Volume 4 — New York Reports

[10] The bill in this cause was filed for the foreclosure of two mortgages executed to the plaintiffs by Gertrude Treat, wife of Eichard S. Treat, Samuel S. Lush and John W. Bay, trustees of said Gertrude, and Eliza Bay, wife of the said John W. Bay, as collateral security for the payment of two bonds, also executed -by the same persons, one conditioned for the payment of $8000 with interest, and bearing date the 9th day of April, 1830, and the other conditioned for the…

The action was brought in March, 1852, against Onderdonk and the city of Brooklyn.

Ejectment to recover premises situate in Columbia county, tried before Mr. Justice Harris at a circuit court held for that county in 1852. Both parties claimed title under Robert Westover the former owner.

Replevin commenced in April, 1848, to recover for the alleged wrongful detention of horses and other personal property. On the trial before Justice Pratt at the Monroe county circuit the plaintiff read in evidence a chattel mortgage dated the 17th of March, 1848, executed by one Warded to the plaintiffs to secure the payment of $200 and interest, the one-half to be paid in six months and the balance in a year from its date.

<p>Debt commenced in 1847 upon an arbitration bond dated in 1845. The action was tried at the Albany county circuit in 1852 before Mr. Justice Shankland.</p> <p>The plaintiff read the bond in evidence. It was executed by the defendants, Wood and Lemuel Smith, to the plaintiff and was in the penalty of ten thousand dollars. It contains a recital that a suit was pending in chancery,, wherein Olcott was complainant, and Wood, Smith and others were defendants, and that a cross bill had been filed by Wood against Olcott and one Michael Smith; and that both suits were pending and at issue. The bond further recited that it had been agreed between the parties to these suits, that the matters in controversy should be submitted to Hon. Daniel Cady as arbitrator; and contained a condition that if Wood should abide by the award of the arbitrator, and should pay to Olcott any sum of money which should be awarded to be paid to him by Wood, as well for timber which might thereafter be cut or removed from the premises mentioned in the pleadings in the chancery suits, as for any matter mentioned and set forth in the pleadings, and should in all respects abide by and perform whatever by the decision of the arbitrator he should be required to do, then the bond to be void ; otherwise' to remain in force. The plaintiff also read in evidence an award made by Mr. Cady within the time prescribed therefor in the bond, by which he decided that Wood should within three months pay to Olcott $2821 with interest, and that upon such payment being made Olcott and Wood should execute each to the other a general release of all demands arising out of the matters mentioned in the pleadings in the chancery suits.</p> <p>The counsel for the defendants put in evidence the pleadings in the chancery suits. From these it appeared that two parcels of land situate in Pennsylvania had been purchased; that one parcel had been conveyed to Wood, who held the legal title, and the other parcel had been conveyed to and the legal title to the same was held by Olcott. In the bill in the original chancery suit Olcott alleged that he was the equitable owner of two-thirds of the land conveyed to and the title to which was held by Wood; that its principal value consisted in the timber upon it; that Wood and those in his employ had cut portions of the timber, and that Olcott was equitably entitled to a conveyance from Wood of two-thirds of the land and to a like proportion of the timber cut from it. The bill prayed for a conveyance of the land and an account of the timber cut; and in case the defendants were unable to make good title, for damages in lieu thereof. In the cross bill Wood alleged various matters showing that Olcott had no equitable right to the two-thirds of the lands conveyed to him, Wood, and alleged that he, Wood, was the equitable owner of one-third of the parcel of land which had been conveyed to and* was held by Olcott, and prayed that his equitable right to the same might be enforced.</p> <p>At the close of the evidence the counsel for the defendants requested the. court to nonsuit the plaintiff on the following grounds, viz: 1. That the submission on which the aw7ard was founded was one respecting claims to an estate in fee- or for life to real estate, and was therefore unauthorized by law and void; 2. That the submission was prohibited by the second section of the statute of this state, relating to arbitrators (2 R. S., 541, § 2), and therefore conferred no authority upon the arbitrator. The judge held and decided that neither of the objections taken by the defendants’ counsel was well founded, and overruled the motion for a nonsuit, to which decision the defendants’ counsel excepted^ There was a verdict in favor of the plaintiff for the amount of the award. The defendants applied to the court at a general term in the third district for a new trial on a bill of exceptions; the motion was denied and judgment entered upon the verdict. The defendants appealed to this court.</p>

This was an action on the case brought by the plaintiff for the seduction of his step-daughter, Gitty Ellen McGarey, tried [39] at the Schoharie circuit, before Parker, circuit judge, in May, 1847.

<p>A provision in a will that the interest of a devisee for life in property shall cease on the recovery of a judgment hy creditors to reach it is valid.</p> <p>In equity real estate which by a will is directed to be converted into money, is regarded as personal property.</p> <p>And where a testator, with a view to provide for the support of a son and his family, devised and bequeathed his real and personal estate to his executors and directed them to sell it and invest the proceeds, and gave the use and income thereof to the son for life, and the principal over to others on his decease; on a creditors’ bill filed to reach the son’s interest, Held, that .a valid trust was created, and that creditors could not reach the son’s interest unless there was a surplus beyond the support of himself and family.</p>

John Brown, as the receiver of the effects of the Croton Insurance Company, an insolvent corporation, brought assumpsit against the defendants upon a promissory note of $1000, being one of several notes executed by the defendants to the order of that company for premiums in advance on policies thereafter to be taken.

Action in the nature of a quo warranto brought in the supreme court, and tried before Mr. Justice S. B. Strong, June, 1855, without a jury. The relator claimed to be the clerk of the county of Queens, and charged the defendant with having intruded into that office.

known as the “ Powers lot,” situated in Canaan, in the county of Columbia. The plaintiff claimed as one of the children and heirs at law of Nathaniel Olmstead, sen. The defendant claimed under Nathaniel Olmstead, jr. who died in 1835, and to whom the premises had been devised by the will of Nathaniel Olmstead, sen. in the year 1821. The question was whether a fee or only a life estate passed by that will.

<p>Parties to an undertaking in the form prescribed by the Code (§ 335) to stay execution on appeal to this court, are not liable to pay the judgment where the appeal is dismissed.</p>

Edwards brought ejectment against Bishop, in the supreme court, to recover a tract of land in Columbia county, called the “ Bartlett lot,” and so described in the will of Nathaniel Olmstead, sen. who died in 1821, leaving four children, Nathaniel, jr. Joseph Washburn, Anna and Mary.

Action to recover possession of a farm situate in Columbia county. The complaint alleges that the plaintiff is the owner in fee of the premises; that the defendant unlawfully withholds the possession, and that thereby the plaintiff has sustained damages. The answer denies each of these allegations. The action was first tried in 1850, when the plaintiff recovered. The judgment was reversed and a new trial ordered.

In the spring of 1836, the canal commissioners appropriated mill lot E. in the city of Eochester, for the enlargement of the Erie Canal, pursuant to the act of May 11, 1835, in relation to the Erie Canal. Joseph Strong was, then the owner, but neglected to claim damages within a year after the appropriation as required by the statute.

This action was brought in the recorder’s court of the city of Buffalo, and was for the conversion of a steamboat. Both parties claimed under chattel mortgages, executed by Harry Whittaker, the former owner of the boat. The one executed to the plaintiffs was dated January 21st, 1847, and was given to secure the payment of $5000. A copy was filed in the clerk’s office of Erie county (the mortgagor residing in Buffalo), on the 22d of January, 1847.

<p>Tne judgment of a court of competent jurisdiction upon a question directly involved in the suit, is conclusive in a second suit between the same parties, depending on the same question, although the subject matter of the second action be different.</p> <p>Thus, where A. took from B. a bill of sale of certain personal property, and C. after-wards levied upon the property by virtue of attachments in favor of B.’s creditors, and A. subsequently took and converted to his own use a part of the property, for which C. sued him and recovered judgment in a justice’s court on the ground that the bill of sale was fraudulent and void as to the creditors; held, that the judgment was conclusive upon the question of fraud, in an action of replevin afterwards brought by A. against C. in the supreme court, to recover the residue of the properly.</p> <p>Held further, that parol evidence was admissible in the second suit for the purpose of showing what questions were controverted in the first action, and the grounds upon which it was determined.</p> <p>In the first suit the declaration went for all the property; but it appearing on the trial that the defendant had converted only certain specified articles, the plaintiff withdrew his claim as to the residue, and recovered judgment only for the value of the articles converted. Held, that this was not splitting up a single cause of action, and therefore that the plaintiff in that suit might, in a second action brought against him for the residue of the property, insist upon his title thereto under the levy.</p> <p>A party sued for acts done by him as a public officer, may under the statute (2 11. S. 353, §§ 28,29,) insist upon a former adjudication as conclusive without pleading it.</p>

Writ of- error, by the people, to review a judgment rendered by the supreme court in the fourth district, affirming the judgment of the court of oyer and terminer of Saratoga county. The question decided by this court is sufficiently stated in the opinions.

[77] Malloby & Leg© brought replevin against Charles P. Willis and Christopher Willis for seventy-five barrels of flour.

Action upon a policy of insurance issued by the defendant to the plaintiff. The cause was tried before referees. The following facts were established: On the 9th of August, 1852, the plaintiff and Messrs.

Action oh a policy of insurance against loss by lire The ¿Etna Insurance Company insured A. Y. Smith & Son on their stock in a woolen… Held: at which a resolution was passed to the effect that its business should thereafter be confined to “ farm property and detached buildings and outbuildings,” and “ that the secretary be directed to reinsure all remaining city risks held by the company unexpired, and also all risks on mills, factories, machine shops, cabinet shops,…

Garb brought an action for libel against Selden, in the supreme court. On demurrer to the declaration, the court gave judgment in the plaintiff’s favor, and the damages were assessed on writ of inquiry at $5000. The defendant ap- [92] pealed to this court. The case is sufficiently stated in the opinion of Hublbdt, J. P. Y. Cutler, for appellant. I. The writing complained of as libellous is plainly a privileged communication.

<p>Where on an application for the loan of money, the borrower in lieu thereof and in exchange for his own obligation receives the negotiable obligations of the lender for the amount, which the parties intend shall be and which are used by the borrower to raise the money, the transaction is a loan .vithin the usury law's.</p> <p>And if by the obligations exchanged the amount ultimately to be paid by the borrower is greater than that to be paid by the lender the transaction is usurious.</p> <p>Otherwise, if the obligation of the lender is at a premium and the amount agreed to be paid to him is not greater than its cash value in the market with legal interest thereon. Per Denio, C. J. Contra per Selden, J.</p> <p>Sundry questions and distinctions touching usurious agreements discussed and pointed out by Selden, J.</p> <p>The value of the pound sterling in federal money stated by Denr, C. J.</p> <p>The general rule is that courts will not grant one party to an illegal transaction affirmative relief against the other.</p> <p>But there are cases where a party, although a pa/rticeps criminis, is not in pari delicto, and in such cases he may bave'tbe relief. Per Selden, J.</p> <p>Affirmative relief against a contract on account of usury will not be denied, notwithstanding it appear on the face of the bill that the contract was con. nected with a transaction which violated the statute forbidding unauthorized banking.</p> <p>The term borrower in the act to prevent usury (Laws of 1837, 486, § 4), does not embrace the-grantee of property covered by an usurious incumbrance.</p> <p>And where the borrower incumbered his property to secure the payment of an usurious debt, and was afterwards discharged from his debts under the bankrupt act, and subsequently re-acquired title to the property by a purchase from the assignee in bankruptcy; on a bill filed by him to have the incumbrance cancelled on account of the usury; Held, that ho was not entitled to relief without paying the amount actually loaned and interest.</p> <p>It seems that the clerks of the United States courts are not authorized to take ' affidavits out of court.</p> <p>But the certificate of discharge in bankruptcy and the recitals in the assignee’s deed are, by force of the bankrupt act, sufficient evidence that the petition in bankruptcy was verified in open court, where the only evidence to the contrary is that the verification is in the form of an affidavit purporting to have been sworn to before the clerk.</p> <p>The issuing of negotiable certificates of deposit for ¿61000 each, payable with interest at a distant day and in a foreign country, is not a violation of a statute forbidding the issue of certificates for circulation as money.</p> <p>But where it is proved that such certificates were issued for the purpose of being loaned as money, it is a violation of the statute as to unauthorized banking. (1 R. S., 712, § 6.)1</p>

Ejectment for dower, first tried at the Saratoga circuit in [96] November, 1847, before Mr. Justice Paige. The plaintiff, in November, 1825, obtained from the court of chancery a decree of divorce from her husband, Joseph Wait, for the adultery of the latter.

<p>Van Pelt sued Southworth and McGraw in the court of common pleas of Tompkins county, and declared in case for wrongfully and fraudulently removing rails, timber, &c. from certain lands on which the plaintiff held a mortgage, thereby injuring his security, &c. It was proved on the trial, that in May, 1840, Almeron Bailey and William E. Bailey being the owners of 119 acres of land in Dryden, Tompkins county, executed a bond and mortgage covering the same to Harvey A. Bice, to secure the payment of $500, one half payable in May, 1841, and one half in May, 1842. In August, 1842, Bice sold and assigned the bond and mortgage to the plaintiff, who instituted a foreclosure suit thereon, and obtained the usual decree for the sale of the premises in August, 1844. The amount then due on the mortgage including the costs of the foreclosure suit, was nearly nine hundred dollars. The mortgagors were insolvent, and the premises were an inadequate security for this sum. On the sale under the decree, which took place in October, 1844, the premises produced only the sum of $575. Shortly [111] before the sale and while the advertisement was running, the defendant McGraw, who had become the owner of the equity of redemption by conveyance from the mortgagors, avowing that he would “ strip the land,” proceeded to draw off rails, and cut down and draw off valuable timber, &c. The premises were thereby considerably lessened in value. These acts were done by McGraw, and by Southworth aiding and assisting him, with full.knowledge of the plaintiff’s mortgage, and of the insolvency of the mortgagors.</p> <p>The defendants’ counsel requested the court to charge the jury that McGraw having the fee of the land, and being in possession, had a right to take off the fences and timber, and that these acts being lawful could not be deemed to have been done wrongfully or fraudulently. The court charged that the acts were lawful if they did not prejudice the plaintiff’s rights or impair his security, but if the defendants had impaired that security with a knowledge of the lien, then their acts were wrongful and fraudulent. The defendants’ counsel also requested the court to charge, that inasmuch as the plaintiff had alledged in his declaration that the defendants did the acts fraudulently and with a design to injure the plaintiff, he was» bound to prove those allegations by other evidence than the mere removal of the rails and timber for their own emolument. The court refused so to charge. To the charge as delivered and to the refusal to charge as requested, the defendants excepted. The jury found a verdict of $150 in favor of the plaintiff. The judgment entered thereon was affirmed in the supreme court on error brought. The defendants appealed to this court.</p>

Ellis Morse, Alpheus Morse and James McConnell, filed their bill in the late court of chancery, before the vice chancellor of the seventh circuit, against David Crofoot, Edward B. Miller and James Crofoot. The case was this: In April, 1837, the complainants with one Sylvester Thayer and as his sureties, executed to the defendant, David Crofoot, a note for $1200, payable in one year. The consideration was money borrowed of Crofoot by Thayer.

The declaration was upon a special contract of sale, and contained also general counts for goods sold at a fixed price and at a quantum valebant. On the trial before Oakley, C. J. it was proved that a contract was negotiated between the parties by Thos. Ingham, a broker, and was concluded in these words:— “ Hew York, July, 19, ’47.—Sold for Messrs. Geo. W. Shields & Go., to Messrs.

Assumpsit in the superior court of the city of Hew York, for use and occupation of a dwelling house in Broadway, tried before Oakley, C. J. in February, 1848. It was proved that Abraham H. Lawrence, by writing dated April 18th, 1845, without seal, leased the premises in question to the defendant Smith, for two years from the 1st of May thereafter.

Yandeeslice brought assumpsit in the New York common pleas, against Newton, upon a contract in writing, by which the defendant agreed that his steamboat the “ 0. Ellsworth,” Cap!.. Atwood, should “ take in tow on the Hudson river, from NexvYork to Albany, or as far as the ice would permit, the plaintiff’s canal boat, ‘ Judge Eoyer,’ at the risk of the master and owners thereof.” The contract was made late in November, 1843.

<p>A covenant in a lease which relates to a thing not in esse, hut to he done upon land, it seems, does not run with the land and bind the assignee, unless he be named in the covenant.</p> <p>Where a lease for ten years contained a covenant of renewal for ten years longer if the parties could agree on the rent, and the lessor covenanted, in case they did not so agree, to pay for improvements which the lessee should place upon the premises, and the lessee covenanted in the like case that at the end of the term, '■'•upon the lessors paying for the improvements as aforesaid he would peaceably surrender the possession of the premises to the lessor and his assigns; held, that the lessor’s right to demand possession at the expiration of the term was not qualified by the obligation to pay for the improvements, and therefore, that his assignee (there being no renewal of the lease) could recover in ejectment, although the improvements were not paid for. The words “ upon the lessee’s paying, &c.” did not constitute a condition precedent to the lessor’s right to have possession after the lease had expired.</p>

The will of John Tonnele, deceased, was offered for probate before the surrogate of the city and county of Hew-York, and was contested on the ground, among others, that it was not executed according to the provisions of the revised statutes. The surrogate overruled the objections and admitted the instrument to probate. The contestants or some of them appealed to the supreme court, where the decree of the surrogate was affirmed. An appeal was then taken to'this court.

■ Action in the superior court of the city of New-York. commenced in November, 1851.

John brought assumpsit against the Merchants’ Bank, to recover hack money paid by mistake. On the 15th of September, 184?, a man calling himself E. S. Moore, presented to the bank of Rutland, in Vermont, a draft as follows : [148] “ $1000. Cleveland, Ohio, August 28,1847. Canal Bank, Pay to order of E. S. Moore, one thousand dollars, value received, which place to the account of S. H. Maun, Cashier.

<p>In the action of slander, evidence can not he given of words spoken on another occasion and of a different import from those charged in the declaration, although such evidence is offered only for the purpose of showing that the words charged were spoken with a malicious intent.</p> <p>Accordingly, in an action for words spoken importing that the plaintiff had sworn false as a witness in a controversy before arbitrators, held, that evidence showing that the defendant on a different occasion, in speaking of the arbitration said, “ the way they got the money was no better than highway robbery,” was inadmissible, although offered for no other purpose than to show “ with, what mind ” the words charged in the declaration were spoken.</p> <p>In the action of slander, express malice forms no part of the issue except in cases of -privileged communications. The law implies malice from proof of the wrongful transaction. Per Gaiudineb, J.</p> <p>A witness may be convicted of perjury in falsely swearing to a promise within the statute of frauds, although parol evidence of the promise would not be competent if objected to. Such evidence is material, and therefore the action of slander will lie for imputing perjury in respect thereto.</p> <p>By the common law, arbitrators could act judicially without being sworn, and the statute of arbitrations (2 R. S. 541) has not changed the law in this respect.</p> <p>A submission to arbitrators is valid although there is no agreement that judgment may be entered on the award.</p> <p>Jurisdiction is conferred upon arbitrators by the agreement of the parties, and the omission to take the oath prescribed by the statute, does not affect the validity of their proceedings. .</p>

Euscoe, for charging her with perjury in giving evidence before referees in a suit wherein Eoscoe was plaintiff and Isaac W. Fero (the plaintiff’s father) was defendant. The defendant pleaded the general issue, the statute of .limitations, and a justification of the charge.

The North. American Trust and Banking Company was, in July, 1838, organized in the city of New-York as a corporation, under and by virtue of the act “ To authorize the business of banking.” (Laws of 1838, 245.) By the articles of association the capital was $2,000,000, with power to increase the same to $50,000,000. The amount of the capital was subscribed, a small portion thereof paid in in cash, and the residue secured by bonds and mortgages and stocks.

Philip Case brought trover in the superior court of the city of ¡New-York against the Mechanics’ Banking Association, for the conversion of certain drafts or checks drawn by [167] other parties upon the Bank of Commerce and other banks in the city of New-York, payable to the order of the plaintiff.

The plaintiffs, on the 6th of December, 1842, recovered a judgment by confession in the supreme court, against Abraham L. Deitz, for $748,90, and costs. Deitz was at that time the owner of a farm in Albany county, but the attorney for the plaintiffs neglected to have a transcript filed, and the judgment docketed in that county, so as to become a lien on the lands of the debtor.

<p>Where the sureties in a bond given on a writ of error, were excepted to and failed to justify, in consequence of which the writ of error was superseded; held, that the sureties were thereby discharged.</p>

This was an action of debt brought in the supreme court, upon the official bond executed by Schuyler as sheriff of the county of Eensselaer, and by the other defendants as his sureties, to the people of the state of blew-York.

The executors of the late Peter W. Badcliff brought an action on the case in the supreme court against the Mayor and Common Council of the city of Brooklyn.

J. The plaintiff had a verdict. That court on a case made affirmed the decision at the trial, and after judgment the defendant appealed to this court. The case is stated in the opinion of Httblbut, J.

The complainant filed a creditor’s bill before the vice chancellor of the seventh circuit, in March, 1844, against Lyman A. Walker, the judgment debtor, to which the respondents were subsequently made parties, as the assignees of Walker, for the purpose of avoiding an assignment made by him to them, on the ground of fraud.

The complaint in this case was upon a lease under seal, whereby the defendant rented of the plaintiff the dwelling part of a house in ISTew-Tork, over the store and entry, with a privilege in the yard, for the term of four years, from May, 1, 1848, at the yearly rent of $550 payable quarterly in advance, and the plaintiff claimed to recover rent for the quarter commencing on the 1st day of May, A. D. 1849. The lease contained the usual covenant for quiet enjoyment.

<p>The action was to recover the value of a building called the mill-house, and its contents, which stood upon the plaintiff’s premises in Greenburgh, Westchester county, about sixty-seven feet from the track of the defendants’ railroad. The complaint alleged that in February, 1852, the defendants so carelessly and unskilfully ran and managed a locomotive steam engine, which was imperfectly, unskilfully and negligently constructed, over their road, that sparks and coals of fire escaped from the engine and communicated fire to the building, which, with its contents, was consumed. The answer denied the complaint. The cause was tried bcforp Justice S. B. Strong and a jury, at the Westchester county cirbuit, and the plaintiff was non-suited. The plaintiff made a bill of exceptions, and on appeal the judgment was affirmed at a general term in the second district. The plaintiff appealed to this court The only question decided by this court was an exception to the exclusion of evidence offered by the plaintiff. This question is stated in the opinion, by Denio, G. J.</p>

<p>Bill filed to foreclose a mortgage, dated September 25, 1840, executed by Daniel Samain to Henry B. Williams, for the sum of $12,000, payable by installments, with semi-annual interest, and covering a farm in the county of Monroe. The mortgage was assigned by Williams, on the 22d of February, 1841, to Fletcher M. Haight, from whom, through sundry mesne assignments, the plaintiffs became the holders before the commencement of the suit. Samain, on the 1st of December, 1843, conveyed the premises.by quit-claim deed, to the defendant, Elias Avery, who defended on the ground of usury. The case was brought to a hearing on pleadings and proofs, before the vice chancellor of the eighth circuit, who overruled the defence and granted a decree of foreclosure, and for the sale of the mortgaged premises. His decree was afterwards affirmed by the supreme court in the seventh district, and Avery appealed to this court. A sufficient statement of the case to show the grounds of decision in this court, will be found in the opinion of Jewett, J.</p>

<p>Where a mutual, open and current account exists between parties, and one of them purchases from a third person and holds an open account against the other, without notice to or any recognition of its’validity by the latter, it does not become a part of the mutual acco.unt between them, within the provision of the statute of limitations as to- actions upon such accounts. ( 2 R. S., 290, § 28; Code of Procedure, § 95.)</p> <p>The demand, so purchased and held becomes barred by the lapse of six years from the time it accrued to the assignor, notwithstanding it was assigned before the statute attached, and there existed then and afterwards continued a mutual account and reciprocal dealings between 'the assignee and tlia debtor.</p>

George G. Messerve died in the year 1826, having made a will whereby he bequeathed to Wardell and others, his [231] executors, the sum of $10,000, and a share of his residuary estate, in trust, to pay the income quarterly to his son George Messerve during life, and after his death, the principal to his lawful issue: and in case of his death without lawful issue, to pay the principal to other persons. Geo.

In May, 1846, Josiah Beebee and Lorenza bis wife filed their petition in the supreme court, pursuant to the statute, for the partition of real estate, situate in the county of Suffolk.

Low sued Payne before a justice of the peace in assumpsit and recovered judgment for $23,36. The defendant carried the case by certiorari to the common pleas of Essex county, where the judgment was reversed. The supreme court on error brought reversed the judgment of the common pleas and affirmed that of the justice. The defendant then appealed to this court.

Action commenced in July, 1851, for damming a water c lurse, by means of which the plaintiff’s saw-mill, situated higher up the stream, was, as it was alleged, obstructed by hack water. The defendant in his answer denied the material allegations of fact in the complaint.

William Eno and Charles J. Euggles, who were the assign ees of Yirgil D. Bonesteel, sued William W. Woodworth in [250] the supreme court, to recover back the sum of $1500 paid by Bonesteel to the defendant.

The action was upon a policy of insurance, and was tried at the Oswego co.unty circuit in 1854, before Mr. Justice Bacon. On the trial the plaintiff read in evidence the policy of insurance. It bore date the 3d of June, 1853, was signed by the president and secretary of the defendant, and conn-: tersigned at Oswego by Seth Maltbie, the agent of the defendant at that place.

M. Bennett and J. Bennett brought an action in the supreme court against Brown, on an attachment bond. One Smeads had procured from a justice of the peace of the county of St. Lawrence, an attachment against the property of the Bennetts, who were non-residents of that county, and on the issuing of the process the bond .was given, upon which the present action was brought, Brown being the surety therein. The defendant had judgment in the supreme court on demurrer to his plea.

The bill was filed to compel the defendant to complete the purchase of certain real estate in the- city of Ifew-York, which the plaintiffs as executors of the will of William F. Baker [258] had sold to him at auction, in March, 1845. The sale took place pursuant to an authority contained in the will of William F. Baker, and the premises in question were struck off to the defendant as the highest bidder.

The action was tried by a referee, who found the following facts: In September, 1853, the defendants, who were commission merchants doing business in the city of New-York, agreed by parol with the plaintiff, who resides in Onondaga county, that if he would forward to them at New-York about six thousand pounds of butter which he; owned, they would sell it for a commission of five per cent, which should cover cooperage and storage, and guaranty to the plaintiff the sales.

On the 5th day of February, 1844, Giles, as receiver for the estate of William Post, deceased, having power to lease certain property of the decedent, and to collect the rents, rented store No. 162 Water-street, N. Y., to Comstock, for one year from the 1st of May, 1841.

Action by the plaintiff, the late sheriff of Oneida county, to recover for the conversion, by the defendant, of a horse levied u pon by virtue of an execution against one Bride. The action was tried in March, 1854, at the Oneida county circuit, held by Mr. Justice Pratt.

McCormick brought an action of debt in the supreme court against Pickering, on a bond dated Oct. 10,1836, in the penalty of $4000. The defendant pleaded, 1st. Mon est factum. 2d. A discharge as a bankrupt under the act of congress passed August 19th, 1841.

B. and G. Westlake, the administrators of Jacob Westlake, deceased, pursuant to the statute applied to the surrogate for an order for the sale of his real estate, for the purpose of paying his debts. An- order was obtained, pursuant to which the lands of the deceased were sold, and the proceeds amounting, after the payment of certain taxes charged thereon, to $33,226.90, were brought into the surrogate’s court for distribution.

Borst and Elizabeth his wife, against Jesse B. Spelman, and Alexander Fraser.

<p>This was an action to compel the specific performance by the defendant of the following contract:</p> <p>“ This agreement, made October 14,1851, between Sidney Stanton and Joseph M. Trowbridge, both of Syracuse, N. Y., is for the following purpose and upon the conditions hereinafter named: 1. Said Trowbridge undertakes, at his own expense, to obtain for said Stanton title from the State of New-York to the lot on Salina-street, in this city, now used and occupied by him for a stone yard, the same being known as lot No. 2, in block J, of the lots surveyed for the state by Benjamin F. G-reen in 1848 or ’9. 2. Said Stanton agrees to convey to said Trowbridge, by a good and sufficient conveyance, in consideration of the above mentioned expenses and trouble, one undivided half of the said lot, free from incumbrance or lien, except for the purchase money. 3. Both parties agree to share mutually the cost or purchase price to be paid the state therefor. 4. Should said Trowbridge be enabled to procure for said Stanton the purchase or title from the state of any greater or less quantity of land adjoining the above mentioned lot than is contained therein, then this agreement is to extend to and cover the same, be it more or less.</p> <p>(Signed) J. M. Trowbridge, [l. s.] Sidney Stanton. [l. s.]’’</p> <p>At the date of the agreement, Stanton was in the occupation of the lot, and had made erections thereon, exceeding the value of $200, by virtue of which he had acquired a preemption right to purchase it from the state, under the act of April 12, 1848, entitled “ An act to dispose of certain vacant and unoccupied lands belonging to the Onondaga salt springs reservation, and for other purposes.” Stanton had failed in his efforts to get a title from the state upon the payment of the appraised value, on the ground of the supposed want of the lot to be reserved for canal purposes, under the 4th section of the act. Trowbridge, in the performance of the contract on his part, had corresponded with the commissioners of the land office, procured certificates from the canal division engineer and the superintendent of the salt springs that the lot was not needed for the use of the canal or salt springs; he also attended personally before the board of commissioners at Albany and advocated the claim of Stanton, and through his exertions a patent was issued to Stanton on the 21st day of July, 1853. On the 23d of the same month, Trowbridge paid to Stanton the one-half of the purchase money advanced to the state, which was received and accepted without objection under the contract. Trowbridge assigned his interest in the contract to the plaintiff, and a demand of a conveyance of the one-half of the lot was made, which Stanton refused to comply with; thereupon the action was commenced The cause was tried at a special term in Onondaga county, held by Justice Pratt in 1853. He found the facts above stated, nud gave judgment requiring the defendant to convey to the plaintiff the undivided half of the premises. The defendant excepted. The judgment was affirmed at a general term in the fifth district. (18 Barb., 473.) The defendant appealed to this court.</p>

John Hastings brought replevin against Jackson Farmer and Alonzo Ellis for a span of horses.* The horses had formerly belonged to Farmer, who was an Onondaga Indian, and lived [294] with his tribe on the lands reserved for their use in the county of Onondaga. In the year 1844, Willet Raynor and Henry Raynor recovered judgment against him in a justice’s court for a store account, on which execution was issued, and the horses taken and sold.

<p>At common law, a defendant can not be discharged from arrest or imprisonment in a civil suit on the ground that he was insane at the time of the arrest, or became so afterwards.</p> <p>The 33d section of the act to organize the state lunatic asylum authorizes the first judge of a county to discharge a prisoner confined on civil process, and “ order him into safe custody and to be sent to the asylum.” Under this statute the order of discharge must contain a direction that the prisoner be sent to the asylum, or else it will be void, and the sheriff will be liable for an escape.</p> <p>A prisoner discharged and sent to the asylum under this statute, on being restored to sanity, may, it seems, be arrested again by his creditor.</p>

On the 16th of June, 1815, Wilhelm Willink and others entered into a contract in writing, under seal, with one Drew, whereby they covenanted to sell, and, on- performance by him of the covenants on his part, to convey to him one hundred and twenty-five acres of land, situate in the county of Niagara.

<p>Where goods sold or mortgaged are left in the possession and under the control of the vendor or mortgagor, the presumption of fraud declared by the statute may be repelled by proof of good faith; and where there is any evidence of good faith, as for example, where a consideration is shown, the question of fraud, it seems, is one of fact for a jury to pass upon.</p> <p>A., a manufacturer, purchased wool to be paid for by his note indorsed by B. The note was made accordingly and indorsed by B. for A.’s accommodation. At the same time A. executed to B. a writing reciting that B. had indorsed the note to be used in purchasing the wool, and declaring that the wool and the cloth to be manufactured therefrom should belong to B. until the note was paid. Held, that the writing was a mere mortgage, and not having been filed as such in the proper town clerk’s office, that it was void as against a subsequent purchaser in good faith from A.</p> <p>Where the owner of goods stands by, and without objection allows another to treat them as his own, and a third person is thereby led to purchase them in good faith, the owner can not recover such goods, or their value, from the purchaser.</p> <p>And the same doctrine, it seems, applies, although the party who allows another to assume the credit of ownership is not actually present when the act is done by which the third party is deceived.</p> <p>Thus, where a manufacturer of cloth sells his wool or some portion thereof, and the purchaser voluntarily allows him to carry on the business as before, in his own name, to manufacture the wool into cloth, and to deal with it as his own, such purchaser can not afterwards set up his title to the cloth against a subsequent purchaser in good faith.</p> <p>Where in an action of trover against the defendants one of them pleads, and the other suffers judgment by default, the latter is a competent witness (under the code of procedure) for the plaintiff against his co-defendant.</p> <p>A party calling a witness can not impeach his character or assail his credibility by general evidence; but he may prove by other testimony the truth of any particular fact in direct contradiction to the testimony of the witness.</p> <p>It is not competent, however, for a party calling a witness to give evidence of declarations or statements made by him at another time tending to impair his credibility.</p>

The action was by the administrator of Hetty Downie, a child about seven years old, who was alleged to have been killed in May, 1849, by the negligence of the defendants. The complaint, after alleging the negligence, averred that an action had accrued to the administrator to demand and have, from the defendants, compensation in damages for the injury done to the next of kin of the deceased by-their Wrongful act.

Tm plaintiffs, in 1840, sold certain lands in Stanford, Dutchess county, to Morgan, one of the defendants, for $525, of which $200 was paid down.

Bill filed by Bangs and Alcott to obtain satisfaction of a judgment in the supreme court in their favor against Joseph Strong and Haltby Strong, rendered Oct. 30,1838.

The action, in the superior court of the city of New-York, from the judgment of which court the appeal in this case was taken, was brought to recover the amount of a promissory note, made by the defendants and payable to Messrs. Anthony & Davis, for $534.23. The plaintiff claimed to be the assignee of Anthony & Davis.

Babcock sued the Montgomery County Mutual Insurance Company in the supreme court, and declared on a .fire policy, dated the 21st of September, 1844, whereby the defendants insured two dwelling houses and out-buildings of the plaintiff, against loss by fire for five years from the date of the policy.

<p>.It is well settled that the judgment of a court of competent jurisdiction is conclusive in a second suit between the same parties, or their privies, on the same question, although the subject matter may be different. (Doty v. Brown, 4 Oomst., 71.)</p> <p>Where in an action to recover possession of personal property the plaintiff claims under a chattel mortgage alleged by the defendant, a purchaser under an execution against the mortgagor, to have been fraudulent as to creditors, a judgment against the now defendant in a former suit in which he was plaintiff, and a servant of the now plaintiff was defendant, and in which suit the validity of the same chattel mortgage was in question, estops the defendant in this action. And it is immaterial that such judgment is shown to have been based upon grounds other than the validity of the mortgage.</p> <p>Thus: The now defendant, sued one R. for removing a portion of the property bought by him at an execution sale. The now plaintiff defended that suit and justified the removal by R., as his servant, claiming title under a mortgage from the execution debtor, which mortgage was alleged by the then plaintiff to he fraudulent as to creditors. Judgment was rendered against the then plaintiff on the ground that he failed to prove the judgment on which the execution was issued; Held, that the judgment in that suit is conclusive against the title of the defendant in this, whether the validity of the mortgage was determined in that suit or not. Held, further, that the now plaintiff and R. stand in such privity to each other as to bring this case within the rule laid down in Doty v. Brown.</p>

The action was brought to recover the amount subscribed by the defendant to the capital stock of the Attica and Hornellsville Railroad Company. The books were opened, in pursuance of the act of incorporation {Laws of 1845, ch. 336), for subscriptions to stock on the 10th of December, 1845.

Stephen Olakk and others brought assumpsit in the su- [339] preme court against the mayor, &c. of the city of New-York. The plaintiffs, in 1838, made a contract with the water commissioners of the city of New-York, to construct section 96 of the Croton aqueduct, including the receiving reservoir. The contract was under seal, executed by the plaintiffs and by Stephen Allen on behalf of the Water commissioners, of whom he was the chairman.

Hawes and others, composing the firm of Hawes, Gray & Co., brought assumpsit against Lawrence & Hicks, in the superior court of the city of Hew-York, to recover the deficiency in price on a quantity of oil which the plaintiffs agreed to sell to the defendants, and which was sold at auction by the plaintiffs at less than, the contract, price, after the defendants had refused to accept and pay for it pursuant to the contract.

This- was an action on the case, brought in the court of common pleas of Monroe county, to recover the value of two oxen, alledged to have been killed through the negligence of the defendants, in running their cars over them, in September, 1843, the oxen being at the time on the track of the defendants’ railroad.

Plaintiffs brought suit on behalf of themselves and all other tax payers of the city of Buffalo, except the defendant, Austin; and in their complaint, after stating that each of the plaintiffs paid more than $100 a year taxes in the city of Buffalo, set up the various acts incorporating the city, passed April 20, 1832, April 17, 1843, March 29, 1843, and April 13, 1853, and also the “ Act to restrict and regulate the power of municipal corporations to borrow money, contract…

On the 1st of May, 1833, Thomas 0. Bntler leased to Elizabeth Parcels a lot in the city of ISTew-Tork, on which was a two story brick dwelling house, for the term of five years, with a privilege of renewal for five years longer.

[364] In September, 1841, the plaintiff was appointed by the court of chancery, receiver of the North American Trust and Banking Company, an association organized in July, 1838, in the city of New-York, under the general banking law.

<p>Barnes brought an action of debt in the supreme court against Harris, upon a judgment rendered by a justice of the peace. The declaration alledged that on the 17th day of May, 1844, at Norwich, in the county of Chenango, the said' plaintiff, by the consideration and judgment of Harvey Hubbard, Esq., then and yet a justice of the peace of the said town of Norwich, in and for the said county of Chenango, and then and there sitting and acting as such justice, pursuant to the statute, recovered against the said defendant the sum of $100 damages and ninety cents costs, in an action of assumpsit founded upon contract, then lately commenced by the said plaintiff against the said defendant, before the said justice, by summons duly issued by the said justice on the 8th day aforesaid, returnable at the office of said justice in Norwich aforesaid, on the said 17th day of May, 1844; which said summons more than six days before the return day thereof was personally served on said defendant by a constable of said county, which said damages and costs were adjudged to the said plaintiff by the said justice then and there, and of which the said defendant was convicted as by the docket, &e. [376] and which said judgment still remains unpaid, &e. Whereby, &c. The defendant demurred to the declaration, and assigned for causes that the justice had no jurisdiction to render the judgment; that it did not appear that any return was made on the summons issued by him, or that such summons was in fact ever returned, or that any court was held by the justice at the time and place specified, or that the defendant was a resident of the county of Chenango, or that the summons claimed or demanded less than one hundred dollars, or that any time of day was specified in the summons, or that the defendant appeared to the suit. The plaintiff joined in demurrer. The supreme court sitting in the sixth district held the declaration good and overruled the demurrer. After judgment the defendant appealed to this court.</p>

Mowbray Owens, a resident of Tompkins county, New-York, died January 4,1834, leaving a last will and testament, which was made in 1832. By this will he directed his property, real and personal, to be sold by his executors.

This was an action brought by Hyde, as receiver of the Chenango County Mutual Insurance Company, against Lynde, upon a deposit note as follows: “ $83,20.

<p>On the 13th of April, 1841, the defendant executed to Isaac Fletcher and Isaac Fletcher, junior, a bond in the penalty of $800, with the following recital and condition : “ Whereas the said Fletcher has heretofore bought of me the following described piece of land, situate lying and being in Georgetown aforesaid, containing 35f acres of land, to be taken off the east end of the north half of lot FTo. 10, in said town, for which said Fletcher has paid $500, the receipt whereof I do hereby acknowledge, in full satisfaction for the above described land. ¡Now, therefore, the condition of this obligation is such, that if the above bound Edward Button, his heirs, executors or administrators, do well and truly execute or cause to be executed unto the above named Fletchers, their heirs, executors, administrators or assigns, a good and sufficient warrantee deed of the above described land, free from all incumbrances, by the first day of January next, then this to be void, or otherwise to be and remain in full force and virtue.”</p> <p>The plaintiff, Isaac Fletcher, jr., in ¡November, 1843, became the sole owner of the bond, and requested the defendant to perform the condition and give a deed, which the defend- [397] ant refused, on the ground that he had no title himself to the land. After waiting six years and upwards from the time of the default, he brought this action on the bond, claiming to recover as damages the purchase money paid for the land and interest thereon. The defendant in his answer claimed to be allowed the sum of $298, for the use of the premises, as a set-off against the claim of the plaintiff; also, that the purchase money actually paid was only $450, instead of $500, as recited in the bond. The answer set up no other defence.</p> <p>On the trial before Gridley, J. in February, 1849, the defendant offered evidence tending to show that the Fletchers by their agreement with him for the purchase of the land acquired an equitable title thereto, the legal title being outstanding in third persons. This evidence was objected to by the plaintiff and excluded by the judge. The defendant excepted. It appeared in the course oí the trial that for $263 of the purchase money mentioned in the bond, the Fletchers gave their note, on which the sum of $26 remained unpaid at the time of the trial. The defendant offered to prove that he had called upon the Fletchers to pay this balance, but they refused to pay it, on the ground that the defendant had not conveyed to them, by deed wilh warranty, the premises in question. This evidence was objected to and excluded. The defendant excepted.</p> <p>The defendant requested the court to charge the jury, that inasmuch as the Fletchers went immediately into the possession of the land, under the agreement to purchase from the defend, ant, and had had the use and occupation thereof ever since under the agreement, the plaintiff was not entitled to recover interest, the use of the premises being equivalent to the interest on the purchase money paid: also, and upon the same ground, that the plaintiff could not recover at all until he rescinded the agreement and restored the possession of the land to the defendant : also, that in ascertaining the damages, if the plaintiff was entitled to recover, the sum of $26, unpaid on the note given for a part of the purchase money, should be deducted. The judge refused to charge as requested upon either of the [398] propositions, and did charge that the plaintiff was entitled to recover the purchase money agreed to be paid with six years’ interest thereon. The defendant excepted. The jury found a verdict in favor of the plaintiff for $657,31. The supreme court in the fifth district refused to grant a new trial, and after judgment the defendant appealed to this court.</p> <p>cited Abbott v. Draper, (4 Denio, 51;) Dowelle v. Camp, (12 John. 451;) Gillett v. Maynard, (5 id. 85 ;) Lockwood v. Barnes, (3 Hill, 128 ;) Staats v. Executors of Ten Eyck, (3 Caines, 111;) Baldwin v. Munn, (2 Wend. 399, 405,406 ;) Peters v. McKean, (4 Denio, 546, 459, 550;) Pitcher v. Livingston, (4 John. 1;) Kinney v. Watts, (14 Wend. 38 ;) Kelley v. Dutch Church, (2 Hill, 115 ;) Bennett v. Jenkins, (13 John. 50 ;) 1 McCord, 586 ; 2 Mass. R. 455; 3 id. 523.</p> <p>cited Gillett v. Maynard, (5 John. 85 ;) Baldwin v. Munn, (2 Wend. 399, 405;) Kinney v. Watts, (14 id. 38, 40, approved in Kelly v. Dutch Church, 2 Hill, 115 ;) Caswell v. Wendell, (4 Mass. R. 108;) Stevenson v. Maxwell, (2 Saund. Ch. R. 273;) Hopkins v. Grazebrook, (6 Barn, & Cress. 31;) Story on Cont. § 960 ; 2 Phil. Ev. 60 ; Sugd. on Vend. 183 ; Smith v. Stewart, (6 John. 46 ;) Ward-well v. Bancroft, (13 id. 489;) 2 B. S. 354, § 18, sub. 1, 3; Witter v. Witter, (10 Mass. R. 223;) Murray v. Goumerneur, (2 John. Ch. 438 ;) 2 Phil. Ev. 88, 89, citing Conner v. Henderson, (15 Mass. 319 ;) Emit v. Silk, (5 East, 449 ; (Green v. Green, (9 Cowen, 46 ;) Abbott v. Draper, (4 Denio, 51;) edge v. Brigham, (1 Metc. 547;) Colville v. Besly, (2 Denio, 139;) Code, § 128, sub. 2; Porter v. Talcott, (1 Cowen, 359, 383;) Weydell v. Luer, (3 Denio, 410.)</p>

The bill in this cause was filed by John Malins, against Brown and others, executors of Hathan Munroe deceased, for the purpose of enforcing an agreement alledged to have been made by the decedent, to discharge certain lands from the lien of a mortgage held by him. Malins, in 1836, negotiated with one Heman Ward for the purchase of forty acres of land situated in Brutus, Cayuga county, for which he was to pay $1500.

<p>James Jones and Edward Jones sued Judd in the common pleas of Cattaraugus county, for the price of work and labor. The defendant contracted with the state to complete certain sections of the Genesee Valley Canal. On. the 14th. of September, 1840, he entered into a sub-contract with the plaintiffs for a part of the same work, by which he agreed to pay them seven cents per yard for excavating and eight cents for embankment, monthly, according to the measurement of the engineers, except ten per cent which was not to be paid until the final estimate. The work on the canal, including that on which the plaintiffs were engaged, was stopped by the canal commissioners on the 21st day of June, 1841, before they had completed their job, and they never finished it. On the 29th of March, 1842, the legislature passed the act “ to preserve the credit of the state,” which put an end to the original contract between the defendant and the state, and before the commencement of this suit that contract had expired by its own limitation. The defend- ' ant paid the plaintiffs for all the work performed by them except the ten per cent reserved, which amounted to $85,30, which sum the plaintiffs claimed to recover.</p> <p>The defendant moved for a nonsuit on the ground, among others, that without a waiver of full performance of the contract, or without some act of his to prevent the performance, the plaintiffs could not recover. The motion was overruled. [413] The defendant then proved that the work actually done by the plaintiffs under the contract was worth only five cents for embankment and seven cents for excavation. He offered also to prove what the cost of the work not done would be, and that the excavation and embankment not done would be more difficult and expensive than the portion completed. This evidence was objected to and excluded. The referees before whom the trial was had reported in the plaintiffs’ favor for the sum claimed. The common pleas confirmed their report, and rendered judgment theron, which was affirmed by the supreme court, on error brought. The defendant appealed to this court.</p>

Action by the plaintiff for the seduction of his daughter by the defendant. The cause was tried at the Monroe county, circuit, and a verdict rendered in favor of the plaintiff for $650 damages. The defendant’s counsel excepted to the refusal of the court to nonsuit the plaintiff. He al=>o excepted to portions of the charge as given, and to the refusal of the court to charge as requested. The defendant apppealed from the judgment entered on the verdict.

Bill filed in 1845, to set aside a satisfaction piece, and satisfaction of a mortgage, which had been entered of record, and to foreclose the mortgage. In September, 1847, the supreme court, in special term, on pleadings and proofs, made a decree setting aside the satisfaction piece, and the entry of satisfaction of record; declaring the mortgage a valid security, and directing a foreclosure in the usual form.

moved to dismiss the appeal, on the ground that it was taken too soon. The court below gave judgment on the first day of ¡November last; but the costs were not adjusted and the judgment roll filed .until the fourth day of that month. The appeal was taken on that day before the hour when the costs were adjusted and the roll filed.

<p>Action upon a policy of insurance against loss to goods by fire, to the amount of $2000, issued by the defendant to A." H. Dixon & Co., a firm composed of A. H. Dixon and S. G. Goss. The defendant was a mutual insurance company, whose charter was the same as that of the Jefferson County Mutual Insurance Company. (Laws of 1836, ch. 41.) The policy was issued the 25th of .December, 1849. It contained the following provision: “ Provided further, that in case the asssured shall already have made any other insurance against loss by fire on the same property herein insured, not -notified to this corporation, or in case the assured or the assigns of the assured shall hereafter make any other insurance on the same property, and shall not with all reasonable diligence give notice thereof to this company and have the same indorsed on this instrument or otherwise acknow¡edged and approved by them in writing, this policy shall cease and be. of no further effect.” On the 1st of March, 1850, the firm having dissolved, Goss assigned all his interest in the goods insured to Dixon; and subsequently Dixon obtained a further insurance on the goods in the Columbus Insurance Company. He took the policy to the agent of the defendant, through whom he obtained the first policy, who made a memorandum upon the face of the policy of the defendant of the subsequent insurance, stating that it was accepted, to which he signed his name as agent. The insured parties and the agent resided near Kalamazoo, in Michigan. The appointment of this agent was in writing, executed by the defendant under its corporate seal, and it stated that Park, the agent, had “been regularly appointed an agent and surveyor of the Genesee Mutual Insurance Company, and is duly authorized to take applications for insurance in the said company.” It was proved that the agent was accustomed to take applications, to make surveys, receive moneys and negotiate the amount of premiums. In the case of this insurance, he received'the application and transmitted it to the office of the company, in Genesee county, New-York, and the policy was sent the insured by mail. After the subsequent insurance, the property was damaged and destroyed by fire to the amount of between three and four thousand dollars; and Dixon assigned the policy and the demand upon it against the defendant to the plaintiff. On the trial, before Justice Roosevelt in New-0York, the foregoing facts were proved. ' The counsel for the defendant, among other objections to any recovery by the plaintiff, insisted that the subsequent insurance in the Columbus Insurance Company rendered the policy issued by the defendant void, because such subsequent insurance was not notified to and accepted by the defendant,' as provided by the policy. The defendant also insisted upon other objections to a recovery, but as this court did not pass upon these other questions they are not stated. The judge overruled the objections, and held the plaintiff was entitled to recover. Verdict and judgment accordingly. The judgment was affirmed at a general term in the first district. The defendant appealed to this court.</p>

Under the charter of the city of Brooklyn, the common council in the year 1848 caused Flushing avenue, one of the streets of that city, to he graded and paved at an expense of $20,390,25, which, according to a provision in the charter, was assessed upon the owners or occupants, of the lands benefited by the improvement, in proportion to the amount of such benefit.

Action in the superior court of the city of Few-York to recover two lots of land. The plaintiff had a verdict and judgment. On appeal by the defendant, the judgment was affirmed at a general term of the superior court. (For a statement of the case and the reasons for the decision, see' 4 Fuer, 164.) The defendant appealed to this court, where the case was submitted on printed arguments, by

<p>Where land is conveyed to husband and wife, they do not take as joint tenants or as tenants in common; both are seized of the entirety; neither of them can dispose of any part without the assent of the other, and the whole goes to the survivor: and the effect is the same whether the land be limited to the two during their joint lives, with remainder to the survivor during his or her .life, or to the two and their representatives during the life of the survivor.</p> <p>A. and his wife conveyed lands to their son, the defendant, who, in consideration of such conveyance, demised the same premises to A. and his wife during their natural lives and the life of the longest liver of them, free of rent. Afterwards, the defendant went into possession of the lands, under a verbal agreement with A. and his wife to support them and to receive the profits of the lands over what should be necessary for such support. A. died during the continuance of this agreement. In a suit between his widow (the plaintiff) and the defendant for possession of the lands; Held, that plaintiff was entitled to recover.</p> <p>Tiie defendant’s interest in the lands, under the verbal agreement, terminated on the death of A., as that agreement conferred no right which could affect the estate of the plaintiff as survivor of her husband; and therefore held, that the defendant, on holding over after the death of A., and without the plaintiff’s consent, became a trespasser under 1 M. S., 749, § 7, and was not entitled to notice to quit.</p>

<p>The actions were brought by the plaintiffs, as judgment creditors, to set aside an assignment alleged to be fraudulent. The causes were tried at a special term of the supreme court in the city of Hew-York, without a jury. The complaints were dismissed, and, after judgment of affirmance at a general term, the plaintiffs appealed to this court. The facts are sufficiently stated in the opinion of the court. The causes were submitted on printed briefs, by</p>

<p>The action was brought, in the superior court of the city of New-York, against the defendant, as indorser of a promissory note. The note was made by Thomas McIntosh & Co., for $2045.35, payable six months after date to the order of the defendant, John McIntosh, and purported to be indorsed by him. The defence was that the indorsement was a forgery. On the trial the plaintiffs proved that the note was given for two bills of goods sold by the plaintiffs to the makers, and that when the bills were presented the note in question was in the hands of Thomas McIntosh, one of the makers and a son of defendant, with the defendant’s name upon it as indorser, but the amount in blank; that it was filled up by Thomas with the amount of the two bills and delivered to the plaintiffs’ clerk in payment for the goods.</p> <p>The plaintiffs then gave evidence to prove that the defendant’s name indorsed on the note was his signature. They also proved that, previous to the delivery of the note in question, the defendant had delivered to Thomas notes indorsed by him, the defendant, with the amount left blank, to be used by Thomas in the business of his firm. This last evidence w7as objected to by the defendant^ but was admitted, and defendant excepted.</p> <p>The defendant then examined several witnesses, who gave evidence tending to prove that the indorsement was not the, defendant’s handwriting. He then offered to prove by the cashier of the Greenwich Bank, checks, drawn by him on the bank in the course of his business, before and about the time of the date of the note, for the purpose of showing to the jury the general character of his signature. This evidence was objected to by the plaintiffs’ counsel, and the objection sustained, and exception taken.</p> <p>The plaintiffs’ counsel, on the cross-examination of the defendant’s witnesses, who had testified that the indorsement in question was not in defendant’s handwriting, exhibited two other promissory notes, on which the defendant’s name appeared as indorser, and inquired of them severally if the name indorsed on those notes was the defendant’s handwriting. To this evidence the defendant's counsel objected, but the objection was overruled and the examination allowed, defendant’s counsel excepting. These witnesses generally testified that the name indorsed on these two notes was not the defendant’s handwriting. The plaintiffs’ counsel then offered to prove that the defendant had admitted the genuineness of his signature indorsed upon the two notes thus exhibited. This was objected to by the defendant’s counsel on the ground that such evidence was incompetent on the issue made by the pleadings in the action. The objection was overruled, defendant’s counsel excepting, and the plaintiffs gave evidence tending to prove the facts offered. The judge instructed the jury that they must determine from the testimony before them whether the indorsement in question was the defendant’s signature; that it was for the plaintiffs to establish the genuineness of the indorsement affirmatively; and that before they could give any weight to the evidence on the subject of the indorsement on the two other notes, to contradict or impair the testimony of the defendant’s witnesses on the question of handwriting, they must be perfectly convinced that the defendant had admitted those signatures to be genuine. No exception was taken to the charge. The defendant’s counsel requested the judge to charge that the weight of evidence on the question of handwriting was in favor of the defendant. The judge declined so to charge and the defendant’s counsel excepted. The jury found in favor of the plaintiffs. The defendant, on a case and exceptions, moved, at the general term of the court, to set aside the verdict and for a new trial, which was denied, and he now appeals to this court.</p>

[443] The Mutual Insurance Company of Buffalo sued the Board of Supervisors of Erie county to recover back money paid upon a collector’s warrant.

The action was covenant, brought by Gray against Hook upon an instrument read as evidence on the trial, as follows : “ Memorandum of an agreement made and entered into, the 1st day of July, 1842, between John Hook of Westchester [450] county and state of Hew-York, of the first part, and John Gray of the city of New-York, of the second part.

The testator died in 1845, and letters- testamentary were issued to Peter Pinckney and the appellant, the executors named in the will. Pinckney, who was a person of character and responsibility, took charge of the estate, and managed it until his death in 1846.

<p>The action was brought to have certain deeds and a mort ■ gage canceled and removed from the records of Genesee county, as clouds upon the plaintiff’s title to about forty-seven acres of land in said county. The cause was tried by by Mr. Justice Hoyt, at a special term, in Octobei, 1852, without a jury. The following facts appeared up.mi the trial: On the 15th of October, 1842, one Chase was the owner in fee of the premises in question, and on that day mortgaged the same to one Tousley, to secure the payment of $748 one year from date; which mortgage, together with the usual power of sale, was recorded in the proper office, December 20,1842. Some time in 1844, Tousley, the mortgagee, undertook to foreclose the mortgage, by advertisement and sale in pursuance of the statute. From the papers produced on the trial and the parol evidence, it appeared that the premises were sold under the' proceedings on the 27th of February, 1844, and that Tousley, the mortgagee, became the purchaser. He testified upon the trial that he took possession immediately after his purchase, as far as he was able, there being no house upon the premises. In March of the same year Tousley conveyed the premises by deed, with covenant of warranty, to the plaintiff, who took possession and continued to occupy the premises under his deed. On the trial, the plaintiff undertook to establish the foreclosure of the mortgage. All the papers had been filed regularly and recorded, and no objection was made to any of them, except the affidavit of the facts of the sale by the auctioneer. When this was offered, it was objected to.by the defendants, on the ground that it was not taken before an officer authorized by the provisions of the statute, relative to foreclosures, to take and certify such affidavits. On its face it appeared to have been taken before the deputy county clerk, in the absence of the clerk. The justice overruled the objection and received the affidavit, and the defendants’ counsel excepted. The plaintiff also offered parol evidence of the fact of the sale, which was objected to and received, and exceptions taken in like manner. The defendants claimed title in their answer, and the following facts appeared in reference to the title under which they claimed: On the 26th of November, 1841, Hall and Roberts, by Lee and Fauar, their attorneys, recovered a judgment in the supreme court against Chase and one Hill yard, for $76.63, damages and costs, which was regularly docketed in Genesee county. On the 25th of December, 1841, Chase and Hillyard made a note for' the amount of the judgment, and interest up to that time, which was also signed by one Curtis, as their surety, payable in thirty days, with interest. This note was taken by the plaintiffs’ attorneys, and held as collateral security for the payment of the judgment. It was not paid at maturity, and the attorneys of the plaintiffs in the judgment, thereupon, on the 3d of February, 1842, issued an execution to the sheriff of Genesee county, and also to the sheriff of Orleans county. They also commenced an action upon the note against Curtis, the surety, and perfected judgment against him on the 24th of March, 1842. Execution was issued on this judgment to the sheriff of Orleans county on the 24th of April, 1842, on which the sheriff sold the real estate of Curtis September 21, 1842, and which he redeemed on the 1st of September, 1843. The full amount of the judgment was collected by this sale. The execution was returned satisfied September 2d, 1842, and the amount paid to the attorneys of the plaintiffs in the action September 5th, 1843, after the redemption. On the 17th of October, 1843, the sheriff of Genesee county sold the premises in question, together with another parcel of land of about fifty acres, on the execution issued upon the first judgment, and the same were struck off to James D. Merrill for $34.31. It does not appear that the sheriff had any directions on the subject of this sale, except the indorsement on the back of the execution directing him to collect the whole amount of the judgment, with interest from the time it was docketed, and his fees. Merrill, the purchaser, took the sheriff’s certificate of the sale, and a deed from the sheriff, dated January 18, 1845. On the 23d of July, 1846, one of the attorneys of the plaintiffs in the action received of the sheriff $17 in full of the plaintiffs’ costs in the cause. On the 26th of February, 1851, J. D. Merrill mortgaged the premises in question to the defendant, H. W. Merrill, to secure the payment of $508, and on the 13th of August, 1851, he conveyed the premises by quit-claim deed to the other defendant, Alonzo Merrill. This action was commenced in November, 1851. The justice, at special term, found and decided that the first judgment was paid and satisfied when the amount of the last judgment was collected on execution, and that the sheriff of Genesee county, at the time of the sale of the premises in question by him, had no power to make such sale, and that the sale and subsequent deed executed by him were wholly void. It was thereupon adjudged and determined that the sheriff’s deed, the mortgage to the defendant H. W. Merrill, and the deed to the defendant A. Merrill, were all inoperative and void; and that the records thereof be canceled, as clouds upon the plaintiff’s title; and that the plain till', his heirs and assigns, be forever quieted in the title to the said premises and the possession thereof, against the said deed and mortgage. The defendants thereupon appealed to the general term oí the eighth district, where the judgment of the special term was affirmed, and they now appeal to this court.</p>

Gray recovered judgment at law against William Schenck, in December, 1845, and after execution returned unsatisfied, filed the bill in this cause against the debtor and his son Benjamin Schenck, in the nature of a creditor’s bill, alledging, amongst other things, that certain moneys were due from Benjamin to William on a mortgage, which ought to be applied on the judgment, and which said mortgage was executed by Benjamin to William, March 1, 1838.

William W. Mumford filed a bill in the late court of chancery for the purpose of annulling an assignment made by him to the American Life Insurance and Trust Company of a bond and mortgage, executed by Elihu Ingersoll to Hollam Hutchinson, dated November 28, 1836, to secure the payment of the sum of $19,000, in eight equal annual payments, from January 1,1838, with annual interest; also for the purpose of annulling a bond executed by the plaintiff to the said company,…

The plaintiff, in his complaint, alleged that in November, 1847, he was employed by the defendant in and about saving the wreck of the steam propeller Phoenix, on Lake Michigan, and that he then, at the instance and request of the defendant, performed services and expended moneys in and about saving said wreck, to the value and amount of abo.ut $160; for which sum he demanded judgment.

<p>A party who redeems land sold on execution, after receiving the sheriff’s deed, can maintain an action in the nature of waste, or of an action on the case, against any person who, intermediate the sale and sheriff’s deed, cuts and takes timber from the premises.</p> <p>So Held, where the party who bid off the premises at the sheriff’s sale cut and carried away the timber with the consent of the judgment debtor who was in possession.</p>

The action was commenced August 6, 1851, to recover possession of a‘bout twenty-two acres of land, situate in Virgil, Cortland county. The answer denied that the plaintiff had title to the land, and averred that the defendant owned it in fee, and was entitled to the possession. The cause was tried before Mr. Justice Gray, at the Cortland county circuit.

Action against Morris, Spalding and Norman, upon a promissory note, dated October 16th, 1848, for $1560.22-, whereby the defendants promised, jointly and severally, to pay that sum to the plaintiffs or order, seven months from date. Attached to the signature of Norman to. the note was the word “ surety.” The defendants answered jointly.

This action was brought in the supreme court, by Gridley against Benjamin Dole as the indorser of a promissory note as follows: “ $1500. Clinton, June 28, 1847. ^ Three months after date I promise to pay to the order of Benjamin Dole fifteen hundred dollars, value received the Kirkland Bank. T. D. Dole.” (Indorsed) “ Benjamin Dole.” In the declaration the plaintiff was named as president of the Kirkland Bank ; but the promises were laid to the plaintiff and not the bank.

The action was brought, in November, 1852, in the superior court, to recover the sum of $1407.07, alleged to bo the proceeds of the sale of the brig Venus, a vessel condemned as unseaworthy at Paraguay, in South America, in the spring of 1850. George W. Adams, the master of the vessel, was the principal witness on the part of the plaintiffs.

This was an action for criminal conversation with the plaintiff’s wife, charging that the same took place at different times during a [494] period of eight or nine months, while ,ue defendant was attending her as a physician. The answer did not deny the adultery charged in the complaint, but set up as a defence that the improper intercouse took place through the connivance, with the knowledge, and by the consent of the plaintiff.

This was an action of trover, commenced by -the Bank of Rochester against J ones for 200 barrels of flour. The cause was tried at the Albany circuit in Sept. 1847, before Justice Willabd, who nonsuited the plaintiff in accordance with the opinion of the supreme court, previously given in the cause.

<p>The corporation of the city of New-York is not, by virtue of its general power over the streets of the city, authorized to grant to an association of persons the right to construct and maintain, for a term of years, a railway in one of the streets for the transportation of passengers for private gain; and a resolution of the common council granting such right is void.</p> <p>The power of the corporation to authorize by mere license a "railway to he laid in a street, and carriages to transport passengers for hire to be run thereon, discussed, ¿je?-Denio, C. J., and Comstock, J.</p> <p>A suit does not lie in favor of a resident and tax-payer of the city who does not own real estate on the street where the railway is proposed to he laid, and to whom it will not he specially injurious, to prevent ils construction.</p> <p>And where the action to prevent the construction of the railway was brought by such a party, and the court at the trial, after all the evidence was given, held that he could not maintain the action, and made an order permitting the attorney-general to he added as a party plaintiff, and then gave judgment for the relief prayed; Held, that this order was reviewahie by this court; and Held, further, that the amendment was not authorized by the Code, and the order was therefore erroneous.</p> <p>Any unauthorized continuous obstruction of a public highway or street is a public nuisance. Per Denio, C. J.</p> <p>But that which is authorized by competent legal authority cannot, in law, constitute a nuisance. Per Denio, C. J.</p> <p>The power of the court under the Code to amend by adding or substituting parties, discussed, per Dexio, C. J.</p>

The people brought an action in the supreme court against William Arnold, to recover possession of fifty acres of land, situated in Springwater, Livingston county.

(2 B. S. 12.) The plaintiff had obtained an attachment against John W. Baker and John Young as non-resident debtors, and the bond in question was given in order to procure a discharge of such attachment.

The action was brought in the superior court of the city of Buffalo against the city and William Ketchum, who was the city comptroller.

Action to recover an alleged subscription of $100 towards the construction of a plank road. The cause was tried in, February, 1853, before Mr. Justice C. L. Allen, without a jury.

<p>Where on the trial of an action for assault and battery, the plaintiff called two witnesses, one of whom testified to the assault without stating any matter to justify it, and the other also proved the same assault but stated circumstances of justification, held, that the court could not be required to nonsuit the plaintiff.</p> <p>Where on the trial of an action against two persons for a joint assault, no evidence appears against one of them, he is entitled to be discharged for the purpose of being examined as a witness for his co-defendant.</p> <p>But if there be any evidence, however slight, against the defendant sought to be discharged, it must go to the jury along with the evidence against the other defendants.</p> <p>After the evidence is closed and the jury have retired, it is too late to move for the discharge of one of the defendants on the ground that there is no evidence against him.</p> <p>A party against whom a verdict is declared has an absolute right to poll the jury at any time before the verdict is entered.</p> <p>In polling the jury the inquiry is, “ Is this your verdict 1” and the court can not be required to have the question put, “ Is this your verdict against each and both the defendants Í”</p>

Mobgae & Gray brought replevin in the detinet, in the supreme court, against William Congdon for one hundred and twenty-eight white pine logs, which, with other logs had been delivered at the defendant’s saw mill for the purpose of being sawed into boards. The defendant sawed all the logs, and delivered the lumber therefrom, except the one hundred and twenty-eight, and on those he claimed a lien for the amount of his account.

<p>An agreement, made upon sufficient consideration, between a judgment debtor whose land has been sold on execution, and the purchaser, enlarging the time within which the debtor may redeem or extinguish the lien acquired by the sale, is valid.</p> <p>And such agreement will affect other parties, so that a creditor by judgment obtained subsequently, but within fifteen months from the sale, can not redeem or acquire the purchaser’s interest under the statute.</p> <p>Accordingly, where the purchaser of land sold under execution, executed soon after the sale a covenant to the judgment debtor engaging not to perfect title under the sale within three years, and that at the expiration of that period he would release and discharge all his interest acquired by the sale, on being paid the amount of his bid with annual interest at seven per cent, and another creditor afterwards, but within fifteen months from the sale, obtained judgment and then redeemed under the statute and got the sheriff’s deed, after which, but within the three years, the judgment debtor paid up the purchaser according to the covenant, held, that the redemption by the junior creditor was good for nothing, and that he acquired no title by the sheriff's deed. 4</p> <p>A junior judgment creditor, it seems, can only acquire the interest which the purchaser at sheriff’s sale takes under the statute, and not an interest created by agreement between the debtor and the purchaser modifying the statutory rights of the parties.</p> <p>[555] A purchaser of land at sheriff’s sale may, it seems, release his interest altogether, or make any other agreement in good faith, respecting it with the debtor, without the consent of junior judgment creditors, and so as to defeat a redemption by them.</p> <p>In the absence of fraud a debtor’s contract binds all his creditors, existing or subsequent, who have not acquired a lien on the property affected by such contract.</p> <p>A deputy county clerk has authority, in the absence of the clerk, to certify a copy of the docket of a judgment, and the certificate is good, although it does not show on its face the absence of the clerk. Per Jewett, J.</p> <p>A deputy clerk is a public officer, and the law in such a case will presume that the clerk was absent or incapable of attending to the duties of his office. Per Jewett, J.</p> <p>A certified copy of the docket of a judgment, procured for the purpose of redeeming from a sheriff’s sale of real estate, will be held good, although the certificate does not state that the clerk has compared the copy with the original, and that it is a correct transcript therefrom, and of the whole of such original. Per Jewett, J.</p>

Actios in the supreme court to recover damages for the non-performance, by the defendant, of the agreement hereinafter set oút. The cause was tried at the Rensselaer county circuit in 1853, before Mr. Justice Parker.

The defendant Eastwood was indicted, jointly with one La Rock, for murder, in killing Edward Brereton. The defendant, having demanded a separate trial, was tried at the Monroe county oyer and terminer, in May, 1855, and convicted. The defendant sued out a writ of error, returnable in the supreme court, and a general term of that court in the seventh district, reversed the judgment of the court of oyer and terminer, and ordered a new trial.

<p>This, was an appeal from a judgment of the Hew-York common pleas at a general term, reversing a judgment of a single judge of that court, in favor of Doke, the plaintiff, on a bill of exceptions taken on the trial by the defendants. The case is fully stated in the opinion of Mullett, J.</p>

<p>The plaintiff brought this action as a receiver appointed pursuant to proceedings supplementary to an execution upon a judgment recovered by Conrad Cramer against Ansel C. Durkee. The object of the suit was to set aside an assignment, executed by the judgment debtor to the defendants, of the three first installments of a mortgage executed by Calvin Durkee to A. C. Durkee, the judgment-debtor, which assignment was executed about the time of the commencement of Cramer’s suit upon which the judg ment was recovered. The plaintiff in this action claimed that the assignment was made with intent to delay, hinder and defraud the creditors of the assignor, A. C. Durkee, and that was the sole question litigated in the case. It appeared that the assignment was made to settle a claim which the defendants had against C. Durkee and others. The defendants had recovered a judgment against C. Durkee and the other debtors, upon which they had sold the mortgaged premises on .execution. They then threatened to pursue Calvin by proceedings supplementary to the execution, with a view to set aside the mortgage in question, held by Ansel, as having been given in fraud of the creditors of Calvin. The substance of the arrangement was that Ansel should assign the three installments to the defendants, to be applied when collected on their judgment against Calvin; and the defendants, on their part, were to abstain from taking proceedings to impeach the mortgage, and were to assign to Ansel the sheriff’s certificate of the sale on execution. It was consummated accordingly.</p> <p>The case was tried before a referee. The plaintiff examined A. C. Durkee, by whom he proved the facts above mentioned. On cross-examination, the defendants inquired of the witness whether, in making the assignment to the defendants, he intended to defraud Conrad Cramer, or any of his other creditors. The plaintiff’s counsel objected, “on the ground that the witness had no right to swear to his intention; that he must state only facts, leaving the referee to pass upon the question of intention.” The referee sustained the objection, and the défendants excepted. Ulti mately the referee reported in favor of the plaintiff, and judgment was rendered thereon, by which it was adjudged, among other things, that the assignment in question was fraudulent and void. This judgment having been affirmed át a general term, the defendants appealed.</p>

<p>The action was brought, in the supreme court, to recover damages for the loss of a horse, by means of the alleged negligence of the defendants as common carriers. On the trial before W. F. Allen, J., at the Oneida circuit, in October, 1853, it appeared that the plaintiffs embarked four horses on one of the defendants’ cars, at Rochester, to be carried, for hire, eastward the whole length of the defendants’ road, and beyond, and that when the train arrived at Auburn it was found that one of them was dead. This horse had a halter around his head and nose, which was tied to a staple driven into the side of the car. When found, he was lying upon his side, his head still held up by the halter, and blood was running from his nostrils.</p> <p>On the part of the defence it was shown that one of the plaintiffs was present when the horses were put into the car, and assisted in fastening the one which was killed. It appeared that one of the plaintiffs was allowed, in the bargain for the carriage, a passage for himself on the train which carried the horses, there being a passenger car attached to that train, but that he in fact took passage in a passenger train of the defendants, which started at a later hour, and which passed the cattle train before it reached Auburn. There was evidence, pro and con., as to whether this car was a suitable one for the transportation of horses, the plaintiffs’ witnesses testifying that it was too low, and those of the defendants that it was one of the kind commonly used for carrying horses.</p> <p>The defendants’ counsel moved for a nonsuit, on the ground that the defendants were not responsible for the class of injuries which result, wholly or in part, from the conduct of animals entrusted to them to carry. They also contended that it was the duty of the plaintiff, under the facts proved, to have gone in the train with the horses and to have taken care of them, and that the defendants’ duty was limited to transporting the car which contained them in safety. The motion was denied,. and the defendants excepted.</p> <p>The judge left it to the jury to determine whether, by the contract,' the plaintiff was to go with the horses and take care of them, stating that in that case the defendants were not responsible. He charged that, if such was not the contract, the defendants were responsible, unless the injury was received by a danger incident to this mode of carriage of this species of property, and which the defendants could not, by the exercise of diligence and care, prevent, or by inevitable accident; that, in the absence of any agreement to the contrary, it was the business of the defendants to provide a person to look after the horses on their passage, if their safety required such oversight. The defendants’ counsel excepted, and there was a verdict for the plaintiffs. The judgment having been affirmed at a general term in the fifth district, the defendants appealed.</p>

Ox the 22d of August, 1854, the respondent, Ann Augusta Wilcox, presented her petition, with accompanying papers, to the Hon. Charles Mason, one of the justices of the supreme court at chambers, praying that Morris Wilcox, the appellant, forthwith deliver Theresa Wilcox, her daughter, to the respondent; and that the respondent be allowed 'to take the care and custody of her.

Gerrit Smith brought trespass qua/re clausum fregit, against John Sanger for cutting wood on lot No. 84, in Duer’s patent, situated in the county of Clinton. The plaintiff claimed title under a sale for unpaid taxes and a deed from the comptroller of the state, given in pursuance of such sale, bearing date August 1,1845.

Carpenter brought an action of slander against Sheldon in the common pleas of the city of Hew-York, and recovered a verdict for $9000. A motion for a new trial was made on bill of exceptions taken at the trial and denied. After judgment the .defendant appealed to this court. The case is stated in the opinion of Boggles, J.

Trover in the supreme court, brought by Griswold against Sheldon and Payne, for a quantity of dry goods, groceries, &c. The plaintiff and one Burdick were respectively country merchants, at Whitehall. On the 31st of May, 1847, Burdick hired the plaintiff’s store for three years, and purchased the plaintiff’s stock of goods then in the store, for the sum of about $3000, to secure which he gave back a chattel mortgage on the same goods and on his own stock of goods.

<p>Action in the superior court of the city of New-York to recover against the purchaser of real estate at auction, the difference between the price at which he purchased and the price at which the lots were subsequently sold at auction after he had refused to complete the purchase made by him.</p> <p>On the trial before Chief Justice Oakley, a letter from the plaintiff Tallman to Anthony J. Bleecker, who as auctioneer made the sale in question, was read in evidence in the following words and figures:</p> <p>“ (Terms of Sale.)</p> <p>“ New-Yobk, May 17, 1852.</p> <p>“ Anthony J. Bleeckeb, Esq.,</p> <p>“ Sir: The following are the terms of sale of the 324 Harlem lots, to be sold by you for me to-morrow:</p> <p>“ Ten per cent to be paid to the seller on the day of sale, and to the auctioneer his fee of $10 on each avenue lot, and $5 on each street lot; twenty per cent to be paid to the seller on the delivery of the deed ; the balance on bond and mortgage in or before three years. If the ten per cent on any lot is not paid on the day of sale, the seller has the option of selling the lot the next day by auction, without notice, as if no sale had been made, and if there be any deficiency to charge the first purchaser with it.</p> <p>“The deeds, and bonds and mortgages will be prepared by the counsel of the seller on the usual terms; a printed abstract of title will be furnished to each purchaser free of charge.</p> <p>“ The deeds will be delivered at the office of James S. Sluyter, 8 Wall-street, on the 5th day of June next.</p> <p>“ All the lots are to be sold without reserve to the highest bidder.</p> <p>“Yours, &c.,</p> <p>“ Geo. F. Tallman.”</p> <p>This letter was, at the time of the trial and at the time of the sale of the lots in question, pinned to a page of the sale book of Mr. Bleecker, which page had a printed heading as follows: “ Sales at auction, continued, Tuesday, May 25, 1852, by A. J. Bleecker, at the Merchants’ Exchange.” On this page, under the head “ Employers,” was a printed statement, signed by the plaintiff Tallman, that the sale was of Harlem building lots, resold on account of purchasers on the eighteenth of the same month ; and, under the heading of “ Property to be sold,” was the following: “ Harlem lots: Purchasers of lots sold by order of G. F. Tallman, trustee, on the 18 inst., and who have not complied with the terms of sale, are notified that said lots will be sold at the Merchant’s Exchange, by A. J. Bleecker, at 12 o’clock this day, May 25, and they are held accountable for any deficiency that may arise on the resale.” The column on this page under the heading “ Terms of sale,” was in blank; and in another column was written: “ On 132d and 133d streets, between 5th and 6th avenues; Ho. 132, one lot, R. L. Franklin, purchaser, price $471and immediately following were entered the numbers and prices of seven other lots, with the name of Franklin, the defendant, as the purchaser. At the bottom of the page the name of A. J. Bleecker was subscribed. It was not stated in this memorandum which of the lots were situated on 132d-street, or which on 133d-street; but a description of the same lots, as sold by Mr. Bleecker on the eighteenth of May, was entered on another page of the same sales book, where four of the lots were described as being on the one street and four on the other; and this in fact was true.</p> <p>It was proved that on the twenty-fifth of May, Bleecker, the plaintiff Tallman being present, read the terms of sale from the letter above set out, which was then pinned to the page of his book above mentioned, and then, as auctioneer, sold the lots in question, which were bid off by the defendant at the prices entered in the sales book, as above stated, and that the entries aforesaid were then made by the clerk of Mr. Bleecker, the auctioneer; and that at the close of the sale Mr. Bleecker signed his- name at the bottom of these entries, on the page of the sales book to which the letter containing the terms of sale was -pinned. The defendant afterwards declined to complete the purchase.</p> <p>The court ruled and decided -that the memorandum of the sale was insufficient in law to authorize a recovery, and ordered the complaint to de-dismissed. The counsel for the plaintiff excepted. The judgment dismissing the complaint was affirmed at a general tern of the supreme court, (3 Duer, 395), and the plaintiff appealed to this court.</p>

This is a writ of error to review a judgment of the supreme court in a criminal case. The plaintiff in error was convicted, before a court of special sessions of Otsego county, held by a justice of the peace, without a jury, of the ofience of petit larceny, in stealing a sheep belonging to John Waffle. He brought a certiorari to the supreme court, pursuant to the Revised Statutes, where the conviction was confirmed, upon which he sued out this writ of error.

Action in the supreme court of the city of New-York, to recover the price of fourteen bales of printed lawns, each containing one hundred pieces, and each piece being twenty-four yards, sold by the plaintiff to the defendants at eleven cents per yard.

<p>An action commenced under the code of procedure is not an “ equity case,” although the subject of the suit and the relief demanded were matters of exclusive equity cognizance under the former system of pleading and practice.</p> <p>Held, therefore, that the 47th section of the amended code of 1849, authorizing the supreme court to transfer “ equity cases” to the superior court of the city of Ne w-York, applied only to suits in equity commenced under the previous system, and did not authorize the transfer of an action under the code, although such action was strictly equitable according to former distinctions.</p> <p>The code of procedure has abolished all distinction between legal and equitable remedies, and blended them into one system, combining or professing to combine the principles peculiar to each.</p>

<p>Crafts brought an action of debt in the supreme court against Mott, upon a contract bearing date the 19th day of April, 1837, by which the defendant agreed to pay and indemnify Crafts against a bond and mortgage for $1300, which they had, on the 4th of March, 1836, jointly made to A. B. Johnson, on a joint purchase of certain real estate of him. The contract recited that Crafts and Mott, on the 4th day of March, 1836, purchased of Johnson Baid real estate, for said sum, and that they on the same day gave Johnson said bond and mortgage, payable [605] in eight equal annual payments with annual interest; that Crafts had sold and conveyed to Mott his equal undivided half of said real estate; and that Mott was to pay off and satisfy said bond and mortgage to Johnson.</p> <p>The defendant pleaded 1st, nil debit; 2d, his discharge under the late bankrupt act—his petition in bankruptcy having been presented to the proper court on the 27th day of January, 1843.</p> <p>The plaintiff replied to the second pléa, admitting the discharge ; but alledged that the cause of action accrued after the presentation of the defendant’s petition in bankruptcy, and concluding to the country.</p> <p>The plaintiff claimed to recover only for such installments as became payable on the bond and mortgage after the presentation, by the defendant, of his petition in bankruptcy, and which he had paid. The only question, therefore, was, whether the plaintiff could recover on the contract of indemnity for such installments as became payable after that time, upon proving that he had paid them as they became due.</p> <p>The cause was referred to the Hon. Hiram Denio as sole referee, who reported against the plaintiff. Judgment was rendered on his report in favor of the defendant by the supreme court, and the plaintiff appealed to this court.</p>

<p>Action in the superior court of the city of New-York to recover a bill for labor and materials bestowed and used by the plaintiffs, who were ship joiners, in and about repairing and fitting up the steamer Rhode Island. The defendant Brown made no defence. He was a brother of one of the plaintiffs. The defendant Furniss answered the complaint, and denied his liability. The cause was tried before Mr. Justice Bosworth and a jury. The plaintiffs proved that they expended labor and materials on the steamer Rhode Island, then lying at the foot of Twelfth-street, New-York, to the amount in value of $1333.22. This was done between the 8th of December, 1849, and the 20th of January, 1850, except three days’ labor, which was performed on the 26th of January, 1850. The counsel for the plaintiffs read in evidence an instrument executed by the defendants Brown and Furniss, as follows :</p> <p>The present agreement between William H. Brown, shipbuilder, on the first part, and William P. Furniss, merchant, on the other part, witnesseth :</p> <p>William H. Brown sells to William P. Furniss the one-half of the steamboat ‘ Rhode Island,’ burden one thousand tons, or thereabouts, with all her tackle, appurtenances, boats and furniture, as she is now completely fitted and furnished, for the transportation of passengers on the Sound, at the rate of fifty thousand dollars for the whole boat, payable in fifteen months, in William P. Furniss’ notes, favor of said William IT. Brown; notes to be dated from the date said steamboat ‘ Rhode Island ’ is out of the carpenters’ hands, fit and ready for sea, .coals and provisions excepted.</p> <p>■ 11 Said William H. Brown is to proceed and fit up said steamboat 1 Rhode Island’ in a suitable manner for her to proceed from New-York to the Pacific, via, the Straits of Magellan, and to trade along the west coast of America, or in the rivers of the same, as may be thought most advan tageous by said William P. Furniss, after her arrival there; the outfit for said boat, for carpenter, smith, sails, rigging and steam machinery, is not to exceed ten thousand dollars, and as much less as .possible, William P. Furniss half of which is also payable in his notes, favor of William H. Brown, at fifteen months from date said steamboat is done, completed, and out of the workmen’s hands, and fit for sea. The boat is to have two or more boats, and a launch at least thirty-five feet long by ten wide, and coppered suitable to land cargo in, from on board the steamer in the Pacific.</p> <p>“ William P. Furniss is to be the sole agent for this steamer in the port of New-York, and to have the appointing of all other agents in all other ports, both on the Atlantic and Pacific coasts ; he is to be allowed a commission of five per cent on all receipts for freight and passengers carried by the boat, and received by him, as well as on all amounts which may be remitted to him, for account of the boat from the Pacific, from time to time; also on account of all disbursements made by him for the boat ‘ Rhode Island.’ “William P. Furniss is to account, from time to time, for moneys he may receive into his hands, to William H. Brown, or other owners of the boat, first paying himself all and any advance he may have made for the steamer ‘ Rhode Island.’ “It is further understood, that each owner is to insure his own interest in said boat, but that William P. Furniss is at liberty to insure a sum sufficient to cover any advances he may be under at any time for said steamboat ‘ Rhode Island.’</p> <p>“ A policy of insurance to be kept open to cover all ship ments of specie from the Pacific to New-York; premium to be charged to the boat, as well as one-half per cent, William P. Furniss’ commission for effecting the same.</p> <p>“ W. H. Brown. [l. s.]</p> <p>“William P. Furniss. [l. s.]</p> <p>Dated New-York, 1st November, 1849.”</p> <p>It appeared that the plaintiffs were employed by the defendant Brown. There was evidence that while the steamer was being repaired, the defendant Furniss was on several occasions upon her, and gave some directions in reference to the manner of doing some of the work. On the 21st of January, 1850, the vessel was enrolled by the defendant Furniss. as the joint property of himself and defendant Brown. At the close of the evidence, the counsel for Furniss moved the court to dismiss the complaint as to him; the motion was denied, and he excepted. The court instructed the jury that the plaintiffs were entitled to recover the amount of - the bill against both defendants, and the counsel for Furniss excepted. Verdict and judgment in favor of the plaintiffs. Furniss appealed to the general term, where the judgment was affirmed. (3 Duer, 291.) From the judgment of affirmance he appealed to this court.</p>

<p>A bona fide holder for value, of a negotiable check certified to be good by the paying teller of the bank on which it is drawn, whose authority to certify is limited to cases where the bank has funds of the drawer to meet the check, can recover of the bank the amount of the check, although the drawer had no funds in the bank, and the check was certified by the teller in violation of his duty-, and for the accommodation of the drawer.*</p>