Volume 35 — Barbour's New York Supreme Court Reports

THIS was an action of trespass, brought before a justice of the peace, to recover damages of the defendant for breaking and entering the plaintiff’s close in Ghent, in May, 1854, also for driving and confining the plaintiff’s cows, &c. on the defendant’s premises in July, 1854.

THIS action was brought by the plaintiff, a gardener, against the defendant, a seed merchant, for damages occasioned by breach of contract and misrepresentation, on the sale of a spurious article as Bristol cabbage seed, in the spring of 1857, by which the plaintiff lost his year’s crop, the use of his garden of eight acres in the vicinity of Albany, and the expense and labor devoted to its cultivation.

The complaint was in the words following: “James Brinkerhoff, the plaintiff in this action, complains of Henry W. Olp, executor of the last will and testament of Barnahas Olp, deceased, as follows: that on the 19th day of November, 1855, the said plaintiff was the owner and in the possession and occupancy of a farm situate in the towns of Mt. Morris and Portage, county of Livingston, state of New Y ork, and on the road known as the picket line, containing about sixty-four…

<p>APPEAL from a judgment of the Steuben county court, affirming a judgment of a justice of the peace.</p>

<p>The words “subsequent purchasers and mortgagees,” as used in the section of the statute declaring that a chattel mortgage, after having been filed as required, shall cease to be valid as against creditors, subsequent purchasers and mortgagees in good faith, after the expiration of one year, unless a copy of such mortgage shall be filed within thirty days next preceding the expiration of said term of one year, refer to purchases and mortgages made subsequent to the expiration of the year next following the original filing of the mortgage or a copy thereof; the same as if it read “ or against purchasers,” &c. “ subsequent to the expiration of one year from the filing thereof, unless,” &c.</p> <p>Hence, where a mortgagor of chattels sells the same, intermediate the original filing of the mortgage and the expiration of a year from that time, the purchaser will take the title subject to the lien of the mortgage; notwithstanding the omission of the mortgagee to reflle the mortgage in the town where the mortgagor resides, within thirty days next preceding the expiration of the year.</p> <p>And one deriving title to the mortgaged property from such purchaser will stand in the same position as his grantor.</p> <p>Where the mortgagor has put it out of the power of the mortgagee to reiile the mortgage within the time required by the statute, in the town where the mortgagor resides, by changing his residence and removing to another state, it is not necessary that a copy of the mortgage should be filed, in order to preserve the lien of the mortgage, as against a purchaser or those through whom he derives title,</p>

<p>A justice has no power, upon the trial of an action brought upon a warranty on the sale of a chattel, to compel a party or witness to produce the chattel in court, for inspection.</p>

<p>An agreement by borrowers, to pay to the lender one-third of the profits of their business as copartners, in addition to the legal interest, for the use of the money loaned, is usurious and void.</p> <p>And a promissory note, given by the borrowers, in pursuance of such an agreement, being void, furnishes no consideration for a note given by third persons to the lender, on the purchase of the original note by them. Smith, 3. dissented.</p>

<p>APPEAL from a judgment of the Cayuga county court, affirming tffe judgment of a justice of the peace.</p>

<p>APPEAL from a judgment of the Steuben county court, reversing a judgment of a justice of the peace.</p>

<p>Where a promissory note is made, by one of the partners in a firm, and the partnership name is subscribed thereto by him, by which the firm jointly and severally promise to pay to the payee the sum specified therein, the partner who made the note may be sued upon it, alone, without joining the other as a defendant.</p>

<p>In determining whether articles are or are not fixtures, the same rule prevails between mortgagor and mortgagee as between grantor and grantee. And this, whether the mortgagee were or were not in possession of the premises.</p> <p>If articles, before being detached, were fixtures, the person having the title to the realty can, in case of their removal by another, sue for the specific recovery of the things themselves, or in trespass for the damages to the freehold.</p> <p>"Where a mortgagee is in possession of the mortgaged premises, at the time of the removal of the fixtures therefrom, his subsequent foreclosure of the mortgage and sale of the premises will ripen his possession into an absolute title, instead of a conditional one.</p> <p>Though the mortgage debt has become satisfied by the mortgagee’s purchasing the premises, on a foreclosure sale this will not alter his rights in respect to fixtures attached to a building and wrongfully removed therefrom by another. If, at the time of such removal, the mortgagee had the title, even though it were a conditional one, that is sufficient to found an a-ction against the wrongdoer.</p> <p>Where articles of machinery were attached to a building by braces and nails, having been so attached when the building was erected, and having always continued so attached, and the sole use of the building being the accommodation and employment of such machinery, it was held that the articles of machinery were to be deemed fixtures.</p>

THIS is an appeal from an order of the surrogate of Oswego, appointing the respondent administrator of B. T. Lathrop, deceased. The decedent died intestate, never having heen married, leaving him surviving his father and several brothers.

ACTION to recover about two hundred and fifty dollars, as so much money had and received to and for the use of the plaintiff. In 1857 the plaintiff had contracted to purchase of one Cogswell a tract of land of about 47 acres, 7 acres of which belonged to the defendant but was included in the contract of sale with his assent.

Brooks, the infant child of the parties. The petition of the relator alleged that his wife, the respondent, left him without any just cause or provocation, and remained away without his consent and against his wishes, and retained the custody of the child.

The action was to foreclose a mortgage, and was defended on the ground that the mortgage was usurious, and also on the ground that the mortgagor, (the defendant,) at the time of its execution, was non compos mentis.

THE plaintiff Kendall, (who sued for himself and other creditors,) was creditor of the copartnership firm of Eichard & William Kirk, which had been engaged in the business of manufacturing cotton wadding since about the year 1849. They owned at the beginning of the copartnership a mill and water power, in which their business was earned on.

Demurrer to portions of return to an alternative mandamus, and to relator’s plea to a portion of the return. The relator had been plaintiff in an action against the Fort Plain Bank arising upon contract: the issues had been referred to the present respondent, who reported in favor of the plaintiff for $78.10; judgment was entered upon the report and the relator appealed.

THIS was an appeal from a judgment of the county court of Montgomery county, affirming a judgment rendered by a justice of the peace.

<p>THE action was brought by the plaintiff to recover the sum of $200, with 'interest from the 15th day of May, 1854, upon a note signed by Henry M. Penoyer and. Stephen Gr. Tallmadge, hearing date .on that day and given to Abram Coon,, which note the plaintiff claimed to- own under an assignment and transfer of the same to him by Coon, and whjch .sum of, money he alleged was used by the firm of R. S. & H. M. Penoyer. The answer was a general denial. On the trial of the action the plaintiff was nonsuited. The facts in the case, as they appear from the testimony, are as follows: Abram Coon loaned to Henry M. Penoyer and Stephen Gr. Tallmadge $200, in May, 1854, for which he took the note of Henry M. Penoyer and Stephen Gr. Tallmadge, dated May 15th, 1854. This $200 was borrowed by Henry M. Penoyer and Stephen Gr. Tallmadge for the purpose of loaning it to Samuel Spears, in order to start him in business. Spears did not need the money. As soon as this was ascertained, Henry M. Penoyer saw Tallmadge and said to him, “Spears does not want this money; now, about this money, what shall we do with it ?” He (Henry M. Penoyer) said, “I should like to use it for a short time myself.” Tallmadge told him to do so. It was Tallmadge’s proposition to raise the money for Spears. Tallmadge testified that the note was signed by Henry, and was in his own name. Henry M. Penoyer died in September, 1854. On the 10th of March, 1858, Tallmadge paid the amount of this note to Coon, by giving him his own note, and took an assignment thereof, and of any claim that Coon might have against the firm of R. S. & H. M. Penoyer. At the time of Henry M. Penoyer’s death, and for some time previous thereto, Henry M. Penoyer and Robert S. Penoyer were in partnership, under the firm name of R. S. & H. M. Penoyer, in dry goods business, and in lumber and land. Henry was principal manager of the dry goods business. In 1854 Robert was at the west. He was away at the time the above mentioned note was given. Abram Coon, previous to the time of his loaning this §200 to Henry M. Penoyer and Stephen G-. Tallmadge, had loaned money to the firm of R. S. & H. M. Penoyer, but for such loans had always received notes signed in the name of the firm. Barent Mesick had also loaned money to the firm, but had received therefor a note signed in the partnership name. On the top of a page of a book, introduced in evidence by the plaintiff, was written, “notes of R. S. & H. P.,” and near the bottom, “no note, Abram Coon, 200, May 15, ’54.” Shortly after Henry M. Penoyer’s death, Robert S. Penoyer was looking at this page in the presence of Barent Mesick, and when he read over this 200, asked, “what was that got for?” Me-sick said he supposed it was the §200 Henry and Tallmadge had borrowed of Coon. Robert S. Penoyer replied that he “knew nothing about it.”</p> <p>Exceptions were taken by the plaintiff to the rulings of the judge, in excluding testimony offered hy the plaintiff, and in granting the defendant’s motion for a nonsuit.</p> <p>The plaintiff appealed from the judgment of nonsuit.</p> <p>I. In regard to the first question of fact upon which the court nonsuited the plaintiff and refused to let him go to the jury, viz. whether the $200 was not used by the firm, and applied for its benefit, the proof was sufficient to charge the firm. Entries made by one partner, during the copartnership, in the partnership books, are evidence against the other partners. (15 John. 409. 5 Wend. 253. 7 id. 441. 5 Sandf. 237.)</p> <p>II. As to the second question of fact, viz. whether the debt was not accepted, treated and acknowledged as a liability of the firm, hy both the copartners, and a debt which they were bound to pay—we insist that the exhibiting the company books, and the list of moneys borrowed by the surviving partner, and asserting that these were the liabilities of the firm, was an express acknowledgment by the defendant that this $200 was a debt of the firm. When a debt is contracted by one member of a firm, the assent of the other partner may be implied from facts and circumstances; an express assent need not be shown. (14 Wend. 133.) One member of a firm may bind the firm by receiving money for the firm. (Chit, on Con. 9th ed. 250, 260. Coll, on Part. 384, 391, 394.) And the lender is not bound to show that the money has been applied to partnership purposes. (16 Wend. 505. 17 id. 47.) When money is borrowed by one of several copartners, not expressly on his individual credit, and it is shown to have been appropriated to the uses of the firm, the firm are liable. (16 John. 38. 19 id. 157. 16 Wend. 505. 11 id. 75. Gow on Part. 343-349. 6 Hill, 119.) When money of a third person is in the hands of a member of a firm, cts a trustee or otherwise, and is applied by him to the uses of the firm, the firm are liable. (6 Cowen, 497, 502. 7 Paige, 26.)</p> <p>III. The judge erred in excluding the evidence offered. That was proper evidence to be submitted to the jury, as showing that Henry was authorized to borrow and receive money for the firm. (2 Cowen & Hill’s Notes, 757.)</p> <p>I. Ho error was committed by the court in excluding the offer of the plaintiff to show, by Abram Coon, that in the spring of 1854, and for some time previous thereto, Henry M. Penoyer was in the habit of negotiating for loans of money individually, and giving the copartnership note for the same, and that Robert S. Penoyer, his copartner, was knowing thereto. It was entirely immaterial, for the purposes of this action, whether Henry M. Penoyer, in the transaction of the business of the firm of R. S. & H. M. Penoyer, had or had not been in the habit of negotiating for loans of money, and giving the partnership note for the same, and whether Robert g. Penoyer was knowing thereto. The note in controversy was not a partnership note; the name of the firm was not signed to it; the signature to the paper was that of Henry M. Penoyer, and the fact of Henry M. Penoyer having given a note signed with the partnership name, for money borrowed for partnership purposes, or having given such note for money borrowed for his individual purposes, would not tend to prove that money for which Henry H. Penoyer’s individual note was given went into the partnership business, but rather the reverse. The testimony could have no possible bearing upon the case—would prove nothing whatever with respect to a note to which the individual name of Henry M. Penoyer alone was signed.</p> <p>II. The ruling of the court in excluding the offer of the plaintiff to show by Parent Mesick that, within two days succeeding the date of the entry on the book spoken of by him, Henry M. Penoyer applied to him for the loan of money to be used, as he stated at the time, to pay off a copartnership mortgage of $3000 on western lands, and on that occasion the witness loaned to him $400, and took the copartnership note therefor, was correct. (1.) This witness had already-testified with respect to the $400, that he had a note for it in the partnership name, and it was unnecessary that the same fact should he proved a second time by the same witness. (2.) The use to which Henry M. Penoyer applied’ the $400 borrowed of Mesick, and for which he gave the firm note, or the intention with which he borrowed it, was immaterial in this action. There was no question as to the liability of Robert S. Penoyer as one of the partners, upon that note. (3.) The declarations of Henry M. Penoyer, who is not a party to this action, at the time of borrowing money of Parent Mesick, for which he gave the partnership note, with respect to the object for which he wished to borrow the money, cannot be proper or material evidence in an action against Robert S. Penoyer, in which it is sought to make him liable for money borrowed of Abram Coon at a different time, and for which the note of Stephen Gf. Tallmadge and Henry M. Penoyer was given. (4.) The testimony could have had no other effect than to show that Henry M. Penoyer, at the time of borrowing the $400 of Mesick, and giving him the note signed with the partnership name, informed him that the firm needed the money, of which the borrowing of the money and the giving of the note were proof equally as strong. That he wanted to apply that money for a certain purpose, does not show that the money borrowed of Coon at a different time, upon Henry M. Penoyer’s individual note, was applied for any purpose of the firm, but the reverse.</p> <p>III. The ruling of the court in excluding the question addressed to the witness Parent Mesick, “ At the time Robert S. Penoyer spoke to you about the 200, what did he say about the $400 Henry had borrowed of you,” was correct. (1.) The question had no pertinency to the issue. What Robert S. Penoyer might have said with respect to $400, for which the note of the firm had been given, and which note he had seen, could have no bearing whatever upon a note signed by Henry M. Penoyer, in his individual name, for $200. (2.) The transactions between Parent Mesick and the firm of R. S. & H. M. Penoyer, or Robert S. Penoyer, were not involved in this action, and what transpired at any interview between Mesick and Penoyer in respect to the $400 which the firm had borrowed of him, could not be proper or material testimony in an action upon the note in controversy.</p> <p>IV. Ho error was committed by the court in refusing to submit the case to the jury, and in granting the motion for a nonsuit. There was no evidence to be submitted to the jury, from which they would be warranted in inferring that the $200 in dispute was loaned to the firm of R. S. & H. M. Penoyer by Coon, or that he ever became the creditor of the firm for that amount, or that it was used by or applied for the benefit of the firm, or that it was accepted, treated or acknowledged as a liability of the firm by both or either of the copartners, or as one of the debts which the firm was bound to pay. The testimony of Coon, Mesick and Tallmadge shows that there was no connection whatever between the note in controversy, or the $200, and the firm of R. S. & H. M. Penoyer, or Robert S. Penoyer.</p> <p>V. Assuming that the $200, subsequently to the making' of the note, was used in the business of the firm, there was no question of fact to be submitted to the jury. The question was one of law for the decision of the court. If such were the facts, the law interposed, and exonerated the defendant from any liability. (1.) There is no dispute, upon the facts, that the money' was originally borrowed upon the credit of the plaintiff and Henry M. Penoyer, and for a. specific purpose. Any subsequent arrangement between Henry M. Penoyer and the plaintiff, by which the money was diverted from its original purpose to the use of Henry M. Penoyer or of the firm, could not create any liability against the firm or against Robert S. Penoyer, in favor of the original lender or any person claiming through him. The principle is well established that if a partner borrows money on his own credit, and afterwards applies it to the payment of partnership debts, or to other partnership purposes, this does not make the original lender a creditor of the firm. (Collyer on Part. 356, § 391. Bevan v. Lewis, 1 Sim. 376. Green v. Tanner, 8 Metc. 411. Graeff v. Hitchman, 5 Watts, 454. Wiggins v. Hammond, 1 Missouri Rep. 121. Loyd v. Freshfield, 2 Car. & P. 325. Story on Part. § 140. 3 Kent’s Com. 41, 42. Collyer on Part. 429, § 476, last part of section, and § 477, 480. Id. 430, § 478. Emly v. Lyle, 15 East, 6. Jagues v. Marguand, 6 Cowen, 497. Coster v. Clarke, 3 Edwards, 411. Collyer on Part. § 474; p. 396, § 440. Elliott v. Dudley, 19 Barb. 326. Mercien v. Andrus, 10 Wend. 461.) (2.) The testimony is explicit and uncontradicted that Henry M. Penoyer’s individual name was signed to the note; that he was an accommodation signer; that the money was loaned upon the credit and responsibility of the plaintiff and Henry M. Penoyer, for a specific purpose which was known to the lender. The partnership did not appear in the inception or making of the note. In the subsequent conversation between Henry M. Penoyer and the plaintiff, after it was ascertained that Spears did not want the money, the partnership was not mentioned, but the plaintiff testifies that Henry M. Penoyer said he would like to use the money a short time himself. If Henry M. Penoyer had subsequently used the $200 in the business of the firm, he would have become as to that amount a creditor of the firm, but the original lender or the plaintiff would not thereby have acquired any claim against the firm or the defendant. The claim of-the original lender would still have been against the signers of the note, and no others; the claim of the plaintiff would have been and is only against Henry M Penoyer and his representatives, while Henry M. Penoyer and his representatives would be the creditors of the firm as to that amount. (3 Kent’s Com. 42, mar. Siffkin v. Walker, 2 Campb. 308. Ripley v. Kingsbury, 1 Day, 150, note. Emly v. Lyle, 15 East, 7. Bevan v. Lewis, 1 Sim. 376. Willis v. Hill, 2 Dev. & Battle, 231. Jaques v. Marquand, 6 Cowen, 497. Coster v. Clarke, 3 Edw. Ch. 411. Collyer on Part. § 474; p. 396, § 440. Elliott v. Dudley, 19 Barb. 326. Mercien v. Andrus, 10 Wend. 461.) (3.) The plaintiff bases his right to recover, entirely upon the assignment from Coon. He can assert against the defendant only such claim as is conferred by that assignment. He occupies the position that Coon did before the assignment. If Coon could enforce the collection of the note against Robert S. Penoyer, or the collection of the money, the plaintiff can; if not, the plaintiff cannot. That Coon, the original lender, could not recover the amount of this note of the firm or of the defendant, is a point upon which the authorities are express. (See authorities cited in subdivisions 1 and 2.)</p> <p>VI. The entry in the book which was introduced in evidence did not show any connection between the note in controversy and the firm; it is not identified as referring to this note.</p> <p>VII. In order to charge the defendant with any liability for this note or the $200, it was necessary for the plaintiff, even upon his own theory, to show that Robert S. Penoyer not only knew of the application of this sum to the use of the partnership, but assented thereto; and this assent, in the language of the authorities, is an affirmative fact, which must be proved, and cannot be inferred from any knowledge of the transaction which the defendant might have had at the time, or subsequently acquired. The entry in the book does not of itself show any knowledge even by Robert S. Penoyer of the application of this $200, or of any funds, by Henry M .Penoyer to the use of the partnership, or any assent thereto; for the entry is in Henry M. Pen oyer’s handwriting, while the testimony of the plaintiff’s own witness, Barent Mesick, is that Robert S. Penoyer, on being spoken to about this entry and the $200, said that he knew nothing about it; thus expressly negativing the presumption that he had ever assented thereto. (Elliott v. Dudley, 19 Barb. 328. Mercien v. Andrus, 10 Wend. 461.)</p> <p>VIII. There was no dispute upon the facts; the only witnesses who had been sworn and had testified, were the witnesses of the plaintiff; there was no question of fact for the jury to pass upon. It was exclusively a question of law for the decision of the court, and the judgment of the court directing a nonsuit should be affirmed.</p>

The referee found the following facts, viz: On the 26th day of March, 1856, the plaintiff conveyed to the defendant, by warranty deed, the premises described in the complaint, situate in the town of Saugerties; and the defendant in consideration therefor gave to the plaintiff, according to their agreement, his note for twenty-five hundred dollars, which was subsequently paid, and also an agreement in writing, which was part of the transaction in regard to the sale of said…

THIS was an action upon the official bond of Henry B. Weed, treasurer of the county of Eensselaer, to recover ah alleged balance of public nfoneys. The action was tried at the Eensselaer circuit, in June, 1860, before Justice Hogeboom, without a-jury.

THIS action was brought upon a guaranty. The first cause of action set out in the complaint, alleges that the plaintiff and defendants were copartners in the mercantile business, at Marbletown, Ulster county, prior to the first day of March, 1854, on which day the plaintiff sold out to the defendants his interest in the said store, and for a part of the purchase price, to wit, for the sum of $268.83, the defendants transferred unto the said plaintiff a note made by one David…

The action was brought by the plaintiff, as receiver of Aaron Hasbrouck, appointed in proceedings sup7 plementáry to' execution, at the suit of Russell, Dart and others, judgment creditors of said Hasbrouck. The object of the action was to recover of the defendant a balance of $719.67 claimed to be due from her on account of the purchase money of a farm bought by her of Aaron Hasbrouck.

<p>THIS was an appeal by the defendants Hasten and Schoonmaker from a judgment against them for $4324.95, entered upon the report of a referee. The action was brought to recover the value of a quantity of coal alleged to have been sold and delivered by the Pennsylvania Goal Company in 1853, to the defendants Hasten, Schoonmaker & Blmendorf, as owners of the steamboat “ Alida,” amounting to $3226.09, which account was assigned to the plaintiff. The defense was payment and release. The material facts appearing on the trial are the following: The amount of the demand for coal delivered in 1853, and its assignment by the Pennsylvania Goal Company to the plaintiff on or about the 24th of January, 1855, was proved. In February, 1855, and prior, Hasten was owner of a steam propeller called the Joseph Sherman or H. Blmendorf, and during the season of 1854 had been engaged in the freighting business, between Wilbur and Rondout and Hew York. The plaintiff, during the season of 1854, was also engaged in the same business. In February, 1855, Hasten sold the propeller to the firm of Sherman, Southwick & Go. for $18,000, tó be paid as follows: $3000 to be paid by procuring from the plaintiff a release of the defendant William Hasten from the demand in this suit, and the balance of $15,000 to be paid by the assignment of a judgment held by Sherman, Southwick & Go., for $2148.83 against H. Blmendorf and Charles Brodhead, apd one other for $1368.46 against Elmendorf alone, and the residue in cash or its equivalent. As a part of the arrangement, Hasten was, on the consummation of the matter, to release Charles Brodhead from the judgment to be assigned to him. The sale was consummated upon the terms stated, and Hasten received a release in the words following:</p> <p>“ This certifies that I hold an assignment of an account against the steamer Alicia, held formerly by the Pennsylvania Coal Company, made in 1853, amounting to the sum of $3226.09, which assignment to me is dated the 24th day of January, 1855. This certifies that I do hereby release William Hasten from any liability for said account.</p> <p>Thomas Cobnell.</p> <p>Rondout, January 29th, 1855."</p> <p>And upon the assignment to him of the two judgments, and the payment of the balance of the consideration, as by the contract of sale, Hasten transferred the boat and delivered up the possession to the purchasers, Sherman, Southwick & Co., and also released Charles Brodhead from the judgment in which he was one of the defendants. Hasten, on account of this release, received, in the hooks of the firm of Wm. Hasten & Co., a credit of $3000, as for the payment of partnership debts, A* the time of negotiating the sale of the propeller, by Hasten, to Sherman, Southwick & Co., it appears that Br°dhead, who was liable as defendant in one of the judgments, was informed by one of the firm of Sherman, Southwick & Co. that they had agreed with Hasten in respect to the sale of the propeller, and if the plaintiff would release Hasten from the account claimed in this suit, the bargain would he consummated. Brodhead applied to the plaintiff for the release, and told him how matters were with respect to the sale of the propeller. The plaintiff at first objected, on the ground that it might invalidate his claim against the other partners. Brodhead urged that it would he an advantage to the plaintiff to get the propeller out of the way, hut the plaintiff did not regard that as important. Brodhead then said that he (Brodhead) would he benefited by-being released from the $2000 judgment. The plaintiff said if it would not invalidate his claim against the other defendants, he would give the release. Brodhead thought it would not. The plaintiff then drew and. signed the release, gave it to Brodhead, and it was delivered to Hasten when the sale of the propeller was consummated. The legal and proper release of Hasten from this demand was the inducement by which he credited to Sherman, Southwick & Go. $3000 on the purchase price of the propeller. The plaintiff, in fact, received no present pecuniary consideration for the release. The referee determined that the defense was not made out, and ordered judgment for the full amount of the claim, against all the defendants, and from that judgment Hasten and Schoonmaker severally appealed.</p>

<p>A parol license to enter into the possession of land is no defense to an action by the owner of the land to recover the possession.</p> <p>Such a license is not irrevocable, so as to bar the grantor, or his heirs, from recovering the possession. It will be revoked by a conveyance of the land to another person, or by the death of the grantor.</p> <p>A mere agreement to sell does not of itself import a license to enter into possession.</p> <p>E., by an instrument under seal, executed by him, in June, 1849, agreed or promised, in case the defendants’ road should be located across his farm, to convey to them whatever land they required, on receiving the price of sixteen dollars per aere, in their bonds. In the fall or winter of 1850, the defendants, with the knowledge of E. and without any objection on his part, went into possession, and proceeded to build their road, and had ever since occupied and used the land as a part of their track. In May, 1851, E. conveyed the land to the plaintiff, who disavowed the agreement, and refused to give a deed. E. died in 1853. Held, 1. That whatever license to enter there was, rested wholly in parol. That it was not contained in, nor derivable from, the instrument executed by E., but must be inferred from the entry and subsequent possession by the defendants, with the knowledge of E. and without objection on his part.</p> <p>2. That such license was not irrevocable, but would have been revoked by the death of E., and was revoked by the conveyance from E. to the plaintiff, in May, 1851; and that it was no defense to an action brought by the plaintiff to recover possession of the land.</p> <p>3. That the doctrine of estoppel was not applicable to the case.</p>

The complaint charged that the defendants, on or about the 16th day of August, 1858, at Rochester, in the county of Monroe, by themselves and their agents, officers and sgrvants, by them employed and under their instructions and directions, broke and entered the plaintiff’s close, described as follows: Being on the east side of the Erie canal, in the second ward of the said city of Rochester, bounded north by the cooper shop of the plaintiff, west by the Erie canal, east by…

<p>PPEAL from a judgment entered at a special term, on the verdict of a jury. The action was upon a certificate of deposit, dated at the “ Banking House of Tallman, Powers & McLean, Davenport, Iowa, May' 2, 1859,” certifying that the plaintiff had deposited in that bank $2000, payable to the order of himself one year from the date, on the return of said certificate, with interest at the rate of ten per cent per annum, and signed by the defendants. The defense was usury.</p>

The action was brought against the defendants as common carriers, to recover the value of goods delivered to the company to he transported from Sing Sing to Hew Tort, and alleged to have been lost, through its negligence.

PPBAL from a judgment ordered at the circuit, directing that the plaintiff’s complaint be dismissed. The action was brought to recover damages for personal injuries sustained by the plaintiff in consequence of a collision of cars upon the defendants’ road. On the 29th of February, 1859, the plaintiff was a passenger in one of the defendants’ caboose cars running on their road.

<p>If seems that a judicial sale, by a referee or sheriff, or other officer of the court, is not within the provisions of the statute of frauds, requiring the ' contract of sale to he subscribed by the purchaser, or his agent.</p> <p>If it be, however, the written report or certificate of the referee, or the note or memorandum made by the auctioneer, will satisfy the provisions of the statute, and remove all objection to the validity of the contract to purchase, on the ground that no written contract was subscribed by the purchaser.</p> <p>Where one purchases property at a judicial sale, as the agent of another, and in his name, but without authority from the principal, and consequently the contract is not binding upon the latter, the agent is not personally liable in an action upon the contract; nor can he be compelled, by the exercise of the equitable jurisdiction of the court, to perform it as his own.</p>

The plaintiff in this action, in December, 1854, commenced an action in this court against one Sprague, and in that action procured, on the 13th of December, an attachment to be issued against the property of Sprague as a non-resident.

This was an action to' recover one-third of the commissions received by the defendants on the sale of about four hundred railroad bonds. The plaintiff was the assignee of one Cockle.

On the 30th of March, 1858, prior to the bringing of this present action, the plaintiff Tyler, as-receiver of Whitney, commenced two other actions in this court against the defendant Willis.

CATHARINE J. CLINTON, deceased, in her lifetime owned a certificate of deposit, made by the New York Life Insurance and Trust Company, by which the company promised to pay to her, or her assigns, the sum of $1500, upon the conditions stated in said certificate.

THIS action was brought to recover the ground rents due to the plaintiff, as receiver of the Lorillard estate, for the premises 212 Broadway, from the 1st of May, 1855, to the 1st of May, 1857, being $29,000, less two payments of $2000 each, paid by Morris, on account.

<p>A defect in the decision, at the trial, in omitting to find any question of fact involved, is not the subject of review, on appeal, but must lie brought before a judge, on motion to correct the decision, before the omission can be considered at the general term.</p> <p>An agreement between different sets of bidders for a public contract, by which one agrees, in consideration of a sum of money to be paid by the other, to withdraw his bid and assist the latter to obtain the contract, is against public policy; and no action will lie to recover back money paid upon such contract.</p> <p>In such a case the maxim potior est conditio defendentis applies.</p> <p>Where parties are in pari delicto, in the commission of an offense not only malum prohibitum but malum in se, if they have fraudulently or illegally contracted to do any thing, the law refuses to enforce the execution, or to award damages for the mon-exection of such contract; and whatever they have executed, it refuses to lend its aid to either party to disturb. Per Clerks, P. J.</p>

THIS was an appeal hy the defendants from a judgment rendered upon the direction of one of the justices of this court, upon a trial without a jury, a jury having been waived.

THIS action was brought by the plaintiff to recover compensation, as an agent, for the recovery of claims on the United States government for duties illegally exacted of the defendants on importations of sugars and molasses—being duties exacted on deficiencies in weight and measure, occasioned by drainage and leakage during the voyage of importation.

HE object of this action was to establish the relator’s right to the office of hell ringer, in the city of Hew York, and to oust the… Held: used and exercised said office in the sixth fire district in said city, and still does hold, use and exercise the same; and during said time had excluded, and still does exclude said Belch therefrom, and from all the rights, fees and emoluments thereof, and without legal warrant or authority had claimed, received and enjoyed all the…

THIS action was brought to recover the sum of $364.58, alleged to be due to Edwin Bouton, from the defendants, for1 three months’salary as police clerk.

HIS action was to recover rent claimed to be due from the defendant to the plaintiff. The answer of the defendant consisted of, first, a general denial, and second, a plea of a former adjudication in the same action in the marine court of the city of New York. The cause was tried on the 27th of October, 1860, before Judge Allen and a jury.

<p>The plaintiff, holding a note made by the defendants, wrote a letter to the latter, on the 27th of October, 1858, saying that if they would send him a draft on New York for the amount of such note, &c. he would send the note to the defendants, on receipt of the same; and requested to hear from 1 them by return mail. Held that the letter required an acceptance of the proposition contained in it by return mail. And that if it was not so ac- } cepted, the plaintiff was at liberty to consider it as rejected, and to proceed / in the same manner as if it had never been made.</p> <p>Held, also, that the defendants having suffered four days to elapse, after the plaintiff’s letter should have been received, by due course of mail, without replying, the plaintiff was not bound to wait any longer, but was at liberty to commence an action.</p> <p>And the circumstances under which the proposition was made having changed, before the draft was received, by the incurring of expenses, and the plaintiff having receded from his proposition, the defendants had nq right tq ipsist that the draft should he received in full of the amount due upon the note, without paying also the costs of a suit the plaintiff had previously commenced, on the note.</p>

The complaint alleged that the defendants, by their agents and contractors, Cyrus Moore, Peter W. J ones and Samuel Waggoner, employed him, the plaintiff, by and with the consent of said company, in the fall of the year 1854, to proceed to the state of Texas and locate and superintend building a rail road, for which services they agreed to pay the plaintiff at the rate of $3000 per annum and his traveling expenses; that the plaintiff went and performed said services, for…

<p>APPEAL from a judgment entered upon the report of a referee. The plaintiff, being the assignee of certain claims against the estate of Edwin Stafford, deceased, held by Mary Ann Palmer, the wife of the plaintiff, Atlanta D. Rowell, the wife of F. P. Rowell, and Sarah Flack, the wife of Robert Flack, which claims were disputed by the administrator, entered into an agreement in writing with the defendant as administrator of said Edwin Stafford, under the provisions of the revised statutes, (3 B. S. 5th ed. 175, § 41,) that the matters in controversy be referred, pursuant to said statutes, to A. B. Waldo, as referee, to hear and determine upon the same. An order was accordingly entered in the office of the clerk of this court, in Essex county, referring the said matters in controversy to the said A. B. Waldo, and the trial took place before him, on the 26th of August, 1859. The referee subsequently made his report, by which he found the following facts, to wit: That Stephen Stafford died October 28, 1853, at Essex, Essex county, New York, leaving him surviving a widow, Mary Stafford, two sons, Cyrus M. and Edwin Stafford, and four daughters, Lydia Stafford, Sarah Flack, wife of Robert Flack, Mary Ann Palmer, wife of the plaintiff, and Atlanta D. Rowell, wife of Norman P. Rowell, and also some grandchildren, children of a deceased daughter, who was the wife of Timothy Shelden. That said Stephen left a last will and testament, a copy of which was annexed to the report. That Edwin Stafford died on the 1st day of June, 1857, at Essex aforesaid, intestate, and that the defendant, Daniel North, is his sole administrator. That the will of Stephen Stafford, decased, was admitted to probate by the surrogate of the county of Essex, on the 5th day of June, 1854. That the estate of Stephen Stafford at the time of his decease was of the value of $4500, exclusive of the house and lot devised in said will to his son Cyrus. That the home farm in said will mentioned was worth $3000. That the Ring farm, so called, was worth $1000. That the widow, Mary Stafford, and the daughters, Mrs. Flack, Mrs. Palmer and Mrs. Rowell, complained that the will was inequitable, and avowed their determination to oppose its probate. That they each claimed the will was not just to the three daughters, Mrs. Flack, Mrs. Palmer and Mrs. Row-ell, but that no objection was made by either of them, except that the bequests to Mrs. Palmer, Mrs. Flack and Mrs. Row-ell were too small. That thereupon Edwin Stafford, the defendant’s intestate, promised the widow, Mrs. Stafford, and the three daughters, Mrs. Flack, Mrs. Palmer and Mrs. Row-ell, that if they would not oppose the probate of the will, and would give an admission of service of the citation issued by the surrogate, he, the said Edwin, would pay Mrs. Flack, Mrs. Palmer and Mrs. Rowell two hundred dollars each. That they each accepted the said offer, and agreed, in consideration thereof, to sign an admission of service of the citation and not to contest the proof of said will. That afterwards the will of the said Stephen was proved by the defendant’s intestate before the surrogate of the county of Essex, on the petition of the said Mary Stafford, the widow. That the record of the probate thereof shows that neither Mrs. Stafford the widow, nor Mrs. Flack, Mrs. Palmer or Mrs. Rowell opposed its probate. Also that Mrs. Flack, Mrs. Palmer and Mrs. Rowell each signed an admission of the service of a citation issued by the surrogate of the county of Essex, on the petition for proof of the will, and also that the signatures to the admission of the service were proved by the affidavit of said Edwin Stafford. The referee further found, that Mrs. Flack, Mrs. Palmer and Mrs. Rowell were each at the time of making said proposition by said Edwin Stafford, and of the acceptance thereof by them respectively, married women. That the plaintiff is the assignee and owner of. the several claims of Mrs. Flack, Mrs. Palmer and Mrs. Rowell, the same having been transferred to him before the commencement of this action.</p> <p>From the foregoing facts, the referee deduced the following conclusions of law: 1st. That the said promise of the defendant’s intestate, Edwin Stafford, was made upon sufficient consideration, and was binding. 2d. That the plaintiff, as the assignee of Mrs. Flack, Mrs. Palmer and Mrs. Rowell, respectively, was entitled to recover the said sum of $200, promised to each of them, together with interest from Juné 5th, 1854, the time of the proving of the will, to the date of the report. 3d. That the amount of' principal so due the plaintiff was $600, and the amount of interest $252, making in all the sum of $852 due the plaintiff, for which he was entitled to a judgment against the defendant as administrator.</p> <p>From the judgment entered upon this report, the defendant appealed.</p> <p>The alleged agreement is void for want of mutuality. (1.) There was no distinct agreement made by either of the daughters of Stephen Stafford and sisters of Edwin Stafford, not to oppose the probate of the will. The promise, if any, was to sign an acknowledgment of the service of the citation. The referee therefore erred in deciding that the promise was made in consideration of their agreement not to oppose the probate. (2.) The real plaintiffs were all married women, and not bound by any agreement they may have made. If they had appeared and contested the probate of the will, it would not have afforded any cause of action against them or their husbands. (Chit, on Contr. 16, n. m, and cases there cited, and p. 47. 1 T. R. 653.) The promissory note of a feme covert is absolutely void. (15 Barb. 28, and authorities cited. 21 id. 546, 7.) The promise must be concurrent and obligatory on both parties. (12 John. 190. Id. 397. 1 Barb. Ch. 499. Chit, on Contr. 47. Utica and Sch. R. R. v. Brinckerhoff, 21 Wend. 139. 3 Seld. 349.) (3.) The alleged agreement was made with Mrs. Stafford, the executrix and residuary legatee.</p> <p>II. The referee erred in deciding that the record of probate was proof that neither of the plaintiffs nor the executrix appeared, or opposed the probate of the will. •</p> <p>III. The alleged agreement was against public policy, and void on that account. If the will was Objectionable, the objection applied equally to the infant heirs of Betsey Shelden, and the compromise contended for was a fraud on them. A note executed by a debtor to a creditor, to induce him to withdraw opposition to the debtor’s discharge, is void for fraud on the other creditors. (See also cases cited in 12 John. 306; 2 T. R. 763.)</p> <p>IV. The alleged agreement is void for want of consideration. (1.) A valid and sufficient consideration is the very essence of a contract not under seal. (Chit. on Contr. 26, and note.) (2.) In relation to simple contracts, a valuable consideration is required.- (3.) The main rule in regard to the sufficiency of the consideration seems to be, that it may arise either, 1st. By reason of a benefit resulting to the party promising; or 2d. On occasion of the latter (promisee) sustaining any loss or inconvenience, or subjecting himself to any charge or obligation at the instance of the person making the promise, although such person obtain no advantage therefrom. (4.) The will of Stephen Stafford is formal and legal on its face, and the plaintiff or any one else did not allege or pretend any fraud or legal objection to the probate of the will, nor to its legal effect or validity. (5.) No legal or equitable objection to the will can be presumed to have existed, or to have been suggested; because the executrix and the real plaintiffs (daughters) distinctly avowed their objections to its provisions, to wit, what they considered an unequal distribution of the estate, which will not be pretended to be a ground of objection to the validity of a will. (6.) The only color or pretense of consideration to be found in the testimony, is an agreement by the plaintiffs (sisters) to sign an acknowledgment of service of the citation, which was not of the least benefit to Edwin Stafford, nor even to the executrix, Mary Stafford, the residuary legatee. There was no saving of expense to any person. An affidavit to prove their signatures to the acknowledgment of service of the citation was as necessary as the ordinary affidavit of service of the citation, and the trouble and expense would have been the same; and if the signing of their names to the acknowledgment of service is an injury, it was incurred on the request and for the executrix only. There must be some consideration for the promise. It is not enough that the promise was made to appease the querulousness of the women. (Geer v. Archer, 2 Barb. S. C. Rep. 420, 424.) The inadequacy of the consideration is so gross as to amount to evidence of fraud. (Seymour v. Delancy, 3 Cowen’s R. 445. 2 id. 140.) A voluntary restoration of what the law will compel a man to restore, is not a sufficient consideration for a promise. (5 Cowen, 161. 6 Barb. 547.) There must be a real consideration to support a promise. (7 Barb. 598.) The benefit to one party, or injury to the other, must be a benefit to which the party is not entitled, or the injury must be to the legal rights and not the wrongful claims of the promisee. In Seaman v. Seaman, (12 Wend. 381,) the plaintiff filed a caveat on the ground of insanity of the testator, and the promise was made in consideration that the plaintiff would withdraw the caveat. The court decided that case on the ground that it was a compromise, and prima facie an acknowledgment by the defendants that there was color for the objections. The case cited there (3 Burr. 1665, &c.) was decided as a commercial transaction, in which consideration was not required. Forbearance, where there was originally no cause of action, is no consideration to raise an assumpsit. (2 Saund. 211, and note. Loyd v. Lee, 1 Str. 94. 2 Com. on Contr. 13. 1 Chit. on Contr. 36, 45.) However ultra some decisions may appear, there are none decided upon facts and pleadings in the particular cases, and supported by authority, that conflict with the well settled doctrine, that to sustain a contract there must be some substantial consideration. The conversation between Stephen Stafford and Edwin Stafford, sworn to by Lydia Stafford, is not evidence of any agreement, and does not furnish any consideration for the alleged promise. (1.) It related to advances contemplated by the testator in his lifetime. (2.) If any arrangement was made between the testator and Edwin at that time, it was merged in the will. The evidence of James Stafford, of what took place at the time he drew the will, shows conclusively that the testator did not intend to make any further provision for the plaintiffs, only to advance to each of them a hundred dollars in his lifetime. His attention was then directed to that subject. (3.) The testimony of Lydia Stafford, about a conversation with Edwin, is too vague and uncertain to be taken as evidence of an agreement. (4.) No pretense of any such- agreement was urged by any of the parties as a consideration for the alleged promise. (5.) This claim of a promise was never heard of till more than three years after Edwin Stafford’s death. The report of the referee shows that he did not consider any valid agreement proved in this particular. (6.) If established, such an agreement would be invalid.</p> <p>VI. If there is any cause of action, the suit was prematurely brought. No time was limited for the payment, if any agreement was made by Edwin Stafford. He said he would pay as soon as he could get round to it; would pay it as soon as he could. The plaintiffs ought to have made a demand on the administrator, containing a specification of the claim, which was not done.</p> <p>VII. Edwin Stafford acted under a misapprehension of his rights. He was induced to believe that the control of the will was in the power of Mary Stafford the executrix, and that her consent and the admission of service of the citation was necessary.</p> <p>VIII. The referee erred in allowing interest from the 5th June, 1854. If any interest was allowable, it should have been from the time of the demand made by the plaintiffs.</p> <p>I. The promise is fully and unequivocally proved; and if the consideration was sufficient, was obligatory upon the defendant’s intestate. (1.) The witnesses distinctly swear to the promise, and there is no evidence whatever to contradict them, and besides, the referee has passed upon the facts. (2.) It is no objection that the promises were made to married women. If the supposed will of their father had been invalid, their husbands would have had no interest whatever in the property. (Acts of 1848, p. 307; 1849, p. 528. Billings v. Baker, 28 Barb. 343.) A feme covert may contract as to her separate personal estate, and dispose of it. (Same acts. Strong v. Skinner, 4 Barb. 546. Jaques v. Methodist Ep. Church, 17 John. 548. North Am. Coal Co. v. Dyett, 7 Paige, 9. Clancy on Rights of Married Women, 282, 314. Van Ellen v. Carrier, 29 Barb. 644.) A promise to a married woman is good, and especially when she is the meritorious cause of action. (Co. Litt. 3 a. Com. Dig., Baron and Feme, P. 2. Bing. Cov. 251. Howell v. Maine, 3 Leo. 403. Philliskirk v. Pluckwell, 3 Maule & Sel. 393, and cases there cited. Clancy on Rights of Mar. Women, 3 to 6.) She could, at common law even, purchase lands without consent of her husband, and the conveyance was good until avoided by him. (Co. Litt. 3 a. Com. Dig., Bar. and Feme, P. 2.) Under the acts of 1848 and 1849, these promises may be deemed personal property. “ Personal property” includes choses in action. ( Wood’s Ins. 314. 4 Kent, 340. 1 Chit. Gen. Pr. 99. Jac. & Tomlin’s Dic., Property.)</p> <p>II. The consideration was sufficient. It was that the promisees would not oppose the probate of the will, and would sign an admission of service of the citation. The sisters complied with both stipulations. (I.) Withdrawing opposition to the probate was sufficient. It was a compromise of what was honestly in dispute between the parties—a settlement of their conflicting claims—which is sufficient. (Seaman v. Seaman, 12 Wend. 381. Ex parte Lucy, 4 Da G., M. & G. 356. S. C., 21 Eng. Law and Eq. 199. Raymond v. Lent, 14 John. 401. Chit, on Cont. 29, 30, 44. Add. on Cont. 20, 21. Par. Mer. L. 27. Haigh v. Brooks, 10 A. & E. 309, 320. Longbridge v. Dorville, 5 B. & Ald. 117. L’Amoreux v. Gould, 3 Sel. 349. Fay’s Adm’r v. Richards, 21 Wend. 627. Johnson v. Titus, 2 Hill, 606. Horner v. Wood, 15 Barb. 371.) The court will not inquire which party could have succeeded if the proof of the will had been opposed. (Seaman v. Seaman, supra.) If Edwin had induced his father to make a will in his favor, on a promise to pay a sum to each of his sisters, a refusal to fulfill that contract was a fraud. And an action at law or suit in equity'will lie in such case in favor of the child defrauded. (1 Story’s Eq. §§ 252, 256, 382. 2 id. §§ 768, 1265. Dutton v. Poole, 2 Lev. 210. S. C., 1 Ventr. 318, 332. Add. on Cont. 942. Barrow v. Greenough, 3 Vesey, 152, 155. Mestaer v. Gillespie, 11 id. 621.) And it is by no means certain but the will could have been opposed before the surrogate on that ground. Chancery has refused to interfere, because ecclesiastical and law courts have jurisdiction. (See Allen v. Macpherson, 1 Phil. R. 133, 146 n., Am. ed; Brady v. McCosker, 1 Comst. 214; Clarke v. Sawyer, 2 id. 498; Colton v. Ross, 2 Paige, 396; 1 Story, §§ 440, 184, 238; 2 id. 1445.) It was the settlement of a family difficulty, and such contracts are favored and will be sustained when other compromises might not be. (Ibid. Stapilton v. Stapilton, 1 Atk. 2, 5, 6, 10. Cory v. Cory, 1 Ves. sen. 19. 1 Story’s Eq. §§ 113 n., 129, 132. Cann v. Cann, 1 P. Wins. 722. Watkins v. Watkins, 24 Geo. R. 402.) (2.) Signing the admission was sufficient consideration. If there be no fraud, or mistake, or illegality, or warranty, the law does not regard the amount or inadequacy of the consideration; and, however slight, the agreement will be binding. (Oakley v. Booronan, 21 Wend. 588. Wilkinson v. Oliveira, 1 Bing. N. C. 490. Johnson v. Titus, 2 Hill, 606. 1 Saund. Rep. 211 b. Add. on Cont. 18. Pars. Mer. L. 26 and note 2. Pillous v. Mierop, 3 Burr. 1673. Chit, on Cont. 29-33. Sturlyn v. Albany, Cro. Eliz. 67.)</p> <p>III. hi one of the interlocutory objections and exceptions on the part of defendant are well taken. We do not see how they can be seriously urged.</p> <p>The proof of the value of the estate of Stephen Stafford— as to whether he had agreed with Edwin to make his will— and the admissions of Edwin that he was to pay a certain sum to his sisters, were relevant and competent. The object was not to show the will was not properly executed or was revoked, but to show that Edwin was under at least a moral obligation; and the plaintiff had a right to the evidence to show, if he could, a fraudulent interposition to prevent a disposition in favor of his sisters. (See 2d point.)</p> <p>IV. The allowance of interest was correct. (Van Rensselaer v. Jewett, 2 Comst. 135. Livingston v. Miller, 1 Kern. 80. Purdy v. Phillips, Id. 406.) Besides, the exception was not sufficient. (McMahon v. N. Y. and E. R. R. Co., 20 N. Y. Rep. 463.) Nor will a judgment be reversed in toto for allowance of too much interest.</p>

<p>DEMURRER to complaint. The facts are stated in the opinion of the court,</p>

<p>THIS action was brought to recover the value of sixty sheep that the plaintiff alleged the defendant wrongfully took from his possession and converted to his own use. The action was tried at a circuit held in Schuyler county, in December, 1860, when the plaintiff had a verdict for $120. Judgment was suspended, and the defendant moved for a new trial, on a case and exceptions.</p> <p>The case showed that the plaintiff took up a flock of about 130 sheep, as estrays, on a farm occupied by him in Schuyler county, in August or September, 1857. He subsequently disposed of all but sixty of the flock, which sixty were the sheep in question. In the fall of 1858 the defendant called on the plaintiff and demanded the sheep. He claimed they were a part of a flock he was keeping in the spring of 1857, which strayed or were stolen from his possession in the town of Urbana, Steuben county, that spring.</p> <p>The defendant took the sixty sheep in question from the possession of the plaintiff, in Schuyler county, in the fall of 1858, and drove them to Ms farm in Urbana, which gave rise to this action.</p> <p>The other facts necessary to a correct understanding of the questions determined on the motion for a new trial, are contained in the following opinion.</p>

THIS action was brought before a justice of the peace to recover damages for the defendant’s dog killing and wounding the plaintiff’s sheep. The plaintiff recovered a judgment for $12 damages and $5 costs, which was affirmed hy the Otsego county court. The defendant appealed from the judgment of the county court to this court.

THIS action was brought in a justice’s court, where the plaintiff recovered a judgment for $41.40 damages, besides costs. The Tompkins county court reversed the judgment, and the plaintiff appealed from the judgment of the latter court to this court.

PPEAL from an order made at a special term, ordering judgment for the defendants upon a demurrer to the complaint, and directing the complaint to be dismissed with costs.

THIS was an action to recover the possession of a lot of land in the village of Bath, Steuben county. The complaint was in the usual form, and the answer put in issue every material allegation in the complaint. The cause was tried at the circuit, before the judge, without a jury.

ACTION to foreclose a mortgage. On the 19th of March, 1851, Cyril Carpenter executed and delivered to Phehe Brockway his bond, dated on that day, in the penal sum of $500, conditioned to pay $274 in four equal annual payments, from April 1st, then next, to secure the payment whereof the said Carpenter, at the same time, executed to said Phehe Brockway a mortgage upon certain real estate in the village of Brockport, in the county of Monroe.

The case was this: On the 23d of February, 1859, William Welch sold to Leroy Smith the canal boat “William Foote,” of Dansville, and to secure $400 of the purchase money, Smith, who then resided in Wethersfield, Wyoming county, executed and delivered to Welch a chattel mortgage upon the said boat, dated on that day, conditioned for the payment of the said sum of $400, at the times therein mentioned and specified, viz. $100 on the 1st day of July, 1859, $100 on the 1st day of…

THIS action was brought hy the plaintiffs, who were judgment creditors of David Austen, for the purpose of having three several deeds which had been executed by him, conveying land to his daughters, adjudged to he fraudulent and void as against the plaintiffs’ judgment; and to have such judgment declared to be a lien on the premises described in such deeds respectively.

THE routes which these two companies contemplate to operate, enter the city of Brooklyn from opposite directions, converge towards Fulton ferry, and in Water street (leading to the ferry and two blocks from it) they unite. On the 27th of June, 1861, the defendant proceeded to construct, as a part of its route, a railway in Water street, and nearly finished a double track through the two blocks. The plaintiff, at this time, had not taken possession of any part of its route.

THIS was an appeal from an order made at a special term, denying, fro forma, the defendants’ motion to vacate or modify an injunction hy which they were forbidden to construct or work their railway in Bridge street, between Willoughby street and Myrtle avenue, Brooklyn. The facts are sufficiently detailed in the opinion of the court.

ON the 14th day of November, 1859, the plaintiff became possessed of a stock of goods, under an assignment from one Frederick Weichel, and continued in possession until December 9th, 1859, when the defendant took the goods from the plaintiff.

This was the second trial of the action. On the first trial the plaintiff was nonsuited. The court, on appeal, granted a new trial. See same case, ante, p. 193, where the facts are stated. On the second trial the proof was similar to that given on the first.

THIS was an appeal from a judgment ordered at the circuit, after a trial before a justice of the court without a jury. The complaint alleged that the plaintiff was, and for more than five years last past had been, the owner and possessed of a piece or strip of land, situate in the village of New-burgh, in the county of Orange, particularly described in the complaint, and being sixty feet in width, and of certain other lands adjoining said strip of land, on both sides thereof.

APPLICATIONS for writs of mandamus. The facts upon which the applications were made are sufficiently set forth in the opinion of the court.

APPEAL hy the defendant from a judgment entered upon the report of a referee. The action was brought hy the holder against the maker of a promissory note, dated November 25, 1858, for $104 and interest, payable to Hiram Hale, or bearer, one year after date.

<p>Where a proceeding upon habeas corpus is had before a judge as an officer, and not as a court, a writ of certiorari to review the proceedings, is properly directed to him.</p> <p>The writ of certiorari, in such a case, is properly allowed by a justice of the supreme court.</p> <p>And it is regular to make the writ returnable at a general term.</p> <p>But it is improper to make the writ returnable in a different district from that in which the proceedings on the habeas corpus were had.</p> <p>One who is imprisoned on execution is unlawfully detained if there be no judgment, or if the judgment be one on which an execution against the person cannot issue, bylaw.</p> <p>Upon a writ of habeas corpus, the officer has a right to inquire into the validity Of the process under which the relator is imprisoned; notwithstanding it appears to have been issued on the judgment or decree of a court of competent jurisdiction.</p> <p>In such a case, the question is not one of mere irregularity in the process. It is whether the process is authorized by the judgment of the court, or by any provision of law.</p> <p>Where, in an action by judgment creditors, against the judgment debtor, and others, to set aside certain instruments made by the debtor, conveying his property, as alleged, with intent to hinder, delay and defraud his creditors, the referee finds a part of the instruments to be void, not for actual or active fraud, on the part of the debtor, but for constructive fraud, or fraud in law, without finding that such instruments were executed with intent to defraud creditors; and judgment is thereupon entered, declaring those instruments to be fraudulent and void, and awarding costs against the judgment debtor, the latter is not liable to arrest and imprisonment upon an execution issued on such judgment. Rosekrahs, J. dissented.</p> <p>These facts will not justify the conclusion that the judgment debtor has disposed of his property with intent to defraud his creditors, within the meaning of subdivision 5 of section 179 of the code of procedure.</p> <p>That provision of the code means fraud in fact—meditated fraud—a purpose existing in the mind to do a dishonest act. Per Bookes, J.</p> <p>No order of arrest is authorized, in a suit in equity to set aside an assignment or other instrument, on the ground that it was made to hinder, delay and defraud creditors. Subdivision 5 of section 179 of the code has no application to that class of actions. Per Bookes, J".</p> <p>No order of arrest can be granted under that clause of the code, except in actions for the recovery of money. Per Bookes, J.</p> <p>In giving a construction to the statute, for the purpose of imprisoning or justifying the imprisonment of a party, as a punishment for an offense, the more humane interpretation should prevail; and where there is no evidence of actual fraud in a debtor, he should not be subjected to arrest for acts only constructively fraudulent. Per Potter, J.</p>

The opinion of the court contains a statement of all the material facts. The referee reported in favor of the plaintiffs, for the amount claimed by them, with costs; and the defendant appealed.

<p>THIS was an appeal from an order made at a special term, denying a motion for a writ of mandamus.</p>

THIS was an action to recover dower; and came before the court on exceptions taken at the trial, which were ordered to be heard in the first instance at a general term. The complaint was dismissed, on the trial at the circuit.

<p>APPEAL from a judgment entered upon the report of a referee. The complaint alleged that on or about the tenth day of February, 1855, the defendants made and entered into an agreement in writing with the plaintiff, under their hands and seals, of that date, in the words and figures following: “ This agreement, made this 10th day of February, 1855, between Augustus J. Brown and Henry Warren, of the city of Brooklyn, of the first part, and Jeremiah Goldsmith, of the second part: whereas, the said Augustus J. Brown is the owner of a certain mortgage made by David Worcester unto the General Theological Seminary of the Protestant Episcopal Church in the United States, bearing date the 10th day of July, 1854, upon certain premises situate on Church street, in the sixth ward of Brooklyn, and, as is in said mortgage particularly described, to secure the sum of two thousand and two hundred dollars, with interest, which is recorded in Kings county register’s office, in liber of mortgages Ho. 318, page 34, on the 3d day of August, 1854, and which mortgage, and bond accompanying, has been duly assigned and set over unto the said Brown by the said theological seminary, by an indenture of assignment, dated January 15th, 1855:</p> <p>And whereas, the said Augustus J. Brown has, at the day and date of these presents, duly assigned and set over the said mortgage and bond unto the said party of the second part to these presents; and whereas, also, the said Henry Warren, at the request of the said Brown, and the said Brown, in consideration of said assignment, have agreed to join in a covenant whereby the said party of the second part shall be protected and reimbursed the said sum advanced in the purchase of said mortgage, and interest, as hereinafter mentioned:</p> <p>How this agreement witpesseth, that the said parties of the first part, for themselves, their heirs, executors and administrators, in consideration of the premises, and of one dollar to them paid, the receipt whereof is hereby acknowledged, hereby covenant and agree with the said party of the second part, his heirs and assigns, that whensover the money secured by the said mortgage shall become due and payable, and upon a foreclosure of the same, shall be had for the non-payment of principal or interest, and a sale of the premises therein described, a deficiency shaH occur, and a decree or judgment had for such or any deficiency, that then, in such case, the said parties of the first part will pay unto the said party of the second part, or his assigns, the amount of any deficiency, and the decree entered or to be entered therein, with interest, the said parties of the first part hereby agreeing to demand and accept an assignment of the said decree (if any); and the said party of the second part hereby agrees to execute and deliver unto the said parties of the first part, or to their assigns, an assignment of the same, upon being paid the amount of any such deficiency or decree, with any interest that may accrue thereon:</p> <p>And it is further understood and hereby specified, that, at the time of the assignment and execution of the said bond and mortgage, the sum advanced, and remaining due thereupon, is the sum of two thousand dollars, two hundred dollars having been paid by said Worcester to said A. J. Brown. In witness whereof,” &c.</p> <p>The plaintiff further alleged, that the principal sum secured by the bond and mortgage referred to in the said agreement, became due and payable on the 10th day of July, 1857; and that on or about the 30th day of September, 1858, the plaintiff commenced an action in the supreme court for the county of Kings for the foreclosure of said mortgage, the principal sum thereof, with interest, not having been paid; and such proceedings were thereupon had, that on the 8th day of March, 1859, a decree or judgment order in said action was made by the said court, for the foreclosure of the said mortgage and sale of the premises; and that if the proceeds of such sale should be insufficient to pay the amount reported due to the plaintiff, with interest and costs, the amount of such deficiency should be specified in the report of sale therein, and David F. Worcester, one of the defendants therein, should pay the same to the plaintiff. That, pursuant to said decree or judgment order, the premises were duly sold on the 13th day of June, 1859, by the sheriff of the county of Kings, for the price or sum of twelve hundred dollars, and that the plaintiff became the purchaser thereof. That, upon said sale, there occurred a deficiency of fourteen hundred and thirty dollars and thirteen cents, as appears by the sheriff’s report of said sale duly filed in the office of the clerk of Kings county; and that thereupon, to wit, on the 29th day of June, 1859, a judgment was rendered in said court against David F. Worcester, in favor of the plaintiff, for the said sum of fourteen hundred and thirty dollars and thirteen cents, with interest from June 23d, 1859, of which no portion has ever been made. The plaintiff further alleged, that before the commencement of this action he demanded of the defendants payment of the amount of such deficiency, and at the same time tendered to them an assignment of said judgment against David F. Worcester, duly executed by the plaintiff, but that the defendants refused to pay the same, and have ever since neglected and refused to pay the same, although the jfiaintiff has always been, and still is, ready and willing to deliver to said defendants an assignment of said judgment upon being paid the amount due thereon. The plaintiff demanded judgment against the defendants for the said sum of fourteen hundred and thirty dollars and thirteen cents, with interest from the 23d day of June, 1859, besides costs.</p> <p>The defendant Brown, in his answer, admitted that he executed the agreement set out in the complaint; that the principal sum secured by the bond and mortgage referred to therein, became due on July 10th, 1857, and that on or about September 30th, 1858, the plaintiff commenced an action in the supreme court for the foreclosure of said mortgage, but as to each and every other allegation contained in the complaint he denied that he had knowledge or information thereof sufficient to form a belief. He alleged that the bond and mortgage referred to in the complaint became due on the 10th day of July, 1857; that interest was then due upon said bond and mortgage from the 10th day of January, 1857; that the premises so mortgaged to the plaintiff were then rented, and were paying an income more than sufficient to pay the interest accruing upon the bond and mortgage, and the taxes and insurance upon the property; that at the time of the maturity of said bond and mortgage, the mortgaged premises were worth more than enough to pay the amount due upon the bond and mortgage, but that the plaintiff neglected to foreclose said mortgage for more than fourteen months after its maturity, and neglected to take any proceedings to have the rent and income of the premises applied to the payment of the interest, taxes or insurance upon said property; and the defendant alleged, that by reason of the negligence and laches on the part of the plaintiff in these respects, he had been greatly prejudiced, and that he had been disharged from all liability upon said agreement. The defendant also alleged, that before the maturity of said bond and mortgage, to wit, on or about the 24th day of August, 1855, the mortgaged premises were, for a valuable consideration, duly conveyed to one Calvin M. Horthrop. That Horthrop accepted the conveyance, and in and by the deed conveying the said premises to him, he assumed as part of the purchase money for said premises, and agreed to pay, the said "bond and mortgage. That the plaintiff neglected to make the said Northrop a party to said suit of foreclosure, or to procure judgment therein for the deficiency, if any there might be, against Northrop, and that by reason of such negligence on the part of the plaintiff, the defendant claimed he was discharged from all liability upon the agreement. That the said Calvin M. Northrop and wife, for a valuable consideration, on or about October 11th, 1855, duly conveyed the mortgaged premises to one Warren N. Herrick. That Herrick accepted said conveyance, and in and by the deed conveying said premises to him, he assumed and agreed to pay the said bond and mortgage as a part of the purchase money for the premises. That the plaintiff neglected to make Herrick a party to said suit of foreclosure, or to procure a judgment therein for the deficiency, if any there might be, against Herrick, and that by reason of such neglect and laches on the part of the plaintiff, the defendant had been discharged from all liability upon said agreement. That on or about the 18th day of June, 1856, Herrick and wife, for a valuable consideration, duly conveyed the said mortgaged premises to one Amasa A. Goold. That Goold accepted said conveyance, and in and by the deed conveying to him the said premises, he covenanted and agreed to pay the bond and mortgage held by the plaintiff as a part of the purchase money for the premises. That the plaintiff made Goold a party to said suit of foreclosure, but he neglected in his complaint to ask for a judgment against the said Goold, for the deficiency, if any there might be; on the contrary, the plaintiff caused to be served upon Goold a notice in the said action that he made no personal claim against him, and the defendant alleged that by reason thereof he had been discharged by the plaintiff from all liability upon the agreement. The defendant further alleged, that the only consideration given by the plaintiff to the defendant, for the assignment of the bond and mortgage referred to in said agreement and the complaint, was the sum of $1800, and no more, and that said transaction was, as between the plaintiff and the defendant, a loan of the sum of eighteen hundred dollars by the plaintiff to the defendant at a usurious interest, to wit, the legal interest on the sum of two thousand dollars during the term of said loan, and the further sum of two hundred dollars ; and that by reason thereof the said agreement was void. A similar answer was put in by the defendant W arren.</p> <p>The action was referred to a referee, who found and reported, as matters of fact, that the agreement, dated the 10th day of February, 1855, and set forth in the complaint, was made and executed by the parties. That the principal sum secured'by the bond and mortgage mentioned in the said agreement became due and payable the 10th day of July, 1857. That on the 30th day of September, 1858, the plaintiff commenced an action for-the foreclosure thereof, and a judgment for the foreclosure and sale of the premises described in the mortgage was entered on the 8th day of March, 1859. That on such sale there was a deficiency to the amount as stated in the complaint, for which judgment was entered against David F: Worcester, as therein stated. That before the commencement of this action, the plaintiff demanded of the defendants payment of said judgment for the deficiency, and tendered them an assignment of said judgment, and the defendants refused to pay the same. And he found, as conclusions of law, from the foregoing facts: That by said agreement the defendants were bound to pay to the plaintiff the amount of the judgment for the deficiency which should be entered on a foreclosure of said bond and mortgage, after the principal sum thereof became due and payable. That the plaintiff was entitled to judgment against the defendants for the amount claimed in the complaint, which, with interest to the date of the report, was the sum of $1580.28.</p> <p>The defendants appealed from the judgment.</p>

THIS was an appeal by the plaintiff from a judgment of nonsuit ordered at the circuit, and from an order subsequently made at a special term, denying a motion for a new trial. The action was brought to recover the value of a steam engine seized and taken away from the plaintiff, by the defendants, and converted to their own use.

ACTION on a promissory note made by the defendant, payable to the order of the plaintiffs. The note sued on was dated September 5, payable twelve months from date, at the Broadway Bank. The note, when made by the defendant, was dated September 13, and was altered by a person named Clinton, acting as the defendant’s agent, in the presence of the plaintiffs, but in ¿the absence of the defendant, to September 5. The plaintiffs were insurance brokers.

THIS was an appeal from a judgment ordered at a special term, upon the report of a referee. The complaint alleged that Tobias Lear, in his lifetime, was the owner and possessor of a large number of letters addressed to him by G-eneral Washington, between the years 1790 and 1799 j that said.

This was an action brought against the defendant, as sheriff of the city and county of New York, to recover the amount of a debt owed to the plaintiffs by one Jacob Cohen, who escaped from the custody of the sheriff.

ACTION to recover damages for not delivering a lot of sugar, wMch the defendants had agreed to sell to the plaintiffs. The contract was as follows : ew York, May 1, 1856. Sold for account of Messrs. Cunningham Brothers, to Messrs.

IN April, 1858, the defendants, by an instrument under seal, hired of the plaintiff the second floor and offices of store yo. 152 South street, in the city of yew York, for the term of three years, to commence May 1st, 1858, at the yearly rent of five hundred dollars, payable quarterly.

This was an action upon a policy of marine insurance issued by the defendants, an insurance company incorporated and doing business in Canada, in favor of the plaintiff, upon the bark General Wiltshire, on a voyage to Great Britain, for $2,500. The bark was lost at sea. At the commencement of the action plaintiff obtained an attachment under the Code.

<p>The relator applied for a writ of mandamus to compel the board of police of the metropolitan police district to restore him to the office of patrolman of the police force, and permit him to exercise the same and to take the profits and salary thereof. The board resisted the application, on the grounds: 1st. That the relator refused to take or hold office, and never had taken or held office, under the police law of April, 1857, or under the 'board thereby created. 2d. That on the 23d of April, 1857, the relator withdrew from the force established under that law, and disclaimed holding any office or doing any duty as a member of the new police force. 3d. That since the passage of the new police law, on the 15th of April, 1857, the relator had, for his private gain, entered into other employments, in nowise connected with, but inconsistent with, his duties as a member of the new police force, &c. The issues were tried by a jury at the circuit, who found, as legal conclusions from the facts, as follows: As to the first answer or plea, they found that the relator refused to take or hold office, and never had taken or held office, under the new act, or under the board thereby created. As to the second answer or plea, they found that the relator never having been a member of, did not withdraw from, the police force organized under the new act. As to the third answer or plea, the jury found that since the passage ■ of the act of April 15, 1857, the relator had, for his private gain, entered into other employments, in nowise connected with, and not as a member of the police force, and had received large profits therefrom.</p> <p>JETeld that none of the conclusions or facts found by the jury constituted any defense against the right of the relator to be restored to the office which he claimed; and a writ of mandamus was ordered to be issued.</p>

<p>APPEALS from orders made at a special term, denying motions for a mandamus.</p>

<p>APPEAL from, an order made at a special term, denying a Ja motion made upon the verdict of a jury, for a peremp-. tory mandamus.</p>

THIS was an application for a mandamus to compel the board of police to restore the relator to the office of patrolman of the police force, and permit him to exercise the same, and to take the profits and salary thereof. Issues were joined, upon the return of the respondents, which were tried at the circuit.

<p>THIS action was brought by the plaintiff, as receiver, appointed in proceedings supplementary to execution, in various suits against Lorenzo Delmonico, for the purpose of setting aside an assignment made by Delmonico in trust for the benefit of creditors. The action was brought against Delmonico and the assignees, G-uedin and Babad. The complaint alleged that schedule A, annexed to the assignment, contained the names of preferred creditors, and the amounts alleged to be due to them, respectively, including among the same the name of Peter A. Delmonico, who held a mortgage upon a portion of the assigned property, executed by the assignor and his wife, for the purchase money. This debt was thus described in the schedule: £iP. Antoine Delmonico, including amount due on mortgage of Beaver and South William street property, $85,763.30.” The complaint further alleged that at the time of mating and delivering the said assignment, the whole principal sum secured by the said mortgage, with large arrears of interest thereon, was due and unpaid, and the mortgaged premises were then worth about two thousand dollars, and not more, and at that time L. Delmonico owned the mortgaged premises in fee, and his said wife had an inchoate right of dower therein, subject to the said mortgage. That the wife of L. Delmonico did not join in the assignment, and had not otherwise released her right of dower in the mortgaged premises. And the plaintiff charged that the assignment was made with intent to hinder, delay and defraud the creditors of the assignor; and that the same was also made with the fraudulent intent, by paying off said mortgage out of the interest of L. Delmonico in said real estate, and out of his other property, to give his wife a right of dower in said real estate, free of incumbrance. The plaintiff therefore prayed that the deed of assignment might be adjudged to be fraudulent and void, and that the assignees might be decreed to account to the plaintiff for the assigned property and the proceeds thereof.</p> <p>The defendants put in an answer denying the allegations of fraud and fraudulent intent, contained in the complaint, and insisting upon the validity of the .assignment, and averring that the same was executed and delivered by the assignor, and accepted by the assignees, in good faith.</p> <p>I. The assignment is fraudulent, because it deprives the creditors of their right of substitution to the mortgage, or of having the mortgaged premises first applied to the payment of the mortgage; the effect and intent being to let in the dower right of his wife to the whole premises unincumbered, and to their prejudice. (1.) The mortgaged premises are, as between the creditors, the primary fund for paying the mortgage. (Story’s Eq. §§ 635 to 645. 1 R. S. 740, §§ 1 to 6; 749, § 4. Bigelow v. Bush, 6 Paige, 343. Heyer v. Pruyn, 7 id. 465; Id. 627. Halsey v. Reed, 9 id. 446. Willard on Exrs. 287. Taylor v. Wendel, 4 Bradf. 324. Evertson v. Booth, 19 John. R. 486. Dorr v. Shaw, 4 John. Ch. 17. Hawley v. Mancius, 7 id. 174, 184. (2.) The effect of the provision in question is to discharge the mortgage and let in the dower. (Ex parte Coster, 2 John. Ch. 503. Sanford v. McLean, 3 Paige, 121. Garwood v. Eldridge’s Admrs., 1 Green’s Ch. 151. Coates v. Cheever, 1 Cowen, 460. Denton v. Nanny, 8 Barb. 618. Vartie v. Underwood, 18 id. 561. Jackson v. Edwards, 7 Paige, 386, 408.) The trust is express to pay off the mortgage, not to take an assignment of it, or pay a deficiency. (3.) To the extent of her dower it was the wife’s property, and the case is not different from what it would be if the provision were to pay a bond and mortgage he had given on property he had conveyed subject to the mortgage; or if it was her debt secured by his bond and mortgage on her land. It is fraudulent. (1 Sandf. Ch. 348. Wilson v. Robertson, 21 N. Y. Rep. 587. Planck v. Schermerhorn, 3 Barb. Ch. 644. Nichols v. McEwen, 17 N. Y. Rep. 22. Nicholson v. Leavitt, 2 Selden, 510. 4 Sandf. 298.) 1. That it is a bond debt, makes no difference. The complaint is not that he had no right to pay the debt, but that he had no right to deprive creditors of their right of substitution. Had it provided for a deficiency only, which is all the right the mortgagee had, it would have been good. 2. All creditors having collaterals may sue and levy on other property of the debtor, but at the instance of other creditors who can only reach one fund, will be compelled to resort first to their security, or on being paid, to assign it. 3. The fact that the husband might have paid this debt before making the assignment, (which is disputed, because the court could compel a sale free of dower, had such a fraud been perpetrated,) is answered by the fact, that he may do many things which would be fraudulent if put in an assignment: paying individual debts with partnership money, obtaining life insurance, &c„, for example. (Grover v. Wakeman, 11 Wend. 201.)</p> <p>II. The only issue in this case is whether the assignment is fraudulent; not whether, if so, it is capable of confirmation by matters ex post facto. The evidence for the defense, therefore, is only to be considered in its bearing on the former question. If it was given to bear on the latter, it should have been pleaded as a defense. (1.) It is of subsequent acts of the assignees and mortgagee only. Neither L. Delmonico nor his wife were bound by or assented to those acts. The intent or act of the assignee cannot affect the instrument. (Griffin v. Marquardt, 16 N. Y. Rep. 28. Rathbun v. Platner, 18 Barb. 272.) (2.) The instrument speaks for itself, and the intent of the parties cannot be proved aliunde. Even if it was a mistake, it would make no difference. (Barney v. Griffin, 2 Coms. 366, 7. Goodrich v. Downs, 6 Hill, 440. Sizer v. Miller, 1 id. 233. Hanford v. Artcher, Id. 351; S. C., 4 id. 297. Mackie v. Cairns, 5 Cowen, 573; S. C., Hopkins, 393 ; 2 Barb. S. C. R. 9; 10 Paige, 230.) (3.) The intent of the counsel who drew the assignment is not proved. The intent is admitted by the answer, and is evaded by the assignor in giving his testimony. (4.) The very result intended has been accomplished. The wife’s dower in the entire property now stands free of the mortgage, by operation of the sale, the bond of Constant, and the release. Had it been sold subject to dower only in the equity of redemption, and reserving to the purchaser the right, on paying the mortgage, to an assignment of it, it would have brought much more. Probably the mortgagee does not suppose he has released the dower, but such is the result. (5.) Bo subsequent acts can have the effect to cure an assignment which is void in its inception. (Porter v. Williams, 9 N. Y. Rep. 142, and cases supra. Briggs v. Davis, 20 id. 25.)</p> <p>III. The assignment is fraudulent in fact. (1.) There was not an actual and continued change of possession. The sale, Lorenzo continuing as clerk, does not make it so. (Hanford v. Artcher, 4 Hill, 297. Camp v. Camp, 2 id. 629.) There is no evidence of good faith. (2.) Constant’s debt of $26,500 was arrears of salary of $1000, for four or five years, and before that less, and the balance was for his share of the profits. These profits were merely credited to him on the books. They were presents, not made in pursuance of a previous stipulation, but voluntarily. Therefore there was no debt. A mere bonus, credited on a man’s books from motives of generosity, does not create a debt. If there was a debt it must have been in pursuance of a previous agreement, and if so he was a partner. (3.) The evidence shows plainly that the provision for Constant was fraudulent, made to he used in the purchase of the property for the benefit of the assignor.</p> <p>IY. The assignees should he adjudged to account for the entire estate, without deduction for any payments. (Laws of 1858, p. 506.)</p> <p>I. The securing, hy the assignment, to Pierre A. Delmonico of the payment of the debt due to him, including the amount due on the mortgage of the Beaver and South William street property, affords no indication of any fraudulent intent, because no direction was given to the assignees for the payment of the mortgage debt, which in any way interfered with their right to insist that the mortgaged premises should he first applied for that purpose. (Kellogg v. Slauson, 1 Kern. 302, and cases cited. Ogden v. Peters, 21 N. Y. Rep. 23. Jessup v. Hulse, Id. 168.) (1.) The mortgagee, having two securities for the payment of his debt, to wit, the mortgage, and the provision in his favor in the assignment, while the other creditors have only the latter fund to look to, a court of equity would compel the mortgagee first to exhaust his remedy under the mortgage. 1 Story’s Eq. Jur. §§ 633, 644.) (2.) The duty of the assignees, therefore, under the assignment, was a plain one to insist on behalf of the other creditors upon the same thing. (Kellogg v. Slauson, 1 Kern. 302.) (3.) This duty they faithfully performed hy selling the mortgaged premises subject to the mortgage, resulting as it did in the mortgagee releasing the residue of the assigned property, and agreeing to look solely to his lien under the mortgage and personal recourse against the mortgagor, for the satisfaction of the mortgage debt.</p> <p>II. The only pretense for attributing a fraudulent intent to the assignor, in providing for the payment of the mortgage debt in the assignment, is the alleged design to have the mortgage paid out of the personal property assigned, so as to let in the wife of the assignor to her inchoate right of dower in the mortgaged premises, free from the mortgage.</p> <p>III. But even if evidence of such an intent could be drawn from the provision in the assignment, and the additional fact that the assignor was married when he made the assignment, no evidence of any such intent can be found on the face of the assignment, which nowhere shows that the assignor ever was married. The question therefore is not one of law, arising upon the face of the instrument, but of fact, to be made out by evidence dehors the assignment. This distinguishes the case from Barney v. Griffin, and other cases cited.</p> <p>IV. It is, therefore, entirely competent for the defendants, by evidence on their part, to disprove the existence of any fraudulent intent in fact; and this they have done, both by their positive oaths of the non-existence of such an intent and by showing that all their acts were wholly inconsistent with the existence of the fraudulent design attributed to them, and that ‘they realized for the real estate $4000 more than the highest value attributed to it by the complaint. (Seymour v. Wilson, 4 Kern. 567. Griffin v. Marquardt, 21 N. Y. Rep. 121.)</p> <p>V. The plaintiff having given no evidence to disprove an immediate delivery and actual and continued change of possession of the assigned property, from the instant of the execution of the assignment until the sale made by the assignees, the defendants were under no necessity of proving those facts, or giving other evidence of bona tides. The onus of proving fraud was upon the plaintiff when he commenced his suit, and has never been shifted.</p> <p>VI. The fact that a portion of the debt due to Constant Delmonico, secured by the assignment, consisted of percentages on the profits, extending back through a period of many years, placed to his credit at the end of each year, is ño indication of fraud. (1.) They were the ordinary means adopted by an employer to stimulate the exertions of his clerk. They did not give to Constant Delmonico an interest in the profits as such, or a lien upon the partnership property, or constitute him a partner. (Champion v. Bostwick, 18 Wend. 175, and cases cited.) (2.) There is no evidence that the assignor was not perfectly solvent when they were placed to the credit of Constant Delmonico on the books, and they were in fact a debt of a most sacred character; but even if to be regarded as a gift, having remained for years subject to the draft of Constant Delmonico at any time, they were in the hands of the assignor really as Ms banker, and he had a perfect cause of action for their recovery. (Grangiac v. Arden, 10 John. 293. Gardner v. Gardner, 22 Wend. 526; 7 Paige, 112, S. C. Grover v. Grover, 24 Pick. 261. Smith v. Smith, 7 C. & P. 401. Irons v. Smallpiece, 2 Barn. & Ald. 551.)</p>

<p>THIS action was commenced against James Marks upon his guaranty of the collection of a note for $1500, purporting to be made by B. H. Hibbard and Theodore Lewis, as follows, viz :</p> <p>“ Cherry Valley, April 5, 1855.</p> <p>$1500. One year from date, we or either of us promise to pay Daniel Sterns or bearer fifteen hundred dollars, for value received,with interest.</p> <p>(Signed) E. H. Hibbard.</p> <p>Theodore Lewis.”</p> <p>(Indorsement.) “For value received, I hereby guaranty the collection of the within note.</p> <p>(Signed) Jas. Marks.”</p> <p>Marks having died, the action was continued against the defendant as his administratrix. It appeared that the note was made for the accommodation of Hibbard. Evidence was given tending to prove that it was the understanding of Lewis, when he signed the note, that Marks was to sign it also, before it was delivered to the plaintiff; that Marks had agreed with Lewis to sign it, and that he supposed that Marks had signed it, until long after the money was advanced upon it.</p> <p>Evidence was also given, tending to show that when Marks refused to sign the note he took it to the plaintiff with his guaranty upon it; that the plaintiff told him he expected he was to sign it, but that Marks told him it would make no difference; that it was just as good as if he had, and if not he would make it good.</p> <p>Evidence was also given, tending to prove that the plaintiff was aware, when he took Marks’ guaranty, that it was the understanding of Lewis that Marks was to sign the note, instead of guaranteeing the collection.</p> <p>When Lewis learned that Marks had not signed the note as one of the makers, he instituted a suit against the plaintiff in this action, (Daniel Sterns,) charging that the note was not to be used without Marks’ signature, and that the plaintiff knew it when he took it; and he demanded judgment directing his own name to be canceled. Having established his case to the satisfaction of the court, a decree was obtained directing Ms name to be canceled, and it was canceled accordingly.</p> <p>The plaintiff then commenced a suit upon the note, against Hibbard, which was prosecuted to judgment and execution. After the return of the execution, nulla bona, he brought this action upon the guaranty, without giving notice of his failure to collect the note of the makers.</p> <p>Proof was given, under objection, that the defendant took five or six hundred dollars of the money loaned to Hibbard upon the note, to apply on a demand he held against Hibbard, for rent.</p> <p>There were various objections to the evidence and to the charge of the judge, which sufficiently appear in the opinion of the court.</p> <p>The cause was tried before Justice Balcom, at the Otsego circuit, in June, 1861, and a verdict given for the plaintiff, for $>2147.50. The defendant’s counsel having excepted to the ruling of the judge on the trial, the exceptions were ordered to be heard in the first instance at the general term.</p>

THIS action was brought for the recovery of damages for the breach of a contract, by which the defendant, for a consideration paid to him, agreed by parol to furnish the plaintiff, at his residence, her support and maintenance as long as .she might live.

<p>0. sold a horse to B., who gave his promissory note for the price, at the foot of which was a memorandum, also signed by him, stating that the note was given for a horse, and that 0. was to hold the horse as her property until the note was paid. The sale was accompanied, or followed immediately by an unconditional delivery, and a continued possession by B. The latter, being thus by the act of the vendor, clothed with the apparent right of absolute ownership, and claiming to be the owner, with the accompanying indicia, sold the property to G., who purchased and paid for it in good faith, for a valuable consideration and without knowledge of any claim or equity in a third party, or any thing to put him on inquiry. Held,, that G. was entitled to be protected as a bona fide purchaser without notice, against the claim of a holder of the note.</p> <p>Where there has been a sale and delivery of property, coupled with a condition that security shall be furnished, or the property paid for, at a future day, the right of the vendor will be good, as against the buyer and his voluntary assignee, hut not as against a bona fide purchaser from the vendee.</p> <p>This is the rule where both the sale and delivery are conditional. If the sale is conditional, but the delivery unconditional and absolute, the title of a bona fide purchaser from the conditional vendee is beyond question.</p>

MOTION to dismiss an appeal from an order of the surrogate of New York, admitting the will of Nathaniel Gil-man to probate. The order was entered on the 24th of May, 1861. It appeared from the affidavits that the notice of appeal was entered in the court below on the 31st day of May, 1861, and a petition of appeal was served on the 2d day of August, 1861.

This was an action to recover possession of lands, and damages for withholding them. The premises claimed consisted of a lot of land, with a tenement house thereon, in the city of Hew York.

The action was brought to recover damages for not fulfilling a contract for the purchase from plaintiff of certain stock. The time of the making of the alleged agreement was prior to the act of 1858 (laws of 1858, 251, ch. 134), repealing the statute prohibiting stockjobbing (1 Rev. Stat., 710). The plaintiff was not the owner of the stock at the time of making the agreement, nor was he in possession of it. See a decision on a demurrer to the complaint, reported, 7 Ante, 8.

THIS action was brought to recover a portion of the last installment claimed to be due upon a contract for the mason work in the erection of seven stores in the city of Hew York, and for extra work, and work done outside of the contract. The cause was referred, to and tried byJudgeJ^SA- , body, who reported $3107.80 due the plaintiffs, and from the judgment entered upon that report the defendants appealed.

<p>THIS action was for the specific performance of an alleged contract for the sale by the plaintiff to the defendants of a part of “Ward's island.”</p> <p>The plaintiff was the owner of a part, and held executory contracts for the purchase of certain other parts of the island from the owners thereof. One Robert Minturn also owned a portion of the island, and the residue belonged to the city of New York and the commissioners of emigration. The sale, as alleged by the plaintiff, embraced those portions of the island which he owned, and of which he held the contracts of purchase. Prior to October 16th, 1857, the plaintiff proposed in writing to sell to the defendants certain parts of the island, hut the paper writing having heen lost, its precise terms are not known. The board of councilmen and the board of aldermen thereupon passed a resolution, which was approved by the mayor on the 31st day of December, 1857, authorizing and directing the mayor to appoint an arbitrator to meet with one to be appointed by the plaintiff, the owner of all the private property and water rights not owned by the commissioners of emigration, or by the city of New York, on Ward’s island, with power to the two arbitrators, if they could not agree, to select a third, provided said plaintiff could give such satisfactory title as should be approved by the corporation counsel, and “said decision shall be binding for the purchase of said property by the corporation of the city of New York.” Arbitrators were appointed in pursuance of the resolution, who, on the 13th. day of February, 1858, made their award and appraised the “value of the land, owned or claimed to be owned by the said McCotter, or to which he may furnish a good and valid title, and situate on said island, consisting of thirty-one acres, one rood and thirty perches, be the same more or less,” at $2500 per acre, and “the value of the water rights, and land owned or claimed to be owned by said McCotter, to which he may furnish a good and valid title, situate on said island, consisting of forty-eight acres, three roods, sixteen and one-quarter perches, he the same more or less,” at $1000 per acre. The appraisal did not include the land owned by Minturn, on the island. The resolution authorizing said appraisal and purchase was rescinded by a resolution adopted by the board of aider-men, February 11,1858, by the board of councilmen, March 2, 1858, and approved by the mayor, March 5,1858. About the 17th of May, 1858, the plaintiff, by way of compromise, proposed to the defendants in writing to take $1500 per acre for upland, roads and water grants, for all to which he should give or cause to be given satisfactory title, and to cancel the claim he had against the city in accordance with the award of arbitrators, upon condition that it could he settled up and consummated at once, and without delay. ■ On the 27th day of May, 1858, the plaintiff by letter addressed to the hoard of aldermen withdrew the last proposition, and claimed the full award made by the arbitrators.</p> <p>By resolution adopted by the hoard of councilmen on the 7th of June, 1858, by the hoard of aldermen on the 11th of July, 1858, and finally passed over the veto of the mayor, on the 4th of August, 1858, the comptroller was “authorized and directed to purchase from the plaintiff all the land situated on Ward’s island not now owned by the city of New York, or by the commissioners of emigration, including upland, roads and water grants, &c.,” to which the said plaintiff could furnish a good and sufficient title, to be approved by the counsel for the corporation, and to issue city bonds at'-- per cent for the payment of the same, “upon the said McOotter withdrawing all and any claim or suit he may have against the city, by virtue of any previous arrangement or agreement with the city government.”</p> <p>On the 18th of October, 1858, the plaintiff procured from the counsel to the corporation his certificate to the sufficiency of the title to the several parcels of land proposed to he conveyed to the defendants, and caused and procured to he executed, and tendered to the defendants, conveyances from himself and the several owners thereof of several parcels of land, and demanded payment therefor in accordance with the terms of the last resolution of the common council. The defendants refused to accept the deeds or make the payments. The plaintiff, at the same time, tendered a release of all claims under the award.</p> <p>This suit was brought to compel the defendants to accept said conveyances, and to pay for the said land in pursuance of the resolution of the common council finally adopted on the 4th of August, 1858. The cause was tried by a referee, who decided that the-proposition of the plaintiff, in connection with the resolution of the 4th of August, 1858, constituted a valid and binding contract, mutually obligatory upon the parties, and judgment was given ordering the defendants specifically to perform the contract thus established, and to accept the said conveyances, and to pay for the said land the sum of $138,309.25; and from that judgment the defendants appealed.</p>

The action was brought to recover the price of some marble mantels, tiling, &c. sold and delivered by the plaintiffs. The point in controversy was, to whom they were sold and delivered; whether to the defendant or to one Warren Beman. The defendant owned a house in Fifth avenue, Hew York, which was unfinished. Among other things it wanted mantels, marble tiling, and other marble goods.

TWO causes of action were set out in the complaint. The first was that the plaintiff, as a deputy of the sheriff of Delaware county, by virtue of an execution issued out of the county court of said county, in favor of John J. Bonner against Simon L. Lewis, levied upon and took lawful possession of one raft of the value of $200, the property of said Lewis, and that the defendants afterwards wrongfully and unlawfully took the raft from the possession of the plaintiff and…

THE plaintiff was the widow of Hezekiah Loomis, deceased. Her maiden name was Amy Palmer.

THIS action was brought before a justice of the peace of Cortland county, and was commenced by warrant. The affidavit, on which the warrant was issued, was in the words and figures following, to wit: “State of Hew York, Cortland county, ss.

APPEAL by the plaintiff from a judgment ordered at the circuit, in favor of the defendant Ward. The action was tried by the court without a jury.

The alternative writ alledged, in substance, that, whereas the relator was, at the time of passing the metropolitan police act, April 15, 1857, a patrolman, and one of the police of the city of New York, duly appointed and sworn, and had never been legally discharged or dismissed; and whereas he became, by virtue of said act, a patrolman and member of the police force of the Metropolitan Police District, and held office and did duty under the said act, and has the requisite…

THE facts and proceedings in this case were similar to those in The People ex rel. Hanrahan v. The Board of Polio, ante, p. 644. The jury were directed to find a general verdict for the defendants^ and the case was ordered to be heard, in the first instance, at a general term. A motion for a peremptory mandamus was thereupon made, upon the verdict or judgment thus rendered, which motion was denied, and the relator appealed from the order.

<p>APPEAL from an order made at a special term, directing a peremptory mandamus to be issued. On the 25th of July, 1859, the mayor and commissioners of health adopted a resolution directing the city inspector to execute a contract with the relator for the removal of dead horses, offal, &c. &c. from the streets and from the slaughter houses, and other places in the city of New York, at a stipulated price of $750 per month. On the 28th of July, 1859, an agreement, in writing, was signed by the city inspector and the relator, in pursuance of this resolution. On the 7th of September, 1859, a further resolution was adopted by the mayor and commissioners of health, increasing the price to be paid to $1000 per month, and calling for additional work. On the same day, a further agreement was signed by the city inspector and the relator. By this agreement, payments were to be made in monthly installments of $1000 each. The relator entered upon the performance of the work, and was regularly paid until the month of May, 1860. A warrant for the payment for the month of May, being $1000, having been drawn by the comptroller, upon the chamberlain, payable to the relator, or order, was presented to the mayor for his signature. The mayor refused to countersign the warrant, assigning as a reason that the work called for by the contract had not been performed by the relator, and that he was therefore not entitled to payment. The relator thereupon applied for a mandamus to compel the mayor to countersign the warrant. An alternative writ issued, and the mayor made a return thereto. The relator demurred to the return. The defendant having joined issue on the demurrer, upon argument, at a special term, a peremptory mandamus was ordered, and from this order an appeal was taken by the defendant.</p>

The action was brought by the plaintiffs as assignees under an assignment made for the benefit of creditors, by a debtor residing in North Carolina. The object was to recover possession of a vessel, claimed to have been a part of the assigned property, and which had been levied upon by the defendant as sheriff, under an execution issued against the assignor, upon a judgment recovered in this state.