the defendant, claiming to recover treble damages, under the statute, against the defendant, for entering upon the plaintiff's land and cutting down and carrying off trees, timber, &c., contrary to the provisions of the statute, &c., entitled Of trespass on lands, &c. It appears from the case, that the plaintiff and defendant owned adjoining farms; at the place where the trees were cut the plaintiff's lands were woods, the…

MOTION on behalf of the Artisans’ Bank.and of the sheriff of Albany county, for an order to pay to the Artisans’ Bank $17,273.94, and $74.05 costs, being the amount of their judgments, or to apply thereupon the proceeds of certain sales made by the receiver.

<p>THE plaintiff, being the owner of a house and lot upon which there was a well of water, conveyed the premises to one Anna Tompkins “ reserving a privilege in the well, for the lots owned hy Joshua Brown on the east, and Ogden Drake on the west.” This action only involves the right of the Drake lot to the use of the well. The reservation states that the lot for which the plaintiff now claims the reservation was, at the date of the said conveyance, owned hy Drake; and such was the fact. The plaintiff claimed that inasmuch as, at the time of this conveyance containing the reservation, he, the plaintiff, was in the possession of the Drake lot, under a contract of purchase from Drake. We should construe this as a reservation to the plaintiff himself, and not to Drake. And this presents the real question in the case. The defendant holds and claims the well under a conveyance of the lot upon which it is situated, directly from Anna Tompkins, the plaintiff’s grantee.</p>

<p>THE complaint in this action alleged that on the 14th day of February, 1854, the defendants and one James Bennett made a contract in writing, by which the said James Bennett agreed with the defendants to furnish all the materials and do all the work necessary to grade and pave Washington avenue and Douglass street to the Flatbush line, in the city of Brooklyn, in the manner set forth in said contract; that previous to making said contract, the defendants had by resolution determined to make the above named improvement, and had by resolution duly authorized the said contract to be made with the said James Bennett, at the price or sum of three dollars and thirty-nine cents per running foot through the center; and the defendants, in and by the said contract, did agree with the said James Bennett, in consideration of the due and faithful performance of the said contract by the said Bennett, to cause due diligence to be used in laying, confirming and collecting the assessment for the cost of said work, and to pay or cause to he paid to the said J ames Bennett, his heirs or assigns, the said contract price, as the same should become due, and he received into the treasury from said assessment. The plaintiff further alleged that the said James Bennett duly performed all the conditions of the said contract on his part, prior to the 17th day of December, 1855. And that on the 27th day of J anuary, 1855, the said James Bennett made an order in writing, whereby, for value received, he directed the defendants to pay out of the moneys due to him on the said contract, two thousand dollars to B. P. Perrin, cashier, or order, which said order, on the 27th day of J anuary, 1855, was duly filed with the defendants; and that in satisfaction of the said order, the defendants, on the 17th day of December, 1855, duly executed, under their corporate seal, a certificate in the words and figures following :</p> <p>“ No. 713. $2000. This certifies that there will he due from the city of Brooklyn to James Bennett or B. P. Perrin, cashier, or order, on contract for Washington avenue grading and paving from Douglass street to city line, the sum of two thousand dollars, payable upon the surrender of this certificate, when the assessments for said improvements shall have been collected and paid into the city treasury.</p> <p>In witness whéreof, these presents are executed this seventeenth day of December, 1855.</p> <p>[l. s.] George Hall, Mayor.</p> <p>Attest, S. J. Burr, Assistant City Clerk.”</p> <p>Countersigned by the comptroller.</p> <p>Which said certificate the defendants delivered to the said B. P. Perrin, cashier; that the said Perrin duly indorsed the same on the back thereof for value received, and directed the defendants to pay the same to William A. Coit, or order, and delivered the same to the said Coit; that the said William A. Coit, for value received, indorsed and delivered the same to the plaintiff, who is now the lawful owner and holder thereof; that the said certificate has not been paid? or any part thereof; that the assessment for the cost of the said work was duly confirmed on the 5th day of June, 1854; that the defendants might, with due diligence, have collected the whole assessment for the cost of the said work, on or.before the first day of January, 1856 ;. that they did not cause due diligence to be used in collecting the said assessment, whereby the said assessment has not been yet collected, nor sufficient thereof to pay any part of the aforesaid certificate. Wherefore the plaintiff demands judgment for the sum of two thousand dollars, with interest from January 1st, 1856, and costs.</p> <p>The answer was a general denial. The action was tried by a jury, in the city court of Brooklyn, in April, 1861. Verdict in favor of the plaintiff, for $2746.27. From the judgment entered thereon the defendant appealed. The other material facts are detailed in the opinion of the court.</p>

THE commissioners of highways, of the town of Westfield, made an order laying out a highway, on the application of the plaintiff. From this order the defendant in this action and three other persons separately appealed to the county judge of Richmond county. Three referees were appointed, pursuant to statute, to hear and decide the four appeals. The four appeals were heard and argued together, the testimony given before the referees being taken upon all the appeals.

<p>Oysters, planted by an individual in a bed clearly marked out and defined, in the tide waters of a bay or arm of the sea, which is a common fishery to all the inhabitants of the state where the bay or arm of the sea is situated, and where there are no oysters growing spontaneously, at the time, are the property of the person who plants them ; and the taking them by another person is a trespass, for which an action lies.</p> <p>It is indispensable to the existence of the right of property in oysters thus planted that the bed shall not interfere'with the exercise of the common right of fishing; for if the oysters were mingled with and undistinguishable from others, of natural growth, in the public waters, the interest of the person planting them would be subservient to the public use. Per Bbowk, J.</p> <p>Korthport Harbor, being an indentation upon the southern shore of long Island Sound, is a part of the high seas, with reference to the question of individual ownership of oyster beds planted therein.</p> <p>Although diverse opinions have been given, in this country and in England, upon the subject, the weight of authority seems to be adverse to the existence of any power in the British crown to grant to an individual the right of taking fish in the sea and in the creeks and arms thereof, in exclusion of the common liberty. Per Beown, J.</p> <p>The right of fishing in the sea is a common right; that is, aright inherent in all the people of the realm, by the common law. It is one of those rights held by the sovereign power, in trust for all the people.</p> <p>Nothing passes by grant, in derogation of such rights, by implication.</p> <p>Grants of this description are construed strictly, and an intention to part with any part or portion of such rights will not be presumed, unless clear and special words are used to denote it.</p> <p>The title to the lands under the waters of Korthport Harbor, in long Island Sound, is not in the town of Huntington; and the inhabitants thereof have not the exclusive right to take fish therein.</p>

The principal question, on the appeal, arose upon the construction of the will of the testator.

This was an action on a warranty that coal-dust sold was the dust of hard or anthracite coal, when it actually contained an admixture of soft or bituminous coal. The plaintiff was a manufacturer of brick in Orange county, near Hewburg. The defendants were large dealers in coal in the city of New York. The dnst of hard coal is used in the manufacture of brick. Soft coal, if so used, destroys the brick.

APPEAL by the defendants from a judgment ordered at a special term, for the foreclosure of a mortgage and sale of the premises. The facts material to be known are stated in the opinion of the court.

This action was brought by the plaintiff, as assignee of one Meyer, against Willet as sheriff, and A. S. and M. S. Herman, to recover property seized by the sheriff, under an attachment issued as a provisional remedy under the Code of Procedure, in an action against Meyer in favor of defendants Herman, upon a claim for merchandise sold said Meyer prior to his assignment.

AT the charter election in the city of New York on the 4th day of December, 1860, the relators and the defendants were severally candidates for… Held: and shall proceed to organize themselves as a board, for the purpose of presiding at and conducting such election ; one of the inspectors is to be appointed chairman of the board, who is to administer to the other inspectors the oath of office, and afterwards to take his oath, to be administered by one of the other inspectors.

The action was brought by the plaintiff as assignee of a claim of Lawson & Carll, against the defendant. The referee found the following facts: That on the fifth day of February, the plaintiff, Michael Rupp, held a judgment against Lawson & Carll for about the sum of two hundred and sixty dollars, which he was endeavoring to collect.

The action was brought by the plaintiff as indorsee, against the defendants as acceptor, of a bill of exchange. The complaint alleged that the plaintiff was a banking corporation, duly incorporated and existing under and by virtue of the laws of the state of Kentucky, and having full power and authority to do and transact the acts and matter hereinafter set forth.