Volume 36 — Barbour's New York Supreme Court Reports

ACTION against the defendant as sheriff of Steuben county, to recover possession of a quantity of tools, upon the ground that they were exempt from levy, &c. The plaintiff was a householder, having a family, &c. and was a daguerrean artist, and the tools were necessary in that business.

On the 5th of July, 1851, Albert Q-. Myrick and Josiah W. Myrick (the latter now deceased) recovered a judgment against Ansel Frost and Harmon Hibbard, for $5936.09, and execution thereon was returned wholly unsatisfied, September 21, 1851. In August, 1851, Albert Gr. Myrick caused a writ of ne exeat to be issued against Frost, to the sheriff of Monroe, where Frost resided ; but Frost eluded the sheriff, and fled from the state to New England.

The action was brought upon the defendants' promissory note to Elias Clevenger, Brazilla Clevenger and Daniel Thrasher, or bearer, for $1000, payableon demand, dated October 20,1858, reduced by indorsements, October 31, 1858, to $225.04, allowing interest from date. The plaintiff received it in May, 1859. The defense consisted of two branches: First. A payment of $117.75 to one of the payees, which the verdict allowed. Second.

The action was brought to recover damages for an alleged slander of the plaintiff’s wife, uttered by the wife of the defendant.

In the fall of the year 1856 the plaintiffs repaired a schooner belonging to the defendant Beard, and to enforce their lien, seized the vessel under the title of the revised statutes relative to “proceedings for the collection of demands against ships and vessels.” (2 R. S. 3d ed. 586.) To procure her release, the defendants executed the bond required by the 13th section of that title. This action was brought upon that bond. The cause has been twice tried, before a referee.

DEMURRER to complaint. The action was brought to have an alleged trust deed, executed by the plaintiff to the defendant, declared void, and for a decree setting it aside as a cloud upon the plaintiff’s title.

The defendant, Jane F. Cawley, carried on the business of ship-chandlery in the city of New York, and owned real property, separate from her husband, in Queens county. Her husband conducted the business in Hew York, and managed the same in all its details, as her agent. He employed the plaintiffs, as attorneys, in various matters pertaining to his wife’s business, and this action was brought by them to recover .for their services out of her separate estate.

<p>THIS suit was brought to recover of the defendant, as a stockholder of the “Avon Goal Oil Company,” the amount of a judgment recovered by the plaintiff against said company, upon which an execution had been returned unsatisfied. The company was duly organized July 19, 1859, under the general act “to authorize the formation of corporations for manufacturing, mining, mechanical or chemical purposes,” and the acts amending the same. The ground alleged for the personal liability of the defendant was, that the capital stock of the company was not at the time of contracting the debt, nor at the time of bringing the suit, fully paid in. This allegation in the complaint was not denied in the answer, and was admitted at the trial. The suit against the company was founded upon a draft, dated August 22, 1859, payable in ninety days, drawn by George R. Clark, superintendent, on J. F. Kendall, treasurer, to the order of the drawer, indorsed by him, and accepted by the company, which draft the plaintiff took, bona fide, for full value, before its. maturity, of a precedent indorser. The company appeared and put in its answer, which was held sufficient, and judgment was entered for the plaintiff for $316.53, March 15, 1860. Execution was issued thereon, to the sheriff of the city and county of New York, which was returned wholly unsatisfied. This suit was then brought against the defendant as a stockholder.</p> <p>The cause was tried before Hon. J. Mtjllin, justice, and a jury, November 16, 1860. The plaintiff, for the purpose of showing the defendant to be a stockholder of the company, put in evidence the stock or transfer book of the company, which showed that he held stock to the amount of ten shares. The defendant objected to the reception of this evidence. The jury, under direction of the court, found a verdict for the plaintiff. During the trial various points of law were raised by the defendant, which the justice directed to be further argued before him at circuit; which argument was had, and judgment was entered on the verdict in accordance with the direction of the court, for $412.75. The defendant appealed from the judgment.</p>

The application was for a mandamus, to be directed to the defendant, comptroller of the city of Hew York/ commanding him to draw his warrant upon the chamberlain of the city, in favor of the plaintiff, for §4260, to pay his claim against the city, for certain printing and binding4lone by him.

<p>APPEAL from so much of a judgment entered upon the report of a referee as denied a judgment for a divorce, in favor of the defendant, and from an order made at a special term denying the defendant’s motion for leave to enter judgment, upon the report, annulling the marriage between the parties.</p>

<p>To enable creditors of a partnership to recover a debt against an individual as a partner, on the ground that he held himself out as a partner, they must prove affirmatively that he did so represent and hold himself out, to them, or at least that they were informed of such representations, before the credit was given to the firm.</p> <p>A person not a partner, in fact, in a firm, will not make himself liable to creditors, for the debts of the firm, by representing or holding himself out as a partner, unless it appears that the creditors gave credit to the firm, after such representation or holding out came to their knowledge.</p> <p>The ground upon which one holding himself out as a partner is held liable as such, to creditors, is that of estoppel. And it is of the very essence of the estoppel, in such a case, that the creditor trusted the firm with knowledge of the fact that the individual either held himself out, or suffered himself to be held out, as a partner.</p> <p>If there is no evidence that the creditors knew, at the time the goods were sold to the firm, that an individual had held himself out, or suffered himself to be held out as a partner, the latter will not be estopped from denying his liability as such.</p>

THIS was an action brought to recover from the defendants, as innkeepers, the value of a watch and chain, a gold pen and pencil case and $25 in money. The plaintiff was a guest at the defendants’ hotel in the city of Hew York, July 7th, .1856. He was put to lodge, late at night, in a room occupied by another person, who was a stranger to him.

THIS suit was brought to recover the amount due upon three several bills oí exchange, drawn by the Tioga Navigation Company. The bills were signed by James B. Wilson as “ Prest. T. N. Co.” They were all dated June 1st, 1840. Two of them were for §5000, and one of them for §4000. Bach bill was dishonored and duly protested.

THIS was an appeal from a judgment entered upon the report of a referee. The action was brought by the plaintiffs, as survivors of Philo Buckingham, who, with them, composed the firm of P. Buckingham & Go., at Toledo, Ohio. The object of the suit was to collect a balance due to the firm, from the defendant, for advances made on produce shipped to them by him, to be sold.

THE plaintiff, and the defendants Ephraim Harris, William Harris and Phebe Burnham, are the children and only heirs at law of J ohn Harris, late of the town of Greenfield, in the county of Saratoga, deceased. The said John Harris died on the 8th day of February, 1859, at his residence in said town, seised of both real and personal estate, and seised of the lands described in the complaint in this action.

CAZEKOVIA LAKE is a natural body of water, situate in the town of Cazenovia, in the county of Madison, about five miles long and three-fourths of a mile wide. On the 20th day of October, 1794, Edward Edwards received from the state of Eew York a patent purporting to convey to him 15,000 acres of land, described by certain metes and bounds.

<p>APPEAL from a decree of the surrogate of the county of Suffolk, allowing the claim of Jonathan Rohinson against the estate of David Robinson, deceased, for personal services, to the amount of $1250.</p>

CTION of ejectment, involving the title to land forming part of the road bed of the Brooklyn, Jamaica and Flat-bush turnpike road, running from the Brooklyn (Fulton) ferry to Flathush, and branching beyond the premises in question to Jamaica. The locus in quo constituted a piece of the road between its western side and centre line, near Hanson place, within the present limits of the city of Brooklyn.

<p>CERTIORARI to review the proceedings and decision of the defendants, as referees appointed hy the county judge of Richmond county, to hear and determine an appeal brought by James Ridgeway, the relator, from an order and decision of the commissioners of highways of the town of Eorthfield in said county, laying out a certain road therein.</p>

<p>Where the right of persons claiming to be trustees of a religious society, to the office of trustee, is disputed and denied, and they have not yet been admitted to the exercise of any of its rights or duties, and they are not and have not been in possession of the church edifice, nor of any of the temporalities of the church, they cannot maintain an action in the name of the religious society, to restrain individuals in possession and claiming to be the trustees of the society, duly elected, from closing the church edifice and from preventing the pastor from holding religious meetings therein, &c.</p> <p>Before they can institute or maintain such an action, the plaintiffs must have been peaceably admitted to the office of trustees of the society, or have established their title thereto by a direct proceeding or action brought for that purpose, by the attorney general.</p> <p>The court will not, upon motion, decide who are the rightful trustees of the society, or determine the question of right to the office.</p>

ON the 19th of April, 1859, the legislature passed an act, (Sess. Laws of 1859, ch. 484, p. 1109,) authorizing and directing the appointment of three commissioners by the supreme court, and authorizing such commissioners to enter into a contract with the Long Island Eail Eoad Company, or its assigns, for the following objects, viz: 1. The closing of the tunnel in Atlantic street. 2. The restoration of said street to its proper grade. 3.

THE plaintiff owned a store and lot in Atlantic street, Brooklyn, valued at $30,000, which was subject to incumbrances. The defendant owned a house and lot on President street, unincumbered, valued at $5100.

The action was brought to recover for damages to the canal boat J. L. Page, belonging to the plaintiff, alleged to have occurred on the 2d day of December, 1859, from a collision with the ferry boat Canada, on the waters of the East river, in the harbor of New York, while the Canada was on a trip from Brooklyn to New York, through the wrongful, careless and negligent conduct of the defendant, and without any fault of the plaintiff.

ACTION by the plaintiff as receiver of the Poughkeepsie Insurance Company, upon four premium notes, made by the defendant upon effecting insurances with the company. On the trial the plaintiff was nonsuited, on the sole and only ground that the notes in suit exceeded five times in amount the amount of cash premium paid. And the exceptions were ordered to be heard in the first instance at general term.

THIS was an appeal Tby the plaintiff from an order of the city court of Brooklyn, dismissing the complaint, made on the second trial of this action. The case, upon the appeal from the judgment rendered after the first trial, is reported in 31 Barbour, 419. It appeared, on the second trial, that the defendants were carriers of passengers in the city of Brooklyn, using a stage sleigh for that purpose.

COMMON law certiorari, to remove proceedings had under the act of 1847 (Laws of 1847, ch. 455,) for'a reassessment of the damages of the relator, occasioned by the laying out of a highway over his land in the town of Clarkstown. The writ was directed to the defendant Clarkson, commissioner of highways, Jabez Wood, the justice of the peace before whom the proceedings were instituted, and T. L. Denoyelles, town clerk of the town.

APPEAL by the defendants from a judgment of the city court of Brooklyn. The action was brought to recover damages for an injury sustained by Margaretta Hart, one of the plaintiffs, in consequence of falling into a coal vault under the sidewalk, in Hicks street, Brooklyn, in June, 1859, through the grating ; which, the complaint alleged, was left in an unsafe and dangerous condition by the defendants.

The action was brought to recover damages for injuries sustained hy the plaintiff in consequence of being run over by a passenger car upon the defendants’ road. He was three years and seven months old, at the time. The defense was that the injury was caused hy the negligence of the plaintiff himself, and not hy the negligence or fault of the defendants, or their agents or servants.

<p>A court possesses power aud jurisdiction to determine whether it has authority to entertain a particular controversy, although its decision, and the law, be that it has no such authority, and it therefore dismisses the suit. Such a question may be presented by demurrer, and its decision must be a judgment.</p> <p>Accordingly, where A. brought an action against B., in a county court, to recover damages for the wrongful detention and conversion of property, and B. demurred on the ground that the court had no jurisdiction of the subject of the action, and the county court rendered a decision sustaining the demurrer; Held that the court had the power to enter a judgment dismissing the complaint or suit, and awarding costs to the defendant.</p> <p>Costs are a proper and necessary incident of such a judgment; and the court can no more deny them to a defendant who succeeds in establishing, upon an issue of law, that the court has not jurisdiction, than to a plaintiff who has shown that it has.</p> <p>A court, when it has the parties in an action before it, must necessarily obtain jurisdiction, so far as to decide whether it can entertain the suit; that is, whether it has jurisdiction of the action. Its decision of that question is a judicial act—an exercise of jurisdiction. Per Elion, J.</p>

<p>APPEAL from a judgment entered upon the report of a reft rec. The nature of the action, together with the facts as bund by the referee, are fully stated in the opinion of the c urt. The referee reported that there was nothing due from the defendant to the plaintiff; and judgment was entered upon the report, in favor of the defendant, for his costs. The plaintiff appealed.</p>

<p>The statutes provide for but three cases in whicn a receiver of the property of corporations (other than moneyed corporations) can bo appointed: 1. Upon the application of a creditor by judgment or decree, on the return of an execution unsatisfied. 2. When the corporation has been insolvent for a year, or has neglected or refused, for a year, the payment of its debts, or has suspended its business for a year. 3. Upon the application of the directors or trustees, when in their judgment the condition of the corporation makes a voluntary dissolution desirable.</p> <p>A receiver of a manufacturing corporation will not be appointed, in an action brought against it by a creditor at large who seeks for a dissolution of the corporation and the distribution of its effects, on the ground of its insolvency, and that its trustees, instead of taking proceedings for the dissolution of the company, intend to facilitate the recovery of judgments against it, by certain creditors, with a view to give them a preference, and thus to effect alienations of the property contrary to law. Mullin J. dissented.</p>

The action was brought to recover a 2>enalty of ¡$50, for an alleged violation of the “ Act to suppress intemperance, and to regulate the sale of intoxicating liquors,” passed April 16, 1857, (Laws of 1857, vol. 2, ch. 628,) in selling spirituous liquors or wines, in quantities less than five gallons, without a license.

The complaint alleged that some time in or about the year 1850, Julia Gould, the sister of the plaintiff and of the defendant, deposited with said defendant, as her trustee, a sum or sums of money owned and possessed by her at the time, and which the defendant engaged to take charge of as such trustee, and invest on her behalf in proper and safe securities, and account to her for the same ; that said defendant, some time thereafter, invested said money, on behalf of said…

MOTIOH for a new trial, upon a case and exceptions, ordered to be heard in the first instance at the general term, the judgment being in the meantime suspended.

The action was brought upon a promissory note, by the indorsee, against the makers. The referee reported in favor of the defendants.

<p>A bond, issued by a rail road company, acknowledged the receipt of $1000 from......, and in consideration thereof the company promised and agreed to pay to....... or assigns, the sum of $1000, ten years after date, &c. In an action upon the bond, the complaint averred that the corporation received the money from some person unknown to the plaintiff, and delivered the bond to such person for the purpose and with the intent that the same should be assignable and transferable by delivery from hand to hand; that before its maturity it came lawfully into the possession of the plaintiff, for value, and that he was the owner and holder. Held, on demurrer, that the complaint was sufficient, and that the action would lie, any lawful holder by delivery or transfer being authorized to fill his own name into the blank, as the payee.</p> <p>Held, also, that bonds in that form were not void as being in violation of the act to restrain unauthorized banking; inasmuch as they were payable ten years after date, instead of on demand, and therefore could not circulate as money.</p>

The plaintiff and defendant were owners of contiguous lots of land. The defendant erected a wall on his lot along the boundary of the plaintiff's lot. The defendant, by written agreement, contracted with third parties for the erection of the wall. The third parties were men of good reputation, and careful workmen. They did the work entirely without the defendant’s interference.

The action was brought by the plaintiff, a judgment creditor of the defendant Webb, to set aside an assignment executed by him, of his property to the defendant Minor, in trust for the benefit of creditors.

THIS action was commenced against the defendant as indorser of a promissory note for $2060, made by Parmelee & Watts, of Des Moines, Iowa, dated November 11, 1857, payable four months after date, to the order of the defendant, and indorsed by him.

THIS was an appeal from a judgment entered upon the report of a referee dismissing the plaintiff’s complaint. The plaintiff was appointed receiver in several supplemental proceedings, and as such, commenced this action to set aside an assignment made by L. 0. Wilson & Co. for the alleged benefit of their creditors. This assignment, not under seal, purports to assign all the property of said firm, real and personal, and all its assets in trust. 1.

<p>A testator, hy his will, gave to Ms wife certain articles of personal property and one-third of the net income of all Ms real estate, after payment of all taxes, assessments and interest due thereon, during her natural life. Upon her death the payments were to cease, and the said one-third of the net income was to go and he paid to the heirs of the testator. The provisions were not stated to he in lieu of dower. Held that the widow was not put to her election.</p>

<p>An instrument by which the maker promises to pay to the order of another a specified sum, at his store, or in goods on demand, for value received, is a negotiable promissory note.</p>

THIS action was brought by the plaintiff, ás a judgment creditor of Alonzo Bradner and Gabriel Furman, to set aside an assignment made by them as copartners, and also assignments made by them individually to .the defendant Strang, as assignee, in trust for the benefit of creditors, on the 1st day of December, 1854, on the ground of fraud.

without a jury. The complaint was for goods sold and delivered to the defendants by a firm of which the plaintiffs are the surviving partners.

<p>Where a corporation formed nnder the act of February 17, 1848, made an assignment of all its property in trust for the benefit of creditors, pro rata, such assignment being made in contemplation of insolvency; Held that such assignment was void, notwithstanding it provided for an equal distribution of the assets of the corporation among all its creditors.</p>

THIS action was brought by the plaintiff, claiming to be the holder of a bill of exchange, against the defendant, as indorser.

<p>G., being the owner of a patent right for the cities of New York and Brooklyn, and some tools, on premises leased by him, employed the plaintiffs to instruct a planing machine, for him, to enable him to effectuate his interest in the patent right. He then sold his interest in the lease of the premises, with the tools and machines, and in the patent right, to V. Before the plaintiffs had commenced work upon the planing machine, G., accompanied by V., called on them and informed them that he (G.) had sold out his interest to V., who assented to the statement. The plaintiffs then proceeded with the machine, and completed it, and delivered the same to V. and charged him with the price. EelA that V. could only be made liable upon the ground of an original promise; but that if he expressly or impliedly directed the plaintiffs to complete the machine, and the same was completed and delivered to him, he was bound to pay therefor.</p> <p>EelA, also, that a subsequent taking back of the machine, by the plaintiffs, would not prevent a recovery by them, where it appeared that they merely took it back for the purpose of making a sale thereof on account of V., without intending to discharge his liability.</p>

Actions were commenced by Samuel W. Slocum in the marine court of the city of New Y ark, against James S. Brownson, Frank P. Slocum and Edward Hopkins, by attachment, upon three several promissory notes made by the defendants for #600, #650 and #600, respectively. The complaint in each case was the usual complaint upon a promissory note.

The action was brought against the defendants as indorsers of a promissory note made by the firm of Beale, Mellick & Dewitt, to their own order, dated March 20th, 1857, for the sum of $2350.69, payable four months after date.

ON the 4th day of January, 1859, the respondents desired to have estimates on some pots, boilers or tanks, for the manufacture of kerosene oil, called “meerschaums,” which they proposed to build of iron or brick. For that purpose, a specification and some drawings were prepared for the inspection and proposals of mechanics.

The action was upon a policy of insurance issued by the defendant, dated 28th July, 1853, for $5000, on the life of John L. Fish, of Rochester, N. Y., payable to the plaintiff. The complaint averred the execution and delivery of the policy, and set forth the policy and the conditions annexed thereto.

The action was brought by the plaintiff, as administratrix of John B. Wyman, deceased, to recover certain insurance moneys which had been paid over to the defendant Prosser, to be held by him for the benefit of whoever should be decided to be entitled thereto.

<p>ONE Porter Kellogg was the owner in fee of a certain mill, at Nunda. In the latter part of December, 1857, he obtained from the defendants the policy of insurance on which this action is brought, dated January 1, 1858, insuring him against loss by fire on his mill to the amount of $>2000. In his application for such insurance he stated that there was no other insurance on the property. In the body of this policy it was agreed “that in case the assured, or any other person with the knowledge of the assured, shall have existing, during the continuance of this policy, any other insurance against loss by fire on the property hereby insured, and not notified to this company, and mentioned in or indorsed upon this policy, then this insurance shall be void and of no effect.” By condition No. Y, annexed to and referred to in the policy of insurance, it was agreed as follows: “Notice of all previous insurance upon property insured by this company shall be given to them, and indorsed on this policy or otherwise acknowledged by this company in writing, at or before the time of their making insurance thereon; otherwise the policy subscribed by this company shall be of no effect. And in case of subsequent insurance on property insured by this company, notice thereof must also, with all reasonable diligence, be given to them, to the end that such subsequent insurance may be indorsed on the policy subscribed by this company, or otherwise acknowledged in writing; in default whereof such policy shall henceforth cease and be of no effect.” Immediately after making this application to the defendant’s company he applied to the agent of the Hampden and the Conway insurance companies, at Rochester, and made an arrangement for a policy of insurance in each company, on the same property, for §1500. These policies were issued immediately after January 1, 1858, and sent to Kellogg by mail. These policies were adopted by Kellogg. Ho notice was given to the defendant or its agent of these insurances, and of course none was indorsed on the policy. The property was destroyed by fire on the 6th day of May, 1858. The distance from Hunda, where the assured resides, to Hornellsville, the residence of the defendant’s agent, is about 25 miles. In October, 1858, one Gleason, a creditor of Kellogg, the assured, commenced a suit against him in the supreme court of Connecticut, in which action the defendant was garnisheed. To avoid the annoyance of litigation, and without admitting any liability upon the policy, the defendant agreed to pay Kellogg §1000 in compromise of the claim, and judgment passed that the defendant pay Gleason the said sum of §1000, which it subsequently did. The plaintiff had notice of this proceeding, but failed to appear and contest Gleason’s claim. By a judgment of this court, recovered July 23,1858, in an action therein pending between Roswell G. Bennett and Robert J. Baity, plaintiffs, and Porter Kellogg, defendant, it was adjudged, among other things, by the said court, that the before mentioned policies of insurance were the property of said Baity and Bennett, to the amount of $3000, and that a receiver be appointed to take and collect the said policies of insurance, and to pay into the said court, subject to its order, out of the moneys so collected, $3000 and the costs of that action, and that the said Kellogg assign, transfer and deliver the said policies to such receiver; which judgment was perfected in the clerk’s office of Livingston county on the 6th day of September, 1858. This action was accordingly brought by the plaintiff, as such receiver, to recover the amount insured in the policy issued by the defendant. The cause was tried at the Livingston circuit, in January, 1861, before the Hon. B. Darwin Smith and a jury. The court directed a verdict for the plaintiff for $2350, subject to the opinion of the court at a general term, upon a case to be made by the plaintiff.</p>

<p>OH the 24th of September, 1855, the defendant Ward assigned to the plaintiff, by a writing under seal, a bond and mortgage executed to Ward by Elisha P. Davis, dated the 6th of that month, conditioned to secure the payment of $2000 in five years from date, with interest semi-annually— the mortgage covering about 120 acres of land in Clarkson, Monroe county. The plaintiff paid $1500 therefor, by two checks, one in favor of the defendant Clark for $800, the other in favor of the defendant Ward for $700. The plaintiff was applied to, to purchase the bond and mortgage by the defendant Clark, who professed to act in behalf of Ward, and who, after the purchase was agreed upon, delivered the assignment to the plaintiff, and received the checks for the consideration. In the negotiation for the sale, Clark represented to the plaintiff that the mortgage “ was a bona fide mortgage, well secured, as straight as a string—there was no usury or other legal defense to it;” that “ Ward had advanced $2000 for it;” “ that Davis had a clear title to the land, and this was the first incumbrance;” “ that the mortgage was all right and straight in every particular; that it was the first mortgage.” In the written assignment, the defendant Ward covenanted that there was unpaid on the bond and mortgage $2000, and interest from date; and that there was no usury or other defense in the mortgage; and certified that he paid to Davis the whole consideration, $2000, and had good right and lawful authority to sell the same. The plaintiff believed the representations to be true, and was induced by them to purchase, the bond and mortgage. The only title which Elisha P. Davis had or claimed to the mortgaged premises, was acquired by his purchasing the premises at a sale on a statute foreclosure, by advertisement, of a mortgage thereon, executed by Henry Leiter to Conrad B. Lewis on the 6th of April, 1850, and by Lewis assigned to Stephen Merritt, and by Merritt to George T. Davis, in whose name the foreclosure proceedings were conducted. The sale was on the 18th of August, 1855, Elisha P. Davis becoming the purchaser at $455. The value of the premises was then $5400. There were several mortgages on the premises, subsequent to the Leiter mortgage, at the time of the mortgage sale.</p> <p>On the 7th day of September, 1855, Elizabeth M. Bath-bone, who held a mortgage on the premises executed the 7th of March, 1854, for $1600, commenced an action in this court, to have the mortgage sale under the Leiter mortgage, and the mortgage by Elisha P. Davis to the defendant Ward, declared fraudulent and void, and to foreclose her mortgage, making George T. Davis, Elisha P. Davis, and the defendants in this action, and others, parties defendants. The complaint in that action was filed in the clerk’s office of Monroe county, and the summons was served on the defendants in this action on the 7th of September, 1855. The defendants in this action put in their answers in the action last aforesaid; and the issues were referred to a referee for trial and decision. The referee reported that the sale under the Leiter mortgage was void for defects in the proceedings for the sale; also for fraud, to which the defendant Clark, George T. Davis and Elisha P. Davis were parties; that the mortgage of Elisha P. Davis to the defendant Ward was without consideration and fraudulent. This action was commenced the 23d of November, 1859, to recover damages for the fraud of the defendants in the sale to the plaintiff of the Davis mortgage.</p> <p>It was proved at the trial that Elisha P. Davis was insolvent when the action was commenced.</p> <p>. The plaintiff, to show that the mortgagor had not a good title, and that the mortgage was not a lien, gave in evidence the report of the referee and the judgment founded thereon in the action brought by Elizabeth M. Eathbone against William Stebbins, the defendants in this action, and others. The defendants objected to the introduction of this report, and judgment roll, which objection was overruled by the court ; and the court held that the record was conclusive evidence of the facts directly adjudicated thereby or necessarily involved in the determination thereof. That all the facts found by the report of the referee were conclusively established as against the defendants in this action, and that it was conclusive evidence in this action that the bond and mortgage were void for want of consideration. The defendants’ exceptions to the admission of this evidence, and to the ruling of the court as to the effect of it, formed one class of exceptions on which the defendants relied for a new trial.</p> <p>The court charged the jury that if they should find for the plaintiff they-would find the sum of $1500, with interest from January 1st, 1859, the interest having been paid to that time. This was also excepted to, and these exceptions constituted another ground of the motion for a new trial. The court charged the jury, among other things, as follows : That although the plaintiff could not recover in this action on- the covenant contained in the assignment, alone, he could, by showing that the same was untrue at the time when made, and known to be so by the defendants. To which charge the counsel for the defendants excepted. The court further charged the jury, that if the representations made to the plaintiff were untrue, although the defendant Ward did not know they were so, yet if he was informed and knew of facts which, in the exercise of common sense and ordinary prudence, were sufficient to put him upon inquiry, and would have led him to a knowledge of the condition of the title, he would be liable, the same as if he had actual knowledge. To which charge the counsel for the defendant Ward excepted.</p> <p>The jury rendered a verdict for $1723.13, and the court ordered the motion for a new trial to be heard at the general term in the first instance.</p>

The action was for the recovery of the possession of real estate. The justice before whom the action was tried found the following facts and conclusions of law: John Hornby, by deed bearing date ¡November 6,1804, conveyed to William ÍL Lummis a tract of land lying at Sodus Point, embracing the premises demanded in the complaint, who thereupon went into possession and occupied the premises conveyed by said deed.

APPEAL by the plaintiff from a judgment of the county court of Albany county, reversing a judgment recovered by the plaintiff in the justice’s court of the city of Albany, for a penalty of $25 for selling bread of defective weight.

THE complaint alleged, in substance, that the defendant, being under sheriff of the county of Jefferson, and having an execution against the property of Charles K. Loomis, Jacob Brown Kirby and Joseph E. Baber, in favor of Henry J. Tarbell, William S. Jennings and Andrew Millspaugh, levied the same upon certain sawed lumber as the property of Kirby & Loomis, and upon the sale thereof under the execution the plaintiff desired to bid on the property, and offered to bid on the…

THIS action was commenced in March, 1860, for the partition of real estate in Oneida county. The question arises out of the claim of dower of the widow, Oynthia Gavana, in the lands of which her husband, Thomas Gavana, died seised, and of which partition is sought in this action. Her claim was allowed, and the other defendants brought an appeal to this court.

<p>Hops, growing and maturing on the vines, which are produced by the annual cultivation of the owner, are personal chattels within the meaning of the statute of frauds; and as such are subject to sale like other personal property.</p>

The action was brought to recover damages for injuries sustained by the plaintiff, by the overturning of a stage-sleigh employed by the defendant for the purpose of conveying passengers to and fro between the village of Schaghticoke Point and the Schaghticoke station on the defendant’s rail road, distant about a mile from said village, and was brought to trial before Justice Hogeboom and a jury, at the Rensselaer circuit, on the fourth Monday of May, 1860.

<p>An indictment being found against 0., he was, on the 6th of June, 1860, arraigned in the court of oyer and terminer, and pleaded not guilty. Bail was fixed at §700, and 0. as principal and F. as surety were recognized for the appearance of C. at the next oyer and terminer, in October, to answer the indictment, by an entry made in the minutes of the court, which merely recited the arraignment of 0. upon the indictment, and that he was ordered by the court to enter his recognizance in the sum of §700, and that thereupon C. was recognized in that sum as principal, and F. as surety. 0. appeared at the oyer and terminer in October, when another indictment was found against him, and filed on the morning of the 10th of October, for the same offense charged in the previous indictment. On the afternoon of the same day a third indictment was found, C. was arraigned thereon, and pleaded not guilty, and on motion of the district attorney, an order was entered in the minutes, quashing the first two indictments. 0. then departed from the court without its express permission. On the next day an order was entered, directing the recognizance of June 6, to he written out in full and attached to the minutes as of that date, and that the minutes and entry of such recognizance be corrected, &c. Thereupon another order was entered, directing such recognizance to he estreated, and prosecuted. The clerk, pursuant to the order, drew up from his minutes a recognizance, as of the 6th of June, and attached the same to the minutes kept by him at the June term, and also to the hook of records, by pasting the same therein. In an action upon such recognizance; Meld, 1. That the entry in the minutes of the court was defective in not stating the acknowledgment of indebtedness, and therefore no legal recognizance was entered into by 0. and F.</p> <p>2. That the entry being defective, there was no memorandum from which to make up a recognizance, and hence there was nothing on which to base the action.</p> <p>3. That the court had not authority, expcurte, to manufacture an undertaking imposing obligations upon the accused and his surety never assumed by them.</p> <p>4. That quashing the indictment which the accused had given bail to appear and answer, was a discharge of the obligation, released the surety, and authorized the prisoner’s departure from court without special leave. Bocees, J. dissented.</p>

<p>Words charging one with keeping a whore house are actionable, per se. They impute a crime involving moral turpitude, and which crime is also an indictable offense.</p> <p>The charge of keeping a whore house is synonymous with a charge of keeping a bawdy house, or house of ill fame; it being a charge of keeping a house for common prostitution.</p> <p>In an action for slander, the words are to he construed according to their common acceptation; and it is not admissible to inquire of the witnesses how they understood them.</p> <p>After impeaching witnesses are shown to he acquainted with the general moral character of the person whose credit is assailed, and they declare it had, the question of credit is for the jury, under proper comments from the court, without any inquiry of the discrediting witnesses as to whether they would believe him under oath.</p> <p>In such cases the jury ought not to he precluded from drawing the fair and reasonable inferences from the evidence.</p>

THIS is an appeal from an order made at a special term, denying a motion for a new trial under the revised statutes, in an action of ejectment. The cause was referred to a referee and decided upon the merits, and judgment entered against the plaintiffs upon the report of the referee. The only question presented by this appeal is whether a new trial in ejectment can be granted where a judgment has been rendered on the merits upon the report of a referee.

The action was brought by the plaintiff, as assignee of the owner, to recover the value of a horse, harness and robes, which were destroyed by fire in the barn connected with the defendant’s inn. The action was tried at the Washington county circuit, in May, 1851, when the plaintiff was nonsuited. The facts appearing in evidence are set forth, in sufficient detail, in the opinions below.

OB’ the 1st of May, 1834, David Tallman loaned to the defendant $1500, and took his bond under seal, with this condition: “ The condition of this obligation is such, that the above sum of $1500 is to remain without interest in the hands of the above bounden Jonathan Irish, until such time as the said David Tallman shall demand payment of the said Irish; then if the above sum is not paid, then the above obligation to be of full force or virtue.

<p>THIS action was brought to enforce the specific performance of a contract for the conveyance of thirty-four city lots of land in Brooklyn. The agreement recited that the plaintiff had been licensed by the city of Williamsburgh to lay a rail track for the running of cars on Division avenue, and that a bill was pending before the legislature to authorize the defendant Mills to lay a like track on the same avenue. It then stipulated that, in consideration of the agreement of the defendant Mills to discontinue a slander suit he was prosecuting against the plaintiff, and convey the land in question to the plaintiff, he (the plaintiff) would cause his said license from the city of Williamsburgh, and the good will of Ivans & Mills in an omnibus line on the same avenue, to be assigned to the defendant Mills; and also “will give all the aid in his power, spend such reasonable time as may be necessary, and generally use his utmost influence and exertions to procure the passage to a law” of the before mentioned bill as amended, granting authority to the plaintiff and the defendant Mills to construct such road; and also will, so far as reasonably necessary, assist and aid, to the extent of his ability, in procuring for the defendant Mills “a license from the city of Brooklyn for the construction of such rail road, and the running of cars on said Division avenue, or so much thereof as lies within the control of the said city.” There are mutual stipulations that neither party will co-operate in the introduction of a bill for the construction of a rail road on said avenue, “or in any way give aid or countenance to any such measure” The defendant Mills stipulates to convey, “when the said bill heretofore introduced in the senate as aforesaid, with the amendment or amendents above referred to, or some like bill, shall become a law.” The complaint did not allege that any such bill became a law; and the statute book (1853) shows the contrary. The action was referred to a referee, to hear and determine; who dismissed the complaint, on the ground that the contract was illegal. Judgment was entered in favor of the defendant, for costs, and adjudging the agreement void; and the plaintiff appealed.</p>

<p>APPEAL from a judgment of the county court of Dutchess county, rendered in an action commenced before a justice of the peace. The plaintiff recovered a judgment, before the justice, which was reversed by the county court.</p>

THE defendant is the owner of a farm in the town of Beekman, Dutchess county, bounded on a public highway in said town, and within the-last two years had moved his fence out in said highway,and taken and appropriated a large quantity -of the same to his own use. The appellants, as commissioners of highways of said town, took the legal steps and declared the said fence' an encroachment, and ordered the same to be removed. The defendant denied the encroachment.

<p>Buies 15 and 28 of the general rules made by the Metropolitan Police Board, for the government of the police, which direct that all persons who shall be arrested any time when the police courts are not open shall be conveyed immediately to the police station house of the policeman who makes the arrest; and that when a person accused of having committed a felony or misdemeanor is brought to the station house when the police courts are not open, the officer on duty, after ascertaining that the act charged constitutes a felony or other offense for which a person can lawfully he detained, &c. shall cause the accused to be detained in the station house until the next morning, will not justify the imprisonment in the cell of a station house, of a person who is charged with no offense, other than the breach of a municipal ordinance against riding horses on the sidewalks.</p> <p>Where a person is arrested in the day time, in the city of Brooklyn, for violating a city ordinance, it is the duty of the officer to take him before the police justice, or one of the justices elected under the act to establish courts of civil and criminal jurisdiction in that city, passed March 24,1849.</p> <p>There is a wide difference between the perpetration of a crime, and the violation of a corporation ordinance. Per Bbown, J.</p> <p>The 28th of the general rules of the Metropolitan Police Board directing the officer on duty to ascertain that the act charged constitutes a felony or other offense must be construed to mean a co'immal offense, and nothing less. Per Bbown, J.</p>

THIS action was commenced on the 28th day of November, 1859, by the above named plaintiffs, against the defendants, to set aside two mortgages and the forceclosure of one of them, and subsequent conveyances and contracts for the sale of parts of said mortgaged premises, on the ground that the said first two mortgages had been fully paid and satisfied prior to said foreclosure, and that said foreclosure and sale of the premises were fraudulent and void as to the plaintiffs,…

THIS was an action to recover damages for injuries to the plaintiff's dwelling house, occasioned by a riot, or mob. The plaintiff, in the first count of her complaint, claimed that the defendant was liable under the statute of April, 1855, “to provide for compensating parties whose property may be destroyed in consequence of mobs or riots.” (Laws of 1855, ch. 428, p. 800.) In the second count she claimed that the defendant was liable at common law.

THIS action was brought to recover of the defendant possession of about sixty-three acres of land situate in the town of Verona, Oneida county, and damages for the detention thereof. The action was referred to a referee, who found the following facts : Lot Ho. 97 of the Oneida reservation, in the town of Verona, Oneida county, was sold by the state to George Brayton, and he received the usual certificate of sale from the surveyor general, dated April 2, 1807.

The complaint averred that the defendants are a corporation created by and under the statutes of the state of Hew York, and transacting business at Williamsburgh, in the county of Kings. That at the dates of the several instruments hereinafter mentioned, one Charles W. Houghton was the president of the said bank, and as such had power and authority to accept drafts and certify checks drawn upon the said bank, and to bind the said bank thereby.

<p>CONTROVERSY submitted to the court, by agreement of the parties, without suit, as authorized by the code. The following are the facts upon which the claim, and the rights of the parties, depended. On or about the 18th day of February, 1836, Josiah Groddard, of the town of York, in the county of Livingston, made and executed his last will and testament, by which (after omitting the formal introduction) he devised and directed as follows:</p> <p>“ After my doctor’s bills, funeral expenses, and the cost of a decent monument erected at my grave is paid, and other honest debts, if any there be unsettled, I give the whole of my personal estate of every description to my wife Elizabeth, except one thousand dollars of the money that is due to me in notes; the principal of which I do not give to her, but the interest of which I do give to her, during her life, to her and to be her’s, and at her disposal forever. And I furthermore give to my said wife the whole income and the sole control of all my real estate, during the time of her life, to her and to be her’s, and at her disposal forever. Note: None of the legacies which follow, and are described below, will become due till after the decease of my wife, and they are as follows:</p> <p>First. I give to Elizabeth Eaxton, now Elizabeth Bond, wife of Hollis Bond, living in the town of York, and county of Livingston, two thousand and five hundred dollars, to her, her heirs and assigns forever.</p> <p>Secondly. I give unto my eldest sister, Huldah Goddard, living in the town of Grafton, and county of Worcester, and state of Massachusetts, five hundred dollars, to her and her assigns forever.</p> <p>Thirdly. I give unto my youngest sister, Polly Goddard, now Polly Wheeler, wife of Asa, living (as is supposed) in the town of Leicester, and county of Worcester, and state of Massachusetts, five hundred dollars, to her and her assigns forever.</p> <p>Fourthly. The whole remaining part of all my worldly property, which is supposed will exceed at least three thousand dollars, I give unto the Baptist church of Christ, in the town of York, in Livingston county, and state of New York. This legacy is given to the church above mentioned, on the following conditions:</p> <p>1st. That the church, as soon as convenient after they shall have come to the knowledge of the legacy, shall vote to receive it.</p> <p>2d. Provided the church shall continue to maintain their visibility, as a regular Baptist church, upon the foundation of the same gospel doctrines which they now profess and receive.</p> <p>3d. That the legacy be kept by the church, in perpetual fund, on interest, and interest applied for the purpose of remunerating the services of some faithful minister of Christ, and of the Baptist order, who shall be employed by the church, as their missionary, in preaching the gospel in the destitute distant regions of the west.</p> <p>4th. Provided, likewise, that the church choose a board of trustees, or board of committee, in number not less than five, to whom may be intrusted the safe funding of the money, collecting the interest, and procuring a suitable person, whom they may apjioint by the advice of the church as their missionary, and settle with him all pecuniary concerns, and to whom it shall be his duty to make returns of his travels, labors, success, and whatever concerns his mission.</p> <p>These conditions it is not expected will be attended to punctiliously, but in substance; on which conditions, if the church shall see fit to vote the reception of the legacy, it is given, but otherwise it is not given.</p> <p>If this legacy is not received by the church, it is not to revert back to the other legacies as described above, to increase them, but directions will have been given to my administrators how to dispose of the money.”</p> <p>It was agreed that the Baptist society of York was duly organized under the act authorizing the formation of religious societies, passed April 4, 1813, prior to the execution of said will, and was an existing corporation at the time of the death of Josiah Goddard. That afterwards, and on or about the 19th day of February, 1836, the said Josiah Goddard departed this life at the town of York. That subsequently, and on or about the 22d day of April, 1836, the said will was duly admitted to probate, by and before the surrogate of the county of Livingston, and was duly recorded as a will of real and personal estate, and letters testamentary were thereupon duly issued to Elizabeth Goddard, the executrix named in said will. That subsequently, and on or about the 22d day of May, 1854, Elizabeth Goddard, widow of the said Josiah Goddard, departed this life, and Spencer Pomeroy, the executor named in the said last will and testament of the said Josiah Goddard, deceased, being appointed under said will, became acting executor of said estate, under said will. That the said Josiah Goddard, at the time of his decease, was seised in fee simple of certain real estate, particularly described in the submission. That the said real estate was the only real estate of which the said Josiah Goddard died seised, and is now of the value of about $2000. That the said Josiah Goddard, at the time of his decease, left him surviving the following heirs at law, to wit: Polly Wheeler, a sister of the deceased, Huldah Goddard, a sister of the deceased, Charles Goddard, Lucy H. Stiles and Mary P. Bailey, children of Perley Goddard, a deceased brother of the said Josiah Goddard, Edward P. Goddard, a child of Joseph Goddard, a deceased brother of the said Josiah Goddard, and Lucy Goddard, a child of Ann Goddard, a deceased sister of the said Josiah Goddard. That the said Polly Wheeler has since died intestate and without issue, and is now represented by Joseph A. Denney as her administrator, &c. That the said Huldah Goddard has since died intestate and without issue, and is now represented by Charles Goddard as her administrator, &e. That the persons before named were the only surviving heirs at law of Josiah Goddard at the time of his death, and that the persons so named and the representatives of such as are deceased are the only persons having any interest in this controversy, excepting only the persons or corporation named as legatees in said will and such persons as are named defendants herein. That the said Josiah Goddard, at the time of his death, left personal property to the amount of about $3000. That of the several bequests made in the said will of the said Josiah Goddard, the sum of $2500 given to Elizabeth Bond, wife of Hollis Bond, by the terms of said will, has been paid in full out of and from other assets than the real estate and the rents and profits of the same. That of the bequest made in said will to Huldah Goddard, there remains due and unpaid the sum of $612, with interest thereon from the 1st day of April, 1861. That of the bequest made in said will to Polly Wheeler, there remains due and unpaid the sum of $612, with interest thereon from the 1st day of April, 1861. That all the personal property left by said J osiah Goddard, deceased, for that purpose, has been applied to the payment of the legacies mentioned in the first, second and third clauses of the will. That the said Baptist church of Christ, of the town of York, has complied substantially with all the conditions annexed to the legacy mentioned in the fourth clause of the will, excepting only that no portion of the said bequest mentioned in said will has yet been applied by said society to the support of a minister of the Baptist denomination, as contemplated in the fourth clause of said will, but the rents and profits of the real estate hereinbefore described still remain in the hands of the said Spencer Pomeroy, or the said Baptist society of York, to the amount and in the manner hereinafter stated. That the said Spencer Pomeroy, after the decease of the said Elizabeth Goddard, wife of the said J osiah Goddard, and on or about the 23d May, 1854, entered into the possession of the real estate, and remained in possession of the same down to the 14th August, 1858, and was in the receipt of the rents and profits thereof to that date. That the annual rents and profits over and above all taxes, repairs, charges and deductions of every ldnd, so received by the said Spencer Pomeroy, amount to the sum of $80 for each and every year since the said 23d May, 1854, while he so retained possession of the same. That the Baptist society of York has been in the possession of said premises, and in the receipt of the rents and profits of said real estate, from the said 14th day of August, 1858. That there is now in possession of said society, of rents received from said property from the date last aforesaid to August 20, 1861, $26, the balance of said rents having been expended in repairs on said premises. And from the 20th day of August, 1861, the rents and profits of said premises are to be estimated against said society at the rate of $-90 per annum, over and above all deductions for any account whatever. For the rents and profits so found and accruing in the hands of said society, judgment is to be rendered in manner and effect as against the said Spencer Pomeroy. That the Baptist society of York is the same organization and corporation mentioned in said will as the Baptist church of Christ, of the town of York.</p> <p>The questions submitted to the court upon this case were as follows: Is the bequest contained in the will of Josiah Groddard, deceased, hereinbefore set forth, and designated in said will as “fourthly,” by which the “whole remaining parts” of his property, after certain specific bequests, is given to the “Baptist church of Christ, of the town of York,” a valid bequest or devise; and did said society take title to the property herein described upon the trust and for the purpose mentioned in said will, or take any right or interest whatever under said will ? Are the unpaid balances of the legacies mentioned in said will, as given to Polly Wheeler and Huldah Groddard, a charge upon the real estate hereinbefore described ? The court to determine the right of the respective parties in this controversy, and render judgment accordingly. If these questions were answered in the affirmative, then judgment was to be rendered against the claim of the heirs at law of Josiah Groddard to the said real estate, and the same was to be decreed as belonging to said Baptist church, subject to and charged with the unpaid balance on said legacies to Polly Wheeler and Huldah Groddard, and subject to the trust created in and by said last will and testament, should the court determine that said unpaid legacies are chargeable upon the said real estate, and that said fourth bequest and the trust created thereunder is valid. If the first of said questions was answered in the negative, then judgment was to be rendered against the claim of said Baptist society to the real estate, or to any claim or interest whatever under said -will; and the said property and the rents and profits of the same were to be decreed as belonging to said heirs at law of Josiah Groddard, subject to and charged with the payment of the unpaid balance of the legacies given to Polly Wheeler and Huldah Groddard, should the court determine that the unpaid balance of said legacies was a charge upon said real estate. And further, the said Spencer Pomeroy and the Baptist society of York were to be decreed to pay to the plaintiffs the rents and profits of said real estate so found in their respective hands, and the interest thereon, and judgment be taken against them in proper form therefor.</p>

IN this case the proof showed, and the jury found as facts, that there were three lines of public conveyances running in connection with each other from New York to Cobourg, in Canada, viz : The People’s Line of boats from New York to Albany, the New York Central E. E. Co. from Albany to Eochester, (or Charlotte, the port of Eochester,) and a line of boats from Charlotte to Cobourg, on Lake Ontario.

THE action was brought to recover for services rendered, in building or repairing a bridge in the town of Rathhone, in the county of Steuben, The pleadings admit, and the proof shows, that Lucius Parker was, from May, 1856, until after January, 1858, sole commissioner of highways of the town of Rathhone. That Harrison Van Scoy was his successor, and was sole commissioner of said town at the time of the commencement of this action.

THIS was a controversy submitted, without action, for the decision of the court, under section 372 of the code of procedure.

In May, 1855, the defendant and several other persons signed the following paper: “We, the subscribers, do agree to well and- truly pay the several sums set against our respective names, to the treasurer of a board of trustees, (which may he elected by the Wayne County Baptist Association, at a convention now called to meet at Marion, on Wednesday, the 30th day of the present month,) in such installments, (jirovided always that no more than one fourth is called for at any…

THIS action was brougnt to recover the balance due upon a promissory note made by the defendants. The defenses relied upon were usury, and that the holder extended the time of payment to the injury of the defendant. The cause was tried at the Steuben circuit on the 11th day of January, 1859, before the Hon. T. A. Johnson and a jury. The defendants on that trial recovered a verdict.

ACTION to set aside a deed of real estate, executed by the sheriff of Wayne county to the defendant, Edward White, and to compel the execution of a deed by said sheriff of the same premises to the plaintiff. On and previous to the 14th of February, 1 $55, Miles Merrill owned the said real estate; and on that day executed a deed thereof to his son James E. Merrill, without any consideration, and with intent to defraud the grantor’s creditors.

<p>Where proceedings were taken by the Auburn and Rochester Rail Road Company, before a county judge, under the acts of 1836 and 1838, incorporating said company, for the appointment of a jury of appraisers to assess the value of the land required for the construction of its road through a particular county, and one of the owners of land taken was an infant; it was held that it was indispensable that some proper person should be appointed to appear for such infant before the jury of appraisers, to represent her, and attend to her interests, on the appraisement.</p> <p>Held also, that although an attorney was appointed to appear before the jury and protect the interests of the infant, on the appraisement, yet if he failed to attend before the jury, or to represent her interests there, his appointment was nugatory.</p> <p>That the statute was not complied with simply by the making an appointment of an attorney for the infant owner, by the county judge, sufficient in form; but that it was the duty of the rail road company to see that some reliable person was appointed, residing in the vicinity, who should in fact personally appear before the jury and protect the interests of the infant. And that until such appointment and appearance, the jury had no jurisdiction of her person, to entitle them to proceed to appraise the land, or the damages for taking the same.</p> <p>The statute was designed to secure the actual attendance of some fit person, before the jury, as guardian or attorney, to attend personally to the interests of the infant upon the appraisement. And without such appearance, all the doings of the jury, in the proceeding, are entirely unauthorized and void.</p> <p>Upon the death of a person seised of real estate, all claim for damages done to the estate, and for the rents and profits thereof, down to that time, go to his executor, and belong to the personal estate. Therefore, in ejectment, brought by devisees, the plaintiffs are only entitled to recover the possession of the premises, with damages for withholding the same, and the rents and profits thereof, from the time their title to stich rents and profits accrued.</p> <p>A claim for damages done to land occupied adversely by the defendant cannot be sued for and recovered until after the plaintiff has recovered possession. A claim for injuries of that nature cannot be united with a claim to recover the possession of the land.</p> <p>Under section 67 of the code, a plaintiff may unite a claim to recover the possession of land with a claim for damages for withholding the same, and for the rents and profits.</p> <p>But this provision gives no new rights of action; and the plaintiff is not bound to elect, as between those causes of action, which he will go for.</p>

ACTIOH upon a policy of insurance against fire, to recover the amount of a loss of the insured property. The policy expresses that it is on the “brick Franklin House block ” of the plaintiff, “ occupied for stores and hotel purposes, and situate on the corner-of Main and Coach streets, in the village of Canandaigua, H. Y.” The complaint describes the subject of insurance as the “ brick Franklin House block,” and alleges a loss by fire of that property.

This was an action by William. McClelland against George Remsen, sheriff of Kings county, to recover damages for the conversion of personal property. The facts are stated at length in the opinion.

THIS case came before the court on an appeal from an order made at the Delaware special term, held by Justice Baloom, in May, 1861, overruling the plaintiff’s demurrer to the fourth defense set up in the defendant’s answer. The action was brought by the plaintiff, as receiver of the ¿Etna Insurance Company of Utica. There were two counts or claims in the complaint. But each was based upon a promissory note, in the following words and figures, viz : “ §420.

/THIS action was brought to recover the value of a quantity JL of stone, that the defendant quarried and took from a piece of land, situated within the corporate boundaries of the village of Havana, in the county of Schuyler. The action was tried before a referee, who decided that the plaintiffs were entitled to recover the sum of $629.06 as damages.

The action was brought to recover the damages sustained by the plaintiff by reason of the burning of his clover field and destroying his apple trees, in consequence of the carelessness and negligence of the defendant. It was proved that the fire originated at the track of the defendant’s rail road in Pittsford, and was caused by the dropping of coals from the locomotive, upon the dry grass on the track.

The action was brought on a promissory note for one thousand dollars, dated July 2, 1859, made by the defendant Howe, payable three months after date, to the order of the defendant Duck-infield, and indorsed by him. Defense, usury.

nnHIS action was commenced originally by the plaintiff above JL named, against “ The Commissioners for loaning certain moneys of the United States of the county of Oneida,” on the 29th day of January, 1861. The object of the action was to set aside and cancel a mortgage executed by the plaintiff and one William K. Fellows, to said commissioners, for $500, bearing date the 2d day of November, 1855, on the ground of usury.

<p>An attachment will not be granted against an attorney, for the non-payment of money collected by him for a client, after the remedy by action is barred by the statute of limitations.</p> <p>The proceeding by attachment, to compel the payment of money, is a civil remedy, and unless a legal right be established, the application for an attachment is without foundation.</p> <p>The court will not compel payment, in any form of proceeding, when it is made to appear that there is nothing due according to the law of the land.</p>