Volume 36 — New York Reports

The action was for false imprisonment and malicious prosecution. On the trial, before Mr. Justice Sutherland, at the New York Circuit, it appeared that the Plaintiff was arrested and imprisoned on a warrant procured by the Defendant, charging him with the crime of perjury. The Defendant subsequently abandoned the prosecution, and the Plaintiff was discharged by the magistrate.

The doctrine that the owning of a share in a vessel by the Master or Captain thereof, constitutes such share one of special value and authority as the “sailing master’s interest or sh^re,” repudiated. There is no such distinction as to the value of shares, whether owned by the Captain or citizen.

<p> Negligence—Railroad Company—Front Platform—Minor. </p> <p>It is negligence on the part of a railroad company to so overcrowd their car as to compel a passenger to stand on the front platform, from which he was thrown and fatally injured.</p> <p>It is not error for the Court to refuse to charge that the company owed.no more protection or care to a boy of nine years of age than to an adult.</p>

The mere delivery of a mortgage, given to secure the payment of a bond, by the mortgagee to a creditor as collateral security for a debt owing by the mortgagee, does not pass any interest to the mortgage, as against one holding by assignment the bond secured thereby.

<p>Pleading— Conversion by Agent—Property of Principal.</p> <p>Where an agent converts the property of his principal into money in pursumce of Ms agency, and applies the money to Ms own use, in an action hy the irincipal to recover the same, it is no defence for the agent to set up that the iroperty converted was not, in equity, that of the principal; and if he sets up acts of that character in his answer, the Court, on motion, may strike out that lortion of the answer as irrelevant.</p>

In March, 1860, one. Edmonds moved a. judgment in a district court of the city of New York, for about eighty dollars, against the Plaintiff’s testator, for which an appeal was taken, but not the requisite steps to stay execution.

A municipal corporation is liable for damages sustained by a Plaintiff caused by obstruction occasioned to the flow of wafer in the public sewer, by reason of which the Plaintiff’s premises became flooded by water thrown back through his, Plaintiff’s, drain.

This is an appeal from an order of the General Term of .the Third District, commanding the Appellants as assessors of the city of Albany, to. reduce the assessment against the relator to the sum of one dollar, in accordance with- the request contained in his affidavit. The .facts are stated in. the opinion of the Court.- .

—The action was for work, labor, and services, and board and lodgings furnished to the Defendant and his servants. The Plaintiff recovered $69.80. There was no appeal from the judgment to the General Term. The appeal to this Court is from the judgment at Special Term, on the findings of the referee, and from an order at the General Term affirming an order awarding full costs to the Plaintiff.

The defendant was convicted at the Yates county sessions of a broach of the “ Act to suppress intemperance, and to regulate the sale of intoxicating liquors.” (Laws of 1857, ch. 628.) The offense charged was the unlawful sale of liquor, in quantities less than five gallons.

<p>Principal and Agent — Transfer of Stock — Warranty.</p> <p>An agent, with express authority to sell, has no implied authority to warrant, where the property is of a description not usually sold with warranty.</p> <p>One employed to make a sale of bank stock is not, presumptively, empowered to warrant it in the name of his principal.</p> <p>The receipt of the proceeds, by the owner of the stock, in ignorance of an unauthorized warranty by the agent, is not a ratification of the unauthorized engagement.</p> <p>When a party claims, receives, and retains the property of another, knowing that it was obtained by an unauthorized use of his name, it is a ratification of the assumed agency, which evinces his assent to the original contract.</p> <p>So, too, when an agent, acting within the scope of his actual authority, perpetrates a fraud for the benefit of his principal, and the latter receives the fruits of it, he thereby adopts the fraudulent acts of the agent.</p> <p>But the mere receipt, by the owner, of the proceeds of his own property, is not a ratification of a collateral contract made without his authority, and to which he never knowingly assented.</p>

Appeal, from the Supreme Court. The action was on a promissory note for $100, made by the Plaintiff’s assignor on the 19th of April, 1835, and payable one year from date. The suit was commenced on the 23d of September, 1854, eighteen years after the note matured, and seven years after the death of the maker, and the appointment of the Defendant as his administrator. The complaint alleged, and the answer denied, two payments at different times by the intestate.

An order of the General Term affirming an order of the Special Term denying a motion to re-tax costs and to correct the judgment roll, is not the subject of ■ appeal to this Court. Nor is an order of the General Term dismissing, an appeal from an order of the Special Term refusing a mandamus, appealable. Nor is an order dismissing an appeal from an order of Special Term denying motion to correct case, appealable to this Court.

All that is essential to be communicated to an endorser to bind him as such, is that the note endorsed by him has not been paid at maturity; that it has been presented and protested for non-payment; together with a sufficient description to identify the note.

The act of 1855 (Laws 1855, ch. 337, as amended by Laws 1857, ch. 330) has no application to trials in Courts of Oyer and Terminer. It applies only to cases where there has been a conviction for a capital offence in the General Sessions of the Peace in and for the City and County of Hew York. Only in such cases, therefore, can the Court of Appeals grant new trials, whether or not exceptions have been taken in the Court below.

Where lots are sold by number designated on a map of the plat, and by such map such lots abut on a strip of land described on such map as a “ street,” or “ park, the purchaser of such lots is to be deemed as being bounded by the centre of said strip or “street.”

This is an appeal from an order of the General Term, reversing a judgment of the Special Term in favor of the Defendants. The notice of appeal was accompanied by a stipulation on the part of the Defendants, that in case the order appealed from should be affirmed, judgment absolute might be rendered against them. The action was brought against the Defendants as makers of a promissory note for $569.33, dated September 1, 1854, payable four years from date.

If, on. approaching a crossing by a train of cars, no signal be given, as the ringing of the bell or the blowing of the whistle, by the agents or servants of the company, it is guilty of negligence; and where there is conflicting evidence on that point, the question is to be submitted to the jury; and their finding therein is conclusive.

The Defendant, a railroad corporation, was engaged in 1856 in carrying passengers in cars propelled by horse-power in the streets of Hew York. In the fall of that year the Plaintiff went on board of one of the Defendant’s cars for the purpose of being carried therein, and, while standing on the step of the front platform of the car, was knocked therefrom by a horse and cart coming in contact with him, by which he received some injury.

This action was brought by the Plaintiff to recover the amount of two promissory notes against the Defendants as makers and endorsers. The cause was tried at the Oswego Circuit before Mr. Justice Allen, without a jury, in May, 1860. Judgment was rendered in favor of the Plaintiff for the amount of the two notes, from which the Defendants appealed to the General Term, by which the judgment was reversed and a new trial ordered, from which the Plaintiff appealed to this Court.

Usury is a personal defence, and can be made available only by the borrower, not by third parties. And none but a party to a ¡usurious contract, or his heirs, devisees, or personal representatives, can avoid a usurious contract on account of usury.

<p> Tax-Sales of Land—Invalid if Information refused. </p>

<p>In an action for negligently causing the death of a person, the burden of establishing the negligent causing of the death is upon the plaintiff; and it is error for the Judge to charge the jury, if the death of the party occur on defendants’ premises while defendants are in exclusive occupation thereof, that, as a matter of law, the defendants are liable, unless they can explain the cause of such death.</p>

A condition in a policy that if the note given for the premium is not paid at maturity, the policy shall be void, is a valid and binding one, and the note being dishonored, the policy thereby becomes void.

<p>Religious Corporations — Trustees— Cestui que trust— Change of Doctrine.</p> <p>A religious society incorporated under the General Act of 1813 (April 5), is a corporation of all the members of such society, and not of the trustees, or a limited portion of the members.</p> <p>The trustees of such society cannot take a trust for the sole benefit of members of the church, as distinguished from other members of such congregation.</p> <p>Nor does such statutory incorporation contemplate or recognize the devotion of the corporate property to the support of a perpetual and unchangeable system of religious faith and doctrine.</p> <p>A majority of the corporators, without respect to their religious tenets, have the entire control over the revenues of the corporation.</p>

<p>This was an action to recover damages for the removal of a building from certain premises in Catón, Steuben County, which premises had been sold by executory contract, by the Plaintiff, to one Catharine Herrick, and had afterward come back into his possession by reason of the non-performance of the contract by the said Catharine Herrick. The facts are stated in the opinion of the Court.</p>

This was an action to recover $9,200 for the loss of one hundred and eighty-four bales of cotton, burned on the boat Alabama, on the Chattahoochee River, in the State of Alabama, in the month of February, 1854. The action was tried before Chief Justice Bosworth, of the Superior Court of the City of New York, where the Plaintiff recovered judgment for the amount of his claim.

<p>The proceeding under the Revised Daws of 1813 (oh. 86) to determine what compensation shall be made as damages for taking lands to be laid out for squares, avenues and streets in the city of New York is a special proceeding under the Code of Procedure.</p> <p>A writ of error does not lie to this court to review an order of the General Term dismissing an appeal thereto, from an order of the Special Term, made in such proceeding.</p> <p>In such proceeding, the confirmation of the report of the commissioners of estimates and assessments, by the Supreme Court, is final and conclusive upon all persons, and cannot be reviewed.</p>

This was an action brought by the people against Benjamin Brandreth and six others, upon a bond dated May 28th, 1860, by which they became sureties, that the bank of Sing Sing would repay all moneys deposited with it to the credit of the treasurer of the State. The plaintiffs recovered at the circuit; and the General Term of the second district affirmed the judgment. The facts are fully stated in the opinion of the court.

<p>In an action against the officers.of an incorporated company, for selling to plaintiff certificates of stock, representing stock which had been fraudulently overissued by them, to entitle the plaintiff to recover, he must prove, to the satisfaction of .the jury, that the certificates purchased by him did not represent genuine1 stock.</p> <p>Where the plaintiff had proved that the whole amount of stock which the company were authorized to issue, had been issued prior to the issuing of his certificates, the burden of proof is thrown upcy defendants, to show definitely that the certificates sold to plaintiff represented genuine stock.</p> <p>The officers of the company issuing such false certificates, are liable therefor to the assignees of said certificates, when they have been purchased and held in good faith.</p>

<p>Bab. Where an action for malicious prosecution has been instituted, and prosecuted to final judgment, an action for slander for uttering the words in commencing the malicious prosecution will not lie.</p> <p>Bab. Where the accusation in the two cases is identically the same, the prosecution and judgment in the one case will be a bar to a prosecution in the other. ° .</p> <p>But if they relate to different utterances, although alluding to the same general accusation, it is otherwise.</p>

In 1853, the plaintiff’s testator owned a farm in fee, situate in the town of Niagara, across which run a small stream of water, supplying water for stock, etc. The defendant, a railroad corporation, having located its road through said farm, obtained from the testator a conveyance of the necessary-land for its construction, and also, the right of constructing its road through the adjoining farm, situate above the plaintiff, owned by Voght.

<p>Where a common law certiorari is directed to the board of commissioners of highways to bring up the proceedings and determination of such officers for review, the Supreme Court can only affirm or reverse their proceedings or decision.</p> <p>If the court goes further, and sets aside the order appointing the referees, and orders the appointment of a new board — it acts without jurisdiction — and such part of the order will be void.</p> <p>But such void part of the order may be set aside on motion to the Supremo Court, or on appeal to this court.</p> <p>But on appeal, such part of the order will be reversed without costs to either party.</p>

The plaintiffs, carpet dealers, sold and delivered to defendant certain oil-cloths and carpets for his house in Peebskill, and put them down. The defendant, in his answer, set up that they were put down in an unskillful, unworkmanlike manner, and did not fit the rooms, and, therefore, he refused to keep them and sent them back. On the trial there was considerable evidence given on both sides.

<p>It seems that it is competent for a town to pay interest on bonds, although their collection could not have been enforced at law, and the trustee who had received the money for such purpose, could not set up that the debt was illegal. Per Davies, Ch. J.</p> <p>It seems that an agent‘has no authority to review the legality of acts done by his principal; when he has received money from his principal, with directions as to the mode of its application, his duty as agent is to comply with his orders.</p> <p>Distinguished. The cases op Starin v. Town of Genoa (23 IT. Y., 439), Murdock v. Aiken and Ross v. Gurtiss (31 IT. Y., 606), and People v. Mead (24'oN. Y., 114), commented on and distinguished. The appidavit filed with the county clerk pursuant to the second section of chapter 375, of Laws of 1852, is not conclusive evidence of the assent of the tax payers of a town.required by such act, in favor of liona fide holders of town bonds issued under ita provisions.</p> <p>Mandamus. On applying for a mandamus to compel a county treasurer to pay over moneys assessed and collected to pay town bonds, etc., it is a good defense to show that the necessary assent of the tax payers of the town was not obtained to authorize the issuing of such bonds.</p>

<p>Where the introductory clause in a will show that the testator designed to dispose of his whole estate, a subsequent devise of lands without words of perpetuity, may be held to convey the fee.</p> <p>But this will not be the eifeet unless the subsequent parts of the will confirm , such an intention in the testator.</p>

This action was brought upon an agreement in writing, in the •words following: “Whereas, I desire to sell the steamers Augusta, Alabama, Florida, and Star of the South: Now, in consideration thereof, and of one dollar to me in hand paid by Thomas B. Stillman, of the city of New York, I do hereby constitute him, the said Still-man, my true and lawful agent, or attorney, to dispose of said steamers, or either of them, at such prices and on such terms as may be hereafter agreed…

This is an appeal from a judgment absolute against tlie Plain-tiif, rendered by the General Term of the Superior Court of the city of New York, reversing, with costs, a judgment entered in his favor, upon the verdict of a jury, for $21,916.55, and dismissing his complaint as not stating facts sufficient to constitute a cause of action.

<p>Attorney — General'Authority ceases when — Costs—Statute of Limitations begins to run when.</p> <p>It seems that the general authority of the attorney in a case ceases at the rendition of judgment therein, and his fees then become due and payable. The subsequent proceedings requiring the services of an attorney are only contingently necessary, and when necessary may be performed by another with substitution. The right of the attorney to collect his costs is in.no degree dependent upon their being collected.</p> <p>The statute of limitations upon a demand for attorney’s fees and costs com■mences running from the date of the judgment in the cause in which the services were rendered, and the costs accrued.</p>

<p>Will — ■ Words— Construction — Survivorship.</p> <p>Whore the language of the will is in these words, “ the above devise to my children being to them their heirs and assigns; and if either of them die without issue, then to the survivor or survivors of them in equal shares,” and some of the children die, the child of one of the deceased, or the grandchild of the testator, takes the estate of its parent, but has no right of survivorship, in respect to the remaining children.</p>

<p>Disqualifications of Jurors in Capital Cases — -Laws 1855, ch. 337.</p> <p>The act of 1855 (ch. 337) has not so changed the rule of law, as to permit an error affecting the prisoner’s legal rights to be disregarded by the Court of Appeals, even though he be clearly guilty. Such act was passed for tlie advantage of the accused, so that a new trial might be awarded when substantial justice seemed to require it, although the record disclosed no error of law.</p> <p>A juror stating that he has conscientious scruples against finding a verdict in a case involving life and death, is confessedly disqualified from sitting as a juror in a case involving life and death; and it is no error for the judge to discharge such person from serving on a jury in a capital case.</p> <p>General impressions obtained from reading newspaper accounts of transactions do not disqualify the person as a juror sitting to try parties in such transactions.</p>

<p>Appeal from the Supreme Court. The action was in the nature of a quo warranto, to test the constitutionality of the amendment to the Capital Police Act of 1865, by the Act of 1866, which provided for including the city of Schenectady within the district, together with four miles of intermediate territory within the lines of the New York Central Bailroad.</p> <p>The cause was tried at the Albany Circuit, before Mr. Justice Hogeboom, who gave judgment for the Defendants. The judgment was unanimously affirmed by the Judges of the Third Judicial District, and the Plaintiffs appealed to this Court. The facts are sufficiently stated in the opinion.</p>

<p>The State laws regulating port pilotage are not superseded by the act of con. gress, prescribing pilot regulations for steam vessels navigating the high seas.</p> <p>In the absence of federal legislation, the States have the right to protect their commerce, by exercising, on the neighboring seas,-the power accorded for that purpose to every maritime people.</p> <p>Pilots, licensed for the port of jNpw York by State authority, are entitled to offshore pilotage, when they comply with the regulations prescribed, by tendering their services at sea to vessels about to enter that port.</p>

<p>Under the provisions of the act of April 13, 1855, to provide for compensating parties whose property may be destroyed in consequence of mobs or riots, notice to the public officers will not be required, where the party injured, had no information in respect to which to give the proper notice.</p> <p>"Where the property of the party has been thus destroyed, in an action against the board of supervisors of the county to recover for such damage, it is no defense to the action to prove that the houses destroyed were kept by the plaintiff as bawdy houses, and as a rendezvous of thieves, robbers, murderers, etc.</p> <p>To keep a bawdy house and a rendezvous for thieves, robbers and murderers, does not constitute such an act of carelessness or negligence as will prevent the guilty party from recovering under the provisions of such act.</p> <p>A house kept as a house of ill fame, etc., is a public and common nuisance; but the destruction of the building and its furniture is not necessary to its abatement.</p>

surrogate of Onondaga county, dismissing proceedings instituted by the plaintiff to compel the defendants to account as executrix and executors of the will of Thomas Lee, deceased. The facts sufficiently appear in the opinion.

Wm. Mitchell, referee, and ordering a new trial before the same referee. The appellants have stipulated that if the judgment be affirmed, judgment absolute may be entered against them.

Henry Hogeboom, justice of the Supreme Court. The plaintiff was a passenger from Brooklyn to New York on one of the defendants’ ferry-boats, and on the arrival of the boat at her slip in Hew York, her foot fell into an opening between the boat and the floating bridge at which she was to land, whereby her leg was jammed, causing the injury on account of which this action was brought.

<p>Appeal, Authority for — Record without Order for Judgment by General Term.</p> <p>Where upon, the record there does not appear to have been any order of the General Term upon which judgment was entered — but it only shows the trial, the verdict of the jury, and a statement that a new trial was denied, there is no authority for an appeal to this Court.</p>

<p>Bond fide Purchase for Value — Usury renders voidable only by Purchaser.</p> <p>In an action by Plaintiffs to recover either tlxe goods or damages for their conversion, from parties, a part of whom obtained the possession by fraudulent representations, after the Plaintiffs have established the fraud, and their consequent right to recover against the party obtaining the goods, it is incumbent on a party Defendant claiming such goods as a bond fide purchaser of the same for value, to establish by proper evidence his bona fide character as such purchaser; and if in doing so it turns out by the evidence that the contract of purchase was taiuted with usury, the Plaintiffs may not avail themselves of such evidence to rebut the bon& fide character of the purchase.</p>

<p>Seal Estate— Verbal Contract between Father and Son, valid when.</p> <p>Where, in pursuance of a verbal agreement between the lather and son, that on condition the son will enter upon certain wild land belonging to the father, and will settle thereon and improve it, the father will make and deliver to the son a good and sufficient deed of the same — and the son, in pursuance of such agreement and with the knowledge and aid of the father, proceeds to take possession of such land and to make improvements thereon, and continues so to do for the space of twelve years, with the knowledge and consent of his father during such time — he is entitled to the fulfilment of such agreement, and may compel the same against the heirs of his father’s estate.</p>

The questions in this ease arise upon the following facts, which are found by the judge who tried the cause, without a jury: On the 7th day of December, 1858, one Morris Wilson made his note for $304.80, at eight months, payable at the Irving Bank, to his own order; he endorsed the same, and it was also endorsed by Wetherald & Young, the .Defendants.

•.This was an action brought by. the Appellant .-to compel tbe return of a certificate of deposit of $1,500, or the value of the same, delivered by the Plaintiff to the Defendant, under ■ an alleged misapprehension of her rights, and in reliance upon his professional advice. The referee found for the Plaintiff .the amount of her claim. ■ The General- Term of the First District reversed .the judgment, on questions of fact, and ordered a new trial..

ON the 6th of March, 1864, the Columbian Insurance Company, a corporation organized under the laws of the State of New York, issued to the Defendant its policy, insuring him $43,000 on the bark Heiress, for one year from date.

<p>Mechanic's Lien on Vessel — Bond to Release — Admission of Regularity. — Laws 1862, ch. 482.</p> <p>In an action upon a bond given according to tlie statute, to procure the release of a vessel seized by a warrant to enforce the mechanic's lien for repairing the same, it is unnecessary for the Plaintiff to go behind the bond and show the regularity of the prior proceedings.</p> <p>The giving of the bond by the Defendants to procure the release of the vessel is prima facie an admission of the regularity of such proceedings.</p>

The action was trespass, for entering a yard or garden in the possession of the plaintiff, erecting a fence across it and depriving her of the use of more than half the premises.

— The action was on a note made by the Defendants on the 13th of January, 1860, for the sum of $500, payable, with interest, to Burrill Rice and Esther Jane Rice, or bearer, one year from date.

13 damages and costs entered on a verdict rendered on trial before Hon. John R. Brady, judge of that Court, and a jury. A motion for a new trial was made at Special Term, which was denied by order, dated the 7th of February, 1861. Appeal was taken to the Court at General Term from the judgment and order. The General Term affirmed the judgment and order, with costs, and judgment was accordingly entoi'ed, August 22d, 1861, with $100.04 costs. No opinion was delivered.

73, parcel thereof. In December of 1852, Joseph Crawsbaw, a manufacturer of carpets at Roxbury, Massachusetts, made an agreement in writing with the Defendants, who were engaged in business in New York, by which be agreed to manufacture and ship carpets to them for sale on commission. Tbe Defendants were to make advances thereon; and tbe agreement contained a clause as follows: “Fourth.

99 entered upon a verdict rendered on trial in that Court before Mr. Justice Bosworth and a jury. The action was brought by the Plaintiffs to recover of the Defendant the last instalment on a building contract, and for certain extra work.

<p>Tender— Offer to pay not equivalent.</p> <p>An offer to pay is not an equivalent of an actual tender. - -</p>

<p>Shipper — Bailor—■ Carrier may set up Right of Owner against, when.</p> <p>The right of the true owner of goods may be sot up by the carrier against the shipper or bailor in all cases — where the property has been delivered up to the true owner, either voluntarily or by legal coercion.</p>

<p>Pleadings — Allegations not denied, when Evidence — Documentary Evidence may he supplied on Appeal, when.</p> <p>Where there is an allegation in the complaint that the undertaking upon -which the action is brought, was executed by the Defendants, and the answer of the Defendants does not deny such allegation, the execution of the undertaking is admitted in the pleadings and need not be proved on trial.</p> <p>Where the only defect complained of at the trial is in respect to documentary evidence, it is allowable to supply such defect at the hearing on the appeal by producing the proper documentary evidence.</p>

<p>Gift of Husband to Wife — Action by Subsequent QredMor to set aside.</p> <p>In an action to appropriate property, the legal title of which is in the wife, to the payment of the debt of the husband, on the ground that the property was a gift from the husband to the wife in fraud of the rights of creditors, it must appear that the Plaintiff was a creditor of the husband at the time of the gift, or the action cannot be maintained.</p>

The will was executed on the 1st of December, 1865, and the testator died about five weeks afterward, being then eighty-nine years of age. He had made a previous will, about thirteen years before, which he had deposited in the hands of Nathan Raplee, who was named in it as one of the executors. Two or three years before his death, he sent for Hr. Raplee, who brought this will with him; and on its being read to the testator, he said it was all right.

Tbe action was brought to rescind a sale of stock in tbe Oswego Starch Company, made by tbe Defendant to tbe Plaintiff in February, 1857, and to recover $1,500, tbe price paid therefor, and certain payments made by the Plaintiff as a stockholder. The complaint alleged the facts upon which the Plaintiff claimed, and that the sale was fraudulent in fact and in law.

<p>Perjury — Attesting Execution of Deed — Indictment, what sufficient.averment. .</p> <p>It is perjury for a witness offering to attest the execution of a deed, falsely and corruptly to swear that he knew the grauto.r, the individual described in such instrument and who executed the same, that he was present and saw the grantor sign, seal, and deliver the same as his own act and deed, and acknowledge the execution thereof, and thereupon to subscribe the said instrument.as a witness of its execution.,</p> <p>An averment in the indictment that the oath was administered upon the “ Holy Scriptures ” is in that respect sufficient.</p>

— This was a common-law certiorari to review the proceedings of the Defendants for the removal of fenees of the relators, which were alleged to be encroachments on the public highway. On the 6th of July, 1857, complaint was made by one of the relators that the fenees on both sides encroached on the public highway.

— The action was in the nature of replevin, for the recovery of lumber taken under a tax warrant against the Plaintiff, issued by the trustees of the village of Bondout.

These cases involve substantially the same questions. The Appellants sued, respectively, as assignees of portions of the salary of Edwin Bouton, a clerk in one of the Police Courts in the city of New York. One of the causes was tried before Judge James, in the Supreme Court, and the other before Judge Monell, in the Superior Court. The Plaintiffs in each recovered, and the judgments were respectively affirmed at General Term.

<p>Real Estate — Devise to Qhureh — What Ohurch — Sow to he used.</p> <p>A devise of real property to the only church of the particular denomination named in the will then existing in Hew York is to be deemed to be a devise to that particular church, and not other churches of the same denomination subsequently established in How York. The devise being for the support of ministers of that particular church — when the income of the property becomes more than sufficient for that purpose, the surplus becomes a fund in the hands of the church to be used by it for any purpose lawful to the corporation.</p>

This action was brought against the defendants who were sureties upon the official bond of M. P. Jackson, as loan commissioner of the county of St. Lawrence, for loaning the moneys of the United States deposited with the State. The bond was dated January 15,1850.

<p>Negotiable paper — what enables Acceptor or Endorser to defeat action on.</p> <p>Nothing short of mala lides, or notice thereof, will enable the endorser or acceptor of negotiable paper to defeat an action brought upon it by one who is apparently a regular endorser or holder, especially where there is no defence as to the indebtedness.</p>

<p>Declarations made by the grantor of premises, after he has sold the same, even though he continue in the occupation of the same up to the time of making such declarations, are not competent evidence as affecting the rights of his grantee.</p>

<p>Will — Subscribing Witness, weight of h/oidence vjhen dead- — Acknowledgment what. — 2 It. S. 63.</p> <p>Where a subscribing witness to a will is deceased, and his signature thereto is proved, such evidence becomes strong or weak, according to the character of the deceased witness. If he was an uneducated man, not accustomed to subscribing wills, and ignorant of the legal requisites to their due execution, mere proof of the handwriting of such a witness would furnish but slight evidence of strict compliance with the requirements of the statute. But if such witness was accustomed to drawing and attesting wills, it would be otherwise. The statute does not require the testator to exhibit his subscription to the witness at the time he acknowledges his execution of the will. The statement that the testator had signed the paper in the presence of the witness, who had already attested it, accompanied by an exhibition of the paper and the declaration that it was his will, and the request to the witness to sign the attestation clause, is a sufficient evidence of an acknowledgment.</p>

<p>Real Estate — Parol Partition 'binding when.</p> <p>A parol partition, of real estate, followed by possession in accordance therewith, and the exercise of exclusive acts of ownership, is legal and binding, and will be enforced in the courts of this State.</p>

<p>Seal Estate — Joint Action against Claimant and his Tenant, when 'groper.</p> <p>Where a party claims title to real estate and puts a tenant in possession and invites action, against himself, he is not afterward at liberty to claim that the action to recover possession is not properly brought against him jointly with his tenant.</p>

This is an action upon a promissory note for • $100, dated August 14, 1861, given to Polly Plucker or bearer, payable six months after date. The defence to the note was upon the ground that it was given in settlement of a criminal prosecution, to wit, of a rape. The claim upon the other side was, that the note was given in settlement of the private damages only. The jury found in favor of the Defendants.

<p>Usurious Claim— Valid Claim — Same Bond— Valid Claim not void.</p> <p>Where a valid claim has been included in a bond which also covers a usurious one, the bond being held to be void because of the usurious claim it covers, the party may recover upon the original valid claim, which was not extinguished by being covered by a void bond.</p>

This is an appeal by the Plaintiff from a judgment of the Supreme Court in the Seventh District, entered in favor of the Defendant, upon a nonsuit, granted at the Ontario Circuit, in February, 1861. Held: and the Plaintiff was nonsuited. The General Term affirmed the judgment of the Court below.

<p>Note — Consideration, Influence with Officer to procure Unlawful Act.</p> <p>A note, the consideration of which is influence with a corporation officer to procure him, in violation of law and of liis duty, to pay a demand before, by law, it could legally be paid, is against public policy, and, in the hands of the party, or any one cognizant of its character, cannot be collected.</p>

<p>Statute of Frauds— Contract, void' in, part, void how far:</p> <p>If a part of an entire contract be void, under the Statute of Frauds, the whole contract is necessarily void. Every part of a contract dependent upon a void part thereof for the terms or condition of its performance, is void.</p>

<p>WUlP-Part void, 'part valid — ■Oónsiructión of:’</p> <p>Courts are inclined to so construe wills as to sustain and give effect to the intention of the testator, so far as the same can be done; and where a part of the provisions of a will are .valid, and a part are void, if the void parts can be separated from.-those parts which are valid, in harmony with the manifest intent of the testator, the valid portions of the will will be sustained.</p>

<p>An agent, authorized to take applications for insurance, should be deemed-to be acting within the scope of his authority where he fills up the blank application of insurance; and if, by his fault or negligence, it contains a material misstatement, not authorized by the instructions of the party who signs it, the wrong should be imputed to the company, and not to the assured.</p> <p>A policy of insurance should not be avoided for an error by the agent of the company, acting within the general scope of his power, on the artificial and unwarranted assumption that he is the agent of the other party to the contract.</p>

<p> ChaMelj Conditional'Sale of,■-when good. </p> <p>The sale of a chattel conditionally and delivery of the same; is good as between the vendor and vendee and all voluntary-assignees,- or persons taking title with knowledge-of. the transaction. But as against a bon& fide purchaser for value, the title passes absolutely, irrespective of the question whether the conditions have been performed by the vendee or not.</p>

The Defendant Thompson, by lease dated April 28, 1862, demised to Plaintiff and to David Logan, bis deceased partner, certain premises in tbe city of Brooklyn, for one year from May 1, 1862, with a privilege of continuing for an additional year, provided notice in writing was given before February 1,1863.

The action was for equitable relief; and on the hearing, the referee dismissed the complaint, on the ground that it did not state facts sufficient to constitute a cause of action. The judgment was affirmed at General Term in the seventh judicial district, the opinion of the court being delivered by Mr. Justice Johnson.

Prior to eighteen hundred and fifty-two, Nicholas Dean had been duly appointed by the Court of Chancery receiver of the rents and profits of lot 212 Broadway, in the city of New York. In that year an order was duly made by the Supreme Court, empowering and directing said receiver to lease the same for twenty-one years to the highest bidder, subject to be sooner terminated upon certain contingencies not material in the present action.

This is an appeal by the Defendant from an order of the General Term, reversing the judgment in his favor, entered upon the report of the referee, and granting a new trial. ' The Respondent claims the right to recover of the Appellant the sum of $500, and interest, under the following agreement: “ This is to certify that I agree to pay to Blaise Lorillard, in consideration of a certain piece, parcel, or tract of land, purchased of him as per deed, hearing date this…

Laban Russell, the father of the Plaintiff, and of the Defendants William II. Russell, Mary Ann Jewett, and Laban G. Russell, departed this life in the month of September, 1842, seized and possessed of real estate in the town of Rye, in Westchester county.

<p>Will — Statute of Descents — R. S. Part II Oh. 2.</p> <p>The estate comes to the intestate “on the part of the mother,1' where it was a gift by the grandfather to the mother for life, and remainder to her surviving issue, of which the intestate was one. '</p> <p>In such case, the mother dying, leaving two children her only surviving issue, on the death of one of the issue the estate descends to the father for life, with remainder to the survivor of the children.</p>

The action was for professional services rendered to a married woman, for the benefit of her separate estate; and the relief sought was, that the same be declared an equitable lien on such separate estate, and that so much thereof as might be necessary be appropriated to the satisfaction of the claim. On the first hearing, before Judge Mitchell, on the report of a referee, judgment was rendered for the Plaintiffs for a greater amount than on the last-trial.

Louisa Nash was arrested and committed by a police justice of the city of New York on a charge of larceny. The city judge of the city of New York allowed a writ of habeas corpus, upon which she was discharged, on the ground that the commitment was defective on its face.

<p>This court can entertain no appeal from a judgment at Special Term. The judgment must have been appealed to the General Term, and there have been determined before this court takes jurisdiction, as the Code only authorizes a review upon appeal from the actual determination made at a General Term.</p> <p>Goods taken and continuing in specie in the hands of the wrong-doer may be recovered back by the executor or personal representative of the owner; and if they have been disposed of, an action for money had and received will lie to recover their value.</p> <p>In no case, after action brought, will it abate by the death of the plaintiff, if the cause of action be such that it might have been prosecuted by the executor or administrator of the party.</p>

<p>Judgment — Power to reform — Pleading—Mistaken Averment— Variance.</p> <p>A party is not estopped by a mistaken averment of the law in his pleadings. But the Court will give such relief as he appears to be entitled to, notwithstanding' such mistaken averment.</p> <p>Where the opposite party has not been misled by such mistake, the party making the averment will not be precluded from asking such relief as the Court, upon a view of the case, shall deem him to be entitled to.</p>

<p>Seal Estate — Possession of Husband under Wife, not adverse — Damages—Interest.</p> <p>Where the husband is in possession under the title of his wife, his possession can in no sense be considered as adverse to her, as to those claiming under her.</p> <p>Under the Code, the Plaintiff seeking to recover possession of land may unite in the same complaint a claim to recover the land with a claim for damages for withholding the same.</p> <p>Interest is properly allowable upon damages for the unlawful detention of real estate.</p>

In November, 1860, Alfred Pindar procured from, the Defendant a policy of insurance against loss by lire upon a building in Bhinebeelt for one thousand dollars for one year; also for fifteen hundred dollars on his stock, such as is usually kept in country stores, for one year.

<p>It is the duty of the Supreme Court to cause charges to be preferred against an attorney, whenever it is satisfied from what has occurred in its presence, or from any satisfactory proof, that a case exists where the public good and the ends of justice require it to be done.</p> <p>An order to show cause, founded upon proper papers presented, served, with the papers, upon the attorney personally, is the proper mode of proceeding in such case.</p> <p>The Supreme Court has power to remove an attorney for good cause shown, by ordering his name to be stricken from the roll of attorneys.</p> <p>As a good moral character is one of the constitutional and statutory qualifications essential to the admission of an attorney, so he may be removed whenever he ceases to possess such qualification.</p>

<p>Insurance— Carrier's Insurable Interest — Negligence must cause Damage.</p> <p>A common carrier has an insurable interest in goods being transported by him to the extent of advances made, freight, and his legal obligations to the owner of the cargo, which is the fair value of the property carried by the contract of indemnity</p> <p>Although the Plaintiff was guilty of negligence, it will furnish no defence unless such negligence contributed to the loss and damage complained of.</p> <p>Where the damage consisted in the sinking of a boat loaded with grain and . the injury to the grain, the extent of the damage involves the price of the grain at the place of the disaster.</p>

This is an action founded on the statute of this State, passed April 13, 1855, by which compensation was given to parties whose property was destroyed by mobs or riots by an action against the city or county in which the property was situated.

<p>Assignment, preferential — Possession unchanged — Presumptive of Praud.</p> <p>In this State preferential assignments are not for that reason void, and an assignment authorizing the assignee to employ and pay all necessary attorneys' and clerks’ fees, etc., and to take and have a reasonable compensation for his services; also, to pay and discharge all reasonable costs, etc., is not thereby rendered void, because it authorizes no more than was before lawful for the assignee to do.</p> <p>The fact that there is no change of possession of the assigned property, in case of assignment for benefit of creditors, is not conclusive of fraud, but only presumptive thereof.</p>

On the 14th day of December, 1849, the Defendant and his wife conveyed to the Plaintiff certain real estate in the city of New York, and by the deed the Plaintiff covenanted that the premises were free and clear, among other things, of taxes and assessments. At the time of the conveyance there was a tax for the year 1849 of $189.31, which was a lien and encumbrance on the premises, and which the Defendant was then liable to pay.

Appeal by Alrick Hubbell from an order of the Supreme Court, in the Eighth district, affirming an order at Special Term, requiring the Appellant to pay to the treasurer of Monroe county, subject to the order of the Court, the unpaid balance of his bid, on a purchase under a judgment of foreclosure, amounting to §6,362.55, with interest from the 14th of July, 1849; being the surplus moneys on such sale claimed by the Respondents Cazet, Putnam, Hamilton and others, who were…