Volume 39 — Barbour's New York Supreme Court Reports

William E. Dunscomb, on the 2d day of February, 1852, leased the premises to Ira Wood, for the term of ten years, to commence May 1, 1852, and to end May 1, 1862, at the yearly rent of $900, payable quarterly, Ira Wood subsequently assigned and set over said lease to James Wood, who became the assignee of the lease of the whole of said premises, and was the owner of the whole unexpired term of said lease.

This action was brought by the Cumberland Coal and Iron Company against Allen M. Sherman, William B. Dean, and the Hoffman Steam Coal Company for the purpose of setting aside a certain conveyance of lands of the plaintiff, situated in - Maryland, and a certain transportation-contract made by the plaintiff, to and with the defendants Sherman and Dean, while Sherman was one of the directors of the plaintiff, which convey- , anee and contract were alleged in the complaint to…

THIS is an appeal from a decision of the surrogate of the county of Oneida, rejecting certain items in the account of Daniel Morgan, late general guardian of Sarah E. Morgan.

THIS was an action brought by the plaintiff as executor of Platt Richards, deceased, upon a promissory note, of which the following is a copy: “$820. One year after date we promise to pay Platt Richards, eight hundred and twenty dollars, with interest, value received. Amsterdam, April 1st, 1857. (Signed) James E. Warring. James B. Chapman.” And written across the back, “George 0.

This was an action brought by Andrew Comfort against Philip F. Fulton and Henry Soules, to recover damages for an alleged false imprisonment. In October, 1859, Soules, one of the defendants, being then a justice of the peace, issued a criminal warrant for the arrest of the plaintiff, upon the application of the other defendant, Fulton.

THIS action was brought to recover rent claimed to be due under and by virtue of a lease in fee, bearing date the 19th day of January, 1842, and made and executed by the plaintiff to and with the defendant and one Archibald Hoyt. The rent accrued between the 1st day of August, 1850, and the first day of February, 1858. The premises were situated in the city of Troy.

On the 17th of July, 1860, the plaintiff recovered, in the Bensselaer county court, a judgment upon appeal against the Troy and Boston Bail Boad Company, for $111.88. On the 6th of August, 1860, an execution was duly issued and delivered to the defendant, then sheriff of Bensselaer county, for collection.

THIS was an action on a recognizance and was tried before Justice Sutherland and a jury, at the October circuit, 1861, in Rensselaer county. The recognizance was taken before the Rensselaer oyer and terminer, and is as follows : “ The People vs. James L. McCoy. May oyer and terminer, 1860.

The action was brought by Ezra Spaulding to recover the possession of a farm of land in the town of Fulton, Schoharie county. During the pendency of the action Ezra Spaulding died, and the action was continued by order of the court in the name of the plaintiffs, who were his heirs at- law. The case was first tried before Justice Hogeboom and a jury, and a verdict was rendered in favor of the plaintiff, which was subsequently set aside and a new trial granted.

PPEAL from a judgment entered upon a decision at circuit, and motion for new trial upon exceptions. The cause was tried before Justice Hogeboom and a jury, at the Sullivan circuit, in September, 1860.

THIS action was brought to recover the value of certain personal property alleged to have been wrongfully taken and converted by the defendants. The defendants justified the taking, as sheriff and deputy sheriff, under an execution issued upon a judgment in favor of James Freeland and others against Stoddard S. Nichols. Nichols was in possession of the goods, and the owner thereof, until the 21st day of May, 1860.

THIS action was commenced in a justice’s court, before Erastus T. Peck, Esq. a justice of the peace of Durham in the county of Greene, by the appellants, to recover against the • respondent, for the alleged wrongful tailing and conversion of fifteen sheep.

THIS proceeding was under the act entitled “ An act to facilitate the closing up of insolvent and dissolved mutual insurance companies,” passed April 21, 1862. David Kimbark, the testator, on the 1st of April, 1851, made his note to the fiEtna Insurance Company of Utica, for $360, payable at such time or times as the directors of said company might require, agreeably to their charter and by-laws. The company was both insolvent and dissolved.

THIS was an action for assault and battery, tried at the Otsego circuit in December, 1861, before Justice Campbell and a jury. Defenses: 1st. A general denial; 2d. Son assault demesne ; 3d. Defense of the defendant’s close.

The action was brought by the plaintiffs as executors of Henry Sheldon deceased, to recover the sum of $85, with interest which was paid to the defendant, on the 8th of October, 1859, by Henry Evans, one of the plaintiffs, as agent of said Henry Sheldon, upon a bond and mortgage given by Uriah Gregory to John Peters, which said Sheldon had assumed and was hound to pay.

<p>THIS was an action for an accounting by the defendant. The facts appear in the opinion of the court.</p>

H the 28th February, 1861, the firm of T. S. Powell & Co. of Hew Orleans, made and delivered to the firm 'of Eushmore, Cone & Co. of Hew York, their note, dated on that day, for $1784.61, payable to the order of the latter firm, eight months after date.

THE plaintiff applied to this court for an admeasurement of her dower in certain lots of land in the city of New York. Such lots had been aliened by the husband during his life. Since the alienation by the husband, part of the lots had been built on, by the purchaser.

A PPEAL by the defendants from a judgment entered at a 1a special term, on the verdict of a jury. By an act passed in 1848, (Laws of 1848, p. 249,) the city of New York was divided into six judicial districts, (§§ 1, 7.) By § 3 of said act the common council of said city were to appoint and. fix the salary of a clerk for each of said courts. By § 9 of said act the clerks appointed under the act were to account for and pay into the city treasury all fees and perquisites.

<p>Construction oe Will.—Distribution pee Stirpes and pee Capita.—Costs in Surrogates’ Courts.—Allowance of Counsel-fees.</p> <p>Under a bequest to A., and the children of B., in equal proportions, share and share alike, the legatees are entitled to take per capita.</p> <p>The surrogate has no power to award counsel-fees to be paid out of the estate to both the contesting parties.</p> <p>Costs in Surrogates’ Courts, awarded to the party entitled, must be taxed according to the Common Pleas rates of 1837.</p>

<p>APPEAL by the plaintiff from a judgment entered upon the report of a referee.</p>

THIS was an action on a note made by the defendant, and given to the Granite Insurance Company, the defendant receiving the scrip of that company for it. The note is dated February 14, 1853, and this action was commenced May 13, 1859.

THIS is an appeal from a judgment entered upon the report of a referee in favor of the defendant. The action was originally against Jacob H. Mott as a co-defendant, hut he died prior to the report bf the referee, and the suit has since been continued against Garret S. Mott alone. The plaintiff claims to recover $97,254.90 of alleged overdrafts, drawn upon and paid by it to the defendant, through his agent, J. H. Mott.

APPEAL by the plaintiff from an order made at a special term, vacating and discharging an order of arrest, as to •the defendants Kennedy and Davis and modifying it as to the other defendant, Smith.

<p>The claim for dividends improperly declared by an insolvent banking corporation belongs to creditors, and not to the receiver. The right of action is in them, and the receiver cannot collect such moneys for the benefit of stockholders.</p> <p>Nor is it a cause of action that such dividends were paid to persons who were indebted to the bank.</p> <p>Where, in an action by the receiver against the former president of a bank, the complaint alleged that the defendant used fictitious notes in lieu of . money of the bank, which he fraudulently used and disposed 'of, and that such notes were among the assets of the bank; Held that these facts, if proven, would be sufficient to put the defendant on his defense; and that the claim was one which belonged to the receiver, and might be collected by him.</p>

THIS action was brought by the plaintiff, as indorsee, - against the defendant, as maker of a promissory note payable to the order of M. Lichtenstein, and indorsed by him.

This action was brought by George P. Bradford, M. Furman Hunt, John T. Clark, and Isaac P. Rogers, against Edward Fox, to recover $75, for goods sold.

This action was brought by Francis Skinner, Henry H. Horton, Edmund F. Cutler, Josiah Bardwell, and William P. Brent-well, against George H. Stuart, and twenty-four others, to aid the levying of an attachment, issued as a provisional remedy in favor of the plaintiffs, in an action against Joseph W. Shepherd and William R. Moore; and, also, to determine the priority among certain of the defendants, who were creditors of Shepherd and Moore.

THE plaintiffs are corporations. The creation of the first named was authorized by an act of the legislature of the state of New York, and the second by the legislative authority of Canada. They erected the suspension bridge across the Niagara river below the falls, extending from the bank of the river in the state of New York, to the bank of the river in Canada.

APPEAL, by the plaintiff, from a judgment entered at a special term, dismissing the complaint. The action was brought by the plaintiff claiming to be the equitable assignee of a policy of insurance.

THIS was an action to recover the possession of certain premises in the town of Westfield, Richmond county. The plaintiff was nonsuited, and her complaint dismissed, on the trial at the circuit, and upon exceptions taken, she moved for a new trial.

The coinplaint alleged that on or about the 12th day of April, 1857, in the city of Sew York, the defendant falsely and maliciously, without any just cause or provocation, arrested or caused to be arrested, the plaintiff in the public streets of said city, and forced and compelled him, the plaintiff, to be taken through divers public streets of said city, in charge of a policeman, who acted under the charge, instigation, and direction of the defendant, to a certain police…

THIS case comes up on return to a certiorari, brought to review the proceedings of the trustees of the village of Yonkers, in respect to grading the extension of Warburton avenue and building a bridge thereon, over the Heperhan or Sawmill river, in said village.

THIS was an appeal by the plaintiffs from a judgment rendered at the circuit, after a trial by jury. The action was brought upon a promissory note, made by the defendant, dated October 18, 1855, and payable to E. B. Litchfield, or order, for the sum of $2673.37, one year after date. It was claimed by the defendant, that on the ,8th day of November, 1858, the note belonged to one A. G-.

The action was brought upon several notes made by the alleged general partner in a special partnership, and the defendant Ohace was sought to be held thereon, on the ground that he had not paid in, “in cash” the amount of capital which the papers filed alleged he had; the payment having been made in goods &c. The judge at the circuit held that he was' not thereby made a general partner, but was liable under the statute, for the engagements of the firm, up to the time for…

Oil the 27th of November, 1837, the Utica and Schenectady Rail Road Company leased, during the continuance of its charter, to the above defendants, that part of the Utica and Schenectady rail road lying between Sandridge and State street in the city of Schenectady, to be used in common by the two companies, for which use the lessees were to pay a rent of $1000 a year.

The complaint was for killing two of the plaintiff’s cattle on the defendant’s road, a cow in January, 1859, and a bull in October, 1859. It appeared that the cow was running at large and wrongfully on the highway where she was killed as the defendant’s road crossed the highway.

PPEAL by the defendant from a judgment entered upon the report of a referee. The action was upon a policy of insurance issued by the defendant on the 1st of May, 1852, for $2500 for three years, upon the stock in trade in Ho. 146 River street, Troy, consisting chiefly of ready made clothing.

THIS is a common law certiorari awarded by the supreme court, upon the application of Joseph Boice, for the purpose of reviewing the decision of Henry Brodhead, jun. county judge of Ulster county, transferring to Melissa Boice the custody of her infant child.

PPEAL from a judgment of the Rensselaer circuit and special term, dismissing the plaintiffs’ complaint with costs. The action was tried before Justice Ingraham, without a jury, at a circuit court and special term, held at the court house in Troy, on the 12th day of October, 1861.

The action was brought to recover damages for injuries occasioned to the plaintiff’s back on the 2d of October, 1857, by reason of the negligence of the defendants in not keeping River street, in the city of Troy, in a safe and proper condition, by which negligence a drain running diagonally from Mrs. Birge’s house on the east side of River street, across River street into the drain of Hoosick street, gave way while the plaintiff was passing-south through River street, near…

The action was brought by the supervisor of the town of Lansingburgh, in the county of Rensselaer, against Henry S. Tracy, collector of said town, and Jonathan E. Whipple and Isaac T. Grant, the sureties of said collector in his official bond. The action was originally brought by James I. Adams, as ' supervisor of said town; and the appellant, as successor of Adams in that office, is substituted as plaintiff.

The cause came on for trial at the Columbia circuit in September, 1861, when the presiding justice ordered a verdict for the defendants, to which the plaintiff’s counsel excepted. The action was brought upon an undertaking executed by the defendants and taken by the sheriff of Columbia county at the commencement of a suit to recover the possession of personal property, once Known and well known as an action of replevin.

THE receiver, under the act of 1849, ch. 226, (Less. Laws, p. 340,) and within the. time (180 days, as enlarged by the judge,) named in section twelve, converted all the assets which he could into money, by collection and by a sale of all such assets as the judge (to whom an application for leave to sell all the assets was made) authorized to be sold.

THIS action was commenced in 1853, to obtain the decree or judgment of this court, among other things, that a mortgage given by Ephraim Beach, on the 4th day of January, 1836, to one Francis J. Marvin, to secure originally $52,000 upon lands in the town of Catskill, in the county of Greene, was fully paid, and should be discharged of record.

<p>The defendant, being the owner of a judgment against H., rendered by a justice of the peace, upon which an execution had been issued and levied on sufficient property, sold the same to the plaintiffs, who gave their promissory notes for the amount, which were received in full satisfaction for the judgment; the defendant agreeing to.assign the judgment to the plaintiffs the next morning. Instead of doing so, however, he receipted the execution in full, and the justice thereupon discharged the judgment. ■ H. then gave a chattel mortgage upon the property levied on, to other persons. The defendant kept the notes, and refused to assign the judgment. Meld that the evidence showed a good cause of action in favor of the plaintiff, for the breach of the defendant’s agreement, and that it should have been submitted to the jury,</p>

THIS was an appeal from an order of the county judge of Livingston county, acting as surrogate, admitting the will of David Gamble to probate. The will was executed in June, 1859, and the testator died September, 11, 1860.

THIS action was brought by the plaintiffs as assignees of Bartholomew O’Brien, to recover the value of c’ertain articles of personal property taken from him by the defendant. The defendant justified as sheriff of Monroe county, under a judgment and execution in favor of Gr. A. Madden, against one Michael O’Brien. The proof showed that several years prior to 1855 Bartholomew O’Brien failed in business, and was then in embarrassed circumstances.

<p>APPEAL from a judgment of the county court of Steuhen county, affirming the judgment of a justice of the peace, in favor of the plaintiff, for $58.67, damages and costs,</p>

ACTION to recover the possession of personal property. Defense that it was the property of James' W. Sawyer, and that it was taken by the defendant, as sheriff of Monroe county, under an execution issued upon a judgment recovered in this court against him.

THIS was an action of ejectment.' .The defendants were husband and wife. On the. 29th of March, 1851, B. McFarlin and wife conveyed the premises in question to the defendant William Singer. On the. 4th of April, 1854, he conveyed the .same to Elizabeth Singer, then Elizabeth Knowles; and on the 19th day of the same month, William Singer and Elizabeth Knowles intermarried.

THIS was an action of, ejectment, tried at the Monroe circuit, in October, 1861. There was but one exception taken, which was to that part of the charge of the court to the jury, in which it was stated, as matter of law, that for the projecting of the defendant’s eaves, or gutters, over the land of the plaintiffs, an action of ejectment would not lie. . The jury found a verdict in favor of the defendant.

THIS was a motion by the plaintiff, for a new trial, upon a case and exceptions ordered at the circuit to be heard at the general term, in the first instance.

THIS action was brought by the plaintiff as one of the executors of &c. of Samuel Ludington, deceased, for a construction of the last will and testament of his testator, and to obtain the direction… Held: divided and distributed as hereinafter mentioned, by my said executors. Sixth.

THIS case is upon a complaint in equity, to set aside several conveyances as fraudulent. George Remerschneider, on the 3d June, 1861, conveyed two certain lots of land in Canajoharie, Montgomery county, to the defendant John Bigler, who, on the same day, conveyed the same lands to the defendant Catherine Remerschneider, who was the sister of Bigler, and the wife of George Remerschneider.

THIS was a controversy submitted to the court by the parties, under section 372 of the code of procedure. The facts agreed upon are these: The defendant is a banker, in the city of Rochester, and as such was indebted to the plaintiff in the sum of $130, for so much lawful money of the United States, deposited with him prior to February, 1862, payable; upon demand.

The plaintiff sued to recover damages for the seizure and sale of certain personal property ; and the defendant justified the taking, as town collector, under a tax warrant issued to him as such. The plaintiff recovered a judgment before the justice.

The plaintiffs, together with the defendant Elizabeth A. Coapman, were the executors of Ambrose Foreman, deceased. The plaintiff Susan Coapman was a married woman. The defendant Elizabeth A. Coapman refqsed to be a plaintiff, and was therefore made a defendant.

THE defendant is a rail road corporation operating a rail road from Blossburgh, in Pennsylvania, to Corning, Hew York, a distance of forty miles.

<p>The appropriation of a highway, by a rail road company which enters upon and occupies such highway with the track of its road, is the imposition of an additional burden upon, and a taking of the property of, the owner of the fee, within the meaning of the constitutional provision which forbids such taking without compensation; and the company can derive no title under acts of the legislature and the license of municipal authorities, without the consent of the owner of the fee, or the appraisal and payment of his damages in the mode provided by law.</p> <p>There is no distinction in this respect, between rail roads operated by steam, and those upon which animals, only, are used as a motive power.</p>

THE plaintiffs, as widow and heirs at law of Orlando Hine, deceased, bring this action to compel the executors of Elkanah Hine to carry out and execute a provision in the will of the latter in favor of Orlando Hine and his heirs. Elkanah Hine made his will May 24, 1852, and died August 9, 1857. Orlando Hine» died April 12, 1858.

EJECTMENT for a house and lot in Syracuse, tried before a referee. The plaintiff proved title in himself derived from the state through several mesne conveyances, including a conveyance from the defendant, the last link in the chain being a deed of conveyance from a prior owner, one Andrew J. Fish to himself, 'dated August 12, 1859.

Upon an appeal from the decree of the surrogate of Onondaga, admitting to probate the will of Samuel Dill, deceased, the decree was reversed, and issues awarded to be tried at a circuit court in Onondaga county. (11 Ante, 214.) The issues were tried before Mr. Justice Bacon, and evidence given by the contestants, respectively, touching the questions submitted to the jury, to wit:— 1.

APPEAL by the defendant from an order made at a special term, awarding a writ of peremptory mandamus.

<p>APPEAL from a judgment entered at a special term, dismissing the plaintiffs’ complaint. The action was brought by judgment creditors of the firm of Gray don, Mc-Greery & Go. to set aside a general assignment made by them, dated, acknowledged and filed May 7,1861, to John-O, Martin and John W. Graydon, claimed by the plaintiffs to make a fraudulent preference to Samuel Graydon, to whom they also alleged that Graydon, McOreery & Co. had made a fraudulent transfer of property, also sought to be set aside. The defendants were the assignors, assignees and Samuel Graydon'. The grounds on which plaintiffs by their complaint claimed to set aside the assignment, were, 1. That there was no actual or continued change of possession of the assigned property. 2. That the assignors, in contemplation of their assignment, provided money to Samuel Graydon with which he purchased $86,675.54 of their business jiaper from different creditors, at rates under 50 cents on the dollar, under an agreement with the assignors that he should purchase the same for their use, and be preferred for their benefit in the assignment for the full amount of such paper, and that he was so preferred. No evidence was offered to sustain the first charge. The second the plaintiffs modified on the trial, to the claim that Samuel Graydon, before the assignment, and after Gordon, MeCreery & Co.’s failure, purchased their notes at a discount, which were preferred to him in full, and also secured by collaterals, which showed a secret trust on his part for the benefit of the assignors. The action was tried at the circuit before the court without a jury. On the trial the plaintiffs also contended that the assignment was fraudulent, because it preferred certain creditors, who had previously signed a paper, agreeing to compromise with the assignors at fifty per cent, payable at an average of twelve months, from April 1, 1861, and to release the assignors if they should eventually, by preference in an assignment, if the assignors should find it necessary to make one, or in any other way receive payment of the compromise.</p> <p>The facts as found by the justice were as follows:</p> <p>1. That the plaintiffs recovered the several judgments at the time, for the amounts against the defendants and the same were docketed and executions issued thereon to the sheriff of the city and county of New York, where said defendants resided, and returned unsatisfied as alleged in the complaint in this action. 2. That the defendants William Graydon, James Graydon, Thomas A. McCreery, George H. Seely and William A. Scott composed the firm of Graydon, McCreery & Co. at the time alleged in the complaint. 3. That creditors of said firm of Graydon, McCreery & Co. to the amount of over $150,000 mentioned in Schedule B of their assignment, executed the following paper: “ The undersigned, creditors of the firm of Graydon, McCreery & Co. in consideration of these presents and of one dollar to each of us paid, do hereby mutually agree to accept in satisfaction of our respective demands against that firm fifty per cent of the amount thereof to be paid at the average time of twelve months, (say six, nine, twelve, fifteen and eighteen months or dates equivalent thereto,) from the first day of April next. That all notes which we hold or control against them shall be deposited in the hands of William Watts, Esq. to remain until the said fifty per cent shall have been paid and then to be surrendered to Graydon, McCreery & Co. It is provided however that if the said Graydon, McCreery & Co. shall find it necessary to make an assignment or other general disposition of their property and shall secure the payment of the said fifty per cent of our debts, either by preference in such assignment (after confidential debts) or by turning out property or collaterals to secure the same, and if by such means we shall eventually receive payment to extent of said fifty per cent, then and without regard to the time above limited, such payment shall be in full discharge of our respective debts. Dated Hew York, March 7th} 1861.” That the amounts for which such creditors are preferred by the said assignment, as stated in said Schedule B, are fifty per centum of the amounts for which such parties were creditors of Graydon, McCreery & Co. 4. That on the 7th of May, 1851, the defendants composing the firm of Graydon, Mc-Creery & Co. executed an assignment to the defendants, John C. Martin and John W. Graydon, with certain schedules annexed, a copy of which is set forth in the complaint in this action ; that said assignment was afterwards and on the same day recorded in the office of the clerk of the city and county of Mew York. 5. That on the 25th day of May, 1861, the said defendants composing the firm of Graydon, McCreery & Co. made and filed in the Mew York county clerk’s office an inventory or schedule according to the act passed April 13, 1860, entitled “An act to secure to creditors a just division of the estates of debtors who convey to assignees for the benefit of creditors,” verified by the oaths of the assignors, according to said act, in which the debt of Samuel Graydon of $86,675.54, preferred in said assignment, is set forth. 6. That many of the promissory notes of which the said debt consisted were purchased by the said Samuel Graydon of the holders thereof, respectively, some in the month of March and one lot on the eleventh day of April, 1861, before the execution of said assignment, at the rate of from thirty-five to fifty per cent on the dollar; that none of such notes were purchased by the firm of Graydon, McCreery & Co. or either member thereof, and that the purchase of such notes was not, nor was the purchase of any or either - of them for the use or benefit of, or made by or with money furnished by Graydon, Mc-Creery & Co. "or either of them, or on any agreement that they or any or either of them should be preferred in any assignment by Graydon, McCreery & Co. for the full amount thereof or for any amount, or that the same or any or either of them should be held by said Samuel Graydon in trust for the use of said Graydon, McCreery & Co. any or either of them. That said assignment was not made in pursuance of any agreement, that the said notes or any or either of them should be preferred therein; nor was there any agreement between the said assignors and Samuel Graydon, that they would make an assignment preferring him to any amount or for any thing. 7. That the defendants William Graydon, James Graydon, John W. Graydon and Samuel Graydon are brothers ; that the defendants John W. Graydon and Samuel Graydon were members of the firm of Graydon, Swanwick & Co. and that the defendant John C. Martin is a brother-in-law of William Graydon ._a'nd also married a niece of said William Graydon. 8. That the plaintiffs were respectively creditors of the defendants.composing the firm of Graydon, McCreery & Co. as such partners at the time of the execution of said assignment for the debts for which they respectively recovered the said judgments against said defendants. 9. That the said instrument bearing date the 7th of March, 1861, and the said assignment bearing date the 7t,h of May, 1861, were separate and distinct transactions and were not parts of one original plan or agreement; .that neither of said instru'ments entered into or formed part of or should be construed with reference to the other. 10. That the said assignment was not made by said Graydon, McCreery & Co. with intent to hinder, delay or defraud their creditors or the plaintiffs, or in trust for the use of the assignors, or by collusion with the assignees or said Samuel Graydon, and that the same was not fraudulent and void. The judge found, as conclusions of law: 1. That said instrument of the 7th of March, 1861, and the assignment of the 7th of May, 1861, are and were separate and distinct transactions, and that said assignment should not he construed with reference to the said instrument as entering into or forming part thereof. 2. That the complaint of the plaintiffs should be dismissed with costs, and that the defendants have an allowance of two hundred dollars.</p>

The action was brought to charge the separate estate of the defendant Millie D. Powers, a married woman, with the payment of $629.50 and interest, being the price of certain farming stock and implements on a farm near Tarrytown, in the town of Mount Pleasant, alleged to be a part of her separate estate, which stock and implements were claimed to have been sold and delivered to her by the plaintiff, on the 31st day of October, 1856.

on the report of a referee. The following facts were found by the referee : That the defendants, in April, 1857, agreed with Thomas 'McNair to purchase teas, and sell the same for him, as his commission merchants and factors, on a commission of 2|-per cent for buying, and 2|- per cent for selling with guarí anty.

Wells & Coi to construct the mason work of the aqueduct, which the former were building for the city of Brooklyn. Henry S. Wells & Co. made a sub-contract with the defendant 8. A. Parkes, and one Dunham, to do a section of the work contracted to be done by them for the Nassau Water Company; the latter consenting to such sub-contract. Subsequently, Dun-ham assigned his interest to Parkes.

<p>Goods were sold by G. to B. in New York, to be paid for on delivery at Milwaukee by B.’s acceptance of two drafts for the price, to be drawn on him by G. Before the property reached Milwaukee B. left that place, after instructing his agent to inform G. that be would not receive the same, and to return it to G. if it should arrive. The property reached Milwaukee, and drafts being drawn on B. for the price, they were returned without acceptance. Held that no title to the property vested in B., and that he had no interest therein which was subject to levy and sale on execution against him.</p> <p>Held, also, that a sale of the goods by B. to another did not carry a right of action for a previous conversion ; and that the purchaser could not maintain trover against tile sheriff, without a demand.</p>

4PPEAL from a judgment entered at the circuit, on a trial before the court without a jury, and from an order subsequently made, at special term, denying the defendant^ motion for a new trial. The action was brought upon two promissory notes, in the words and figures following $ Four months after date I promise to pay to the order of John Dill, Esq. six hundred and thirty-six -¡Vir dollars, value received, at the Merchants’ Exchange Bank.

The referee found, the following facts : John De Mott, in the year 1852, was engaged in consigning wheat to J ones, Himrod & Titus, a mercantile firm in the commission business in the city of Hew York, to be sold by them on his account, and upon which he received from them advances. To protect Jones, Himrod & Titus, De Mott had placed in their hands a promissory note for $2500, signed by himself and Swarthout as security.

PPEAL from an order made at a special term denying an application for a mandamus, directing the register of the city and county of Hew York to record a certificate of the payment of a mortgage. The mortgage was payable to two persons, describing them as “executors,” but the money to secure which it was given was made payable to them or their personal representatives.

<p>A guardian ad litem cannot of his own mere motion, and without the order of the court, make an absolute settlement of the whole matter in controversy, so as to hind the infant.</p>

OTION for a new trial on exceptions, ordered to be heard in the first instance at the general term. Two actions were commenced, to recover damages of the defendant, Tobias Warner, and Jedediah Miller, since deceased. The first was tried before a referee, who repotted in favor of the plaintiff. The judgment entered on this report was reversed on appeal.

On the 19th of November, 1860, Lucas Clark was indebted to Eobert T. Grant in the sum of one hundred dollars, and being at that time in the occupation and possession of a farm of land and certain personal property, he executed and delivered to the said Grant a chattel mortgage covering two heifers.

4 PPEAL from a judgment entered at a special term on a decision of the court, upon a trial at the circuit without .a jury. The case was tried at the Rensselaer county circuit before justice Peokham. The action was on a note dated Troy, January 7, 1855, executed by one L. R. Sargent, and payable to the order of Robert Christie, jun. the defendant; by him indorsed to Mrs. Gr.

The action was brought by the plaintiff as payee and holder of a check drawn by Gfeorge W. Wilson on the Troy City Bank, for $274.08, payable on the 19th day of June, 1859, and indorsed by the defendant. The check was payable to the order of the plaintiff. It was negotiated to the plaintiff by Wilson, in payment for property sol’d, being at the time indorsed by the defendant.

.The action was brought to recover damages for the breach of an alleged executory agreement to sell to the plaintiff’s assignor, James E. Sutphen, a quantity of hops, and was tried at the Schoharie circuit in ¡November 1861, without a jury. The defendant, by his answer, denied the making of the agreement, and also set up as a defense, that the contract if made, was void by the statute of frauds. The evidence of the contract consisted in certain written instruments.

APPEALS from judgments rendered upon decisions of the judge at the circuit. These actions were all tried together, at the Schoharie circuit, hy consent, before Justice Hogeboom, without a jury. They all related to the title to a lot of land in Seward, Schoharie county.

ACTION brought by the plaintiff in a justice’s court, against the defendant as gate-keeper on the Rochester and Webster plank road, for penalties incurred in demanding and receiving tolls of the plaintiff for passing the gate; he claiming to he exempt from toll. The plaintiff was a farmer residing upon his farm, consisting of about ninety acres, in the town of Irondequoit, about a quarter of a mile west of the defendant’s toll-gate.

<p>In respect to their creditors, copartners, after the dissolution, are joint debtors, and nothing more. What the joint makers of a promissory note may not do to enlarge, prolong or continue existing liabilities, or to create a new one in regard to the debt, copartners, after dissolution, may not do.</p> <p>And whoever makes a promise or an acknowledgment, either orally or in writing, or by a payment of principal or interest, which is to have the effect to rescue a debt from the force of the statute of liinitatiohs, must be the party to be charged, or be duly authorized by the party to be charged.</p> <p>One copartner cannot, after the dissolution of the firm, bind his copartner by a new promise, or revive a debt barred by the statute of limitations by a promise, or by a payment of principal or interest, made either before or after the lapse of the six years mentioned in the statute.</p> <p>Where the plaintiff left With the defendants a sum of money, taking from them a receipt for the amount, specifying that it was “ to his credit on our books, at six per cent interest,” but containing no promise, and mentioning no time of payment; SeU that this was to be construed as a loan or deposit of money to be repaid on demand, With iAterest.</p> <p>And that no action would lie to recover the money, mentioned in the receipt, until after an actual demand and refusal.</p>

<p>'||OTION for judgment, upon a special verdict.</p>

The action was brought to recover the proceeds of a note, made by the Houston and Texas Central Rail Road Company, and deposited with the defendant for collection. _ The referee re¡Darted in favor of the plaintiff, and the defendant appealed from the judgment.

rilHIS is an appeal from an order made at a special term i directing a peremptory mandamus to issue commanding the respondent to unite with the relator in designating four newspapers published in the city of Hew York, having the largest daily circulation, viz : the “Hew York Herald,” the “New York Sun,” the “New York Tribune,” and the “Hew York Times,” in which to publish the advertisement in pursuance of section 2 of the act of the legislature, chapter 227, passed April…

<p>MOTION for judgment on a verdict taken at the circuit, subject to the opinion of the court at general term.</p>

THE plaintiff, as special receiver of the effects of the late North American Trust and Banking Company, commenced this suit in May, 1860, for the purpose of foreclosing a mortgage upon certain lands in the county of Monroe, executed hy Bush the appellant, to Abraham M. Schermerhorn, bearing date Feb. 28, 1838, for the sum of $3044, payable with semi-annual interest on the 1st of December, 1846.