Volume 35 — New York Reports

The action was brought by the plaintiff, as the widow and executrix of the testator, for damages sustained by the act of the defendant, in negligently and unlawfully killing her husband, at the,village of Bath, on the 29th day of December, 1855. The suit was commenced in 1856. The first trial was before Mr. Justice Gould, who nonsuited the plaintiff. The case was heard at General Term, before Judges Hogeboom, Beckham and Gould.

The defendant in error was indicted, jointly with one Salvador, otherwise known as Pellieier, for the murder of Jose Garcia Otero, in the city of Brooklyn, on the 16th of November last. They were separately tried before Mr. Justice Gilbebt at the Kings County Oyer and Terminer in January last, and both were convicted of murder in the first degree.

The action was for the alleged conversion of four bills of exchange, amounting in the aggregate to about $14,000, and which were claimed to be the property of the plaintiff. The cause was tried before Judge Bosworth. A motion for a new trial was denied at Special Term, and the order was affirmed at the General Term. The case is reported in 7 Bosworth, 543. The following are the leading facts proved on the trial: The plaintiffs were a corporation, under the laws of Ohio.

<p>Testamentary capacity. The testator should be capable of comprehending the condition of his property, and his relations to the persons who are or might have been the objects of his bounty.</p> <p>His memory. He should be able to collect in his mind, without prompting, the elements of his business to be transacted, and hold them there until their relations to each other can be perceived, and a rational judgment in respect thereto be formed.</p>

, Action for damages for alleged negligent killing'of the intestate by defendant; in December, 1864. It appeared on the trial of the cause that, at the time mentioned, deceased was crossing defendant’s track on a public highway in the town of Savannah, with his team and sleigh, from south to north, and an express train of defendant’s coming from the west came in contact with and killed him.

The case was this, in substance: On the 12th October, 1835, one Ebenezer Titus died, leaving a last will and testament, which was admitted to probate on the 12tli March, 1836.

<p>Farmers and residents of the immediate neighborhood are competent witnesses to fix the price of land in their neighborhood.</p> <p>One, who lias formerly been a farmer, but has changed his occupation to that of a mechanic, is, nevertheless, a competent witness to testify to the value of land in his neighborhood.</p> <p>Where witnesses are called to give testimony upon questions of skill, &c., reference is had to subjects upon which the jury are supposed to have less knowledge than the witnesses.</p>

<p>To entitle a party, furnishing material for constructing a building in Kings county to a lien on the premises for the price of the material furnished, he must file his notice of lien in the clerk’s office of that county within sixty days after the delivery of the same.</p>

This action is in the nature of a creditor’s bill. Held: that the action was brought within the sixty days allowed by law for the return of the executions ; that the plaintiffs were not entitled to introduce any proofs of the alleged frauds, and dismissed the complaint, with costs.

The actiou is for the foreclosure of a mortgage on premises in the city of Albany, made by Matthew O’Reilly to. the' plaintiff, upon which $700 was advanced ón the 23d day of July, 1859,- after, two o’clock P. M., and recorded at five o’clock P. M. on the same day.

<p>Practical location of a boundary line, and an acquiescence therein of the parties for a period of more than twenty years, is conclusive of the location of the boundary line.</p> <p>Such location and acquiescence is deemed conclusive, on the ground that it is evidence of the correct location of so high a nature as admits of no contra- .. diction.</p>

Action by the late sheriff of the county of Delaware against Hubbell, as principa,!, and the other defendants, as his sureties, in a bond conditioned that Hubbell should faithfully perforin the duties of deputy sheriff.

<p>The statute of 1859 (ck 208) is applicable to the General Sessions of New York, by the provisions of which, it may extend its term beyond the third week of the session.</p> <p>When there is an irregularity in the drawing of the jury, which cannot affect the rights of the prisoner, even though it be such as to subject the delinquent to punishment, will not render the panel illegal.</p> <p>Mere irregularities, not affecting the rights of the parties, are to be discarded by the appellate court, in reviewing the decisions of the General Sessions of New York.</p> <p>A party, seeking to reverse its judgment, should allege, at least, a prejudicial error.</p>

The plaintiffs, heirs-at-law of Henry Boehen, deceased, brought this action to recover the loss by fire of two houses in Brooklyn, under a policy of insurance and a certificate of renewal given by the defendant for their benefit. The original policy insured the plaintiffs from Nov. 26,1856, to Nov. 26, 1857.

<p>A bona fide holder of a bill or note, taken with no other knowledge than the paper furnishes, has the right to treat the parties to the same as liable to him» in the same manner and order, and to the same extent, as they appear on the instrument, although, as between themselves, their relations may be different. Knowledge subsequently acquired by the holder does not affect his rights.</p> <p>L. made his note for $1,693, and loaned the same to A.- & H., for their accommodation! A. & H. transferred the note to the plaintiff, who received the sanie without knowledge of this relation-of the parties, and paid full value therefor. The plaintiff afterward, and after learning the real position of the parties, made arrangements with the assignees of A. & H., extending the time for the payment of such note, and authorizing a sale of the assets at less than their value. Sdd, that this afforded no defense to L., the maker of the note; that he was hable to" the plaintiff in the order and to the extent indicated by the note itself.</p>

The appeal in the case is from the judgment of the General Term of the Supreme Court in the fourth district, affirming a judgment in favor of the defendants, upon the report of a sole referee before whom the action was tried.

Cause certified to this court. The action was brought, in the name of the board of . excise, to recover two penalties for violation of sections 13 and 14 of the act entitled “ An act to suppress intemperance, and to regulate the sale of intoxicating liquors,” passed April 16,1857. S. C. Johnson claimed to appear for the plaintiff. The defendant appeared by William Murray, Jr., who objected to Johnson’s authority to appear.

This action was commenced for the purpose of obtaining a- construction of the last will and testament of Bichard Bay, deceased. ' The testator was a resident of the city of New York, a lawyer by profession, and possessed of a large real and per- . sonal estate. The will under consideration bears date March 22,1834, at which time the testator had one child, named Elizabeth Sarah, and his wife, Mary B. Bay, was then and still is living.

<p>The act of the legislature (1849, ch. 84, § 20), permitting the raising of wooden dwelling houses within the fire limits of the city of New York, intended by such language to include only such houses as were occupied as dwelling houses at the time the raising took place, or such as were, in good faith, intended to be occupied as such.</p>

<p>It is not error for the judge to refuse to discharge the jury, until they have agreed- upon their verdict. Whether or not to discharge them, is a question addressed to his discretion.</p>

The defendants are the general assignees of Joseph McMurray, for the benefit of creditors, and the plaintiff is one of the creditors in the first preferred class. The action is brought by the plaintiff, on behalf of himself and all others having a like interest, who may come in and contribute to the expenses of the action, for the purpose of compelling an account by the said assignees, and payment of the sums due to the plaintiff and others.

<p>Taxes levied for school purposes are to he levied and assessed in the same manner, and upon the same species of property, as those for town, county, and State purposes.</p>

Action to recover the possession of real estate, consisting of a farm of fifty acres in the county of Schoharie. The action was commenced in the name of Ezra Spaulding, Senior, and he having died, was continued in the names of the appellants, his heirs. On the trial, which occurred after the death of the original plaintiff, the defendants admitted that Ezra Spaulding, Senior, owned in fee, and was in possession of, the farm in dispute^ on and prior to the 22d of March, 1866.

This was a proceeding, by supplemental complaint, to revive or continue an action originally brought in the name of James McGregor, now deceased. The supplemental complaint showed that, on the 14th of September, 1852, James Mc-Gregor, deceased, commenced an action to foreclose a mortgage executed to him by the defendant, Duncan McGregor. The other defendants were junior incumbrancers. Duncan McGregor answered, denying the equity. Hone of the other defendants answered.

The action was brought to recover the value of about 165,000 feet of lumber (less freight and transportation charges), consigned by the plaintiff to one Eli Doolittle, at Brooklyn, for sale, under an agreement, as was alleged, that Doolittle was to sell the lumber, pay the freight on the same, and also to pay the plaintiff the cost of the lumber, at Wellsville, Allegany county, and the profits to be divided between the plaintiff and Doolittle, if there should be any.

The plaintiff sued, the defendants before a justice of the peace in Tioga county, to recover $15, for damages sustained by having his name put upon the assessment roll for the year 1857, by the defendants, who were then assessors for the town of Spencer, in that county, and by' their refusing to exempt him from taxation, although he was a minister of the Methodist Episcopal denomination, and his real and personal estate were worth less than $1,500, all of which, as the…

<p>Thé sureties on an administrator's bond,'who were not parties to the action ‘t against their principal, and had no opportunity for defending against the' same, are not concluded by a judgment against their principal; but, in an action against them as sureties,'they may set up fraud and collusion on the part of their principal, by which to increase their liability as sureties.</p>

<p>Whenever, for any cause, any convict sentenced to the punishment-of death shall not have been executed pursuant to such sentence, the Supreme Court, having the convict before it, and, upon inquiry into the facts and circumstances of the case, finding no valid reason against the execution of the sentence, are required to issue their warrant to the sheriff of the proper county, commanding him to do execution of the sentence, at such time as shall be appointed in such warrant.</p> <p>Should the court, at the time of the issuing of such warrant, recapitulate the sentence of the former court, as though it were the judgment of the Supreme Court, such informality would not be error.</p>

<p>In an action for rent, the defendant may, under a covenant of the landlord to keep the premises in repair, set up, as a counterclaim, an amount expended by him in the necessary repair of the premises, and also damages sustained by the loss of the use of certain parts of the premises rendered untenantable for want of repair.</p> <p>In such action, defendant may recover for his expenses in repairs, even when they exceeded what it would have cost the landlord, had he employed his own mechanics.</p> <p>In the leasing of premises for a first-class hotel, a covenant to keep the same in repair is broken by permitting the flues to remain in such condition that the rooms cannot be used with a fire, owing to the issuing of smoke from the grate into the room, whenever a fire is lighted therein.</p>

<p>The execution of a chattel mortgage, in the usual form, invests the title in the mortgagee, subject to be defeated by subsequent performance of the condition.</p> <p>The'right of possession ordinarily follows that of property; and both would pass under such an instrument, in the absence of any express or implied agree- ■ ment for the retention of the chattels by the mortgagor.</p> <p>But when the instrument specifically defines the circumstances un.der which the right of possession is to vest in the mortgagee, the law implies an intent that it is to remain meantime in the mortgagor.</p> <p>Until the possessory right of the mortgagor ceases, his interest is subject to seizure and sale, under legal process, at the instance of his creditors.</p> <p>When the mortgagee, in good faith, takes possession of the bulk of the property, under a clause in the instrument authorizing him to do so whenever he deems himself unsafe, the p&ssessory right of the mortgagor terminates; and he has no remaining interest in the mortgaged property, subject to levy and sale on execution.</p>

Action in the nature of an action on the case, to recover of the defendant the value of certain machinery, removed' by the defendant from premises in the town of Ephratah, in the county of Fulton, upon which the plaintiffs had a lien by way of mortgage. It was tried by a justice of the Supreme Court, without a jury, at the Fulton Circuit, in April, 1859. The plaintiffs recovered, and the judgment was affirmed at General Term, in the 4th district, Justice Bookes dissenting.

Action on an award for damages, for removing dirt and stones from certain lots in the city of Brooklyn. The answer denied all the allegations in the complaint, and set np that the plaintiff fraudulently induced the defendant to execute the submission bond by falsely representing himself as the owner of the lots damaged, whereas he was not, but his wife was the owner.

The plaintiff’s complaint contained two counts, substantially alike, charging the defendant with negligence, in wrongfully, unjustly and maliciously excavating a pit or hole in the public street running north and south through the village of York, Livingston county, and leaving it open, without fixing or placing any fence or guard around it, or any signal in the night-time, to denote or show that the same was there; in consequence of which, the plaintiff, while lawfully…

The complaint contained two counts; one alleged the wrongful taking, and the other the wrongful conversion, by the defendant, of a cow belonging to the plaintiff. ' The answer put these allegations in issue, and alleged, by way of justification, that the defendant took the cow into his custody on the 17th of May, 1864, under the authority of chapter 459 of the Laws of 1862, while she was running at large on the highway opposite his land; that he immediately notified a…

<p>The plaintiffs sued the bank, to recover a debt due them for moneys they had deposited to their credit as assignees of Lanes, Boice & Go.</p> <p>The bank put in an answer, setting up the fact that the assignors of the plaintiffs owed the hankto recover which, the bank commenced an action in the Supreme Court, in which an attachment was procured under the 227th section of the Code of Procedure, upon the ground that Lanes, Boice & Co., the assignors, had assigned their property to defraud creditors, and that the sheriff had executed the attachment on, and attached, the funds standing upon the books of the bank to the credit of the plaintiffs in this action.</p> <p>It was further stated in the answer that the bank recovered a judgment against Lanes, Boice & Cd. for over $128,000 in the attachment suit; that an execution had been issued upon the judgment and duly returned nulla bona. The defendants thereupon insisted that they had a right to apply the moneys deposited by the plaintiffs in their bank, as part payment of the aforementioned judgment; and insisted upon this right by way of offéet or counterclaim. This action was tried in the Superior Court of New York before a jury, and under the direction of the court they found for the plaintiffs the amount due them from the bank; the judge having overruled the defense, when offered in evidence.</p> <p>Judgment having been entered upon the verdict, the defendant appealed to the General Term of that court, which made an order reversing the judgment and granting a new trial, with costs to abide the event.</p> <p>The plaintiffs appeal from that order to this court.</p>

<p>In case of the insolvency or bankruptcy of a partnership, no special partner can, under any circumstances, be allowed to claim as creditor, until all claims of other creditors of the partnership are satisfied.</p> <p>But where, in such case, the special partner is a general partner in another firm, to which the insolvent partnership is indebted, the debts due to such firm are not to be postponed, on account of the (former) special partner’s interest therein.</p>

Action to recover damages for breaking and entering the plaintiff’s close, situated at Port Benjamin, in the town of Wawarsing, and county of Ulster, and described in the complaint by metes and bounds. The answer set up, 1. A general denial; 2. That there was a public highway across the premises described in the complaint, and that the alleged trespass consisted in traveling along said highway, and removing fences unlawfully placed therein by the plaintiff; 3.

<p>Where effect cannot be given to the entire will, or to an entire portion thereof, consistent with the rules of law applicable thereto, any part may bo sustained which is conformable to such rules, provided it can be separated from the other parts, without doing violence to the testator’s general intention.</p> <p>Where the primary disposition of the estate is in accordance with the rules of law, ulterior limitations, by which the testator seeks to work an illegal suspension, being void, may be disregarded, as not affecting the validity of the primary dispositions.</p>

The action was for damages caused by the negligence of the defendant, and resulting in the death of the intestate. On the trial at the Kings Circuit, it appeared that the deceased was on board of a sloop on Long Island Sound, on the 28th of October, 1853; that within a short distance of Sands’ Point the sloop was sunk by a collision with a steamer of the defendant, caused by the negligence of those in charge of the steamer, and that the intestate was drowned.

• The appeal is from a judgment of the Supreme Court, rendered on demurrer to the plaintiff’s complaint. The complaint is given, in substance, in the following opinion.

The action was brought to restrain the defendant, from opening a road upon certain premises in possession of the plaintiff, in pursuance of the resolutions of the common council, upon the ground that the commissioners appointed by the Supreme.Court to ascertain and report the just compensation to be paid to the persons owning the premises, or having an interest therein, had awarded him nominal value only, whereas the value of the premises was over $1,000.

It appeared by the complaint that Ebenezer Case died in April, 1855, having, by his last will and testament, devised his farm, of about one hundred and seven acres, situated in [Mayfield, Fulton county, to his widow, Eleanor Case, during. her natural life, to be used, occupied and controlled by her, except that his two daughters, Phebe and Ann, were to have a home in the house on said premises during the lifetime of the widow; and after her death, he devised to his said two…

<p>Any conveyance in fee of lands in this State, made since 1787, by one person to another, operates, in law, as a deed of assignment, and not as a deed of lease; leaving in the assignor neither any reversion nor the possibility thereof, nor any interest or estate whatever in the land.</p> <p>Since the act of 1787, concerning tenures, it has been impossible to create a feudal tenure in lands in this State, and, consequently, none of the incidents peculiar to such tenures can attach to estates granted by one citizen to another.</p> <p>The estate granted or assigned cannot be made subject to conditions implied by law in favor of the grantor; as that the grantee shall not alien, or shall render service or rent, and, in case of default, shall forfeit his estate. Such rules, and others of feudal extraction, which result from the obligations arising out of feudal relations, are now abrogated.</p> <p>But the assignee of the estate may be made liable to conditions of rents and services, whenever such conditions are inserted in the deed of assignment, and are consistent with the general rules of law. This is wholly independent of the tenure of the land.</p> <p>Any valid condition thus created and expressly mentioned in the conveyance in fee ma.j run with the land, and bind the heirs and assigns of the grantee, wholly independent of tenure, and also independent of privity of contract or estate.</p> <p>Prior to the adoption of the Constitution of 1846, there was no rule of law m this State prohibiting the reservation of a perpetual yearly rent in a grant of land in fee, as a condition of the estate.</p>

This was an action to set aside an assignment to the-defendant, as having been obtained in violation of a fiduciary relationship. The facts are stated at length in the opinion of the court.

This action is prosecuted against the defendants, for the purpose of charging them, as trustees of the Empire Stone Dressing Company, a corporation created in the State of Hew York, under the general act of 1848 for the formation of corporations for manufacturing, mining, mechanical or chemical purposes, for a debt due to the plaintiffs from the Empire Company; for the neglect of the defendants, as such trustees, to file and publish an annual report of the condition of the…

<p>Where there is an insurance on all passage money received for passengers from one port to another, named in the policy, it is a contract for the entire voyage, and requires the delivery of the passengers at tire place of destination named.</p> <p>Insurance for passage money and for freight is usually governed by the same general rules. If the passage money is paid in advance, and the passenger, without fault on his part, is not transported to the place agreed upon, it may be recovered back.</p> <p>Where there was an insurance of passage money from Liverpool to New York, and the ship sailed, and had not been heard from twelve months after the time of sailing—Held, the underwriters were liable.</p>

These are appeals from judgments of the Supreme Court of the first judicial district. The relators brought into that court, for review, by writ of certiorari, the determination of the respondents, as commissioners of taxes in and for the city and county of ¡New York, whereby the relators had been assessed for taxes upon their personal estate as shareholders in national and State banks. The Supreme Court affirmed the assessments, and the relators now appeal to this court.

<p>The Constitution of this State expressly provides, that no private or local bill which may be passed by the legislature shall embrace more than one subject, and that shall be expressed in its title.</p> <p>"An act to amend chapter 389 of the Laws of 1851 ”—which chapter embraces two hundred and ninety-two sections, and is entitled, “ An act to amend and consolidate the several acts relating to the city of Rochester ” — is a local act; and the subject-matter of the proposed amendment must be contained in the title of the act.</p> <p>It is not sufficient to state, in general terms, in the title of a private or local bill, that it is an act to amend a certain chapter of the Laws of a previous year where such chapter consists of various sections, subject to distinct amendments.</p>

The action was brought for obstructing the passage of saw logs of the plaintiffs, in floating down the Racket river, near Potsdam, in the county of St. Lawrence. The plaintiffs were the owners of certain premises on the river, about five and a half miles below Potsdam, on which were erected a dam and a saw-mill.

The action was brought by the plaintiff against the defendants to recover $4,012 in specie, seized by the defendant, Patrick Golden, as collector of taxes of the town of Oswegatchie, upon a tax warrant issued by the board of supervisors of St. Lawrence county, in the year 1858. The action was tried before Justice Davies, at Canton, in June 1859, and resulted in a judgment for the defendants.

The action was ejectment by the plaintiffs, as heirs-at-law of Ma/rk Hoag, deceased, to recover a farm in Delhi, Delaware county, against the widow and heirs-at-law of Amos Hoagi deceased. On the first trial before Justice Campbell, a verdict was ordered for the plaintiffs, which was set aside on appeal to the General Term, and a new trial ordered. The second trial was before Justice Balcom, and a jury, and a verdict was ordered for the defendants.

<p>Where a writ of assistance, having been improperly granted, has been executed, and is afterward set aside, the person dispossessed under it is entitled to be put back into the possession.</p> <p>The court setting aside the writ should, by the same order, require that the party dispossessed by it be restored to her possession.</p> <p>Such order affects a substantial right of the parties, and is appealable.</p> <p>Although the person dispossessed may have no valid title, yet the court will protect her possession until she is removed by due process of law.</p>

The action was for an insufficient and false return, and for negligence in failing to '¡collect an execution in favor of the plaintiffs against Oliver. C. Wright, Abram Moore and Timothy Baker, Jr.; the complaint alleging that Wright had real- and personal property in the county of Niagara, from which the executions could have been satisfied.

This . was an action for damages for the loss of plaintiff’s horse, &c., from defendant’s boat. The plaintiff was on defendant’s boat, with his horse and cart, to cross the ferry. The horse was young, and as plaintiff was attempting to drive him off of the boat, he reared up, became frightened and backed against the chain at the rear of the boat.

The action was brought to recover damages alleged to have resulted from injuries to the plaintiff’s wife, occasioned by the negligence of the defendants’ servants, while she was riding in their cars. The cause was tried at the Oneida Circuit, in October, I860,- before Justice Morgan and a jury.

Williams oh the 1st of April, 1853, to secure the payment of $7,000, and interest, and assigned by Mr. Williams to the plaintiff on the 1st of July, 1853. The defendant alleged that the mortgage was executed to Mr. Williams, who was the attorney and agent of the plaintiff, for the benefit of the latter, who resided in the.

The suit was in the nature of a creditor’s hill, founded on a judgment recovered by the plaintiff on a $500 note against the defendants, Parsons & Johnson, as makers, and the defendants, C. F. S. Thomas, S. W. Lathrop and Jedediah H. Lathrop, as indorsers. £ The complaint alleged, among other things, that, previous to the indorsement by Thomas and the two Lathrops, who composed the firm of Thomas & Lathrops, the defendants, Parsons & Johnson, executed, in their favor, a…

The action was on a promissory note for $1,250, made by one James B. Townsend, payable to the order of the New York & Saugerties White Lead Company, and indorsed by -that company, and by the Spring Yalley Shot and Lead Company, by James McCullogh, as president of each of said companies. The note was made by Townsend, and indorsed by the appellant, for the accommodation of the Spring Yalley Shot and Lead Company.

<p>The object of the statutes of 1848 and 1849 was to divest the title of the husband, jws mariti, during coverture, and to enable the wife to take the absolute title to property as though she were unmarried.'</p> <p>Prior to the statute of 1860 (ch. 90, § 1, p. 158), a married woman could not render herself personally liable for rent; but if the lessor was willing to assume the risk, the lease taken by the wife would be valid, and no estate would pass to her husband.</p> <p>Where the action concerns the separate property of the wife, it is properly brought in her name alone.</p>

Action for injuring plaintiffs’ horses and stages, in two collisions, in 1853, in Hew York city. In February, 1853, one of defendants’ horse cars, in going down Tenth avenue, between Twenty-fourth and Twenty-fifth streets, came in contact with, and injured, a stage of plaintiffs, and also the horses attached to it, going in the same direction.

<p>If riparian proprietors use a water course in such a manner as to inundate or overflow the lands of another, an action will lie.</p> <p>If, by raising the water in a natural stream above its natural banks, and to prevent its overflow, artificial embankments are constructed which answer the purpose perfectly, yet if, by the pressure of the water upon the natural banks of the stream, percolation takes place so as to drown the adjoining lands of another, an action will lie for the damage occasioned thereby.</p> <p>It matters not whether the damage is occasioned by the overflow of, or the percolation through, the natural banks, so long as the result is occasioned by an improper interference with the natural flow of the stream.</p>

The action is upon the equity side, to restrain the defendants from hindering, detaining, or diverting water from the grist-mill belonging to the plaintiffs, in Springfield Centre, Otsego county, and to recover damages for the wrongful detention or diversion of water from the said mill.

The material facts, essential to show the obligation and refusal of the defendants to make the subscription and issue the bonds, were alleged in the affidavits on which the motion was founded, and were met by no substantial denial, though some question was made in regard to them, founded on information and belief, and some collateral facts were alleged, which sufficiently appear in the opinion of the court.

The proceeding was instituted before -the surrogate of Richmond, to prove the will of Juliana Gardiner, deceased. The surrogate rejected the will, on the ground that it was procured by imposition and undue influence.

Bill for the construction of the will of George Lovett. The testator made his will, dated in October, 1861, and died in January, 1864, leaving two married daughters, Augusta Gil-lender and Mary Kingsland, his only heirs-at-law surviving. Augusta was born in 1812, and Mary in 1814. At the making of the will, and at the death of the testator, Augusta Gillender had but one child, Helena L., and Mary had nine, all then living.

<p>The power of taxation was committed by the people to the government to be exercised, and not to be alienated.</p> <p>The State cannot impose taxes on property, securities or franchises, exempted by an authority to which it is itself subordinate, by the terms of the federal Constitution.</p> <p>It may invite investment for the benefit of the public, in a particular description of property, by stipulating for its exemption in the hands of the holders, from assessment as a subject of general taxation.</p> <p>But it is never to be assumed that the State has fettered its power of taxation in the future, even to this extent, unless it appears, with irresistible clearness, that the enactment was intended to be in the nature of a private contract, as distinguished from a mere act of general legislation.</p> <p>The provision in the general militia act of 1854, tendering limited immunity from taxation to members of certain volunteer companies, was designed only as an ordinance of the law-making power, on matters pertaining to the municipal interests of the State; and it was subject, from its very nature, to amendment or repeal by the legislative authorities, to which those interests are committed as a continuing charge.</p> <p>The repeal of the provision involved no breach of obligation on the part of the State; for the faith reposed by the citizens, who accepted the tender, was on the stability of a public law, and not on the efficacy of an irrevocable agreement.</p> <p>The claim of a particular citizen to personal immunity from taxation, from jury • duty or military duty, is not a right of property, and has none of the distinctive characteristics of that class of interests which are susceptible of possession or ownership.</p> <p>The prohibition in the federal Constitution against the passage of laws impairing the obligation of contracts, has reference to contracts by which obligations are imposed, and rights of property are vested or secured.</p> <p>It was not the purpose of the provision to impose on the courts the duty, either of interposing between the legislature and the citizen in matters' of pure governmental concern, of trammeling the States in the exercise of their general political powers, or of stamping municipal regulations for the time being, with the seal of irrevocability.</p>

<p>The railroad act of 1850, as amended in 1854, was passed from public consider ations. Its purpose was to protect the traveling public as well as farmers along the lines of their roads.</p> <p>Under the provisions of that act, railroad companies are required to fence both sides of their track, and are liable for damages done to cattle so long as such fences are not made and kept in good order.</p> <p>It is no defense that the party whose cattle were killed was legally bound to build such fence, under a covenant between Iris assignor and the company. It was the duty of the company to see the fence built, and failing in that they are liable.</p>

<p>Where the husband permits, without objection, his wife to hold herself out before the world as transacting business on her sole and separate account, although he may advance money to her in her business, the title to property purchased therewith, as against the husband, vests in the wife.</p> <p>The wife kept a hoarding-house, and lived separate and apart from her husband for several years, and carried on the business in her own name: she mortgaged her furniture to secure payment for a part of the same; failing to pay the mortgage, the property passed into the hands of the mortgagee: the husband replevied the property, claiming that it was purchased with his money, or money he had furnished the wife: Meld, that having permitted the wife to transact business in her own name, and to deal with the property as her own, the husband was estopped from setting up any claim to the same against the mortgagee of the wife.</p>

<p>Where a will has been lost or destroyed, under circumstances showing that it has not been lost or destroyed with the knowledge or consent of the testator, the fact of its legal existence at the death of the testator may be proved by circumstantial testimony.</p> <p>Where it is proved that the will, at the time of its execution, was placed by the testator in the hands of a custodian to keep, who testifies that he took charge of the same, and locked it up in a trunk, and supposed it was there at the time of the testator's death, but upon search for the same after his death it could not be found, the evidence of its legal existence, at the time oE the testator’s death, is sufficient under the statute.</p> <p>If, under such circumstances, the will was not, in fact, in existence at the death ‘ of the testator, it becomes evident that it was fraudulently destroyed or lost during the lifetime of the testator; in which case, it was his last will and testament.</p>

<p>Personal property situated in Few Jersey is subject to the local laws of that State, though the owner thereof reside in the State of Few York.</p> <p>A general assignment with preferences for the benefit of creditors, which is void under the laws of Few Jersey, was made in the city of Few York, of property then being situated in Few Jersey. Subsequently such property was taken in Few Jersey under a foreign attachment and sold: Seld, that no title to such property in Few Jersey passed by such assignment, and that the same was subject to such attachment proceedings.</p>

This appeal comes up from the Supreme Court, third district, upon an order of the General Term, reversing a judgment in favor of the plaintiffs, upon the report of a referee, and ordering a new trial. The action was upon a policy of insurance for $1,000, issued on the 13th of August, 1857, to G. Elle, insuring him for one year on a stock of ready-made clothing and materials, in a brick building, No. 156J River street, Troy.

<p>Where the mortgagor parts with the fee of the morgaged premises, and the grantee assumes to pay the mortgage as a part of the consideration of the purchases, a release of the mortgagor under such circumstances, from all liability for the mortgaged debt, is a mere personal discharge, and does not discharge the mortgage security.</p>