Volume 41 — Barbour's New York Supreme Court Reports

mHIS action was brought against the defendants to recover JL the amount due upon one hundred and forty coupons attached to twenty bonds issued by the Columbus, Piqua and Indiana Bail Boad Company, the payment of which was guarantied by the defendants.

ACTION upon a promissory note, for $1000, made by the defendant on the 8th of November, 1855, payable to his own order, six months after date, and indorsed by him in blank, and delivered to the Atlas Mutual Insurance Company, in the city of New York.

THIS action was brought against the defendants as indorsers of a promissory note, which fell due at the Bank of Che-mung, 26 and 29th November, 1862, (Saturday,) on which day the Elmira banks opened at 10 in the morning and closed at 1 p. m. The holders had left the note with the Elmira Bank for collection, and Mr. Corey, the cashier of the Elmira Bank, during bank hours, on the 29th November, presented the note for payment to the Bank of Chemung, which was refused.

Action to recover a claim amounting to over $1300 against the estate of Matthew Clark deceased, the defendant’s testator, for moneys collected by Clark in his lifetime, for the plaintiff, and which he had neglected to pay over. Clark, in his lifetime, resided in Canada, and the defendants, his executors, also resided there, and had assets.

<p>Under the provisions of the revised statutes a will, whether it disposes of real or of personal property, speaks as of the time of the testator’s death.</p> <p>Where a testator devises all his real estate, in express and unambiguous words, he will be deemed to have reference to the real estate as it shall exist at ti)e time of bis death.</p> <p>G., being the,owner of a farm, and certain personal property, made his will, giving and bequeathing to his wife all his personal estate. He then gave, devised and bequeathed to his wife “ all his real estate ” during her life, remainder over to others. He subsequently sold and conveyed the farm to H., taking back from the grantee a bond and mortgage for a part of the purchase money, which he held at the time of his death. Held that the bond and mortgage passed to the vtidow of the testator, as part of the personally ¡ it being the intent of the testator that the devise should operate only on the real estate of which he should die seised.</p> <p>SeU, also, that if the devise were to he regarded as a devise of the farm—in effect a specific devise—then the sale and conveyance was, to that extent, a revocation of the will.</p>

<p>» Pleading.—^Amendment.—Appeal.—Defences.</p> <p>An appeal lies from an order granting leave to amend a complaint by inserting a cause of action which has been barred by the Statute of Limitations ; such an order involves the merits and affects a substantial right.</p> <p>'Such an amendment cannot be sustained, unless it appears to be in furtherence of justice. Mo discrimination can be made in this respect between defences which have been sometimes called unconscionable and others.</p> <p>Thus, where the receiver of an insolvent insurance company brought an action on certain notes, alleging that they were premium-notes, and many years afterwards, when the Statute of Limitations had run, and he had died, his successor, substituted as plaintiff in the action, asked leave to amend the complaint by inserting a statement of a cause of action upon the notes as stock-notes ;—Held, that the application should be denied ; and that an order granting it should be reversed on appeal.</p> <p>If after issue joined, a party desires a favor by way of amendment, he must show a strong reason ; and if he desires to thus get before the court indirectly a cause of action that he could not recover upon directly, the court should refuse his application.</p> <p>Where a receiver of a corporation pending an action brought by him as such, was removed and a successor appointed, and the original receiver afterwards died, and subsequently the second receiver was removed, and a third appointed ;— Held, that it was proper to substitute the third receiver as plaintiff in the action in place of the first.</p>

THIS action was brought to recover the possession of real estate, and was tried before Justice Bockbs in March, 1862, without a jury. There was no question of fact in the case, to be considered. The exceptions are only to the conclusions of the judge upon his findings of fact.

THIS was an action of ejectment, tried at the Washington circuit in May, 1863. ' The plaintiff claimed a life estate in one-third of the premises under the provisions chapter 90, Sess. Laws of 1860, as the survivor of his wife, Jane Wallace, who died 17th November, 1860, seised of the real estate described in the complaint, in fee, in her own name. The action was tried without a jury. The facts sufficiently appear in the opinion.

THIS cause arose in a justice’s court. The return of the justice, after stating the proceedings in the cause, and embracing the trial and evidence &c. concludes as follows: “The cause was then submitted without argument; when by stipulation of parties, at my request, they agreed to five days’ time instead of four in which to decide upon the case.

THIS was an appeal from a judgment. The action was tried at the Columbia circuit, before Justice G-ould. The plaintiff’s claim was upon a promissory note. A judgment was rendered for the plaintiff, and the defendant appealed. There was no dispute upon the facts. They are sufficiently detailed in the opinion.

rpHIS is an action brought against the defendant, as amarX ried woman, to recover two sums of money upon her promise to pay the same, and to have the amount decreed to be a lien and charge against her separate property.

HIS is an action for a divorce. There are two counts in the complaint. First. That the contract of marriage was made on the 20th August, 1860, while the plaintiff was under duress of imprisonment; and Second. For adultery of the defendant, committed 16th Jauuary, 1862. Issue was joined by a denial of the allegations in the complaint, not under oath.

THIS is a common law certiorari to review the proceedings of referees appointed by the county judge of Washington county, to decide an appeal brought by the relator, from the determination of the commissioners of highways of the town of Argyle, in laying out a highway through the' lands of the relator. There was no question arising as to their appointment, or as to the regularity of their acts, until after they had heard the proofs and allegations of the parties.

<p>ACTION by the plaintiff to recover for injuries received in traveling through Church alley in the village of Plattsburgh, which was out of repair. The defense was that Church alley was not one of the streets or alleys of the village. The facts sufficiently appear in the opinion.</p>

<p>MOTION to set aside a judgment in an action for divorce, on the ground that the same was obtained by collusion.</p>

<p>HIS was an action to recover the value of 145 saw logs by count, making 45 standard logs, of the value of seventy cents each, brought originally in a justice’s court. On the plea of title being interposed, the action was brought to this court, and tried at the Clinton county circuit, before Justice James, without a jury. The plaintiff had these logs in his possession on lot No. 42, town of St. Arinand, Essex county, on the 14th of March, 1861, and on that day the defendant forcibly took them away. The logs were cut, as found by the judge, from lot No. 23, old military tract. Sixty pieces, equal to nineteen standard, were cut and drawn before the 27th day of February, 1861, and the balance before the 14th of March, 1861.</p> <p>Said lot No. 23 contained 160 acres. Forty acres in the northwest corner, in a square form, had been conveyed previous to 1852, and the plaintiff showed title to sixty acres in a square form around forty acres in the northwest corner, by comptroller’s deed, dated February 7, 1855, in pursuance of a sale in 1852.</p> <p>The defendant showed title by a comptroller’s deed, bearing date February 27, 1861, in pursuance of a tax sale in 1853, which became absolute in November, 1855; of all of said lot No. 23, except forty acres in square form, in the northwest corner of said lot. That all the logs were cut south and east of 100 acres in square form, including the northwest corner, and not on the sixty acres covered by the plaintiff’s deed. That no notice of the tax sale, under which the defendant claims, was given by the town clerk, as required by 1 R. S. 5th ed. p. 931, § 76; the annual town meeting being held in March. That the logs were not so intermingled by the plaintiff, as to prevent the sixty cut and drawn before the defendant’s deed was executed from being distinguished from the others.</p> <p>From these facts the judge found as conclusions of law as follows: 1st. That the comptroller’s deed, under which the defendant claims title, was valid, and passed the title of lot No. 23, on which the logs were cut, to him. 2d. The comptroller’s deed to the defendant vested the title in the defendant, by relation back to the time when the sale became absolute, so as to entitle him, as against a trespasser, to repossess himself of any property tortiously severed from the freehold. 3d. That the complaint be dismissed, and that the defendant have judgment for costs. From this judgment there was an appeal to this court.</p>

<p>APPEAL from a judgment of a county court reversing the judgment of a justice of the peace.</p>

The action was brought by the plaintiff, as receiver of the People’s Insurance Company, to recover of the defendants the sum of $227.80, being the amount of an assessment upon a premium note made by the defendants for the sum of $800, on the 24th of March, 1853. The complaint alleged the incorporation of the People’s Insurance Company, the making of the note, and the issuing of the policy to the defendants in the usual form.

In the justice’s court Ohryslar sued Westfall to recover the value of that part of a division fence which it is claimed he was bound to build, and refused after notice to build, and which was then built by the plaintiff. The defendant insisted that he was not liable to pay for the fence, because he chose to let his land adjoining that of the defendant lie open.

THIS action it prosecuted by the plaintiffs, as surviving administrators of Peter Stover, deceased, to recover ónehalf of a subscription of $1000, made by the said Peter Stover to the capital stock of the Diamond Mills Manufacturing Company, in the month of May or June, 1852, and the further sum of $500, paid by the plaintiffs to discharge the debts of said company, under the statute making the stockholders liable for the debts of said company, on the 28th of February, 1859.

<p>MOTION for a new trial upon exceptions ordered to be heard in the first instance at general term. The plaintiff, in his complaint, alleges that he was the owner of a farm of land in the city of Albany, containing forty-seven acres, which he conveyed to the defendant on the 28th of April, 1858, subject to a mortgage of $4000. ■ That the consideration agreed in the deed was $11,000, which was paid in exchange by ninety shares of stock of $100 each, purporting to be full paid stock issued by the La Crosse and Milwaukee Rail Road Company to the defendant and one Chamberlain, his partner. That the defendant falsely and fraudulently, and with the intent to defraud the plaintiff, represented to him that the said ninety shares of stock were legally issued, and a valid stock issued upon subscriptions, full paid to said corporation; which representations were false, and made fraudulently with knowledge that they were false, and made for the purpose of fraudulently obtaining said conveyance, to the plaintiff, who was ignorant of the falsity and fraudulent character and invalidity of the said stock, but that relying upon said representations, he did execute and deliver the said deed to the defendant, in exchange for the said stock, which was worthless and invalid, as to the plaintiff was unknown, but which was known to the defendant to be issued at fifty cents on the dollar, in violation of the charter of the company; all of which matters the defendant fraudulently concealed from the plaintiff, and by means of which he was defrauded of his farm.</p> <p>The plaintiff also further complained, that the defendant, in order and for the purpose of fraudulently inducing the plaintiff to make the exchange of said land, for said certificate of stock, falsely and fraudulently misrepresented to the plaintiff that the said corporation was in a sound, solvent and prosperous condition, and was in the receipt of a large income, and was able to pay from its income large dividends; which representations the defendant, being its general and fiscal agent in Hew York, knew to be substantially false, but of which fraud, &c. the plaintiff was ignorant; but that relying upon such representations being true and that said certificate was valid, he did execute the said deed and was thereby ■ defrauded.</p> <p>The plaintiff also alleged that he tendered the certificate of stock received by him on the transfer of the same to the defendant, and now holds it subject to his order. The plaintiff demands judgment for $11,000, and interest.</p> <p>The defendant’s answer admits the exchange of the stock for the land; alleges that the plaintiff was the owner of stock of the company and knew its value, and that it had a known market value, and it was sold in reference to that value; and that within a year after the sale, the plaintiff could have sold it for ninety cents on a dollar. The defendant also alleges that the road was not then completed, and its ultimate success was then a matter of opinion.</p> <p>The action was tried at the Albany circuit, in September, 1861. The contract was in writing, and executed on the 12th day of April, 1856. The case shows that in April, 1856, the plaintiff exchanged with the defendant a farm of land of some forty acres, located in the tenth ward of the city of Albany, for ninety shares of $100 each, of the capital stock of the La Crosse and Milwaukee Eail Eoad Company. The same was subject to a mortgage of $4000, which the defendant assumed to pay. The defendant received the certificate for ninety shares to Chamberlain & Alden, on the 28th of April, 1856, and on the next day went to the transfer office of the company in the city of Hew York, and took a new one in his own name.</p> <p>The evidence on the trial, so far as it is material to the questions discussed, is referred to in the opinion of the court. The plaintiff having rested, the defendant moved for a non-suit, on the ground that a cause of action was not proved. The plaintiff’s counsel objected to the nonsuit, and insisted on having the case submitted to the jury generally on the pleadings,and on all the facts proved in the case, and especially insisted, 1st. That the certificate of stock delivered by the defendant to the plaintiff was invalid, having been illegally issued by the company at fifty cents on the dollar, which was concealed by the defendant from the plaintiff. 2d. That the question of fraudulent representations should be submitted to the jury, and that if there was any allegation of variance between the pleadings and proofs the defendant should show that he was misled by such variance, to the satisfaction of the court. The court held and decided that the proof was insufficient to establish a cause of action against the defendant, and granted the motion for a nonsuit, refusing to submit the question of fraudulent representations to the jury. The plaintiff's counsel duly excepted to the decision of the court in favor of the motion for a nonsuit, and in refusing to submit the case to the jury. The court thereupon decided to nonsuit the plaintiff, to which decision the plaintiff’s counsel excepted. The court ordered that the case, with the exceptions, should be heard in the first instance at the general term, proceedings in the mean time to be stayed.</p>

The action was brought against the defendant to recover damages for injuries to real property. The defendant interposed an answer of title to the premises. Upon the trial of the cause the plaintiff proved that in 1837 he took possession, and in connection with one Cudney, who had previously occupied the premises in conjunction with other lands, had the premises surveyed.

The action was brought for slander of the plaintiff’s title to personal property, and was tried at the Columbia circuit, in January, 1863, before Justice Hogeboom and a jury. The plaintiff hired and occupied a farm of the defendant, in the town of Livingston, Columbia county, for three years from April 1, 1859, to April 1, 1862, under a hiring from year to year by verbal agreement.

The action was brought to recover the value of a quantity of goods taken by the defendant from the store of the plaintiffs, and was tried at the Rensselaer circuit in May, 1860, before Justice Hogeboom. The defendant justified the taking as sheriff of the county of Rensselaer, by virtue of three executions in favor of John A. Aubray, against the plaintiffs. These executions were delivered to the defendant on the 24th of August, 1857.

<p>THIS was an action of trover brought by the plaintiff to recover the value of certain articles of personal property alleged to have been converted by the defendants. The answer denied that the defendants possessed the property mentioned in the complaint, or that they wrongfully detained the same from the plaintiff, or that the said property belonged to the plaintiff. The cause was tried at the Ulster circuit, on the 15th day of July, 1853, before the late Justice Watson and a jury, and upon that trial the following facts were proved: On the 20th day of December, 1851, one Andrew Eoosa, who was then the owner of the property in question, mortgaged the same to the plaintiff. The mortgage was filed in the clerk’s office in the town of Marble-town, (the town in which Eoosa lived,) in February, 1852. It was given to secure the payment of $175, on or before the first day of September, following its date, with interest. It also contained the following clause, to wit: “But in case the said Andrew Eoosa shall, on or before the first day of September, 1852, pay to the said Andries Schoonmaker, the said debt and interest, then the sale and transfer be void; but in case of the non-payment at the time above mentioned, or in case the said Schoonmaker shall at any time deem himself insecure, then, and in either of these cases, it shall be lawful for the said Andries Schoonmaker, to take possession of the said property.” The defendants had a store of goods at Highfalls, in the county of Ulster, and did business there under the name of Clearwater & Wood. James H. Elmendorf was a full cousin of the defendant, Wood. And there was some evidence tending to show that he was a second cousin of Clearwater. On the 28th of May, 1852, the defendants commenced an action against the said Andrew Eoosa, before the said James H. Elmendorf, who was a justice of the peace of the town of Marbletown, to recover a •partnership debt; and on the 23d day of June, 1852, they recovered a judgment before the said Elmendorf for the sum of $82.22, damages and costs. On the same day an execution was issued upon the said judgment and placed in the hands of one Jacob Tapie, a constable, for collection. Tapie, by the direction of the defendant, Clearwater, levied upon the property in question, which at the time was in possession of Boosa, and finally sold the same on the first day of July, 1852, Clearwater receipting the execution for the firm. Between the day of the levy and of sale, the plaintiff demanded the property of said Tapie- and of Clearwater, and forbade the sale. The jury found a verdict in favor of the plaintiff for the sum $193.88, damages, upon which verdict a judgment was perfected, with costs. The defendants having prepared and served a case with exceptions, now moved for a new trial, having brought the proceedings into this court by appeal.</p>

This action was brought by Benedix F. Kolls against Margaretta De Leyer and Anthony De Leyer, to recover from the separate estate of Margaretta the sum of §111.79, the amount which plaintiff had be.en compelled to pay to redeem from a tax-sale real estate which the defendants had sold to him with covenants of warranty.

<p>APPEAL from an order made at a special term, denying the motion of the plaintiff for leave to continue the action against the executor of the defendant, who had died, by filing a supplemental complaint.</p>

APPEAL by the defendant Ames from a judgment entered at a special term, after a trial at the circuit before a justice of this court without a jury. The action was brought for the foreclosure of a mortgage executed by the defendant George Philbrook to H. H. and T. H. Butterworth, on the 7th of December, 1857, payable in two years. The material facts are set forth in the opinion delivered by Justice Sutherland.

The action was brought to recover the contract price of one hundred and fifty bales of hops, under a written contract signed by the defendants, in these words: “ In consideration of the sum of one dollar, the receipt of which is hereby acknowledged, we have this day bought of William M. Clinton, of the town of Hartwick, Otsego county, one hundred and fifty bales of first sort N ew York state hops, said hops being a lot of hops of which he has the refusal of Roger Bamber,…

<p>OF the 23d June, 1858, the defendants issued a policy for $5000 to the plaintiffs on the Crystal Palace Building, 11 together with the furniture and fixtures now in said building lately owned by the association for the exhibition of the industry of all nations, and since vested in John H. White, as receiver, and also such other property lately vested in said White’s hands, as receiver, belonging to exhibitors, and lately in said White’s custody and keeping now remaining in said building.” The insurance was “ for account of whom it may concern,” and was against loss or damage by fire, and for one year. On the 15th of December, 1854, John H. White was appointed by the supreme court “ receiver of the property and effects” of the association, under the statute in regard to voluntary dissolution of corporations, and with authority to sell thq property and effects at public .or private sale. From the 15th of December, 1854, to the 31st of May, 1858, White, as receiver, was in possession of the building, and such of the furniture, fixtures and other property as the respective owners had not called for. During that time he frequently let the building for purposes of different kinds, and occasionally delivered to the respective owners different articles of the projoerty which had come into his hands. The land on which the building had been erected had been occupied by the association under a lease from the plaintiffs, which expired on the 3d January, 1857. The plaintiffs allowed White, as receiver, to hold over until the 31st of May, 1858, when they took possession by force, without even the form of law, and turned White out; such possession and (Auction, including as well furniture, fixtures and other property, as the building. Two days after the insurance was effected in this case, and on the 25th June, 1858, the plaintiffs let to the American Institute, for one year from the 1st June, 1858, the land on which the palace stood. And in the lease reserved permission to retain there all the goods and chattels then in the building, arid the American Institute covenanted that they, should be kept safe and in good condition. The American Institute, immediately on receiving the lease, took possession of all the property as White had had it; and on the 15th September, 1858, opened their annual fair in the building. On the 5th day of October ensuing the' building and its contents were destroyed by-fire. The plaintiffs claimed only for a loss on the building. It was proved on the trial that the land was unoccupied when the lease was given by the plaintiffs on the 23d March, 1852, for the purpose of an industrial exhibition for five years, and that the building covered by the insurance was erected by and was the property of the “ Association for the exhibition of the industry of all nations,” who were assignees of the plaintiffs’ lessee. It was also proved, that the “ furniture and fixtures in the building ” belonged to said association, and “ the other property ” in the building, at the time of the insurance, belonged to various exhibitors. It was also proved, that the American Institute, for the purposes of its exhibition, had introduced into the insured premises many articles, which in the conditions annexed to the policy were denominated hazardous, extra-hazardous, and special hazards, such as glass-blowing, restaurants for sale of liquors and cigars, with kitchen for cooking, acids, forge for repairing, burning fluid, gas manufacturing, steam engines, a panorama, &c., &c.; all of which articles were not in the building when the policy was executed, but were in it when the fire occurred, and had been for about a month. It was also proved that during the previous year, while the premises were in the possession of White, as receiver, they had been let to the American Institute, who had held in it their annual fair for 1857, but their lease had expired, and he had refused to let it to them for 1858; and that thereupon the city had forcibly dispossessed him, and that no permission had been granted to the American Institute to hold there its annual fair for 1858, until after this insurance had been effected; and that no consent thereto had been asked for or obtained from the insurers. The defendants offered to prove representations made by the agent of the plaintiffs when he applied for and obtained this insurance, but the court excluded the evidence. The defendants made several requests to charge the jury, with which the court refused to comply, and to which refusals the defendants excepted. The justice, presiding at the eircuit., directed the jury to find a verdict for the plaintiffs, and they did so for the amount of the insurance and interest.</p> <p>Exceptions were taken on the trial, which were ordered to be heard in the first instance at the general term.</p>

THIS is an appeal by Edward G-. Thompson, administrator with the will annexed of Abraham G. Thompson, deceased, from an order made by the surrogate of the county of New York, on the 31st of January, 1863, ordering said administrator to pay to Edward P.. Cowles $2000, with interest from February 27, 1862, and $25 costs. Cowles recovered a judgment Februaiy 27,1862, in the supreme court, against Edward G. Thompson as such administrator, for $2000.

report of a referee. The action was brought to recover damages for the breach of an agreement alleged to have been made by telegraph. The following facts were found by the referee, viz: The plaintiffs and defendants were respectively partners, and were respectively dealers in specie, exchange and bullion; the plaintiffs doing business in the city of New York, the defendants in the city.of New Orleans.

The action was brought by the plaintiff to recover damages for an alleged false imprisonment, caused by the instigation, procurement, direction and command of the defendant.

<p>THIS action was brought to foreclose a mortgage, executed by Caleb Goundry and the appellant, his wife, to the plaintiffs, on the 15th of March, 1860, for the purpose of securing them as his indorsers. The defendant, Mrs. Goundry, appeared and answered, and in her answer, among other things, she alleged: That it was agreed that, in consideration that Goundry would make an assignment to the plaintiffs of all Ms real and personal property, and prefer the plaintiffs, and put their debts and liabilities in the first class, so as to secure them against their liability, the plaintiffs would release the house and lot in question from the lien of their mortgage, &c. The issue joined in said action was tried before the court at a special term, held in Yates county, on the 12th of February, 1862. The court, after hearing the proofs and allegations of the parties, found the following facts: 1st. The execution and delivery of the mortgage by Goundry and wife to the plaintiffs, as mentioned in the complaint. 2d. The making of the notes by Goundry and the indorsement by the plaintiffs for Goundry, as set forth in the complaint. 3d. That Goundry wholly failed to pay and take up the notes, ánd that the plaintiffs, as indorsers, were compelled to pay and had paid and taken them up. 4th. That there was due to the plaintiffs on account of having paid and taken up said notes, the sum of $5554.98. 5th. That the defendant, Mrs. Goundry, between 1849 and 1853, let her husband have some money belonging to her, received from her father’s estate, which, on the 10th of December, 1860, with the interest, amounted to $2500; that she took no note or memorandum therefor at the time.* Goundry promised to repay it with interest. 6th. That on the 10th of December, 1860, Goundry proposed to the plaintiffs that if they would release the house and lot in question from the lien of their mortgage, he would make a general assignment of all the rest of his property to them, except certain high wines, &c. then on hand: to which the plaintiffs consented, upon condition that Goundry should and would fully secure them, by his other property. 7th. That on the 11th of December, 1860, Goundry made a general assignment to the plaintiffs, as assignees, placing the demands for which they were liable among the preferred creditors, ■ Goundry representing, at the time, that there was sufficient to pay all the demands mentioned in the first class. That the plaintiffs, relying upon such representations, and believing that Goundry had assigned all the property which he had on the 10 th, when the proposition to release the house and lot was made, &c., signed a writing without seal, on the back of the mortgage, in these words: “I, Moses B. Headley, and Levi Speelman, the within mortgagees, do hereby release all claim, which we have by virtue of the within mortgage, to the premises described in the within mortgage, to wit: All [&c. describing the house and lot,] and hereby direct the discharge of the record of the same. Dated December 10th, 1860.” 8th. That after the conversation between Goundry and the plaintiffs, on the 10th of December, and before the execution and delivery of the assignment, Goundry, without the knowledge of the plaintiffs, made over to his wife a demand which he held against some men in Pennsylvania, for high wines sold, of over $1600, which was good and collectable. That at the time of the delivery of the assignment, and the signing of the writing on the mortgage, by the plaintiffs, they were wholly ignorant of the fact that Goundry had made over to his wife the demand in Pennsylvania; the plaintiffs ■believing that he had assigned to them all the property which he had on the 10th, at the time of making the proposition to release the house. 9th. That on the day of executing the assignment, Goundry executed the mortgage to his wife, mentioned in her answer. 10th. That the property assigned by Goundry would not pay more than sixty cents on the dollar of the preferred debts. 11th. That the preferred demands amounted to over $12,500, and the assigned property was not worth over $8000, including the house and lot. That the demands for which the plaintiffs were liable, as indorsers for Goundry, exceeded $10,000.</p> <p>Upon the foregoing facts, the court found and decided as a conclusion of law, 1st. That the writing signed by the plaintiffs on the mortgage, on the 11th of December, 1860, was wholly inoperative, and did not release the mortgaged premises from the lien of the mortgage, and that the plaintiffs' mortgage was still a lien upon the whole of the mortgaged premises, &c. 2d. That the mortgage was a valid lien upon the whole of the mortgaged premises, to the full amount of the sum of $5554.98, as aforesaid, found due the plaintiffs, prior to any lien or claim which the defendants, or either of them, have upon said mortgaged premises, or any part thereof. 3d. That the plaintiffs were entitled to the usual judgment of foreclosure, and that the mortgaged premises be sold, &c. 4th. That in case there should be any deficiency the plaintiffs should have judgment against Goundry for such deficiency, &c. Upon filing the findings and decision of the court, judgment was accordingly entered on the 7th of August, 1862. To which the defendant, Electa Goundry, excepted, and appealed to this court.</p>

The action was brought to foreclose a mortgage, dated December 21st, 1860, given by the defendants, Hector McLean and Archibald H. McLean to James Chappell, the plaintiff’s testator, to secure him for indorsing for their accommodation two promissory notes, one for $700 and another for $2000, which Chappell was obliged to pay and did pay.

ACTION for malicious prosecution. The action was commenced April 14, 1862. At that time an action was pending in a justice’s court, in-which Avery was plaintiff and Palmer was defendant, for the same demands which had been in issue in tw7o former suits commenced by Avery against Palmer, both of which had gone down in consequence of the failure of Avery to appear on the adjourned day.

THIS action was in the nature of a creditor’s bill brought by the plaintiffs as judgment creditors of William Van Deventer and Thomas Smithyman, composing the firm of Van. Deventer & Co., to obtain satisfaction of a judgment in their favor, out of a note for $1000 given to said firm by A. F. Whitaker, and transferred by William Yan Deventer, with the consent of Smithyman, to the appellants, in payment of a debt due and owing by said William to them.

The action was brought to compel the defendant to convey a certain farm to the plaintiff, Hannah J. Freelove.

<p>The right of every one to use his own property as he pleases, for all the purposes to which such property is usually applied, is unlimited and unqualified, up to the point where the particular use becomes a nuisance.</p> <p>Simply turning one’s own sheep, having an infectious disease, into his own lot, adjoining the lot of another occupied by sheep, is not unlawful, nor such an act of wrong or negligence as will give to the owner of the adjoining lot a legal cause of action, for damage sustained in consequence of the disease being communicated to his sheep. 0</p>

The action was commenced against the defendants Dratt and Packard, as “ Commissioners of loans of the county of Wayne,” and Porter G. Denison.

<p>It being the duty of an assignee under an assignment to him in trust for the benefit of creditors, to take care of and protect the assigned property, he may maintain an action of trespass against any person who interferes therewith.</p> <p>The bringing of such an action by the assignee, against one who assumes to take the assigned property out of his possession, is in furtherance of his duty, and hence is not an intermeddling with the property improperly, or within the sense and meaning of an injunction order prohibiting him from “intermeddling with, receiving or collecting” any of the property of the assignor.</p> <p>Such an injunction is no bar to a suit against the sheriff, for taking the assigned property out of the hands of the assignee; and if suit is not brought within three years, the statute of limitations will be a good defense.</p>

<p>APPEAL from an order made at a special term, overruling a demurrer to the complaint.</p>

<p>Exceptions heard in the first instance at the general term.</p>

<p>Where an agent of an insurance company, authorized to effect insurances on vessels, &c., and to procure policies from the company and deliver them to the insured, receives and accepts an application, and negotiates an insurance, as agent, on property of which he is one of the owners, and communicates the transaction tti his principal, without disclosing his interest in the property, and on receiving a policy from the company, delivers the same to the insured, such policy is void.</p> <p>It is the duty of an agent of an insurance company to acquire the proper information, and make the necessary examination, to lead to an intelligent decision upon the acceptance or rejection of the risk offered. The company has a right to the exercise of the agent’s disinterested skill, diligence and zeal, for its own exclusive benefit.</p> <p>And while acting as agent, he cannot at the same time take upon himself incompatible duties and characters; or become agent in a transaction, where he has an adverse interest or employment.</p> <p>An insurance, produced in that manner, is not avoided on account of the materiality of the relation of the agent to the risk, but because it is against public policy to allow such agreements to stand.</p> <p>Even if it could be shown that the relation was not material to the risk, the insurance would be void. „</p>

<p>Nothing short of a corrupt and illegal contract in violation of the statute will constitute usury. It must be a contract or agreement for the loan or forbearance of money, goods or things in action, by Which illegal interest is reserved and taken, or agreed to be reserved or taken. Otherwise usury does not exist.</p> <p>The reservation of illegal interest, or the taking or agreeing to take unlawful interest, must enter into or become part and parcel of the contract, in order to bring the transaction within the prohibition of the statute.</p> <p>When a contract for the loan of money, legal and innocent in itself, is once made and consummated, it cannot be made usurious and illegal by any subsequent transactions of the parties.</p> <p>Though subsequent transactions may of themselves be illegal, and forbidden by law, they cannot impart the taint and the consequences of usury to an antecedent agreement, fair and just and upright in itself.</p> <p>If the obligation under the agreement is to pay a debt, the obligation, with the legal rights resulting from it, remain in all their force, and cannot be discharged by engrafting upon it a subsequent agreement obnoxious to the charge of usury.</p> <p>If the subsequent agreement has the effect to annul and rescind the previous agreement, a different rule will prevail.</p> <p>Where subsequent to the execution of a bond and mortgage, the mortgagor» made an agreement with B. that if he would pay the money due thereon, to the holder of the mortgage, take an assignment thereof, and execute a covenant extending the time of payment, they would pay him a bonus of $4355.55, which was acceded to by B. and was carried into effect by both parties; Held that the subsequent usurious agreement did not taint the mortgage with usury, or constitute a defense to an action to foreclose the same, brought by an innocent purchaser thereof.</p> <p>A person who does acts, or makes representations or admissions, designed to influence and which do influence the conduct of another, will be precluded from denying such acts and representations when such denial will operate to the injury of the person so influenced by them. .</p> <p>Mortgagors, long after the execution of the mortgage, at a time when B. was about to become the assignee thereof, covenanted with him that there was due and unpaid, upon the mortgage $27,222.20, and that there was no set-off, defense or counter-claim thereto. Subsequently, by another instrument, they declared and affirmed that $18,222.20 was still due and unpaid, for principal ($9000 having been paid in the mean time.) These papers were left with B. and exhibited by him to the plaintiff as an inducement for the latter to purchase the bond and mortgage, one of the mortgagors telling him there was over $18,000 of principal due, and assuring him he could have no better investment and no better security for his money. Confiding in these representations, the plaintiff took an assignment of the bond and mortgage and paid B. $18,222.20 for principal, beside the arrears of interest. Held that the mortgagors could not be permitted, afterwards, to deny what they had thus asserted to be true. That whatever might be the real estate of the mortgage debt and the sum really due 'and unpaid thereon, as to ‘the plaintiff and those who might claim under him, the mortgagors were estopped from disputing that the money paid by the plaintiff was the true sum due and payable, at the time.</p>

<p>An employer is responsible in damages to an employee, for an injury resulting from the employer’s negligence.</p> <p>The employee himself is bound to exercise all reasonable care and prudence, and if any injury results through his want of care, or through his own negligence combined with that of the employer, he has no right of action against the latter.</p> <p>It is the duty of an employer to exercise care and prudence that persons in his employ be not exposed to unreasonable risks and dangers, and the employee has a right to understand that the employer will exercise that diligence in protecting him from injury.</p> <p>Thus where the plaintiff, who was not a ship carpenter or joiner, or a mechanic of any kind, and knew nothing about the construction of scaffolding, or the forces it would be required to resist, was put into the hold of a gunboat, by his employer, a ship-builder, to remove the chips and rubbish underneath a scaffold; Meld that he had a right to rely upon the superior knowledge of his employer, and upon his- care and" prudence that the scaffold was of sufficient strength to insure him against all harm.</p> <p>Meld also, that even though the plaintiff himself, in pursuance of his employer’s orders, assisted in piling planks upon the scaffold, which fell, from the weight so placed upon it, whereby the plaintiff was injured, he was not chargeable with negligence contributing to the injury, so as to defeat a recovery against the employer.</p>

<p>APPEAL by the defendants from the judgment of a county court, on appeal from the judgment of a justice’s court.</p>

<p>It being quite evident that when a cartman’s cart and a railway car are progressing side by side in the same direction, with a space of 16 or 24 inches between them, there can be no collision if each adheres to the track which the law assigns to it, in case a collision does occur the presumption of negligence is altogether against the driver of the cart, and not against the conductor of the railway car; the former being able to deviate and depart from his track, which the latter cannot do.</p> <p>In an action against the railway company, to recover damages for irquries occasioned by the collision, the plaintiff must show that the collision proceeded exclusively from the negligent acts of the defendant, and not from his own negligent acts, or his own negligent acts combined with those of the defendant.</p> <p>Where it appeared from the evidence, in such an action, that the collision was caused by the imprudent act of the plaintiff in pulling his horse to the left; Sdd that it could not be said he was without fault and did not contribute largely to bring about the collision resulting in his injury; and that the jury should have found a verdict for the defendant.</p>

PPEAL by the defendant, from a judgment of the city court of Brooklyn. The action was to recover damages for a personal injury occasioned by the negligence of the defendant.

THIS was a proceeding in equity under the statute (2 R. S. 67) to take proof of the execution and validity of a lost or destroyed will, and to establish the same.

ÁPPEAL from a judgment entered upon the report of a referee. The action was brought to recover damages for the conversion of a canal boat.

THIS action was commenced before a justice of the peace in the town of Fremont, in the county of Steuben. The action was- tried before the justice, who rendered judgment against the plaintiff, Conderman, of no cause of action, on the 26th day of February, 1861. The plaintiff complained against the defendant, Smith, for wrongfully taking a quantity of cheese, amounting to a thousand pounds, and claimed judgment for $80.

ON or about the 8th day of November, 1838, the defendants, Charles B. Baton and wife, executed to Phineas Prouty, senior, now deceased, a mortgage, bearing date on that day, upon certain premises, being sixty acres of land in the town of Phelps, Ontario county, N. Y., which mortgage was collateral to a bond made by the defendant Charles B. Baton, of the same date, to said Phineas Prouty, senior, which bond and mortgage were conditioned to pay $1700 in five years from the…

THIS action was brought by the plaintiff against the defendant, to recover possession of certain household furniture and a piano, which the defendant, as sheriff, had taken, by virtue of an execution against the plaintiff’s father, from the possession of the plaintiff.

MOTION by the defendants for a new trial upon a case with exceptions, directed to be heard in the first instance at general term. The action is upon a promissory note for $1000, made by McMillen as principal and Hannan and Van Hess as sureties. It has been twice tried.

APPEAL by the plaintiffs from a judgment of nonsuit, ordered at the circuit. The material facts appear in the opinion of the court.

The action was on a promissory note, made by the defendants Anson B. and George Hoyt, dated June 22, 1861,by which the makers promised to pay to the order of Belding Hoyt $500 three months after date. The note was subsequently indorsed to, and discounted by, the plaintiffs. The defense was usury.

The plaintiffs are assignees of John M. Mackay, who, at the defendant’s request, advanced $5500 in purchase of 100 shares Bockland Mining Company, for which this suit is brought. The defendant’s answer was a general denial. Mackay testified that McNair authorized him, on July 3d, 1857, to engage a contract for 100 shares, deliverable in twelve months, at $75 per-share.

<p>Any improper condition imposed by one of the projectors of a company, before its organization, in respect to a loan to be made by it, will not invalidate the transaction consummated after the company is organized; unless the company has adopted and ratified the act of its agent.</p>

HIS action was brought against the sureties on an undertaking given on appeal to the general term of this court from a judgment rendered at special term, in favor of the plaintiff, on the ground of the frivolousness of the demurrer to the complaint.

THIS was an action upon a warranty, charging that the defendants sold and delivered to the plaintiffs a quantity of divi divi hy sample, representing it to he “of as good quality as the sample,” and further representing that the “defendants warranted it so to he,” and averring “that the plaintiffs, believing such representations to be true, and relying upon the warranty of said defendants, purchased,” &c.; and alleging that the article was in fact “of an almost worthless…

The judge found that on and prior to the 10th day of July, 1862, the plaintiffs were the owners and holders of a promissory note for $122.41, payable on that day at the Importers and Traders’ Bank, New York, made by Henry G. Place, payable to the order of and indorsed by the defendant, who was an accommodation indorser for the benefit of said Henry 0. Place.

<p>APPEAL from a judgment entered upon the verdict of a jury.- This action was commenced September 4,1861, to recover for merchandise, work, labor and services, sold, delivered, furnished and rendered by the plaintiff, as a milliner, to and for the defendant, between April 24, 1856, and May 4, 1857. The -plaintiff was married to her present husband May 23, 1855. Her husband was a house builder. He was never interested in, or assisted her in the business. She carried on the business before her marriage, and afterwards, in her own name and on her own account. The defendant sought to set off a.claim for $¡60, for rent and medical services furnished to’ the husband of the plaintiff before her marriage, on the, allegations," first, that the millinery business and property belonged in fact to the husband, and second, that the goods and labor were furnished and performed under a distinct agreement that they were to be applied to the debt of the husband. The plaintiff denied this, and the evidence on her part showed that she never heard that it was claimed that her husband was indebted to the defendant till long after the debt to the plaintiff was incurred. The defendant admitted the debt in suit in 1861, and offered to pay by rent of a house. The jury found a verdict in favor of the plaintiff for the amount claimed, with interest.</p>

THIS was an action of replevin, (tried before a referee,) to obtain possession of the brig Gilmore Meredith, which, at the time of the commencement of this action, May 28, 1860, was in the possession of the defendant at Brooklyn, in the harbor of Hew York, and was given up to the plaintiffs by the proceedings in this action. The defendant was a deputy sheriff of Hancock county, in the state of Maine, at Buck’s Harbor, in which county the brig was built, in the year 1858.

On the 15th of June, 1861, the defendants, as assignees of Lanes, Boyce & Co., deposited with the United States Trust Company $60,000, for which the company gave them a certificate of deposit, by which it agreed to allow the depositors interest, at the rate of four per cent, and to repay the same, on sixty days’ notice, with interest, to the depositors or their assigns, on the return of the certificate.

<p>Our courts will not recognize the right of a foreign executor or administrator to sue in the courts of this state under or by virtue of his foreign letters testamentary or of administration.</p> <p>But if foreign executors, with full authority to do so, transfer to another stock in a bank located here, and execute a power of attorney for its transfer on the books of the bank, the officers of the corporation are bound to recognize the assignee’s title to the stock, and his right to have it transferred to him on the transfer books; and in case of refusal, the bank may be decreed to make the transfer, where there are no rights of domestic creditors to be affected.</p>

The motion was denied by the surrogate solely on the ground, as stated in the order, that the surrogate had no power to grant the motion, or afford the relief asked for.

ACTION upon a promissory note made by the defendant, on the 21st of March, 1854, for $540.43, payable to the order of McNamee, Goodrich & Co., six months after date, with interest, of which the plaintiff was the holder. The answer set up the defense of the statute of limitations. To rebut this defense, by proving an acknowledgment of the debt within six years, the plaintiff offered in evidence several letters from the defendant, addressed to him.

<p>ACTION on a promissory note; defense, a general denial and the statute of limitations. The evidence was uncontradicted. The referee found the following facts and conclusions of law: First. That on the 30 th day of January, 1854, the defendant, for value received, executed and delivered to the plaintiff a promissory note, of which the following is a copy:</p> <p>“ §300. One day from date, I promise to pay Harvey Butts, or bearer, three hundred dollars, with interest.</p> <p>Laurens, Jan. 30, 1854. John F. Perkins.”</p> <p>Second. That said plaintiff then became, ever since has been, and still is the holder and owner of said note.</p> <p>Third. That an indorsement was placed upon said note by the plaintiff, on the 1st day of April, 1856, of §26.50, of which the following is a copy, to wit:</p> <p>“ Received, April 1, 1856, of Samuel Straight, twenty-six dollars and fifty cents, to apply on interest on the within note.”</p> <p>Fourth. That said indorsement was placed upon said note under the following circumstances and agreement, to wit: About the month of April, 1855, one Abel Harrington had made an agreement with the defendant by which the defendant was to manufacture a set of tomb-stones for the. grave of Harrington’s deceased wife; for which Harrington was to pay the defendant $26.50; the stones to be paid for when taken away from the defendant’s shop, which was in Oneonta, Otsego county; that the defendant manufactured said stones and had them ready for delivery at his shop in the month of October, 1855; that previous to said last date, Harrington had sold some cattle to Straight, and that an agreement was made between Harrington and Straight, by which Straight was to pay the defendant the price of said tomb-stones for Harrington, and Harrington was to credit Straight the amount thereof, as a payment upon said demand against Straight for the cattle; that the plaintiff and Straight both resided in Laurens in said county; that in October, 1855, the plaintiff was about going to Oneonta, and Straight infprmed him that there was a set of tomb-stones at the defendant’s shop for the grave of Harrington’s deceased wife, and that by agreement between him and Harrington, he, Straight, was to pay for them ; and Straight requested the plaintiff to call at the defendant’s shop and bring them up. An agreement was then made between the plaintiff and Straight, by which, if the defendant would consent, the price of said stones was to be applied on the said note of the plaintiff, and Straight was to pay the price thereof to the plaintiff instead of paying it to the defendant; that the plaintiff, in said month of October, 1855, called at the defendant’s shop in Oneonta and took said stones into his wagon, and the plaintiff and defendant made an agreement that the price of said stones, $>26.50, should be applied on the said note, and that Straight might pay said price to the plaintiff instead of paying to the defendant; that when Straight paid the same to the plaintiff the plaintiff was to indorse it on the note, and that the plaintiff was to notify Straight that he was to pay the said price to him. That the plaintiff took said stones to Straight and notified him of the above agreement between the plaintiff and defendant, on the same day, or within a day or two after making said agreement ; that Straight then owed the plaintiff some other demands ; that the plaintiff did not request payment for the stones; that Straight did not request the plaintiff to wait or extend the time of payment, and that the price of said stones so remained until the 1st day of April, 1856, on which day Straight paid the price of them, $26.50, to the plaintiff, who immediately and on the same day indorsed the same on the note; that the defendant was not present when said indorsement was made, and knew nothing of it, and that he had nothing to do with the demand for the stones after October, 1855, and that he never called upon Straight' or Harrington for the price of said stones.</p> <p>Fifth. That the price of said stones was due in October, 1855, when they were taken from the defendant's shop by the plaintiff.</p> <p>Sixth. That this action was commenced on the 31st day of March, 1862.</p> <p>Seventh. That said note had been due more than six years before this action was commenced.</p> <p>As matter of law, the referee found, First. That the $26.50, the price of the stones, should have been applied on the note in October, 1855, when they were taken from the defendant, the price being due then; that the action should have been brought within six years from that time; that the payment by Straight and the indorsement by the plaintiff, made on the 1st day of April, 1856, did not take the note out of the operation of the provisions of the code of procedure concerning the time of commencing civil actions.</p> <p>Second. That this note was, before the commencement of this action, barred by the limitations of the above statute, and that the plaintiff could not recover in this action.</p> <p>Third That the defendant was entitled to judgment for costs; and judgment was ordered accordingly. To all of which the defendants excepted.</p> <p>After judgment was entered in favor of the defendant for $63.46 costs, the plaintiff appealed therefrom to the general term of the court.</p>

THIS case was agreed upon and submitted to the general term for decision.

<p>A proceeding under the act of 1849, “ to enforce the l’esponsibilities of stockholders,” &c. (Laws of 1849, p. 343,) is not barred by a previous judgment recovered in an action instituted under the revised statutes, (2 R. S. 463, §§ 39, 40,) by a stockholder of the bank, to compel the application of its assets to the payment of its debts.</p> <p>In a proceeding under the act of 1849 to enforce the individual liability of the stockholders of an insolvent bank, for the payment of its debts remaining after its assets are exhausted, executors are properly chargeable as holders of stock which appears on the books of the bank to have been held originally by their testator, and subsequently by them.</p> <p>If a stockholder is living, and a resident of the county in which the notice to stockholders is published, at the time the publication commences, his death afterwards will not abate the proceedings, or.render the publication ineffectual.</p>

The action was ejectment, brought to recover the possession of an undivided third of forty-seven acres of land, part of a farm situate in the town of Brighton, in the county of Monroe, of which one Joel Northrop died seised, in the year 1805.

THIS action was brought to recover of the defendants personally a certain debt due from the Rochester Iron Works to Rufus Keeler, and by him assigned to the plaintiff, on the ground that the defendants as trustees of said company did not file or publish the report required to be filed and published by the 12th section of the act to incorporate manufacturing companies, (Laws of 1848, p. 57; 2 R. S. 5th ed. p. 661,) of which this is one, in the year 1857.

<p>APPEAL from an order made at a special term. This was a creditor’s suit, brought against Anthony Yorks, the judgment debtor, Theodore D. Yorks, Zimri Cook, and others, to set aside a transfer of the property of Anthony Yorks to the other defendants, on the ground of fraud. The action was commenced in November, 1861, and an injunction order was granted on the 22d day of that month by the county judge of Livingston county. This injunction order was served on all the defendants, between the 10th day of December, 1861, and the 21st day of January, 1862, all of whom, except Cook, appeared and put in their answers. On the 29th of December, 1862, and after proceedings had been commenced by the plaintiff against Anthony Yorks and Theodore D. Yorks, for violating the injunction order, the defendants, without notice to the plaintiff, applied to the county judge for, and obtained from him, a modification of the injunction order. The plaintiff, at a special term, moved to set aside the order of modification. The special term held that it was improper for the county judge to grant the order ex parte, and directed his order to be set aside, (see 24 How. Pr. Rep. 363, S. C.) and the defendants appealed.</p>

<p>APPEAL from an order made at a special term setting aside an order made by George Hastings, county judge of Livingston county, for the service of the summons in this case upon the defendant Cook by publication. The application for the order was made upon the following affidavit of the plaintiff, viz: “ J. Franklin Peck, being duly sworn, says that he is the plaintiff in this action, which is in the nature of a creditor’s suit, and is brought for the purpose of reaching the property of the said defendant Anthony Yorks, which cannot be done by execution, the said action having been commenced by filing the plaintiff’s summons and complaint, with an injunction granted therein, in the office of the clerk of Livingston county, on or about the 27th day of November, 1861; and that the same was served upon the defendants, Anthony Yorks and Howell Mosher, on the 10th day of December, 1861; on the said defendant John Mosher on the 12th day of said December, and on the said defendant Theodore Yorks, on the 4th day of January, 1862. And this deponent further says that the said defendant Zimri Cook is not a resident of this state, though he frequently visits the county of Livingston, but his residence is in the township of York, county of Medina and state of Ohio; that deponent placed a copy of said summons, complaint-and injunction in this action in the hands of a deputy sheriff of the county of Livingston, with directions to serve the same on said Cook, on or about the 25th day of November, 1861; but this deponent is informed by said deputy that with all diligence he has been unable to find said Cook, and deponent verily believes that it will be impossible to obtain due service upon said Cook in this state. And this deponent further says that the said defendant Zimri Cook pretends to own and hold a valuable house and lot in Lima, which the said defendant Anthony Yorks has occupied for many years past, and to which he formerly held the title. And this deponent, upon information and belief, avers that said Cook is not really the owner of said property, but that the same is held for the benefit of the said Anthony Yorks; and deponent seeks among other things to recover the same by this action.”</p> <p>Upon this affidavit the county judge made an order reciting that it appeared to his satisfaction that a cause of action existed against Cook, in equity, and that service of the summons and complaint upon him could not be obtained in this state, and directing that the summons be served on him by the publication thereof once in each week for six weeks, in the newspaper printed in the county of Livingston called the “ Livingston Republican/’ and also in the newspaper printed in said county, called “The Constitutionand that a copy of the summons and complaint he deposited in the post office, addressed to the defendant at York, Medina county, Ohio.</p> <p>Publication was never made, but a summons and complaint purporting to he copies were afterwards served upon Cook personally, in the state of Ohio. Cook moved this court, at a special term held in Monroe county, in February, 1863, to set aside the order, and for other relief, upon the ground that the affidavit on which it was granted was insufficient. The court granted the motion, and the plaintiff appealed.</p>

<p>APPEAL from a judgment of the Monroe county court, affirming a judgment of a justice of the peace. The opinion of the court states all the material facts.</p>

<p>. A husband may be liable for necessaries furnished to the wife, in certain cases, though the existence of an agency or assent, express or implied in fact, is wholly disproved by the evidence; and this upon the ground of an agency implied in law, though there can be none presumed in fact.</p> <p>A husband is legally bound for the supply of necessaries to his wife, so long as she does not violate her duty as wife. He may discharge this obligation by supplying her with necessaries himself or by his agents, or giving her an adequate allowance in money; and then he is not liable to a tradesman who without his authority, furnishes her with necessaries.</p> <p>But if he does not himself provide for her support, he is legally liable for necessaries furnished to her by tradesmen, mien though against his oi'ders.</p> <p>Where goods have been thus' furnished by a tradesman, the only questions to be considered are, whether the husband failed to provide suitably for his wife’s support, and whether the articles sold by the plaintiff were necessaries.</p> <p>And if there is some evidence to sustain the finding of a referee, upon those questions, his decision will be conclusive.</p> <p>The liability of a father to furnish necessaries for his minor and invalid children who are members of his family and unable to support themselves by their labor, depends upon principles analogous to those which govern the relation of husband- and wife.</p>

<p>The statute which authorizes a party paying usurious interest for the loan or forbearance of money, to sue for and recover the excess, within one year next after such payment, is cumulative, and does not take away the common law remedy of the borrower to recover such excess in an action for that purpose, which may be brought at any time within six years.</p> <p>The borrower’s common law right of action is not absolutely suspended during the three years given to the overseers or superintendents of the poor for suing, by the statute, but he may sue during that period provided neither of such officers has previously sued for the same matter, and not otherwise.</p> <p>If an action has been brought by those officers, previously, it is the duty of the defendant, in an action brought by the borrower, to show that fact, affirmatively.</p> <p>An action may be maintained by a borrower, against husband and wife jointly, to recover back money paid as usurious interest, where the money loaned, and the security taken therefor, belonged exclusively to the wife, as a part of her legal estate, and the money taken for the loan and forbearance was paid to and received by her, and the husband, so far as he participated in the transaction, acted for her and with her knowledge and assent.</p> <p>Under the provisions of the acts of 1848 and 1849 for the more effectual protection of the property of married women, a married woman, having a separate legal estate consisting of money, may lend the same, take and hold securities therefor in her own name, and sue for and enforce them at law. And the power to do these things includes the ability to make all contracts incident thereto. She is not exempt from the liabilities which the law imposes upon all other lenders of money.</p> <p>Dictum of Spencer, Ch. J. in Wheaton v. Hibbard, (20 John. 290,) overruled.</p>

<p>A statute of another state, under which the plaintiffs claimed to have been incorporated, declared that persons associating under articles of agreement according to the statute, and who should comply with all the provisions thereof, should constitute a body politic and corporate. It then provided that before any corporation so formed should commence business, the officers should cause the articles to be published in two newspapers, &c. Held, that a corporation might be such for all the purposes of bringing an action, without publication. Sutherland, J. dissented.</p> <p>Held, also, that general reputation that the plaintiffs were conducting business as a corporation, coupled with the fact that the note sued on was payable to them, was sufficient evidence of the existence of the corporation to prevent a dismissal of the complaint, for want of proof of publication of the articles.</p>

The complaint was in the name of “The Phenix Bank of the city of New York, plaintiffs in the above entitled action, without any statement or averment of its incorporation. The defendant demurred, and stated the following grounds of demurrer: 1. That it appeared by the complaint that the plaintiff had not legal capacity to sue. 2. That it did not appear that the plaintiff was a corporation, duly incorporated and entitled to sue. 3.

THIS action was tried May 14, 1862, before the court at the circuit, the parties having waived a jury.

The action was brought against the defendant, the Ross County Bank, in Ohilicothe, impleaded with others, as the indorser of a bill of exchange. The action was tried before Justice Clerke, at the New York circuit, without a jury. The following facts were found by the justice: 1.

THIS was an action to recover the possession of personal property consisting of 187 pieces of printed cotton flannels.

THIS action is to recover from the defendants the amount of a promissory note deposited with the defendants for collection, on the ground of a failure to protest and duly notify the indorsers of non-payment; and also, the costs of an action between the plaintiffs and the indorsers* in which action these defendants, although they were notified of the day of trial, and to do so, yet failed to establish that they protested said note, or gave notice of non-payment.

THIS action was brought upon a bond given pursuant to 2 R. S. 1st ed., p. 5, § 14, for the purpose of procuring the discharge from an attachment of an undivided half of a certain ship or vessel called the Arctic. Under insolvent proceedings instituted in the state of Massachusetts, Gibbs, Jenney & Allen were declared insolvent, and the defendants were duly appointed assignees.

The action was brought to recover the value of a quantity of hay. On the 18th day of November, 1858, the plaintiff leased to, one Austin Rollins seventy-five acres of land situated in the town of Hartsville, the residence of Rollins, for two years from December 1, 1858, for $63 per year, payable on the first days of December, 1859 and 1860.

<p>A PPEAL from a judgment rendered in favor of the plain-11. tiff upon the report of a referee appointed pursuant to section 41 of the revised statutes. (3 R. S. p. 175, 5th ed.) The plaintiff claimed upon a promissory note, and upon an account for work, labor and services performed by her for the defendants’ intestate. The referee reported the following facts found by him, viz: That William 0. Coe died in March, 1859, and that the defendants were duly appointed administrators of his goods, chattels and credits. That in the month of June, 1843, he executed and delivered to the plaintiff a promissory note of which the following is a copy:</p> <p>“$100. Due Ruth Coe, or bearer, one hundred dollars one year from date with interest, for value received.</p> <p>Madison June 20, 1843.</p> <p>(Signed) William Cob.”</p> <p>That William C. Coe, in the year 1851, promised the plaintiff, by parol, to pay the note; and that he also, in the year 1856, promised her, by parol, to pay the note. That the note, principal and interest, on the 10th day of August, 1860, amounted to $219.97, and that no part of the principal or interest had been paid. All of which findings were supported by the evidence. And as a conclusion of law, the referee found that the note was a valid subsisting debt against the defendants as such administrators, in favor of the plaintiff, with interest from its date.</p>

The action was brought to reform a receipt on the ground of a misapprehension of its contents, when executed, and also to compel a specific performance of a verbal agreement. The following facts were found by the judge who tried the cause, viz: 1.

THIS is an appeal from a judgment rendered at a special term setting aside a sheriff’s sale, ordering the sheriff’s certificate of sale canceled, and restraining proceedings on the judgment, on which the sale had been had, for the collection thereof, except out of certain lands. The defendant Ira H. Gribson did not appear in the action. The defendant Thomas Starin appeared, but interposed no answer to the complaint.

The action was brought to enforce the specific performance of a contract for the sale of real estate, made by George Williston, the ancestor of the defendants. The county judge found the following facts and conclusions of law, to wit: 1.

<p>Where one purchases property covered by a chattel mortgage within a year after the mortgage is made and filed, the property will continue subject to the lien of the mortgage so long as the purchaser continues the owner, even though the year has expired without the filing in the town clerk’s office of a copy of the mortgage with a statement of the interest of the mortgagee in the property.</p> <p>One deriving title to mortgaged property from a purchaser who becomes such within the year will stand in the same position as his vendor.</p> <p>But if he merely takes the property for an antecedent debt, without paying or advancing any thing at the time, or giving up any security, he will not be regarded as a Iona fide purchaser, or purchaser in good faith.</p> <p>The re-filing of a chattel mortgage in the town where the mortgagor resides is only necessary to secure the lien against creditors of the mortgagor, and purchasers and mortgagees in good faith.</p>

THIS action was for the breach of a contract to purchase real estate and personal property. The contract contained a clause fixing and liquidating the damages, in case of failure to perform, at $1000. The defendant gave evidence tending to show his readiness and willingness to perform the contract on his part on the 1st April, 1863.

This case is reported 36 Barbour, 270, when it came before the court on appeal from a judgment of the special term overruling a demurrer to the complaint. The judgment of the special term being affirmed, at the general term, the defendant put in an answer denying the material allegations of the complaint.