Volume 4 — Abbott's Court of Appeals Decisions

Mercy Ranger brought this action against Charles B. Goodrich, in the supreme court, to obtain satisfaction of a mortgage.

Richard Ratcliffe sued H. $T. Gray, in the supreme court, for trespass on lands. The only question was, the location of their boundary line. Held: held, in an opinion by Bacon, J., that the chain of evidence to establish practical location and acquiescence for not less than fifty years ■Was strong and continuous.

Henry Rawls and George S. Seymour sued John G. Deshler, in the Buffalo superior court, to recover the value of a quantity of corn. On September 18, 18G0, one A. L. Griffin, of Buffalo, purchased, or agreed to purchase of the defendant a quantity of white corn. The defendant had the corn on storage at the Hatch elevator.

Elizabeth Read sued the city of Buffalo., in the Buffalo superior court, on a judgment which she had. recovered in a justice’s court of that city held by one Albert S. Merrill, a… Held: that although there was some doubt whether Merrill was an officer de jure, he was acting such de facto, until the day when his successor could and did qualify. They accordingly reversed the judgment of the special term, by which plaintiff had been nonsuited. Defendant appealed to this court.

George Fred Eeed sued the Board of Education of the City of Brooklyn, in the supreme court, for compensation under a special contract for work and materials in erecting a schoolhouse, to be paid for’… Held: that in the absence of any finding on the point, they must assume that the referee found that the defect was not supplied, and that there was no waiver by the defendants of the defect. Plaintiff appealed.

Colba Reed, Borut Richtmyre, De Witt C. Stryker, John M. Branched, Elizabeth Boughton and Elisha Hammond, brought this action, in the supreme court, against Peter M. Stryker and Catharine M., his wife, Sabina Stryker, and George Manning, to set aside fraudulent conveyances made by the debtor of the plaintiffs, Peter M. Stryker.

The Eeformed Protestant Dutch Church of Westfield, in Staten Island, sued Susan D. Brown, as executrix of David Brown, deceased, on the… Held: that although it did not appear by the evidence that testator promised, after the incorporation, to pay his subscription, it did appear that after the preliminary organization and the execution of articles of association, the testator frequently told those in eharge of the erection of the church edifice to go on and finish it, and he…

Mabel Reynolds brought this action, in the supreme court, against Schuyler Eeynolds, her husband, for a separation from bed and board forever, on the ground of cruel and inhuman treatment. Defendant’s answer denied the cruel and inhuman treatment alleged in the complaint; and set up that after the alleged committal, of the several acts complained of, the plaintiff had, from October, 1857, to April, 1858, continued voluntarily to cohabit with him.

Henry Gr. Rice and others sued Ralph H. Isham, for money paid. Held: and that on the next day a second meeting was held; but that the plaintiffs had no notice of such movements until on or about July 13, 1854; that said company was not completely organized, or authorized to commence business until December 13 in that year; that the plaintiffs had never received any notice forbidding them to pay their…

John H. Richards, as executor of Platt Richards, deceased, sued George 0. Held: as a conclusion of law: I. That tha defendant, George 0. Warring, signed with the intent to become liable to pay the same to the payee. II. That the plaintiff was entitled to recover against all the defendants, as makers, the amount of the note.

John G. Eichtmyer sued Burton G-. Morss, Luman Reed, and Roman H. Gleason, in the supreme court, to recover the value of a certain building located on the lands of the defendants, which he claimed as owner, and which was taken possession of and removed by defendants. The building was erected by one Vroman in the fall of 1849, at which time the land upon which it was erected was owned by Alonzo 0. Paige and others.

Wildey Rickerson sued Paul Raeder, in a justice’s court, to recover the value of a colt and a rope halter,, which the plaintiff alleged had been taken from him by the defendant. Defendant set up title under a chattel mortgage; which plaintiff in reply claimed had been paid. On the trial the following facts appeared: One Herman Heinick, who was the original owner of the colt, had mortgaged it to the defendant to secure the payment of eighty dollars.

George Eider—or Eeider—(for whom, on his death pending the suit, Paul and Barbara Eider, administrators, were substituted), brought this action against William D. Powell, to compel specific performance of a parol contract made by defendant to give a bond and mortgage, or to have a bond and mortgage which he had given under the contract reformed, so as to conform to the parol contract between the parties under which it was alleged they were given.

Barnard 0. Ring and Charles H. Richardson sued Daniel Steele and Elijah Smith, to recover the undivided half of four acres of land. Both parties claimed title under one Joseph Steele, the former owner. Joseph Steele, on February 1G, 1852, executed a deed conveying an undivided half of the premises to the plaintiffs. The consideration, the receipt of which was acknowledged in the usual form in the deed, was two hundred and fifty dollars.

Amos and Eli Robbins sued Stephen D. and H. A. Dillaye, in the supreme court, on promissory notes made by Stephen, and indorsed by H. A. Dillaye; to S. Leland & Co. The maker, a resident of Syracuse, N. Y., applied to the Lelands, of New York city, for a loan, and it was agreed between them that the Lelands should discount his notes, paying him the amount, however, in bills of the Valley Bank of Hagerstown, Md., in which they were interested, and from which they obtained the…

Reuben Robie, and two others, trustees of school district ¡No. 5, in the town of Bath, brought an action in the nature of ejectment, in the supreme court, against William Sedgwick and Richard Hardenbrook, to recover possession of the school-. house lot.

August Rolker and others, constituting the firm, of Rolker, Mollmann & Go., sued the Great Western Insurance Company in the New York superior court on a policy of marine insurance.

Plaintiff brought this action in the supreme court, against Sarah Eames and Charles P. Kirkland, to obtain, from trust property in the hands of Kirkland, satisfaction of a judgment recovered by plaintiff against the Manchester Manufacturing Company, of which defendant Eames was a stockholder.

Henry Boraback sued Almas Stebbins, in the supreme court, to recover the value of a barouche sleigh, of which the plaintiff claimed to be the owner, taken and converted by the defendant. The material facts appearing on the trial were as follows: One E. D. Cornwell and Harriet Cornwell (wife of one James Corn-well), were partners in the livery business at Homer, in- the county of Cortland, and, as such, were the owners of certain real and personal property.

Chaimcey Rose, executor of John Rose, deceased, commenced this action in the supreme court, against Henry Rose and others, seeking to have the nature and extent of the rights of the parties mentioned in the will of John Rose judicially ascertained and established, and especially that certain charitable donations contained in clause 9 of said will be decided to be valid or invalid.

Henry W. Rosebrooks sued William B. Dinsmore, president of Adams Express Company> in the New York superior court, to recover the value of goods shipped for plaintiff by the defendants in the fall of 18G2, i'rom New York, to a consignee (Cantwell) at Harper’s Ferry, Virginia.

Simeon Rouse sued Ebenezer Lewis, in the supreme court, for damages for breach of a contract to sell and deliver within a day named, two mowing machines, which at the time of contracting were in course of construction or alteration, at defendant’s shop. Plaintiff paid for the mowers at the time of making the contract. The only question of fact litigated was whether they were to be delivered on June 27, as claimed by plaintiff, or on July 4, as claimed by defendant.

William L. Rowan su^d Charles Kelsey and others, in the supreme court, in ejectment, to recover the possession of certain premises in Brooklyn, and for damages for withholding them.

Amos Rowley sued defendants, in the supreme court, on a policy issued by them on June 21,1861, insuring him for one year from June 11,1861, for three hundred dollars on dwelling-house, and other sums on furniture, &c. The policy coniain.d a clause making it cease and of no effect “ if the said insured, or his, her or their assigns, shall hereafter make any other insurance on the same property, not consented to by the secretary in writing.” Annexed to the policy as a part…

John Henry Herbert St. John (an infant, by Beverly Robinson, his guardian), Henry Joseph St. John and Ferdinand St. John, brought an action in the supreme court, against James Pierce, for the recovery of real property. The complaint cpntained four counts.

Joseph Sandford and Sarah E. Sandford brought this action against Moali Morris and others, in the supreme court, for surrender of a bond and mortgage and an injunction against collecting them.

<p>William G. Sands, receiver of the JEtna Insurance Company, of Utica, sued Jonathan B. Harvey, in the supreme court, on a note given by him to the company.</p>

Willliam G. Sands, as receiver of the .¿Etna Insurance Company, sued Smith Shoemaker in the supreme court, on a premium note for three hundred and twenty-five dollars, which defendant had given to that company on an insurance of one thousand dollars for three years.

Remold Schmeider sued B. B. McLane and one Duford, in the supreme court, for false imprisonment. • A policeman of the city of Brooklyn arrested plaintiff at half past five on the afternoon of February 21, 1861, in the act of riding his horse on a sidewalk, in violation of a city ordinance; and took him to the station house and gave him into the custody of the defendants, who were the captain and sergeant, respectively, of the district; and they locked him up until next…

Martin B. Scott sued George W. and William T. Rogers (the latter alone answering), in the Buffalo superior court, for damages for an alleged conversion of wheat. On July 12, Í853, plaintiff, a dealer in produce in Cleveland, Ohio, telegraphed to defendants, factors in Buffalo> to sell, on that day, the wheat of plaintiff they had on storage, at one dollar and eight cents per bushel, or ship to New York, if not sold on that day for that price.

Franklin B. Seacord sued Caleb Morgan and John Warren on an undertaking which defendants gave, to effect an appeal in a previous action brought by plaintiff against Nicholas and Leonard P. Miller. The two Millers were sued as maker and indorser of a note, and after judgment against both, they appealed.

John R. Sears sued Joseph Conover in the supreme court for breach of an executory contract made with Stephen B. Conover, and by him assigned to plaintiff.

The plaintiffs brought this action against Dennis Hayes and wife, to foreclose a mortgage executed by Patrick J. O’Brien and his wife, to the plaintiffs, by their alleged corporate name; and the defendants were the grantees of the mortgaged premises.

Theodosius F. Secor and Charles Morgan sued George Law in the New York superior court, for work, labor and materials, done under a special contract, and extra thereto. The defendant and others who were associated in building steamships to fulfill a goverment mail contract, made an agreement with each other, whereby the defendant and Messrs.

James S..Seguine died at his residence, at Deep Creek, in the State of Virginia, January 11,1860, aged about fifty-five. He was horn in the county of Richmond (Staten Island), his family being an ancient one in the county, but, from early life, resided and was engaged in business till his death, in Virginia.

Erastus B. Seymour and William Wells sued Harrison 0. Cowing, George Benson, J. Shedr Buell and James M. Willard, in the Buffalo superior court, to recover on two promissory notes made by the defendant, Harrison 0. Cowing, to George Benson, and indorsed by him to the defendants Buell & Willard (who were partners in business, in Buffalo), from whom they passed by subsequent indorsements to the plaintiffs.

Erasfcus B. Seymour and William Wells, as assignees of Bid-well, Banta & Co., sued Robert B. Montgomery, in the superior court of Buffalo, to recover a balance alleged to be due on the sale of a quarter interest in a vessel.

Eliza Sheehan sued Robert Hamilton, in the supreme court, in ejectment, to recover a lot of land in the village of Saratoga Springs, demised by a perpetual lease from Harmon Livingston to Risley Taylor, in 1823, upon the condition that Taylor and his heirs and assigns should pay to Livingston, his heirs, executors or assigns, twenty-five dollars annually; with authority to re-enter in case of non-payment.

Bernard Sheridan and Amanda M. House submitted a controversy for the decision of the supreme court, without action, arising on these facts.

Gilbert P. Sherwood brought an action in the supreme court against the American Bible Society, the other societies below named, and Mary P. Sherwood, to obtain a construction of the will of Ann P. Sherwood, under which the plaintiff was sole executor, and defendants were legatees. The will, after directing debts, &c., to be paid, provided as follows: “ Second. I give and bequeath unto the American Bible Society the sum of two thousand dollars. “ Third.

Charles Shoop sued James, Joseph L. and Nathan Chappell, in the supreme court, on a promissory note. Pending the suit defendant James Chappell died, and George R. Clark and Martin S. Newton, his executors, were substituted in his place.

George A. Simmons sued George Law, in the New York superior court to recover the the value of a quantity of gold-dust shipped hy the defendant’s line of steamers, from San Francisco to New York, on March 14, 1851. Defendant was a common carrier between those places, and received the gold-dust in that capacity. This was alleged and admitted in the pleadings, and was proved on the trial. The package never reached New York, and plaintiff after demand, sued for its value.

David Simmons sued Jane Sines in the supreme court for trespass to lands. The plaintiff was the owner of two lots, one of fifty acres and the other of fifty-five acres, adjoining each other. Held: on grounds similar to those of the following opinions, that he was a grantor within the rule. Plaintiff appealed.

William B. Sloane- and one Schwartz sued Pierre C. Van Wyck, T. M. Hall and R. Green, in the supreme court, for work, labor and materials in making a planing machine. The machine was ordered in the first instance by Hall and Green. They subsequently sold the patent and the business to which it related, to Van Wyck.

■' Joseph Smart brought this action, in the supreme court, against Egbert Bement and his wife, Isaac Hyde, Jr,, Valentine Everit, and the Bank of Binghamton, to foreclose a mortgage. ■ William B. Bement, a farmer and mill owner, having indorsed largely for an insolvent man, but still having property sufficient to meet all liabilities, conveyed half of his mill and farm to his son Egbert, pursuant to an arrangement by which the son, instead of leaving home, was to remain and…

William B. Smith sued defendants, in the supreme court, for wood sold, at Paddleford, and at Farmington. In the case of the sale at Paddleford there was a written contract, made by defendants with plaintiff and one Brown, and defendants claimed that the wood now sued for was embraced in that contract, or if not, its delivery was authorized by parol stipulations made at the same time as the written contract. Brown assigned his claim to plaintiff.

Israel Smith sued Jacob Wright and Theron Losee, and Austin W. and William H. Otis, and Oliver .Glover, in the New York .superior ¿court, for breach of contract.

-------1 Henry Solms snecl defendants, in the New York superior court, as assignee of Mary Entwistle and Charlotte Quisse, to recover on a policy of fire insurance. In April, IS,00, Charlotte Quisse, owner of the property insured, in Westchester county, sent her husband, A. H. Quisse, to obtain such insurance, and gave him fifty dollors to pay the premium.

Philip S. Staats sued defendants, to recover damages for running over Ms horse, which escaped from its pasture, through a gate that was out of repair, upon the track. Held: that the general acts did not apply to this company. Cited Phelps v. McDonald, 26 N. Y. 82; Abb. Dig. 1 ed. p. 17, § 16; p. 79, § 310, cases cited; United States v. Palmer, 3 Wheat. 610; Smith Com. on Stat. & Const.

Jacob Staiger sued Jackson S. Schultz and others, the commissioners of the metropolitan board of excise, in the N. Y. common pleas, to restrain defendants from enforcing the excise law of 1866, on the ground that it was unconstitutional. The common pleas held the act to be constitutional; and plaintiff was allowed on motion to discontinue -without costs, and entered judgment accordingly. Defendants appealed, on the ground that they were entitled to costs.

Jane and Jane B. Stebbins brought this action, in the supreme court, against Matthias H. Howell and Theodore Browning. The complaint, after setting forth the facts stated in the opinion, alleged, that the fee in the remaining lot was in Browning, subject to the -agreement for purchase, held by Howell; that said Browning was made a party, and that his interest in the lot was about fifteen hundred dollars.

John A. Stevens and others, as trustees, brought this action against Stephen Y. R. Watson and others, and the Buffalo, Corning & New York Railroad Company, in the supreme court, to foreclose a mortgage given by the company to plaintiffs as trastees, in April, 1852, to secure the payment of one million dollars for which bonds were then issued.

Mary Stewart, claiming dower as widow of William Stewart, •deceased, having recovered judgment in an action in the nature of ejectment against Andrew Smith and others, subsequently obtained an order appointing commissioners to ad-measure her dower. On the coming in of the report of the commissioners, the report was vacated, and an appeal taken.

Jacob Stover brought an action of partition of land, in the supreme court, against Thomas W. Clark, Jacob C. Eycleshimer, John B. Sherman' and others, and obtained a decree for sale of the premises and distribution of the proceeds.

Joseph Stringham sued defendants, in the supreme court, on a policy of fire insurance issued by them to one L. Austin. Spaulding on July 12, 1856, for three thousand dollars, upon a stone flouring mill and machinery therein ; and on payment by Spaulding, J une 30, 1857, renewed for one year from July 12, 1857, to July 12, 1858.

William Stroud sued David Tilton, in the supreme court, to recover, among other things, a balance for work and materials. Plaintiff was an iron-founder and machinist; and the work was the making and repairing of guns. On the trial, plaintiff, who kept regular books of account, the correctness of which he proved by those who had dealt and settled with him by them, offered his books in evidence.

Thomas R. Sudlow, receiver, sued George and James Knox, in the supreme court, alleging that in supplementary proceedings upon a judgment recovered by one Ogden- against Henry Knox and another, plaintiff had been appointed receiver of Henry Knox’s property; that Henry Knox had been a partner in the firm of George & James Knox, and had an interest in the property of that firm, which the present action was brought to reach and apply to the satisfaction of that judgment. 1 After…

The plaintiffs sued Leroy Morgan and others, committee of Alfred Tyler, a lunatic, in the supreme court, for money paid by the treasurer of the county for the clothing and maintenance of the lunatic while an inmate of the State lunatic asylum. The complaint alleged that Tyler was tried and convicted at the oyer and terminer, in 1855, of murder.

John E. Tallman, as assignee of William 0. Brown, sued defendants in the supreme court on an insurance of the machinery in a paper mill. Brown, when owner of the machinery, sold it in November, 1860, to the firm of Sturtevant, Sons & Co., for a price to he paid in five installments of five hundred dollars each, during a period of more than two years. The buyers agreed to keep the property insured in a sum equal to the amount due to Brown, and Brown was to hold the policies.

<p>The general railroad act of 1850 requires the companies to erect fences " of sufficient height and strength to prevent cattle and other animals from getting upon the railroad.</p> <p>The fact that the language of the act requires such fences to be of the height, &c., of a division fence required by law, while the statutes prescribe no height, &c., for division fences, does not render the act inoperative.</p>

Perry G. Tanner sued Anson 0. Parshall, to recover the price ol'a horse alleged to have been sold and delivered to the defendant in September, 1856.

Elizabeth A. Tauton, executrix of Jesse Tauton, brought this action against Jacob Groh and others, in the supreme court, to foreclose a mortgage made by the respondents to one Louisa T. Milman for twelve hundred dollars.

<p>For a breach of an agreement to let land on shares, the occupant or farmer may maintain an action immediately, without awaiting the expiration of the term.</p> <p>An agreement to let a farm for a term of years, each party to furnish part of the tools, materials, &c., and one to cultivate it and have certain supplies, after which all products are to be equally divided—may be regarded, neither as a mere lease nor as a'contract for services, but as a special contract, partaking the nature of an adventure.</p> <p>The measure of damages on a breach, by the owner or lessor is, the value of such privilege of occupying and working the farm, subject to the conditions of the agreement, and under all the contingencies that are liable to affect the result.</p> <p>Whether plaintiff hired another farm, in consequence of being refused possession under the contract, and, if so, what it cost to remove thither, are not relevant questions; and it is error to limit his recovery to the expense of such removal.</p> <p>Whether the value of such a contract may be proved by the opinions of witnesses,—Query ?</p>

Thomas D. Taylor and others sued Russell 0. Root in the supreme court, in 1861, for an accounting in reference to the profits of a joint publication. In 1857 the parties undertook the publication of a Marine Register, and supplements.

Andrew Thatcher and Hanning Marselis (the latter of whom died pending the action) sued William L. Candee in the supreme court.

Benjamin C. Thayer brought this action, July 30, 1863, in the supreme court, against Sidney Allen, Alvah Phelps, Jacob Loomis and Albert… Held: in an opinion by Ingraham, J., that the decree of the surrogate was conclusive upon the administrators. Any defense in their behalf should have been urged before him. Under such a bond as they had executed, it was not competent to show that his decree was erroneous, and the neglect to comply with its requirements forfeited the bond.

Louis F. Therasson and another, sued George F. Peterson and George S. Humphrey, in the supreme court, on a promisory note, made by defendants under their firm name of Peterson & Humphrey. In the latter part of February, 1857, defendants were copartners in business, and insolvent. Their indebtedness was some' eighty thousand dollars, and their assets consisted of a stock of goods and book accounts, the real value of both of which was uncertain.

<p>Reuben R. Thompson sued William Menck in the supreme court to recover money due on a sale of goods.</p> <p>In March, 1856, while the river was closed with ice, the defendant called upon the plaintiff at Albany, and agreed with him for the purchase of such bones and fine black, or animal charcoal, as he (plaintiff), might have at the opening of navigation. The goods were to be delivered at the plaintiff’s dock, in the city of Albany, and paid for in cash on delivery. At the time of such purchase, defendant informed plaintiff that Mr. C. FT. Warner would ship the goods for defendant, and that plaintiff should deliver them to said Warner. Subsequently, about April 16, 1856, the defendant wrote to the plaintiff, .directing him to deliver the goods to Mr. Warner. Av day or two before the delivery hereinafter mentioned, Mr. Warner called at plaintiff’s warehouse, and directed the foreman of the plaintiff to tell plaintiff to put the goods on board Captain Casey’s barge. Mr. Warner also gave plaintiff in person the same directions. According to such directions, the plaintiff delivered on board said barge, at his dock in Albany, bones, &c., amounting at the prices agreed upon to nine hundred and sixty-one dollars and sixty-one cents. After such delivery, the defendant paid the plaintiff nine hundred dollars on account. The barge having on board the goods was sunk at FTew York.</p> <p>The referee having found these facts, decided:</p> <p>That C. FT. Warner was the authorized agent of defendant to receive the goods in question.</p> <p>That the defendant’s direction to put the goods aboard Warner’s barge was complied with by the delivery of the same on board Casey’s barge, according to the directions of Warner.</p> <p>That upon such delivery a valid contract of sale was consummated, upon the terms and at the prices previously agreed upon; and the property of the goods and possession of the same, became thereby vested in the defendant.</p> <p>That the defendant became liable to pay the prices agreed upon as soon as the goods were delivered on board of Casey’s barge.</p> <p>Judgment was entered on the report of the referee in favor of the plaintiff, for the balance due, being sixty-one dollars and sixty-one cents, with interest and costs,</p> <p>The supreme court, at general term, reversed this judgment on appeal, and a new trial was. ordered. It did not appear by the order or judgment that the reversal was on questions of fact, although this was indicated by the opinion delivered at the general term. Keported in 22 Sow. Pr. 431, Plaintiff appealed.</p>

Samuel S. Thorn sued Jacob H. Helmer, in the supreme court, for deceit, and alleged in his complaint that defendant, on and prior to September 8, 1857, falsely represented to him that his professional business then was, and had been, worth five thousand dollars per year, and could be easily increased so as to be worth seven thousand dollars per year; that his cases of surgery alone were sufficient to support his family; that for a long time he hand on had, on an average,…

Japhefc M. Thorp and others, sued Angus Ross, in the supreme court, for money paid. Plaintiffs were masons, and made a written contract to erect houses on defendant’s land, for a specified sum in gross. The specifications required the construction of a drain from each house, to connect with the sewer. A city ordinance imposed a license fee of ten dollars for each drain thus constructed.

Tompkins having been superseded as guardian-by the appointment of Soulice, cited Soulice to attend a final settlement of his, Tompkins’, account; but after filing the account and the hearing of witnesses, he asked leave to discontinue the proceeding, in order that he might file a new account. The surrogate entered an order refusing the motion, and directing the hearing to proceed. The supreme court, at general term, affirmed the order.

Amelia Traver, by A. Bull, her guardian, sued defendants in the New York superior court, for damages, by an injury alleged to have been caused by the carelessness of the defendants’ servants, while plaintiff was a passenger on one of their cars. After the injury, and before suing, plaintiff intermarried with one Collins, but in the summons and complaint in the action she was designated by her maiden name.

<p>William Truslow sued Mervin G-. Putnam in the Supreme Court in an action in the nature of replevin, for seven sewing machines, manufactured by one Lester, of whom the plaintiff was agent and factor, and on which plaintiff, had a lien for advances and commissions, to an amount beyond the value of the property. Defendant, as constable, levied on the same under an attachment against Lester, and was about removing them when plaintiff replevied them in this action.</p> <p>Plaintiff held the machines under a written agreement with Lester, the owner, by which plaintiff agreed to act as agent for Lester for the sale of sewing machines made by Lester, and to advance to Lester nearly fifty per cent, of the retail price of each as fast as made by Loster and delivered to plaintiff. The rent of the New York store, used as a salesroom, and all other business expenses, were to be paid by plaintiff and charged to Lester, and, on an accounting as to sales, Lester was to receive Ms living expenses, and the balance was to be paid to his certain creditors until their demands were satisfied, and thereafter to Lester. Plaintiff was to receive six per cent, on the gross amount of sales as his compensation.</p> <p>"Under this agreement, plaintiff hired a store in Saratoga, and employed a clerk as salesman there, and the sign bore the name of Lester only.</p> <p>On the trial it appeared that the clerk, West, in charge of the store in Saratoga, informed the defendant at the time of the levy that the property belonged to plaintiff, not to Lester. Defendant then asked West what he said at the same time in answer to an inquiry as to whom he acted for while engaged in the shop in the business; but this evidence was excluded by the court.</p> <p>The supreme court held that it must be deemed settled by authoidty that an agent, consigsiee, or factor, who has made advances upon the goods of his principal in his possession, may maintain an action if Ms possession is disturbed by process against his principal or consignor; citing Grosvenor v. Phillips, 2 Hill, 147; Holbrook v. Wright, 26 Wend. 169. See also Gilson v. Stanton, 9 N. Y. (5 Seld.) 476; Bank of Rochester v. Jones, 4 N. Y. (4 Comst.) 49; Winter v. Coit, 7 N. Y. (3 Seld.) 288; Dows v. Cobb, 12 Barb. 310; Brownell v. Comley, 3 Duer, 9; Adams v. Bissell, 28 Barb. 382. They held that plaintiff was a factor, not a mere agent. Story on Ag. § 34; Evans v. Root, 9 N. Y. (5 Seld.) 186; Marfield v. Goodhue, 3 N. Y. (3 Comst.) 63.</p> <p>Potter, J., however, dissented, being of opinion that plaintiff was not a factor but a mere agent, whose possession, as matter of law must be deemed tobe the possession of the prinicpal, and that to sanction Ms claim would be to allow debtors to screen their property from execution by putting it in possession of an agent with a lien, and that even if plaintiff was deemed a factor, the terms of the factors’ act, 3 R. S. 5 ed. 76, § 3, excluded his claim by necessary implication, because it declared that a factor with a lien for advances should be deemed owner so far as to give validity to any contract made by him with a third person for the sale or disposition of the property for money advanced, &c.</p> <p>In respect to the admissibility of the evidence of the notice to defendant that plaintiff had a claim to the goods, the majority of the court was of opinion that as plaintiff had put up Lester’s name as a sign over the door, it. was competent for him to prove this notice, as otherwise he might be deemed concluded by putting up the sign (9 Cow. 274), and that the information so given was notice, irrespective of any authority in the person who gave it.</p>

Nancy Tucker petitioned the surrogate for a sale of the real property of Samuel Tucker, deceased, for payment of a debt she claimed to be due her. Held: in an opinion by Gboveb,' J., that this was error, and reversed the order, and the administratrix and others appealed.

<p>John W. Turner and four others sued defendants, in the supreme court, as drawers of a draft or bill of exchange, which, on presentation, was protested, for non-acceptance by the drawees.</p> <p>The defense was, that the draft was given to pay a former similar draft, under false representations that the former draft had not been paid. The facts relied on, as constituting payment of the former draft were as follows: That draft was drawn by defendants, on John Thompson, a private banker in the city of New York. The plaintiffs, holding it as indorsees, transmitted it to the Nassau Bank of that city, as their agents, for collection. The Nassau Bank presented it to Thompson the drawee, on August 24, 1857, and received his check for the amount of it, and surrendered the draft to Thompson, who stamped it “paid,” and charged the amount to the defendants.</p> <p>Although Thompson’s account with the hank on which his check was drawn was overdrawn in the course of the day on the said twenty-fourth of August, all his checks presented on that day were paid. The next morning Thompson suspended payment.</p> <p>On the trial it appeared by evidence that in the ordinary course, and according to custom in the city of New York, a check so received would be presented the day after it was received, by sending it through the clearing-house to tüe counter of the bank, on which it was drawn. This check was so presented; but Thompson having failed meanwhile, it was dishonored.</p> <p>Defendants offered to prove that Thompson had funds of theirs when the draft was presented to him, and it would have been paid in specie if the collecting bank had required. This was excluded.</p> <p>After judgment for plaintiffs, defendants appealed.</p> <p>Southwick v. Sax, 9 Wend. 122; Story on Bills, § 419; note to ed. 2, 539; Chapman v. White, 6 N. Y. (2 Seld.) 412, and cases there cited; 7 Paige, 457; Caldwell v. Sanders Banker’s Mag. June, 1859; August, 1850.</p> <p>Court of Errors, 1800; Porter v. Talcott, 1 Cow. 359; Van Eps v. Dillaye, 6 Barb. 244; Vail v. Foster, 4 N. Y. (4 Comst), 312.</p>

Gerhart Valton brought this action in the supreme court to recover on a policy 'of insurance on the life of one Conrad Schumacher. On the trial, the medical examiner of the defendants testified that when Schumacher applied for insurance on his life, it was represented that he was the moneyed man of a mercantile firm in which he was partner.

Isaac J. Van Alen sued John S. Feltz in the supreme court on two judgments of a justice of the peace. The judgments were recovered, April 18,1846, by Geo. W. and Gersham Bulkley (the amounts being respectively 810L15 and $76.15), and were duly assigned by them to Van Alen, the present plaintiff, on March 31, 1856; and on July 10, 1856, he commenced the present action The only question was as to the application of the statute of limitations.

James H. Van Alen sued the Ulinois Central R. R. Co. in the N. Y. superior court on these facts. In January, 1857, plaintiff demanded from defendants nine hundred and seventy-five shares of their scrip stock, claiming a right thereto, according to the terms of “provisional certificates” for that amount of stock, then held by him and presented to defendants.

James W. Van Alstyne, and another, sued the National Commercial Bank of Albany, in the supreme court, to recover the amount of a draft or check, drawn by the defendants at Albany, upon the National Bank of Commerce, in the city of New York, payable to the order of J. H. Abbott, for the sum of five thousand two hundred and eleven dollars.

<p>An assignment direct to creditors, to secure to them their particular demands is not an assignment in trust, and is not void as creating a trust for the grantor, contrary to 2 R. 8. 185, § 1.</p> <p>Upon an assignment made direct to a party having a beneficial interest under it, the presumption is that he accepts it. Affirmative proof of acceptance is not required, but the party impeaching it must disprove, acceptance.</p> <p>A transfer of chattels is not absolutely void as against creditors if unaccompanied by an immediate change of possession. Want of delivery raises a presumption of fraud, and the burden of proof to rebut the presumption is on the party claiming under the transfer.</p>

Jacob Vanderpool brought this action in the marine court against Thompson Smith and John W. Wilson to recover rent alleged to be due on certain real estate in New York city, for the quarter ending November 1, 1861. The defense set up was eviction by the landlord, the plaintiff in this action. It appeared at the trial that in 1860 the plaintiff demised to the defendants for a term of years a tract of land, portions of which he reserved to his own use.

Christopher Van Deuzen, L. Bancroft, the Methodist Episcopal Church at Fort Edward, and S. B. Lee, sued the trustees of the Presbyterian Congregation at Fort Edward, to recover possession of a church edifice and land.

Charles H. Van Dusen, as receiver of Philo Haskins, sued Daniel Worrell, to recover the proceeds of the sale of certain lands, or of the value thereof, with certain deductions, on the ground that the lands were conveyed to the defendant by way of mortgage for the security of a debt.

James Van Etten sued William Currier in the supreme court, for the conversion of hay and oats.

William H. Van Kleek sued Philip Leroy and William H. Deyo, in the supreme court, to recover certain goods, on the ground that they had been purchased by William F. Leroy under fraudulent representations as to his circumstances and responsibility. A few weeks after the purchase, W. F. Leroy made an assignment to defendants, for the benefit of creditors. The property claimed was replevied from defendants shortly after the assignment.

William Van Marter, brought four suits in the supreme Court against Hiram G-. Hotchkiss and others, to recover for services and disbursements as an attorney, in conducting four litigations. The facts were the same in all the cases. The actions were each of them referred to a single referee, who reported in favor of the plaintiff.

John Van Vechten sued John Griffiths, , sheriff of Ulster, and-Marius Schoonmaker and Gilbert Lefever, in the supreme court, for trespass in raking and, converting plaintiff’s coal.. Defendants claimed, that the coal belonged to one Nicholas. Elmendorf, and justified the taking under a sheriff’s sale to, them on executions issued on judgments against-Elmendorf.

<p>William Van Wyck and others brought this action in the supreme court for a partition of lands.</p> <p>The complaint was filed in the clerk’s office on October 14, 1859. The copy summons filed omitted the names of S. A. Maverick and wife, who were defendants. The order of publication of summons was made on October 18, 1859. The deposit in the post-office of the summons and copy complaint for the non-resident defendants, was made on the 22nd of the same month. The reason of this delay was, that printed copies of the summons and complaint were not obtained by the plaintiff’s attorney from the printer, until the evening of the 21st, and could not be obtained earlier, and were mailed as soon as practicable thereafter, on the 22nd. The summons as published in the Evening Post, one of the papers designated in the order of publication, omitted the words “in said city of ¡New York,” after the words “number 18 Chambers street,” designating the office of the plaintiff’s attorney. It stated, however, that the complaint was filed in the clerk’s office of the city of ¡New York, and was dated ¡New York, October 14, 1859.</p> <p>The petition for the appointment of a guardian for Samuel M. Thompson, a non-resident infant over fourteen years of age, was not verified by the infant or by his guardian, but was signed by the infant, and the" signature verified by the affidavit of the plaintiff’s attorney, who stated that he sent it to the infant, and received it back from him with his signature, the verification not being made, according to a letter from the infant, in consequence of his not having access to a judge. Judgment was entered and perfected May 21, 1860. The premises were sold by the referee on July 6, 1860, and the lot number 174 South street, part of the premises, was sold to Thomas Hitchcock, the petitioner, for ten thousand and twenty-five dollars, who signed the usual, terms of sale, and paid ten per cent, upon his bid. The deed was to be delivered on August 6,1860.</p> <p>Under the advice of counsel, that the referee’s deed would not convey a good title, the purchaser declined to take the deed, and the court allowed him to be discharged from his purchase, unless plaintiff among other things, should amend the summons on file, by inserting therein the names of Samuel A. Maverick, and Mary A. his wife, as defendants; and file the petition of the infant defendant, Samuel M. Thompson, in due form, and sworn to by Mm, for the appointment of Mortimer Porter, as his guardian ad litum, in this action.</p> <p>The petitioner appealed from this order ; and the plaintiff appealed from so much of it as required him to file a verified petition of Samuel M. Thompson, for the appointment of a guardian.</p> <p>The supreme court, at general term affirmed the order on substantially the same grounds as those stated in the following opinion in this court; and the purchaser appealed. Reported in 11 Alb. Pr. 473; S. 0. 20 How. Pr. 222.</p>

Benjamin F. Voorhees brought this action in the supreme court against John T. Howard and John C. Fremont; the complaint being an ordinary creditor’s bill to reach property alleged to be in the hands of Fremont, for the purpose of applying it to satisfy two judgments held by plaintiff against the defendant John T. Howard, and his brother Joseph Howard, recovered on their joint contracts.

Luqretia Vrooman, by Sherman Duncan, her next friend, sued John Griffiths in the supreme court, to recover the value of personal property unlawfully converted. On the trial it appeared that the property had been seized by the defendant, then sheriff of Ulster county, under an execution against Christian B. Vrooman, plaintiff’s husband.

George Wagner was convicted and sentenced to death in the New York general sessions, for the murder of his wife, Mary Wagner. The ofíense was alleged to have been committed in the city of New York, July 21, 1865. On a writ of error the conviction was affirmed at the general term of the supreme court. He brought error to this court.

Horatio 1ST. Walton, administrator da bonis non, sued Sarah P. Walton, executrix, Ssc., of William B. Walton, deceased, in the supreme court, for an account and payment of assets. Jonathan Walton, deceased, left William B. Walton his executor, who, after receiving assets of the estate, died, leaving the defendant his executrix. The plaintiff was appointed administrator, da bonis non, of the unadministered assets of Jonathan, the first decedent.

a Harvey Ward sued Cornelius Vanderbilt, as a common carrier of passengers from New York City to San Francisco, for neglect of duty in not transporting him without unnecessary delay or detention. In March 1859, plaintiff paid the defendant two hundred and fifty dollars for the entire trip, and received in return tickets indicating the ships, and the mode of transit across the Isthmus, by which defendant proposed to convey him to California.

Thomas W. Warfield brought an action against Carso Crane and wife and others, for a partition of lands. Alexander W. Warfield, the common ancestor, devised a tract of about one hundred and ninety-two acres to his two sons, Alexander-and Arnold; one undivided half to Alexander in fee, the other undivided half to Arnold for life, remainder to ■his heirs.

<p>Hiram W. Warner and John P. Loop brought this action in . the supreme court, as judgment creditors • of Robert Turner, against Eben Blakeman and others, to set aside two mortgages on land, and the foreclosure of one of them, and subsequent conveyances of the property, on the ground that the two mortgages had been paid, and that the foreclosure was fraudulent as against the plaintiffs.</p> <p>On March 10, 1853, plaintiffs recovered a judgment against Robert Turner, who then owned the land in Madison county, which is the subject of controversy in this action, and by docketing of the judgment in that county, acquired a lien thereupon.</p> <p>The premises were then subject to two mortgages—one given by the said Turner and another, to the defendant Blakeman, to secure the payment of one thousand two hundred dollars cash lent; the other, given by the said Turner to Hiram Whedon, conditioned on its face for the payment of three thousand dollars, but in fact given to secure an- existing indebtedness to a small amount, and contemplated future advances, and also to indemnify Whedon against certain indorsements, and contemplated future indorsements for" the benefit of Turner.</p> <p>On April 13, 1853, at or before which time Whedon had actual notice of plaintiff’s judgment, the balance due from Turner to Whedon was one thousand seven hundred and eighty-two dollars twenty-eight cents, and Whedon’s indorsement, to the amount of six hundred dollars, was outstanding.</p> <p>Transactions were had between the parties on and prior to Feb. 17th, 1854, the result of which was, that on that day Whedon gave up the three thousand dollar mortgage, consenting to rely thereafter solely upon the personal security of Turner for any balance remaining due to him; but, instead of delivering that mortgage to Turner, or acknowledging satisfaction thereof (the same not having, to that time, been recorded,) he executed a formal assignment thereof to the defendant Blakeman without any consideration, Blakeman paying no consideration therefor, none of the debts or obligations for which it had been held as security being transferred to Blake-man, and the latter neither paying nor agreeing to pay the same, nor any of them.</p> <p>On the same day and prior thereto, Turner made arrangements, by transfers of property and otherwise, in pursuance of which the one thousand two hundred dollar mortgage was paid in full, and in money received from Turner, or upon his order. And on Eeb. 20, the said Turner and Blakeman had a. settlement of their various transactions, in which a balance was found due to Blakeman, after payment of said one thousand two-hundred dollar mortgage, of one thousand one hundred and twenty dollars eleven cents,, which they then agreed should be secured only by a distinct and separate security, which was then given to Blakeman by Turner, and Blakeman delivered to Turner both mortgages, as paid and satisfied.</p> <p>About nine months afterward, a negotiation was had between Blakeman and Turner, resulting in the purchase of the premises by the former, for the price of two thousand dollars, and the latter accordingly executed to Blakeman a deed in which the premises were declared to be subject to both of the beforenam'ed mortgages, and at the same time restored the two mortgages to Blakeman’s. possession, retaining nevertheless, the bond, which the one thousand two hundred dollar mortgage was originally given to secure; and in Decémber next ensuing,, Blakeman went through the form of a foreclosure of the three thousand dollar mortgage, by advertisement pursuant to the statute, declaring in his notice of sale that two thousand six hundred and seventy-five dollars twenty-six cents, was due on. the said mortgage, and transmitted that notice, by mail, to the plaintiff’s herein. At the sale made pursuant to the advertisement, Blakeman bid off the premises himself, at the price- of eight hundred dollars, and entered into possession.</p> <p>The object and purpose of this form of foreclosure and sale was to cut off and extinguish the lien of the plaintiff’s judgment upon the premises.</p> <p>The value of the premises at the time of the sale was one thousand two hundred dollars; but afterward, and before the commencement of this action, Blakeman sold part of the said premises to Iona fide purchasers,, receiving money in part payment, and a bond and mortgage on the premises sold, to secure ■ the other part of the purchase money, and had contracted to sell the other part of the premises, but the contract had not been carried into execution by conveyance and full payment. The aggregate price at which he sold exceeded the value at the time of the attempted foreclosure.</p> <p>The supreme court, on a former hearing were of opinion that, although the three thousand dollar mortgage was satisfied, and its foreclosure was a fraud, the necessity to apply to equity to set it aside showed that the foreclosure sale was valid until set aside; and that a purchaser in good faith must be protected; that Blakeman’s title was good as to the mortgagor who assented to the foreclosure; and that Cameron v. Erwin, 5 Hill, 272, could not apply where the mortgagor looked on without objection on a sale to a Iona fide purchaser. That as to the one thousand two hundred dollar mortgage, whether it be regarded as a lien or as extinguished by the purchase, plaintiffs must be allowed the amount unless it had been paid. As the court were of opinion that the findings did not show whether the latter mortgage had been paid or not, they reversed the judgment of the referee who had decided that the purchaser took no better title than Blakeman, and sent back the cause for further examination on a- new trial. Reported in 36 Barh. 501.</p> <p>On the second trial the above facts were found; and the court gave judgment for plaintiff on the referee’s report.</p> <p>Defendants appealed.</p>

James H. Watson and others sued Daniel H. Gray, in the city court of Brooklyn, for goods sold.

Plaintiffs sued to recover five thousand dollars, the proceeds of two drafts on the Mercantile Bank, sent by plaintiffs to defend: ants to be collected by them and the amount to be used to pay two notes of Messrs. Cook, Everts & Co., which had been made payable at defendant’s bank. These notes were provided for at maturity in some other way and the proceeds of the drafts which bad been collected, were credited to plaintiffs by defendants.

Ella Wehrkamp brought this action, in the New York common pleas, against James C. Willet, sheriff of the county of New York (for whom, on bis death pending the action, James S., his executor, was substituted as defendant), to recover possession of personal property, consisting of carpets and pictures, which she alleged was unjustly detained from her. The defense was that the property belonged to William 0.

Charles F. Wells andM. Montgomery sued Francis Pierce, in the supreme court, in an action in the nature of ejectment, for fifty acres of land, and damages for withholding it. Held: in an opinion by Grover J., that Asa Fuller, never having been under any obligation to restore possession, was not estopped.

<p>A municipal corporation is liable in an action for negligence in the construction of a work under a street undertaken by an individual for private benefit, where the work is done under permission of the corporation, with a condition that it is to be done under direction of a proper officer of the corporation, and no such supervision is bestowed by them upon it.</p> <p>The construction, beneath the streets of a city, of drains, by private owners, to connect their premises with the sewers, is not an unauthorized use of a highway, which renders the individual making it liable for all damages resulting. The liability of either the private owner or the city corporation, in such a case, depends on the question of negligence or improper construction of the drain.</p> <p>If the corporation consented to the making of the drain.under the super, vision of their officer and have agreed to exercise such supervision, they are liable to any third person injured by a defect in the structure.</p> <p>The fact that the imperfection was of a secret or hidden character, does not exonerate them, if it might have been detected by proper supervision of the work.</p>

The Western Transportation Company brought this action against Charles H. Marshall and others, in the supreme court, to recover the possession of a quantity of wheat, shipped by plaintiffs from Buffalo to New York, upon a canal-boat. The agents of the plaintiffs in the latter city agreed to sell the wheat for cash on delivery, to Meyer & Rce, who were engaged in purchasing wheat, and shipping it to England.

Charles L. White sued Eobert Bullock, in the supreme court, to recover his half of commissions allowed by the surrogate on the settlement of accounts of the parties as co-executors of the estate of one Mounsey.

<p>Justus White, receiver of the Union Ins. Company, sued. Dexter E. Havens, in the supreme court, on defendants’ premium note.</p> <p>The only point made by the defense was that it ivas illegal to assess the note for losses arising on policies based on cash advance premiums, for which no premium note had been made.</p>

William D. White sued Ebenezer A. Lester and others, in the supreme court, in ejectment, to recover a lot of land lying in Fredonia, Chautauqua county. The only questions made in this court arose as to the regularity and effect of proceedings to foreclose a mortgage given by one Saxton, under whom both parties claim title, to the commissioners for loaning United States money.

Justus White, as receiver of the Union Insurance Company, sued Giles Boss and others on a premium note given by them to the company. The company was originally incorporated as the Union Mutual Ins. Co., under L. 1849, p. 441, c. 308. ■ By a special act, L. 1851, p. 775, c. 395, the charter was amended by omitting the word “ Mutual ” from the name of the company, and limiting the number of directors.

Henry L. Kayzer and Francis Weigand (the former of whom died pending the suit) sued Max and Solomon Sichel, in the supreme court, to recover the amount of a bill of goods sold by the plaintiffs, to the defendants, in the summer of 1858. The original complaint contained two counts, one for goods sold, the other for the value of the same goods obtained by fraud and converted.

<p>Tire removal of a prisoner having the liberties of the jail, from the limits thereof by virtue of a valid legal process which affords justification to the officer taking him thence, is not an escape within 3 JR. S. 437, § 63.*</p> <p>Either house of Congress may issue its warrant or attachment to bring before it, for the purpose of giving necessary evidence in legislative proceedings, a witness charged with contempt, and by such process may take him from, the custody of the sheriff by whom he is imprisoned on execution in a proceeding in a State court. Congress is not restricted ■ to proceeding by habeas corpus in such cases. •</p>

William Williams sued William 0. Brown, in the supreme court, on a promissory note dated June 20, 1851, for five hundred and eighty-four dollars and seventy-five cents, payable six months after date, to the order of the Merchants’ Mutual Insurance Company, a corporation under the general act.

James Hernon confessed a judgment to Joseph H. Williams for one thousand two hundred and forty-four dollars, in February, 1854. In April, 1861, William C. Barrett, a judgment creditor of defendant, moved to set aside that judgment as fraudulent, and for the insufficiency of the affidavit on which it was entered.

John Wilmot, William Gooderham and others, sued Thomas Richardson and others, in the N. Y. superior court. PlaintifEs composed the firm of J. Wilmot & Co., flour dealers. Held: that plaintiffs could not thereafter recover from defendants as upon a sale and delivery to them of the flour or as upon a conversion of it by them. Reported in 7 Bosw. 570, and see a previous decision in 6 Duer, 328.

<p>Samuel Wilson sued defendants for breach of contract. He was a contractor with the Buffalo, New York & Erie Railroad Company, to lay its track and superstructure from Attica to Batavia, a distance of eleven miles. By the contract, he was to receive the materials, iron, ties and spikes, from the company at Attica and Batavia, and himself distribute them for use, between the two places. Defendants’ railroad ran between these places, parallel to and so near the new road that these materials could conveniently be distributed from defendants’ cars at the places where plaintiff wanted them for use ; and he contracted with defendants to do this work as stated below. After doing a small portion of the work of distributing, defendants refused to proceed; and plaintiff brought this action.</p> <p>From judgment for plaintiff, defendants appealed.</p>

Elisha R. Wilson sued Benjamin F. Wilson, to recover back money obtained by fraud. Plaintiff and defendant desired to purchase land which had been advertised for sale by Henry Van Rensselaer. Defendant called on plaintiff, and proposed that they purchase together, at private sale, previous to the advertised auction. He represented that he could buy cheaper than any one else.

Thomas Wiltsie sued James and William R. Eadie, in the supreme court, alleging that he, the plaintiff, was engaged as a warehouseman, and forwarder on the Erie canal, in 1859; and that defendants employed him to receive at his warehouse, and ship therefrom to the city of New York, a quantity of potatoes, for which they promised to pay him a reasonable compensation. Defendants denied these allegations.

George Witherhead sued Elijah B. Allen and nine others in the supreme court to charge them as members of a joint-stock company. The action was commenced under the statute of 1849, entitled “ An act in relation to suits by and against joint-stock companies and associations,” as amended in 1853, against the appellants and seven other persons, alleged to bo members of a joint-stock association, after judgment and execution against the company.

Mana A. Wolfe sued Gustaros Adolphus Scroggs, sheriff of Erie, in the supreme court, for taking her five cows on an execution against one Schmidt. She claimed to hold the cows by virtue of a chattel mortgage made by Schmidt.

George 0. Woolsey sued the trustees of the village of Rondout in the supreme court, alleging in his complaint that the defendants were a body corporate and politic, organized under the laws of this State, and were on a day named indebted to him in a sum specified, and then delivered to him a certificate of indebtedness “ certifying that there is due a debt on the books of the village of Rondout to George 0.

Luther Wright, as assignee of the firm of J. & I. Lewis, brought an action against Henry M. Ames and others, constituting the firm of Ames, Hewlett & Co., for the conversion of personal property. The facts are as follows: In 1856, William Lewis, a silent partner in the firm of J. & I. Lewis, and also a partner in the firm of Rathbun & Lewis, was the owner of several cargoes of wheat, which were stored in the Empire Elevator, owned by Rathbun and Lewis.

Hiram Wright, as administrator, &c., prosecuted this action against Mary A. Rowland, in the supreme court, to recover upward of nine thousand dollars and interest. Attachments were issued, under which property of the value of nine thousand dollars or thereabouts was seized and held by the sheriff to answer the judgment in the action.

<p>Where a" person indebted to a bank, in order to protect the bank, made the cashier thereof, as such, his attorney to collect certain dues to him, and the cashier, at the same time, undertook, by an instrument in which he signed himself “ cashier of the Farmers’ and Mechanics’ Bank,” to pay the debtor certain moneys from the proceeds; Held, that an action would not lie on the instrument so signed against the cashier as an individual (after he had ceased to be an officer of the bank).</p>

James P. Byrne, as assignee of the claim and rights oí Patrick Fegan, himself the assignee Thomas Fegan, brought this action against Jacob Weeks, Jr., in the New York superior court to recover the freight on coal transported by Thomas Eegan from Port Carbon, Pennsylvania, to the port of New York,—freight on coal so transported which the defendant converted to his own use while subject to the lien of the plaintiff’s assignor, for freight and for demurrage.

In this case, the main decision in which, is fully reported in Yol. L, of this series, an application was made for a reargument on behalf of the executors, as to that part of the ninth, clause of the conclusions of the court, stated on p. 549, which gave the heirs at law the right of use and management of the mill property in common with the executors.