Volume 41 — New York Reports

The indictment contained three counts, all charging murder in the first degree. It appeared upon the trial, that on the evening of January 26th, 1867, Thomas H. Bailey was shot by the prisoner, in River street, in the city of Troy.

The prisoner’s wife died on the 10th of January, 186’8, and a coroner’s inquest was held upon her body on the 21st of January, 1868. The prisoner was subpoenaed, by the sheriff of Wyoming county, to appear and testify before the coroner, and did attend, and was examined on oath. Upon his trial for the murder, the district attorney was permitted, against the objection of the prisoner, to prove, by the coroner, the prisoner’s statements, made under oath at the inquest.

The defendants in error, and one Charles Corbin, were jointly indicted at the ¡Rensselaer county Oyer and Terminer, in November, 1868, for the crime of burglary in the third degree. A nolle prosequi was subsequently entered as to Corbin ; the other defendants pleaded not guilty, and were tried at a Court of Sessions, held in that county in January,' 1869.

<p>Several persons organized, the defendant, as a cemetery association, under the act (chap. 133 of the Laws of 1847) authorizing the incorporation of rural cemeteries, and made themselves its trustees for the first year; one of their number being at the time the owner of 120 acres of land. This land was purchased from him by the association, at the actual price of about $20,000; but by agreement between the trustees, a consideration was inserted in the deed of $500,000, and for the balance over the §20,000, to wit, $480,000, bonds were issued by the association, which were distributed among the trustees. These were subsequently surrendered and new bonds, not negotiable in form, of smaller amounts each, but the same in the aggregate, were substituted in their place. Several years after, the plaintiff found one of these bonds among the papers of his testator, who was not one of the original trustees, and it did not appear how he became the holder. The plaintiff applied to the association, and received from them another bond in place of the -one so found, which he surrendered up. Interest upon the substituted bond had been paid by the defendant some years. In an action brought to recover the amount payable in the bond—Held, that it was void, both from an entire want of consideration for the original bond, for which it was substituted, and on account of the fraud in the original issue of the bonds by the original trustees to themselves.</p> <p>Held, further, that there being no proof as to how the plaintiff’s testator became the holder of the bond found among his papers, and it not being negotiable in form, the plaintiff stood in no better position than the trustee to whom the original bond was issued; nor did he gain any additional rights by procuring from the present managers of the defendant a new bond of a different form, in the place of the one delivered up.</p>

<p>In an action for causing death in the streets of a city, charged to have been by the negligence of the defendant’s servants, evidence that the fatal injury was occasioned by a runaway span of horses and wagon, owned by the defendant,—held, sufficient to authorize a jury to find persons in charge of such horses and wagon to be his servants, although engaged at the time in a business which appeared to be that of another person, whose name, as carrying on such business, was painted upon the wagon. (Grover and Lott, JJ., contra)</p>

<p>Appeal by the defendant from the judgment of the General Term of the Supreme Court, in the fifth district, affirming a decree in- favor of the plaintiff against the defendant, made upon the report of a referee. The parties are brothers, and were both appointed executors in their father’s will. The complaint alleged that the defendant had exclusive possession of the securities and papers of the estate, and refused the plaintiff access to them; and refused to deliver to the plaintiff even one half of those securities; and excluded him from all participation in closing up the estate.</p> <p>It asks that a receiver be appointed, and the defendant be compelled to hand over to the receiver all the securities and property in his hands.</p> <p>The action was referred to Albertus Perry, as sole referee, and the decree made upon his report, in favor of the plaintiff, together with the facts appearing in the case, are sufficiently stated in the opinion of the court.</p> <p>cited Hardress, 314; 2 Bro. Ch. R., 95, 96, 114; 5 John. Ch., 283, 294; 8 Geo., 388, 394, 403, 404; 3 You. & Coll., 359; 16 Ves., 477; 2 Molloy, 186; 27 Beavan, 568; 22 Beavan, 257, 263; 2 Hill (Sou. Car.) R., 277; 11 Ves., 333; 7 Barb., 120, 124; 7 Johns. Ch., 17, 23 ; 8 Paige, 152, 154, 155, 159, 160; 11 Johns., 16, 21; 1 Wend., 583, 589, 591; 11 Paige, 206, 209 ; 2 Kent, 416 ; 7 East, 246 ; Ochletree v. Wright (1 Dev. & Batt., 336); 2 Story Eq. Jur., §§ 828, 836; Willard Eq. Jur., 336; 3 Daniels Ch. Pr., 1956 et seq; 4 Johns. Ch., 562; 1 Hopkins, 429, 435.</p> <p>insisted that the court had power to control and regulate the conduct of executors, and cited, Smith v. Lawrence (11 Paige, 209); Story Eq. Jur., §§ 532, 533 to 534, 578; People v. Norton (5 Seld., 178); Wood v. Brown (34 N. Y., 337); Dubois v. Sands (43 Barb., 416, 417); Glover v. Halley (2 Brad., 29); Willard on Executors, 36, 37.</p>

This is an appeal from a judgment of the General Term of the Supreme Court in the first judicial district, affirming a judgment in favor of the plaintiff entered on the report of William F. Allen, referee.

The first of the above actions was brought by Herbert C. Moore, to recover the possession of a certain lot of land in the city of Brooklyn, claimed by the plaintiff' in fee simple, wherein judgment, in favor of the plaintiff, that he recover ten undivided eleventh parts thereof, with mesne profits as damages and his costs, was rendered in the City Court of Brooklyn; which judgment was affirmed in General Term in the Supreme Court for the second district.

The action is brought to recover the expenses incurred by John G. Warren (the testator), in certain proceedings had pursuant to the provisions of the charter of the defendant, for the determination of the price to be paid to him for cer tain lands, required for the use of the defendants, for the construction, maintenance, &c., of their canal and the works connected therewith.

<p>Appeal by the plaintiff from the judgment of the General Term of the Supreme Court in the fifth district, affirming a judgment of the Special Term sustaining a demurrer to the complaint. The demurrer was at first stricken out as frivolous at Special Term in the seventh district; but on appeal to the General Term, this was reversed (17 How., 140), and the demurrer then argued at the Special Term in the fifth district with the result already stated.</p> <p>A deed of certain premises in the city of Auburn, was executed by E. Corning, to the defendant, Michael McCarty, at the request of Stanford, who had purchased the premises of McCarty, and for the sole purpose of completing his (Stanford’s) claim of title.</p> <p>This deed was delivered to Stamford (and never to McCarty), with that intent, and by Stanford deposited for record in the clerk’s office.</p> <p>At this time Stanford had mortgaged to Fitch & Griswold, who had foreclosed and conveyed to Zattin, the plaintiff, who had repaired the premises and put in a- tenant.</p> <p>McCarty somehow heard that there was a deed from Corning to him, recorded in the office; and he went to the tenant and bribed him to leave, took possession himself, now holds adversely to plaintiff, and claims to own the premises by virtue of that deed.</p> <p>McCarty’s former interest in the premises, was under a contract from Corning to him; and in selling out to Stanford he had only assigned the contract, and Stanford, thinking McCarty had deeded to him, originated the mistake in getting and recording a deed from Corning to McCarty. These facts were set up in detail in the complaint.</p> <p>The relief asked for by plaintiff is:</p> <p>1st. Possession.</p> <p>2d. A conveyance of McCarty’s apparent title, by quit claim or otherwise, &c., and that he be forever barred from setting up or asserting his pretended title.</p> <p>McCarty’s demurrer is on the ground:</p> <p>1st. That the complaint does not set out facts sufficient to constitute a cause of action.</p> <p>2d. That there is a defect of parties defendants.</p> <p>3d. That several separate and distinct causes of action have been improperly united.</p> <p>The case below is reported in 17 How., 240, 8 Abb., 225.</p> <p>cited Philips v. Gorham (17 N. Y., 271) ; N. H. R. R. v. Schuyler (17 N. Y., 592); Dobson v. Pearce (12 N. Y., 165); Crary v. Goodman (12 id., 268); Bidwell v. Astor Ins. Co. (16 N. Y., 267); Lamb v. Buckmiller (17 N. Y., 627); Reubens. Joel (3 Kern., 488).</p>

<p>A judgment in Justices’ Court in favor of a surgeon for professional services is a bar to any action by the defendant against him for malpractice in performing such services.</p> <p>And this is equally so, although the recovery in the Justices’ Court was upon confession without trial, and although the surgeon’s suit and judgment thereon, were subsequent to the commencement of the action for malpractice, and were interposed as a defence to it by supplemental answer.</p> <p>Accordingly, where an action having been commenced, and being at issue against a surgeon to recover $5,000 damages for malpractice in setting an arm, he sues the plaintiff in Justices’ Court for the same professional services, the alleged unskillfulness and negligence in which constitute the malpractice complained of, and judgment was obtained before the justice by the surgeon for six dollars and fifty-eight cents; without answer, upon a written consent to its entry.—Held, that such judgment was a complete bar to the action for malpractice; and having been pleaded as such by supplemental answer, a demurrer thereto was properly overruled. .</p>

<p>This is an appeal from that part of an order of the General Term of the Supreme Court, in the first district, affirming an order of the Special Term, in so far as it removed the appellant, Southwick, as trustee of the estate of Mangle M. Quaekenboss, deceased.</p> <p>Mangle M. Quackenboss died in" August, 1864, leaving a will, which was proved before the surrogate of Mew York on the 17th day of September, 1864. By his will he devised and bequeathed all his real and personal estate to such of his executors as qualified and assumed-the burden of the trusts, to have and hold the same upon certain ti'usts, to set apart a certain amount of real and personal property to realize $2,000 of income, to pay over the same to his wife, in lieu of dower, and the rest and residue thereof “ as soon after my death as the same can be advantageously and conveniently done, to be divided into four equal shares; and the said trustees to convey and assign and deliver to each of his daughters, Juliana Maria Day, Louisa C. Southwick (wife of the appellant), and Caroline E. Dibble, one of said shares, and Sophia Y. Quackenboss, wife of the testator’s son, John M. Quacken boss, the remaining share; and in case either of his daughters or daughter-in-law should have died before such, division, then her share to go to her children. He named, as executors and executrix, his wife, his son, John M. Quackenhoss, and In's sons-in-law, Mr. Dibble and Mr. Southwick (the appellant), and one Milker, as his executors. The will also authorized the executors to sell real estate.</p> <p>The respondent, John M. Quackenhoss, and the appellant, alone qualified and undertook the trusts. The widow rejected the provision in the Avill for her, and her dower was assigned to her.</p> <p>Sophia T. Quackenhoss, the daughter-in-law, died in 1865, before any division of the estate, and left two children; the petitioner, Mrs. Eager, and a son, a minor, fifteen years of age, hying with his father, the respondent, Quackenhoss.</p> <p>The appellant, Southwick, took charge of the estate February, 1865, and continued in charge for a year, when at Ms request, the respondent, Quackenhoss, took chargehut Southwick retained most of the deeds and documents, and refuses to give them up. The residue of the property undivided is about $200,000.</p> <p>The appellant, Southwick, quarreled and parted with Ms wife, the testator’s daughter, in the spring of 1861, and she procured a divorce from him.</p> <p>In the fall of 1866, the trustee, Quackenhoss, made an arrangement to sell a portion of the real estate for $80,000, hut it fell through, OAving to the refusal of Southwick to join in the sale, on the ground that a warrant of execution in favor of the United States was outstanding against it more them thirty years old.</p> <p>The claim of the United States against the testator’s property, arose out of his being surety of Samuel Swartwout in 1800, and had rested dormant for many years until South-wick’s laAvyer revived it.</p> <p>In September, 1868, Mrs. Day, Mrs. Soutbwiek, and John M. Quackenhoss, after consultation with their counsel, authorized the latter to make a formal demand upon the appellant, and demand of him that he join in closing up the estate, and executing the trusts of the will. He stated, in answer to this demand, that certain real property held by the widow at the time of the testator’s death, belonged to the estate, and he would do nothing as to the rest, until they had got that, and finally and formally refused the request.</p> <p>Thereupon, Quackenboss having paid off and got a discharge of the claim of the United States on the property, he, Mrs. Day, Mrs. Dibble, and Mrs. Eager, presented a petition to the Supreme Court, in which Mrs. Southwick subsequently joined, thus including all the devisees of the property except Mr. Quackenboss’ infant son (entitled to one-eighth), praying that Southwick be ordered to perform and execute the trusts reposed in him by said will, or be removed as executor and trustee, and some suitable person be appointed in his place.</p> <p>The appellant having read affidavits in opposition to the petition, it was referred to a referee to ascertain the facts, and report the evidence, and his opinion, as to the propriety of removal of Southwick, and the appointment of a substitute. Evidence on both sides was taken by him. His report was filed January 19th, 1869, whereby he recommended the removal of Southwick and the appointment of Mr. Dibble, another son-in-law, recommended by all the parties, in his place.</p> <p>Upon the coming in of this report, the Special Term, after hearing counsel on both sides, made an order removing South-wick, as executor and trustee, appointing Dibble in his place, and directing that Southwick deliver to Dibble all books and papers, &c. ,</p> <p>Southwick appealed from this order to the General Term, where it was reversed, so far as it removed him as executor, and affirmed as to his removal as trustee, and as to his delivery over of all documents relating to the trust. Southwick appealed from the latter portion to this court.</p> <p>insisted that an executor could not be removed by petition, and cited 2 Bradford R., 32; Willard on Executors, 138; In re Van Wyck, 1 Barb., Ch., 566; the. statute (1 R. S., 731, § 70), evidently refers to trustees created by deed, and not to executors made, as such, trustees by a will. Upon the merits, conceding the power of the court, there was no cause shown for removal; no misconduct of the appellant was shown.</p> <p>cited Leggett v. Hunter (19 N. Y., 445); Belmont v. O'Brien (2 Kern., 394); Craig v. Craig (3 Barb. Chy., 76, 78, Matter of Wadsworth, 2 Barb. Ch. R., 381; Williams v. Conrad ( 30 Barb., 526, Southerland, J.); Meakings v. Cromwell (1 Seld., 136) Disbrow v. Henshaw. (8 Cow., 350); People v. Norton (5 Seld., 178); In re Andrews, 1 John’s. Ch. R., 99.</p>

<p>By an. act of the legislature, passed in 1859, it was provided that the common council of the city of Brooklyn might, upon an application of a majority of the owners of land in the district proposed to be assessed by the act, apply to the Supreme Court, at Special Term, for the appointment of three commissioners, who were authorized to contract with the Long Island Railroad Company, or its assigns, to close the entrances of their tunnel in Atlantic street, Brooklyn; to pave the street at its proper grade; to lay rails upon the surface of the street and run horse-cars from the foot of Atlantic street to the city line; to relinquish and surrender their right to use steam within the city limits. In compensation for this, the commissioners were authorized to assess certain property within the vicinity specified in the act, not to exceed $125,000 (and expenses not to exceed $5,000), which the railroad company were to receive in full for such change.</p> <p>Commissioners having ’ been appointed upon a petition of the common council to the court, verified by the mayor of the city, stating that a majority of the owners had petitioned under the act, by a further act passed in 1860, they (the commission era),were directed to assign to the railroad company, or its assigns, the assessment list, on condition that the latter agreed to accept such assignment in lieu of the moneys to be paid them under the contract, and agreed to discontinue the use of steam in the city, close up the tunnel and lay the railway; and the railway company, or its assigns, were authorized to receive from the persons or owners assessed the sum assessed, and to appoint a collector to collect sums unpaid.</p> <p>The act of 1859 was entitled “ An act to provide for the closing of the entrance of the tunnel of the Long Island Kailroad Company in Atlantic street, in the city of Brooklyn, and restoring the street to its proper grade, and for the relinquishment hy said company of its right to use steam power within the said city.” The title of the act of 1860 was entitled “ An act in relation to the collection, payment and application of certain assessments in the city of Brooklyn.”</p> <p>The assignee of the railroad company, the work having been done and the assessment made, appointed the plaintiff collector of the assessment, who, by a further act of the legislature passed in 1863, was empowered to sue the persons assessed for amounts unpaid.</p> <p>The plaintiff, having brought this action against the defendant as one of the owners assessed, to recover the amount of his assessment—Held, that the act of 1859 was constitutional and valid, as an exercise of the taxing power, and not of eminent domain.</p> <p>It is the settled law of this State that the power of taxation and of apportionment of taxation are vested in the legislature, and are identical and inseparable; that there is no constitutional restraint upon the exercise of this power; and that it includes the right and power of determining what portion of a public burden shall be borne by any individual or class of individuals. Mason, J.</p> <p>It is within the power of the legislature to impose a tax upon a locality for any purpose deemed by it proper, and this power is not restricted by the Constitution. Grover, J.</p> <p>Held further, that the title to such act embraces but one subject, which was expressed in the title, and is not therefore void within section sixteen of article third of the Constitution. It is sufficient that the title express the subject, and not the provisions of the act, or the details by which its purpose is to be accomplished. (James, J., contra.)</p> <p>Held further, that it being provided by the original act imposing the assessment as a tax, that it should be enforced in the same manner as county taxes, as to which parties assessed are personally liable, the act of 1863, authorizing the plaintiff to sue and to enforce such personal liability, was valid.</p> <p>Held further, that the application to the common council, of a majority of the owners in the district affected being indispensable to the validity of all subsequent proceedings under the act, and the burden being upon the plaintiff to show that such majority had applied, the petition of the common council, verified by the mayor, to the Supreme Court, was no evidence thereof in this action, and the finding of the court below that such majority had applied to the common council was, therefore, wholly unsupported by the proofe, and error, for which the judgment in favor of the plaintiff must be reversed. (Hunt, Oh. J., and Mason, J., contra;.) (Argued June 19th, 1869, and decided September 34th, 1869.)</p>

The appellant, one of the-executors of the last will and testament of Stephen B. Munn, deceased, at the special written request of his co-executors, containing an assurance that he would be entitled to a reasonable and just compensation out of the estate, had rendered important and useful services as counsel in defending an action involving the liability of the estate to a large amount.

This is an action brought on a verbal contract of insurance, alleged to have been made by the defendants, through their agents, with the plaintiffs. 1. The action was commenced by the service of a summons, on the 6th day of February, 1863, upon the attorney for the defendants, appointed for that purpose under the statute of New York, directing such appointments by foreign insurance companies transacting business in this State.

the Supreme Court, in the fifth judicial district, affirming, with some modifications, judgment for the plaintiff, on the report of a referee. The action was in the nature of trespass de lonis, for a canal boat. The cause was tried before a referee, who reported in favor of the plaintiff, $1,326.94.

The action was brought by the plaintiff, as receiver of Bufus Childs, to set aside a transfer from him to Gilbert C. Childs as fraudulent. • On the 28th of September, 1846, one Horatio Davis recovered judgment against the said Childs, in the Court of Common Pleas of Monroe county, for $50.27 and costs. On the 16th of February, 1860, Davis applied to the Supreme Court, for leave to issue execution upon the judgment.

David T. Foot and the defendant, Farrington, had been partners in a drug store in March, 1854. Foote agreed to buy Farrington’s interest. Held: as such assignee of David Y„ Foot; and that the said Julia F. Foot, on such sale, was the highest bidder for and became the purchaser of all the effects, property, demands, actions and rights of actions, of the said Stephen D. Dillaye, as such assignee of David Y. Foot.

The complaint alleges as a first cause of action, that Elijah Garlock, the predecessor of the defendants as commissioner of highways, became justly indebted to the plaintiff, in the sum of $850, for money lent and advanced to him as such commissioner, and that the plaintiff took from him a promissory note therefor, which is set forth, dated February 4,1863, payable in one year with interest. Second.

The action was for the foreclosure of a mortgage, and the part of the decree complained of, was that making the appellant (Sanderson) personally liable for any deficiency. On the 15th of July, 1850, the defendant Dodge was the owner of the real estate described in the complaint, and on that day executed and delivered to the respondent a bond 'and mortgage thereon, to secure the sum of $2,300, with annual' interest.

John Schenck died in July, 1844. By Ms will he appointed his son, Charles Schenck, executor; and, among other things, he provided as follows: “ Item. I empower and direct my executors to sell all the land now owned by me, which I purchased from Captain Williams, at public or private sale, and add the proceeds of the sale to the money which I have at use, together with $200 to be paid as a charge by my son, Charles.

<p>Appeal from the judgment of the General Term of the Supreme Court, in the eighth judicial district, affirming judgment for the plaintiff upon the report of referee.</p> <p>In this case, one Philip Perkins owed Harriet Perkins a promissory note of $595, dated October 9, 1856, payable in three years from the first day of November then next, with interest. On the first day of September, 1857, Philip Perkins conveyed a farm to the defendant, and in consideration thereof, the defendant executed and delivered to the said Philip Perkins his bond, in the penal sum of $15,000, in which he acknowledged himself indebted to Perkins, and for the payment of .which sum to Perkins, he bound himself, his heirs, executors, &e., in the usual form. The condition of bond was, that it was to be void if the obligor should pay James C. Ferris a certain bond and mortgage, executed by the said Philip Perkins and John Ridge to him, for about the sum of $10,050, bearing date April 14, 1854, and upon which there is unpaid about the sum of $7,200; and shall pay to Harriet Perkins a note of $500, executed by the said Philip, payable about October, 1859, and discharge and release the said Philip from his covenant in a certain deed named; and shall indemnify and leave harmless the said Philip from all trouble, costs or damages, by reason of the mortgage and notes.</p> <p>On the 21st of October, 1858, this bond, without the knowledge or consent of Harriet Perkins, for a good, valuable consideration paid by the defendant to Philip, and sufficient, as between them, was given up to the defendant to be canceled, and was thereupon, with the consent of Philip, canceled by .tearing the signature and seal of the defendant from the same.</p> <p>On the first day of September, 1859, Harriet Perkins, for a valuable consideration, sold and transferred the note to the plaintiff, with all her right, claim and interest which she had or claimed in, to, or by reason of the bond, to enforce payment of the said note against the defendant.</p> <p>The plaintiff then brought an action against Philip Perkins, upon the note, and on the 4th of February, 1860, recovered a judgment in the Supreme Court against him for the amount of the note, interest and costs, and which was not paid when this action was brought. This action was then commenced on the 2d of August, 1860. No further facts are necessary to be stated to present" the questions discussed in the opinion.</p> <p>insisted that the bond was merely for the indemnity of Philip Perkins, and he could have sued upon it, were it not for the re-lease, and cited Carr v. Roberts (2 Barn. & Ad., 905) ; Same case after a second trial, (5 id., 78); Penny v. Foy (8 Barn. & Cress., 11); Port v. Jackson (17 John. R., 234) ; Same case on error (id., 479); In the matter of Negus (7 Wend., 499); Churchill v. Hunt (3 Denio, 321); Thomas v. Allen (1 Hill, 145); Gardner v. Gardner (10 John. R., 47); Northrop v. Northrop (6 Cow., 296); Hodgson v. Bell (7 Term R., 97); Holmes v. Rhodes (1 Bos. & Pull., 638); Dye v. Mann (10 Mich., 291); Mayor v. Stewart (4 Burr., 2439) ; Lithbridge v. Milton (2 Barn. & Ad., 772).</p> <p>He also urged, that there was no promise to pay Harriet’s note, and no covenant with her but a mere naked condition, avoiding the bond in case of performance, and that a mere condition never gave a right of action as upon an agreement (Culver v. Sisson, 3 Comst., 264; Weed v. Covill, 14 Barb., 242; Palmer v. Fort Plain Plankroad Co., 1 Kern., 376; Salisbury v. Phillips, 10 John. R., 57; Jackson v. Florence, 16 id., 47; Hill v. Ellicott, 12 Mass., 26; Scott v. Field, 7 Watts, 360; Smith v. Stewart, 6 Blackf., 162.) But if the defendants undertaking had been in the form of a covenant with Philip, the plaintiff could not make himself a party to that deed. (McAlister v. Marbury, 4 Humphrey, 426; Dolph v. White, 2 Kern., 296; Hornbeck v. Westbrook; Watson v. Cambridge, 15 Mass., 286; 2 Day, 559). No promise can be implied to Harriet, nor can she even in equity, enforce performance of the condition in the bond. (Johnson v. Foster, 12 Met., 167; Toussaint v. Martivant, 2 Term, 100; Crafts v. Tritton, 8 Taunt., 365 ; Roosevelt v. Marks, 6 John. Ch., 266 ; Champion v. Brown, 6 John. Ch. R., 398; Jones v. Quinnipiac Bank, 29 Conn., 25; Thrall v. Spencer, 16 id., 139; Ex parte Williams, Burr., 13; Tweddell v. Tweddell, 2 Bro. Ch. R., 101; Codrington v. Cumberland, 3 John. Ch., 229; Butler v. Butler, 5 Ves., 534; Karr v. Roberts, 2 Barn. & Cress., 905.)</p> <p>He also insisted that this case did not come within the cases, holding that a promise to one for the benefit of a third, may be sued upon; and that that doctrine was confined to simple contracts and assumpsit. Where the instrument is under seal, the obligee has the whole interest. (Gale v. Nixon, 6 Cow., 545 ; Hinsdale v. Humphrey, 15 Conn., 431; Trustees v. Spencer, 7 Ohio R., pt. 2 p. 149; Richardson v. Jenkins, 19 Eng. L. and E. R., 37; Pike v. Brown, 7 Cush., 133 ; Braman v. Dawes, 12 id., 227; Rawson v. Copeland, 2 Sand. Ch. R., 221; Nuff v. Nickerson, 27 Maine, 106; Pratt v. Harding, 30 Penn. St. R., 525; Blyler y. Mulholland, 2 Sand. Ch. R., 478; Burnett v. Lynch, 5 Barn. & Cress., 601; Spencer v. Field, 10 Wend., 88 ; Van Alstine v. Vanslyke, 10 Barb., 383 ; Northampton v. Elwell, 4 Gray, 81; Millard v. Baldwin, 3 id., 484; Sanders v. Filley, 12 Pick., 554; Howe v. Howe., 1 N. H., 49; Hinkley v. Fowler, 15 Maine, 285 ; Barford v. Stuckey, 2 Brod. & Bing., 333; Strohecker v. Grant, 16 Serg. & Rawle, 237; La Grange v. Chapman, 11 Mich., 499; Hasket v. Flint, 5 Blackf., 69; Hoxie v. Watson, 19 Maine, 514; Douglass v. Branch Bank, 19 Ala., 659; Neff v. Baden, 3 B. Mon., 468; Southampton v. Brown, 6 Barn. & Cress., 718; Chaplin v. Canada, 8 Conn., 286 ; Anderson v. Martindale, 1 East, 497; Emery v. Hitchcock, 12 Wend., 156.)</p> <p>In case of a simple promise to a debtor, to pay his debt, where the creditor elects to avail himself of the promise, from the time of such election, the promise is deemed to be made to such creditor. (Arnold v. Lyman, 17 Mass., 400 ; Auburn City Bank v. Leonard, 40 Barb., 119; Burr v. Beers, 24 N. Y., 178.)</p> <p>In such cases, when the creditor adopts the promise, he is deemed to have, as he must have in order to recover, the legal interest, and the right of action. (Sailly v. Cleveland, 10 Wend., 156; Treat v. Stanton, 14 Conn., 445; Indian Rubber Company v. Tomlinson, 1 E. D. Smith, 374; Brewer v. Dyer, 7 Cush., 327, 341.) Until the creditor adopts the agreement, it is a mere proposition to him, and it cannot be known that he will accept it. (Steele v. Babcock, 1 Hill, 527; Lathrop v. Atwood, 21 Cow., 117; Braman v. Dawes, 12 Cush., 227; Stone v. Alyesworth, 18 Conn., 244; Rawson v. Copeland, 2 Sand. Ch., 251; Bohaman v. Pope, 42 Maine, 93.)</p> <p>But if the creditor adopts the new agreement, he becomes substituted in the place of the original promisee, whose right of action is then extinguished; for the promisor is not liable to two actions for a breach of the promise. (Butterfield v. Hartshorn, 7 N. H., 245 ; Brewer v. Dyer, 7 Cush., 337; Blimier v. Boistle, 6 Watts, 182.)</p> <p>By such adoption, the creditor elects to look to the promisor alone for the payment of his demand, and he thereby discharges his original debtor. (Butterfield v. Hartshorn, 7 N. H., 345 ; Felch v. Taylor, 13 Pick., 133; Wharton v. Walker, 4 Barn. & Cress., 163; Cuxon v. Chadley, 3 id., 591; Fairlie v. Denton, 8 id., 395.)</p> <p>It is clear that these principles cannot be applied to a bond of indemnity, like the one in question ; for the bond is not a shifting contract, the parties to which can be determined or changed by the election of an outsider.</p> <p>urged that the plaintiff could maintain the action on the promise in the bond under seal to Philip Perkins for the benefit of Harriet, and the condition in the bond is such promise, and cited Farley v. Cleveland (4 Cow., 432); S. C. Ct. of Errors, 9 Cow., 639 ; Canal Co. v. Bank (4 Den., 97); Lawrence v. Fox (20 N. Y., 268); Judson y. Gray (17 How., 289); Burr v. Beers (24 N. Y., 178); Fellows v. Gilman (4 Wend., 414); Lyon v. Clark (4 Seld., 148); Code, § 111.</p> <p>And the creditor may enforce as well the conditional character of the defendant’s undertaking, the uncertain amount as one positive and certain. (McKillop v. McKillop, 8 Barb. Rep., 552; Curtis v. Tyler, 9 Paige, 432; Halsey v. Reed, id., 446 ; Gold & Sill v. Phillips and others, 10 John. Rep., 412.)</p>

This is an appeal by William M. Clarke, plaintiff in the action first above entitled, and by John D. Taylor as receiver therein, from an order made at a General Term of the Supreme Court, in the first district, directing the Bank of the Bepublic to pay over to the sheriff of New York, certain moneys to be applied on an execution in his hands upon the judgment in the action second above entitled; and the question arises substantially on the following facts disclosed by…

January 4th, 1869, Levi L. Brooks recovered a judgment against one Berry for $161.49, in the Supreme Court, $111.49 of which was costs. Bansom Baker (the respondent) was Brooks’ attorney in obtaining the judgment. . On the 8th of January, execution was issued on said judgment, and delivered to the appellant, Bichard Kenworthy, sheriff of Dutchess county, for collection.

This is an action of ejectment, brought by the plaintiff for the purpose of recovering the possession of an undivided one-sixth part of lot No. 68, containing one hundred and fifty acres in the Kortright Patent, Delaware county.

This is an appeal from an order of the General Term of the Supreme Court in the fifth judicial district, affirming an order of the Special Term, granting the defendants a new trial, on the ground the verdict was against evidence. The action was against the defendants, to recover the value of a quantity of wool, stored away, which was destroyed by accidental fire.

<p>An order of the general term of the court below reversing an order of the special term, striking out a part of the answer of the defendant, on the ground that the same was not sufficiently verified, is not appealable to this cowrt.</p> <p>Such an order Js in substance and actual effect, one refusing to strike out a part of the answer; and neither before the amendment of the Code in 1869, nor since, did any clause of section 11, defining the jurisdiction of this court, embrace such an order.</p>

The complaint alleged that the defendants are stock brokers in the city of New York; that on the 27th of April, 1865, as such brokers, they bought for the plaintiff certain shares of the Erie railroad, and certain shares of the Pitts-' burg and Cleveland Railroad Company, describing them, which were to be held by the defendants as his brokers, subject to his order, as to when the same should be sold; that the plaintiff then left $1,900 in the defendants’ hands as margin upon…

<p>Appeal from an order of the Supreme Court in the first judicial district, reversing a judgment for the plaintiff entered upon the decision of Justice Balcom without a jury, and ordering a new trial.</p> <p>The action was for the foreclosure of a mortgage upon certain premises owned hy the defendant, Ames, given by one Philbrook to the Messrs. Butterworth, and purporting to be assigned by them to the plaintiff.</p> <p>The following facts were found by Judge Balcom on the trial:</p> <p>1st. That the defendant, George Philbrook, did execute and deliver to Henry H. Butterworth and Theron H. Butter-worth, for the purpose of securing a part of the purchase, or consideration money of the premises that day duly conveyed to him, a certain bond, bearing date the 7th day of December, 1857, and to become due the 7th day of December, 1859; and that on the same day, George Phil-brook did execute, duly acknowledge and deliver to Henry H. Butterworth and Theron H. Butterworth, as collateral security for the payment of the bond, the mortgage in suit. That by a deed, bearing date the 26th day of July, 1858, and recorded September 13th, 1858, George Philbrook, and Annie E., his wife, conveyed the fee of the property above described, to the defendant, Charles Douglass, and that such deed was duly recorded September 13th, 1858, and contained a clause reciting that it was made subject to the mortgage in question, which the said Douglass therein and thereby assumed and covenanted to pay to the Messrs. Butterworth, as a portion of the purchase, or consideration money, for the conveyance of the property from Philbrook; and that at the time of such conveyance, Charles Douglass made a verbal agreement with the Messrs. Butterworth, to pay the mortgage in question in hardware, whenever they should require it.</p> <p>2d. That Charles Douglass, previous to the 26th day of July, 1859, paid the mortgage i/n question to the mortgagees, he delivering to them from time to time hardware, to the full amount thereof; and that on the 26th day of July, 1859, the bond and mortgage, and an assignment thereof, without any name of the assignee inserted was executed, delivered, and surrendered, by the mortgagees, to Douglass, and no satisfaction piece was given of the mortgage.</p> <p>3d. That on the 30th day of July, 1859, Douglass delivered to Kellogg & Parker, his stock note for $1,500, and with it and as collateral security therefor, the bond and mortgage, together with assignment, and received as a consideration therefor, his draft on the defendant, Oakes Ames, for $1,500, then held by Kellogg & Parker, and which was under protest; and on the 30th day of August, 1859, Douglass sold and transferred to Kellogg & Parker, the bond and mortgage, and the assignment thereof (as a valid and subsisting security), for the sum of $2,711.27, that sum being the principal and interest then due on the bond and mortgage; and that $1,500 of such consideration so paid to said Douglass, was paid by surrendering to him said stock note; and that Kellogg & Parker paid Douglass, in full, for the consideration of the bond and mortgage and the assignment thereof, by canceling debts and evidences of debt they then held against him,, that is to say: I find that Kellogg & Parker allowed said Douglass as much in that way for the bond and mortgage as remained unpaid thereon, together with the accrued interest.</p> <p>I also find that when the bond and mortgage were sold to Kellogg & Parker, on the 30th day of August, 1859, the name of the plaintiff was inserted in the blank left in the assignment, who then took the bond and mortgage and the assignment, and held the same in trust for the benefit of Kellogg & Parker, and that the assignment was duly recorded on said last named day.</p> <p>4th. And I do further find, that Douglass represented to the firm of Kellogg & Parker (the plaintiff and his partner), before and at the time they purchased the mortgage of bim; that it was a subsisting and valid security; and that they believed it was such until after they took and paid for it as aforesaid, and had the assignment thereof to them recorded, and that they bought and took said mortgage in good faith, and fairly paid therefor; and I do further find that when said Douglass paid the mortgage, and also when he sold the same to said Kellogg & Parker, he elected and intended that the same should not be merged in the superior title, but should be kept alive as a valid and subsisting security.</p> <p>And I further find that said Charles Douglass did—upon the 8th day of September, 1859, by a deed executed and delivered upon that day, but dated the 2d day of September, 1859, which deed stated it was given in consideration of $8,000—convey the fee of the property covered by the mortgage to the defendant, Oakes Ames; and that upon the day when the deed to the defendant, Ames, was dated, the mortgage was on record and nncanceled, as well as the assignment of it to the plaintiff; and that the defendant, Ames, took the deed, with notice from and by the record, that the mortgage had not been canceled, or discharged of record; and that before the 8th day of September, 1859, the day the deed was executed and delivered to the defendant, Ames, he had actual notice of the existence of the bond and mortgage in question.</p> <p>It was proved, on the trial, by the • evidepce of Douglass and by the admission of the plaintiff’s partner, that at the time of the negotiation for the mortgage with Douglass, the plaintiff was expressly informed that Douglass had paid the mortgage, and was bound to do so by his deed; and he was advised by one counsel, that the mortgage was therefore merged, and could not be issued by Douglass; but the judge did not find these facts.</p> <p>Judgment having been rendered for the plaintiff, on these findings, the General Term reversed it, on the ground that Douglass stood in every respect in the position of a mortgagor, bound to pay off this mortgage; and that his deed on record gave constructive notice to all, that such was his position, and no one could obtain from him any valid title to the mortgage, the same having been extinguished by its payment by Douglass. The prevailing opinion of the General Term, also took notice of the fact appearing in the evidence, that the plaintiff had actual notice of the payment by Douglass and the alleged merger.</p> <p>cited Champney v. Coope (32 N. Y., 543); S. C., 34 Barb., 539; Mickles v. Townsend (18 N. Y., 575, 572); Russell v. Austin (Paige, 192); Spencer v. Ayrault (1 Seld., 204); James v. Morey (2 Cowen, 246, 285, 309); Gardner v. Asten (3 Johns. Ch., 53); Grimstone v. Carter (3 Paige, 421, 436); Berry v. Ins. Co. (2 Johns. Ch., 608); Runyan v. Mersereau (11 Johns., 534); Prescott v. Bull (17 Johns., 284) ; Johnson v. Hart (3 John. Ca., 322); S. C., 1 Johns., 580; Martin v. Mowlin (2 Burr., 978); 1 Hill, on Mortgage, 215, 216.</p> <p>Ames, cited Harbeck v. Vanderbilt (20 N. Y., 395); Mickles v. Townsend (supra); Davis v. Austin (1 Ves. Jr., 247); Matthews v. Wallwyn (4 Ves. Jr., 118); Marvin v. Vedder (5 Cow., 571); Angel v. Boner (38 Barb., 429); Burr v. Beers (24 N. Y., 178); Kortright v. Cady (21 N. Y., 343); Stoddart v. Hart (23 N. Y., 556); Prescott v. King (2 Seld., 147); Mead v. York (2 Seld., 449); Marvin v. Vedder (5 Cow., 671); Chautauqua Co. Bank v. White (2 Seld., 236, 253); Brewster v. Stryker (2 Comst., 19); Ryerss v. Farwell (9 Barb., 615); Jackson v. Waldron (13 Wend., 178) ; Martin v. Angell (7 Barb., 407) ; Sparrow v. Kingman (1 Comst., 242); Chauncey v. Arnold (24 N. Y., 330).</p>

The plaintiff in error was tried at the April term of the Court of General Sessions, in the city of New York, for the crime of rape, alleged to have been committed on the 2d day of March, 1869, upon the person of a girl, averred to have been at that time under the age of ten years. On the trial, the girl was examined as a witness, and testified that the ‘ prisoner committed the offence under the counter of her mother’s market stand in the central market, giving the details.

This was an appeal from a judgment of the General Term of the Supreme Court, in the second judicial district, affirming an order and decree of the surrogate of Kings county.

This action was originally brought by one Harrington, plaintiff’s assignor, against James A. Dorr, the defendant’s testator, as indorser of eight promissory notes made by the Horthfield Brick Company. The notes bear date respectively January 15th, 20th, March 20th, April 9th, and April 15th, 1858; and matured respectively on September 18th, 23d, and October 12th, 18th, 23d, 1858.

On the 31st of October, 1868, Eliza B. Sommers departed this life, at the city of Mew York, seized of. certain real estate, among which was a lot bounded on Minth street, in said city.

The action was under the statute for negligently causing the death of the plaintiff’s intestate, at a railroad crossing in the town of Corning. Evidence given by the plaintiff’s witnesses tended to show that no whistle was blown or bell rung upon the defendant’s train when approaching the crossing where the accident occurred.

This is an appeal from a judgment of the General Term of the Supreme Court, in the. sixth judicial district, affirming a judgment entered on the verdict of a jury at the Otsego Circuit. The original parties to the action were John HcCraney and Elizabeth P. HcCraney as plaintiffs, and Julius T. Alden, defendant.

), sustaining a demurrer to the complaint. This action is brought to recover the price of gravestones agreed to be furnished by plaintiff at the request, in his official capacity, of the predecessor of defendant. The defendant demurred to plaintiff’s complaint. At Special Term the demurrer was sustained. The plaintiff appealed from the order of the Special Term to the General Term, where the order was reversed and judgment thereon entered for plaintiff.

The action was for the construction of the will of John M. Smith, of the city of New York. He made Ms last will in August, 1858, and died in January, 1861. At the date of his will, and when he died, Ms children and heirs-at-law were: 1. Lafayette Smith, who had a wife, Julia Smith. He died in May, 1862, never having had any children; he left a will, and letters of administration, with the will annexed, were granted to his widow, the said Julia, who wasjnade a party defendant.

This action was brought to recover for work, labor, and services done and performed by the intestate going to England, services there, and returning, for the defendant, on account of which the balance alleged to be due was §333.07, in gold coin, and also for the sum of $296.31, alleged to be the further indebtedness of the defendant to the intestate for services rendered in New York.

<p>This is an appeal from an order of the General Term, of the first district, affirming an order of the Special Term, made by Judge Caedozo, ordering the discontinuance of this action, without costs.</p> <p>The complaint alleges a cause of action against the defendant, as executor of one Coates, one of the former firm of Wait & Coates, for the sum of $3,100, had by that firm to the plaintiff’s use.</p> <p>The answer was a general denial, and a plea of the statute of limitations.</p> <p>The cause, being thus at issue, was referred to a referee, to hear and determine, and after one or two appointments, the plaintiff made the motion to discontinue, without costs, on the ground that the defendant’s attorney told the plaintiff’s counsel, at the last appointment, that he had a release of the claim. Such release was not set up in the answer, and it was not alleged on the motion that it was to be set up. The Special Term ordered a discontinuance without costs.</p> <p>insisted that the right to costs was a substantial right, and cited McGregor v. Comstock (19 N. Y., 381) ; Burhans v. Tibbits (7 How. Pr. R., 74); McGrath v. Van Wyck (3 Sand., 750); Giles v. Hulbert (2 Kern., 32). And the action being for the recovery of money simply, the defendant is entitled to costs, as a matter of right, where the plaintiff is not. The plaintiff cannot be entitled to costs where there is a discontinuance. (Code, § 304, 305; Butler v. Morris, 1 Bosw., 329.)</p> <p>that the right to costs was not a substantial right, within the meaning of section 11 of the Code, cited Staiger v. Schultz (3 Keyes, 616). The courts have always exercised the right to order a discontinuance, where it was equitable to do so. (10 How., 141; 18 How., 10; 1 Bosw., 329; 19 How., 413; 4 Abb., 16; 4 Hill, 592; 1 How., 122; 1 Wend., 91; 18 Johns., 252; 5 Abb., 230.)</p>

The appellant, Elizabeth S. Lathrop, one of the defendants, was married to the defendant, Solon H. Lathrop, on the 29th day of July, 1847. On the 1st day of July, 1854, he and the appellant gave a mortgage of $5,000 to the plaintiff in this action, upon the house and lot where they resided. This action, for the foreclosure of that mortgage, was commenced in the Supreme Court, on the 16th day of April, 1857, the appellant being named as one of the defendants.

<p>An appeal does not lie to this court from an order of the General Term of the Supreme Court, affirming an order of the Special Term, denying a motion for readjustment of costs.</p> <p>The facts sufficiently appear in the opinion.</p>

, without a jury. The plaintiff brought this action for the recovery of a royalty or tariff, of one cent per yard, upon certain felt cloth manufactured by the defendant, between the 1st of July, 1852, and the 24th of September, 1857.

The plaintiff and the defendants (other than the insurance company) were the owners of the ship Jamestown prior and during the year 1859, and down to the time of her loss at sea, in the different proportions or shares particularly stated in the findings of the court at Special Term.

In 1854, the respondent was a stockholder in the Lake Ontario and Hudson River Railroad Company, organized under the general railroad act of 1850. His original subscription for stock was §6,000,, on which he paid ten per cent. The rest was not paid by him. In January, 1857, a debt was contracted by said company which became due and payable two years after date.

<p>A court of equity will not, in the absence of fraud, or undue influence, interfere to set aside a sale by a legatee of a legacy of a fixed and certain sum of money, payable at a fixed period after the death of the testator with interest, although such sale was made some years before the legacy was due, and for an inadequate consideration; and although the legatee was at the time of the sale a “ reckless, dissipated, improvident, and weak-minded young man.”</p> <p>. Such a sale is not within the equity rule, which enables the court to relieve expectant heirs, remainder-men, and reversioners, from disadvantageous bargains, where both the amount or value of the interest sold and the time of its enjoyment are uncertain.</p> <p>Mere inadequacy of price is not a sufficient ground for avoiding a sale, unless the inadequacy is so gross as to afford presumptive evidence of actual fraud, or is coupled, in fact,' with fraud, surprise, ignorance, mistake, delusion, or imbecility.</p>

/ This action was brought to recover the possession of one hundred and ten acres of land, situated in the town of Spring-water in Livingston county, and for damages for wrongfully witholding it from the plaintiff. The defendant claimed possession under William, earl of Craven, Alexander Oswald and Edmund Buclmall Estcourt, who were alleged to own the premises as trustees in fee.

The plaintiff effected an insurance, with the defendant, on certain personal property, in a dwelling-house and store, at Tompkinsville, in Richmond county, against loss and damage by fire, under a policy dated the 1st day of May, 1862, for one year from that date. A portion of the property insured, while in the said premises, was destroyed by fire, on the 24th day of March, 1863, and this action was brought in the Superior Court of New York to recover the amount of the loss.

T. McCoun, referee. This action was brought by the plaintiffs, as devisees, under the will of Leonard Fisher, deceased, for the recovery of the possession of certain undivided interests in the premises situated in the city of New York, known as No. 66 Centre street.

In accordance with the provisions of the Revised Statutes (title 2 of chap. 5, part 3), entitled of “ proceedings to compel the determination of claims to real property in certain cases,” the respondent served upon the defendant, a notice dated June 4th, 1863, asserting the plaintiff’s title to certain lots in the city of Brooklyn, in fee, his possession thereof for more than three years; that the defendant unjustly claimed title thereto, and requiring him to appear and…

This was an action of ejectment, tried before the court without a jury; it was to recover a strip of land, sixty-five chains long, east and west; thirty-two feet wide at the east end, and forty-six feet at the west end.

This was an action of ejectment to recover the possession of land on account of the breach of a condition subsequent in a deed from the plaintiff, dated August 14th, 1857. The deed conveyed the land in question to the defendant in fee, in consideration of $100, and contained a covenant of quiet enjoyment.

The action was for money had and received by the defendant from the government on a mail contract to the plaintiff’s use.

In 1854 the plaintiff was sheriff of Ulster county; the defendant an attorney at Kingston, in said county. In November of that year, the defendant, as attorney for the Central Bank, obtained a judgment for $4,027.70 against Horace and Isaac C. Andrews.

The Cemetery'of the Evergreens is a corporation, incorporated under the general act authorizing the incorporation of rural cemetery associations, passed April 27, 1847.

This is an appeal from a judgment of the General Term of the Hew York Common Pleas, affirming a judgment in favor of the plaintiff against the defendant, upon the report of a referee.

This was an action on the equity side of the court, to compel a specified performance of an agreement, to devise by will, real estate. The cause was tried before a referee, and a judgment entered on his report in favor of the plaintiff, which was affirmed at General Term.

The action helow was for an alleged breach of warranty in the sale of a quantity of cheese by the defendant, to the plaintiff’s agent, one Charles H. Hopkins, in the month of February, 1865. The answer was a general denial. The cause was tried at the Herkimer circuit on the first Monday (’Tth) of May, 1866. Hopkins was called as a witness, and gave evidence as to his agency for the plaintiff, and the purchase and delivery of the cheese.

This was an action for assault and battery and false imprisonment, alleged to have been committed at Cohoes, in May, 1867. The defendant was a member of the police force, then on duty; was informed that Fulton had murdered his mother-in-law, and proceeded to his house to arrest him. The plaintiff resisted, struck the defendant several times, kicked him and his assistant, and hung back, refusing to go.

There was a motion for nonsuit, both when plaintiff rested, and at the close of the evidence. The action was to recover damages for an injury sustained at a highway crossing, in the northern part of the village of Lansingburgh. Plaintiff charged negligence upon the defendant. It was denied, defendant alleging that plaintiff’s negligence contributed to the injury. The crossing was midway of a hill, the highway leading east and west.

(Mason, J.) The action was for the construction of a will. Held: as to any money which the widow had at the time of her marriage, and received from her by the testator, that was not included in the gift of “ property, whether household furniture or any other kind that she had at the time of our marriage,” but that the gift only included such property as remained and capable of identification.

The respondent and the appellant entered into arbitration bonds, submitting matters in difference between them to William Harsell, as arbitrator. The arbitrator made his award in favor of the respondent. The appellant, upon the papers and notice of motion, applied to the Special Term of the Supreme Court, held in Kings county, for an order vacating, modifying or correcting the award. The papers on the motion, and the affidavits read in opposition to the motion are set forth.

This action was brought in the Common Pleas of New York, to recover money the respondent received for the sale of perfumery for appellant, as his agent in a fiduciary capacity, which the respondent had failed to account for. At the commencement of the action, an order of arrest was obtained upon an affidavit, showing the fiduciary nature of the claim sued upon. A motion was made to set aside the order, and was denied.

Court, in the eighth judicial district, affirming a judgment awarded for the plaintiff. This is an action to recover damages for a personal injury to the plaintiff’s husband, resulting in his death.

The defendants in 1856, owned and operated a line of telegraph between Buffalo and New York, connecting at Buffalo with the line of the Western Union Telegraph Company to Chicago, and at Syracuse with a line to Oswego. The plaintiffs, at the same time, were manufacturers of, and dealers in salt, at Syracuse, and had agents, Magill & Pickering, at Chicago, and D. B. Staats was their agent at Oswego for shipping and disposing of them salt at that place.

The action was brought on a promissory note made by the defendant, on the 9th day of February, 1861, for $1,500 on demand, with interest, to the order of H. D. Hawkins, and immediately on the same day indorsed by him, and delivered to Jonathan E. Herrick, who was the original holder or indorsee; who continued to hold it until the 28th of April, or 1st of May, 1861, when he transferred it to his brother, Delaus W. Herrick, the plaintiff.

<p>Error to the General Term of the Supreme Court in the sixth judicial district, to review the affirmance of a conviction of the plaintiff in error, at the Delaware Sessions.</p> <p>Blend was indicted at the Delaware Sessions for false pretences, in June, 1866, and tried ¡November 30th, 1866.</p> <p>The defendant appeared in person, and the trial proceeded before William Murray, Jr., Esq., county judge, and Grit-man Elwood and William Mallory, Esqs., associate justices of said Delaware Sessions, until the court adjourned for dinner, December 1st.</p> <p>On reassembling, it was discovered that Gritman Elwood, one of the justices of sessions aforesaid, had left the court, and the village of Delhi, and gone to his home, twenty-three miles distant.</p> <p>Whereupon the county judge appointed Harvey F. Davidson a justice of the peace, and qualified to act, to fill such^ vacancy. (Devised Statutes, 5th ed., vol. 3, p. 296, § 11.)</p> <p>Defendant’s counsel objected to “ Justice Davidson taking his seat as justice of said sessions at that stage of the trial.” Ho further objection or demand was made, nor the grounds of the objection stated. Ho re-trial before said court as thus constituted, was demanded by defendant; but defendant continued to give evidence, and the prosecution rebutting evidence.</p> <p>The court charged the jury and they found the defendant guilty of the offence charged in the indictment.</p> <p>Ho question of any kind was presented to or decided by the court, either for or against the accused, from the time Justice Davidson took his seat until after the jury rendered their verdict, after which defendant moved in arrest of judgment, and for a new trial; and on December 5th, sentence was pronounced, and was, that defendant pay a fine of $300.</p> <p>Defendant made his bill of exceptions, obtained the certificate of the county judge, and gave bail for his appearance at next Court of Sessions, to abide its order and pay the fine if the judgment is affirmed, and a writ of error was issued there-out. The cause was argued at General Term of Supreme Court, sixth judicial district, and judgment unanimously affirmed. Judgment of affirmance entered July 29th, 1868, and writ of error sued out to this court, July 30th, 1868.</p> <p>cited 3 R. S., 465, § 2; Oakley v. Aspinwall (3 Comst., 547); Cancemi’s Case, 18 N. Y., 128; 7 Abb., 227; Grant’s Case, 4 Parker C. R., 527; People v. White (24 Wend., 528).</p> <p>cited 3 R. S., 296, § 11, 5th ed; Conkey v. People (5 Park., 38; Wormeley’s Case, 8 Gratt., 808; Corning v. Slossen (16 N. Y., 295); Walker v. Wainright (16 Barb., 488); Shorter v. People (2 Comst., 193); Lowenberg v. People (5 Park. C., 38); Willis v. People (5 Park., 647); People v. Bransby (32 N. Y., 525).</p>