Volume 5 — New York Reports

This was an action of trespass quare clausum fregit, for breaking and entering the plaintiff’s close, and filling up with* rails? .sañd and stones, a stream of water, whereby the plaintiff's .lands were overflowed. :K^1^ ^®:fen The defendants gave evidence that there was a road or way from the Rockawa)»- turnpike, across the plaintiff’s land, to the land of the defendants, which had been used by them for more than thirty years before the alleged trespass.

<p>An agent, employed to obtain orders for the construction of machinery by his principal, had been engaged in a negotiation for such an order, winch had been broken off, and he had no reason to suppose it would be renewed, He received the order after terminating his agency, in a letter written before that event: Held, that it was his duty to communicate the letter to his former principal, and his failure to do so was not excused by his supposing himself in good faith to have ascertained that the principal was unable to comply with the order.</p> <p>A party is not required, on the call of his opponent, to produce documents, the execution of which he has proved upon the examination of a witness de bene esse. They remain under his control until read in evidence, and he may read a portion of them and refrain from using the others, at his election.</p> <p>The opposite party must procure a discovery of them before the trial, or be prepared with parol evidence of the contents, on a refusal to produce them.</p>

<p>Appeal from a judgment of the Superior Court of the city of New York. The action was brought to recover compensation for the services of Horace Andrews, as assistant treasurer Of the defendant, from October, 1850, to January, 1853; Andrews having sold and assigned the claim to such compensation to the plaintiff. Andrews was the principal witness for the plaintiff, and his testimony tended to establish the fact that he had performed valuable services, in the character mentioned, for the defendant, within the period specified, with the knowledge of the trustees; and it appeared, from the minutes of the board, that he was formally appointed assistant treasurer on the 2Sd of June, 1852, and was, by the terms of the resolution, to hold the situation until the 17th day of October following. It also appeared that Charles T. Shelton was the president and treasurer of the company, during the period of the alleged service of Andrews, and that the only accounts kept by him, respecting moneys of the defendant which passed through his hands, were kept in his private books, by his charging and crediting the company, as is to be inferred from the testimony, in the same manner as other persons with whom he had dealings. Andrews admitted that the entries made by him, in the business for which compensation was claimed, were in these books, though he testified that he was exclusively engaged in raising money for the defendant by borrowing and obtaining discounts from banks. It also appeared that Shelton, Andrews, and one Flagg, were partners in business as attorneys at law, in the city of Mew York, which connection terminated, as Andrews testified, in the spring of 1852. In forming the capital of the defendant’s company, it acquired an interest in certain patent rights for dressing stone, from another company, called the Morth American Stone Dressing Company, at the price of $100,000, which amount was represented by shares of stock issued by the defendant’s company to the parties interested in the Morth American Company, and that Andrews, as one of these parties, received such shares to the amount of $20,000. Andrews admitted that there was no agreement between him and the defendant respecting salary, or as to terms of compensation, and that he never presented any claim for services until Movembej, 1854.</p> <p>■ On the part of the defendant, the deposition of Shelton, taken under a commission issued to Mew Jersey, was given in evidence. He testified that he was president and treasurer of the defendant’s company, from the time of the commencement of Andrews’ alleged services until Movember, 1852, and that, as far as he knew, said Andrews never was employed by the defendant in any capacity whatever; that, during the whole of that time, he and Andrews were partners in business, together with Flagg, as attorneys at law, and that their business embraced also the sale- of inventions for cutting and polishing stone, and the formation of companies for those purposes; and that, by the terms of the partnership agreement, Andrews was to keep the books of the law firm and the witness’ individual books, and those of any copartnership in which he might be interested. The witness stated that he was interested in the defendant’s company, to the amount of one-fourth of its capital, and that the services of Andrews, for which the plaintiff claimed to recover, were rendered in pursuance of the said copartnership agreement, and to sustain the patent interests in which the witness and Andrews were interested ; and that he had been paid in full by settlement between all the members of said firm; that said Andrews never made any claim to be paid for his services while the witness was an officer of the company, and that he, the witness, never heard of such claim until the fall of 1854:. By one of the cross-interrogatories, the witness was required to testify whether he had stated to said Horace Andrews and Charles S. Andrews, or either of them, in substance, that the services rendered by said Horace, as assistant treasurer for the defendant, were worth $5,000 a year. The witness’ answer was, that he had no recollection of ever having so stated. The plaintiff then offered to prove, by Charles S. Andrews, that the plaintiff called on Shelton, at the Brevoort House, and asked him if the said account for services was a good and valid account against the defendant, and that Shelton said it was a valid claim, and that the services of Andrews for the said company hod been arduous and valuable, and that he ought to have been paid by the company $5,000 a year. The plaintiff’s counsel objected, and the judge sustained the objection and rejected the evidence so offered, and the plaintiff’s counsel excepted. The plaintiff’s counsel further offered to prove, by Horace Andrews, that Shelton said to him, in the presence of C. S. Andrews and the plaintiff, that the services of said Horace Andrews, as assistant treasurer of said company, were valuable, and that he had a good claim against the company for said services, and that the company ought to pay him $5,000 a year therefor. This evidence was excluded, on the defendant’s objection, and the plaintiff excepted.</p> <p>The judge, among other things, charged the jury that, as to the services rendered by said Andrews for said company, after his appointment by the board of trustees to the office of assistant treasurer,. they had a right to inquire whether such services were rendered in the expectation of receiving compensation therefor, or whether they were gratuitous, and intended so to be by said Andrews, at the time they were rendered, and so understood by both parties; and if they believed said services were to be rendered gratuitously, their verdict should be for the defendant, as to those services. The plaintiff’s counsel excepted.</p> <p>The verdict was for the defendant; and the plaintiff appealed here, after an affirmance of the judgment at the general term. The case was submitted on printed points.</p>

<p>Appeal from tlie general term of the Superior Court of the city of New York, where a judgment entered upon a verdict in favor of the plaintiff, for $900 damages, had been affirmed.</p> <p>*This was an action on the case to recover damages for an alleged slander of the plaintiff’s title to certain lots of ground, in the sixteenth ward of the city of New York. The declaration averred that by means of the uttering the words charged, divers good citizens, and especially, one Asa H. Wheeler, were deterred from purchasing the lands in question, and the plaintiff was prevented from disposing of the same, and thereby deprived of the advantage to be derived from the sale thereof, &c.</p> <p>It appeared on the trial, that before the speaking of the words charged, the plaintiff and Wheeler had entered into an agreement in writing, for the sale of one of the lots, for the sum of $900, and that, at the time of the expiration of the contract, the purchaser paid the plaintiff the sum of $250 on account of the purchase-money. It was also shown, that in several conversations with the purchaser, Stone, the defendant, had informed him, that there were claims against the property, and that it would be risky to purchase from the plaintiff, under the circumstances. Wheeler having, in consequence of this information, become dissatisfied with his bargain, the plaintiff voluntarily cancelled the contract, refunded the money received on account thereof, and brought this action to recover his damages.</p> <p>A good deal o'f evidence was given as to the plaintiff’s title; and at the conclusion of the testimony, the defendant moved for a nonsuit, which was denied, and an exception taken. The court charged the jury, that it was pretty evident, from the testimony of Wheeler, that the plaintiff had sustained damages, in consequence of the words spoken by the defendant; and that if they found that the latter had been actuated by malicious motives, exemplary damages might he given. To which the defendant’s counsel excepted.</p> <p>There was a verdict for the plaintiff for $900 damages ; and the general term having denied a motion for a new trial, upon a bill of exceptions, and entered judgment upon the verdict, this appeal was taken.</p>

<p>Appeal from Supreme Court. The action was to recover the amount of six months’ interest due according to the terms of a bond, payable to A. H. Foster, or bearer, for $1,000 with coupons attached, issued by the defendant in exchange for $1,000 of the capital stock of the Ogdensburgh, Clayton and Rome Railroad Company, and by that corporation transferred and delivered to the plaintiff. The course of the trial and the questions raised are stated in the following opinions. The plaintiff had á verdict, and the judgment rendered thereon having been affirmed at general term in the fifth district, the defendant appealed to this court.</p>

<p>Appeal by the attorney-general, from the judgment of the Supreme Court, in favor of the defendant, upon demurrer to the plea, in a proceeding in the nature of a quo warranto.</p> <p>An information was filed by the attorney-general against the defendant, on the relation of A. C. Simon-son, for usurping the office of supervisor of the town of Northfield, in the county of Richmond.</p> <p>The defendant, in answer to the information, set up the following facts : The annual town-meeting at which he claimed to have been elected, was held, on the 8th February 1848; at the preceding town-meeting, in 1847, the electors had omitted to designate the place of holding the next meeting. The electors assembled, on the 8th February 1848, at the Bull’s-head tavern, the place where the last annual meeting had been held, about 150 electors being present, and the meeting was duly organized. Immediately thereafter, a motion was made and put to the vote, that the annual town-meeting for 1848, should be held at that place, until 12 o'clock at noon, and then adjourned to the house of W. C. Martin, at Port Richmond, near the north line of the town, and there continued for the remainder of the day. The motion was adopted by a vote of the majority *of the electors; and the meeting was held accordingly. At the meeting so held, the defendant received a majority of the votes cast, for the office of supervisor; and was declared to be duly elected. He took the oath of office, within the time prescribed by law, and entered upon the duties thereof, before the commencement of this action.</p> <p>The attorney-general demurred to the plea; and the supreme court, at general term, having given judgment in favor of the defendant, upon the demurrer, this appeal was taken.</p>

<p>Appeal from the Supreme Court. The action was brought by the plaintiff Meech, as assignee of one Ólney Gould, to recover the sum of $1,500, won and received of the latter by the defendant Stoner at a game of cards called faro. On the trial at the Brie Circuit, before Mr. Justice Marvin, it was proved that Gould and the defendant, on six different days and occasions, between the 17th and 27th of September, 1855, at Buffalo, played at faro together; that at the respective sittings the defendant won and received of Gould $450, $300, $200, $175, $100, $480; total, $1,705. The defendant kept a faro bank, and had white and red pieces of ivory called “ chips,” which he kept for the convenience of parties playing, and which were sold and received by him at $1 for each white, and $5 for each red “chip.” Of the $1,705 lost and paid by Gould, about $500 was in coin or bank bills, and the balance in chips. The chips were previously purchased by Gould of the defendant for the purpose of betting on the game, and all the chips purchased by Gould were afterwards won and received by the defendant; Gould testifying that at each sitting he was entirely “ cleaned out and broke,” both in chips and money.</p> <p>The plaintiff having rested, the defendant moved that he be nonsuited, on the ground that the action could not be maintained by an assignee of the loser. The motion was denied, and the defendant excepted. The defendant asked the judge to charge that the plaintiff could not recover beyond the amount of money actually put up and lost by Gould, and not for the money which the chips purchased by him and lost, represented. The judge refused so to charge, and the defendant excepted. The plaintiff had a verdict for $1,500, and judgment thereon, which having been affirmed at general term in the eighth district, the defendant appealed to this court.</p>

Weit op Eeeoe to the Superior Court of the city of New York, where a motion for a new trial, upon a bill of exceptions had been denied, and judgment entered upon a verdict in favor of the plaintiff. This was an action by the plaintiff, the master of a Swedish vessel, to recover from the charterers thereof, certain freight which he claimed to be due in respect to portions of the vessel, excepted from the terms of the charter-party.

<p>An assessment is a necessary condition to the maintenance of an action by the receiver of a mutual insurance company, formed under the "general act (ch. 308 of 1849), upon a premium note, where the charter and bylaws do not otherwise provide.</p> <p>The insolvency of the company does not enable the receiver to recover under circumstances in which the company could not have maintained a suit, nor to any greater amount.</p>

* Appeal from the general term of the Supreme Court, in the third district, where a judgment entered upon a verdict in favor of the plaintiff, for nominal damages, had been affirmed. This was an action on the case, for using the waters of a certain well upon the lands of the defendant, and obstructing its flow upon those of the plaintiff.

<p>Appeal from the Supreme Court. The complaint was upon two promissory notes, one payable to the order of Robert Codd, PresH., the other to Robert Codd; and also claimed a balance due upon a running account for moneys lent to and paid out for the defendant. The answer, which was put in September 15th, 1852, set up a usurious agreement that the plaintiff should lend and advance to the defendant, from time to time, as the latter should desire, uncurrent funds, which were one per cent less in value than money, and the defendant should pay the plaintiff, with seven per cent interest, calculating such uncurrent funds as money. The plaintiff put in a reply, which contained nothing in respect to the alleged usury.</p> <p>The cause was tried before a referee, who found as facts that the two notes were given for the balance of a bank account, due from the defendant to the Exchange Bank of Buffalo; and that such bank was an individual bank, under the general banking law, owned by the plaintiff; that the balance for money lent, paid out, &c., claimed in the complaint, was for the payment by the plaintiff of sundry checks drawn by the defendant upon the Exchange Bank, payable by their terms in Western and Canada bank bills, and which were thus paid; that neither such Western nor Canada bills were received by the bank, or the plaintiff as an individual banker, at par, and were not bankable at Buffalo, but were received by merchants, in their ordinary deal and in trade, at their nominal par value; that there was no proof establishing any agreement between the plaintiff and defendant that the defendant should draw his checks payable in Canada or Western bills. The referee found against the defence of usury, and ordered judgment for the plaintiff, which was entered; affirmed, on appeal, at general term in the eighth district, and |j£ defendant appealed to this court. The cause was submitted on printed arguments.</p>

* Appeal from the general term of the Superior Court of the city of New York, where an application to set aside a nonsuit, entered upon the trial of the case, had been denied. This was an action of replevin for forty-five pieces of carpeting;, twelve pieces of which were replevied by the sheriff from the possession of the defendant Lynes, and three pieces from the possession of Thompson & Co., his vendees, and co-defendants.

<p>The Constitution gives to the Legislature general power to erect new counties, without restricting its discretion as to the time or mode of exercising such power.</p> <p>The question whether the territory of a new county contains ‘sufficient representative population relates to the time of its erection. The Legislature is not restricted to the last preceding census, for evidence as to the population, but determines it as a question of fact, and its determination is not reviewable elsewhere.</p> <p>It seems that the Legislature has constitutional power to create a new county out of different Senate, Assembly and judicial districts, postponing the operation of the act in respect to the representation of the existing districts in the Senate and Assembly, and the election of Senators, Members of Assembly, and Justices of the Supreme Court until after the next decennial census.</p> <p>The provision of the Constitution for reorganizing the Senate and Assembly districts at the session of the Legislature next succeeding the decennial census, is directory merely, and an act for that purpose, passed at a subsequent session, is valid.</p> <p>An act, at a session of the Legislature subsequent to that next succeeding the decennial census, and providing for attaching a county, formed after the last organization of the judicial districts, from parts of two of them, to one of those districts, is not to be regarded as a reorganization of the judicial districts of the State, within the spirit and meaning of the constitutional inhibition of a reorganization at any other time than the session next succeeding the return of the census.</p> <p>An act for an organization of a county will not be declared void for supposed constitutional objections, after its existence has been recognized for years by all departments of the government except the judicial: successive sessions of the Legislature have been organized and acted upon the assumption of its constitutional existence, admitting members whose right to sit depended upon the validity of such organization; and it has entered into the whole structure and operation of government.</p>

* Appeal from the general term of the Superior Court of the city of New York, where judgment had been entered upon a verdict in favor of the plaintiff. This was an action to recover damages for an injury done to the plaintiff’s horses and carriage, by being driven into an open unfinished sewer, which the defendants had permission to construct, in Twelfth street, in the city of New York/in consequence, as was alleged, of the negligence of the defendants, and their servants.

This was an action against the chamberlain of the city of New York, to recover for the plaintiff’s services as crier of the marine court, from the 8th March 1841 to the 17th January 1845, at the rate of $1.50 per diem.

<p>Appeal from a judgment of the Supreme Court in the third district. The action was commenced in May, 1855, and was brought to recover rent arising upon a conveyance in fee, alleged to be in arrear for sixteen years to the 1st day of January, 1855. The ease was tried before Mr. Justice William F. Allen, without a jury, in January, 1857.</p> <p>The plaintiff gave in evidence an indenture, dated February 15, 1796, by which Stephen Van Rensselaer, the elder, the father of the complainant, in consideration of five shillings, lawful money, and of the yearly rents, covenants, reservations and conditions contained in the indenture, granted, bargained, sold, released and confirmed unto Jacob Dietz, a certain farm or lot of ground, in Berne, in the county of Albany, containing two hundred and seventy-four acres, habendum to said Dietz, his heirs and assigns forever; “ yielding and paying therefor yearly and every year during the continuance of this grant, unto the said Stephen Van Rensselaer, his heirs or assigns,” the yearly rent of thirty bushels, &c., of good winter wheat, to be delivered, &c., four fat fowls, and one day’s service with carriage and horses. There is a covenant to pay the rent, in these words: “And the said party of the second part [Dietz], for himself, his heirs, executors, administrators and assigns, doth covenant, grant and agree to and with the said Stephen Van Rensselaer, his heirs and assigns, * * * that he, the said party of the second part, his heirs, executors, administrators and assigns, will, from time to time, and at all times hereafter, well and truly pay, or cause to be paid, unto the said Stephen Van Rensselaer, his heirs and assigns, the yearly rent above reserved, at the days and times, and in the manner aforesaid.” There is a covenant on the part of the grantee to pay all losses upon the premises, and to indemnify the grantor in respect thereto. There was also a covenant of warranty for quiet enjoyment on the part of the grantees, running to the heirs and assigns of both parties; and there is a clause authorizing the grantor, his heirs or assigns, to distrain if the rent shall be behind for twenty-eight days next after the days of payment; or, at his option, to prosecute for a recovery of it in a court of record; and also that if no sufficient distress can be found on the premises, or if there should be a breach of any of the covenants of the grantee, it should be.„lawful for the grantor, his heirs and assigns, to reenter, and to have and enjoy the premises as of his former estate, and to put out and remove the grantee, his heirs and assigns; and in that case the indenture is to be void. There were other provisions in the instrument, not necessary to be stated. Other evidence was given, and at the close of the trial, the judge found, besides the execution and delivery of the indenture, that the said grantor, Stephen Yan Rensselaer, the elder, died on the 26th day of January, 1839; and that by virtue of his last will and testament, duly executed the 18th day of April, 1837, the plaintiff became seised in fee and owner of the rent reserved upon the indenture from the time of his death; that the | defendant, before January 1, 1840, by assignment, became ! owner of one hundred and twenty-eight acres, parcel of the ( granted premises, and continued such assignee until the time of the commencement of the action; and that the proper proportion of the rent for that part of the premises owned by the defendant, for the period mentioned, with the interest, was $483.07, for which he directed judgment for the plaintiff to be entered. The judgment being affirmed at a general term of the third district, the defendant appealed here.</p>

<p>* Appeal from the general term of the Supreme Court, in the first district, where a judgment of nonsuit, entered in the Superior Court of the city of New York, had been affirmed, on error. This was an action to recover damages for the breach of an implied warranty, on a sale by the defendant to the plaintiff, of 40,000 yards, of brown cotton sheeting, to contain thirty threads in the quarter of a Spanish square inch.</p> <p>In July 1848, the plaintiff received an order from Mexico, for 40,000 yards of brown cotton sheeting. By the law then in force in that country, the importation of cotton goods, in which the number of threads did not exceed thirty in the quarter of a Spanish square inch, was prohibited, and the goods were liable to confiscation. The Spanish inch is eight per cent, less than that in use in this country.</p> <p>The plaintiff directed one Stewart, a broker, to find goods of that description; informing him that they were to be sent to Mexico, and must count more than thirty threads to the quarter of a Spanish square inch. Joel Stone, the defendant, furnished the broker with samples, one of which was cut from an open bale at his store, and another from his sample-book. These samples were examined by the plaintiff, with a Mexican glass, and the one selected was found to contain thirty-one threads. The defendant was not informed that the goods were destined for the Mexican market; nor what was the Mexican tariff in respect to such goods; nor was he furnish with a Mexican glass; nor aware of the difference between the Spanish and the American inch.</p> <p>*The plaintiff directed the broker to procure 40,000 yards like the sample selected. Stone had then twenty bales on hand, which, by order of the plaintiff, were immediately delivered at Thorne’s packinghouse, in' order to be repacked in large packages. Twenty-three other bales were procured by the defendant from Boston, and delivered a few days thereafter. One of the first twenty bales delivered was the sample bale. The bales were opened and repacked, and the plaintiff might have examined the goods at Thorne’s, but did not do so. When the goods arrived at Vera Cruz, they were seized and confiscated, for non-conformity to the Mexican tariff law; they averaged but 28 to 29 threads to the fourth part of the Spanish square inch. Written notice was given to the defendant of the seizure.</p> <p>*The bills of parcels delivered by the defendant to the plaintiff, made no reference to the degree of fineness of the goods, nor contained any statement that the sale was by sample. The plaintiff gave his notes at eight months, for the price of the goods, payable to the order of Israel Whitney, treasurer of the Oocheco manufacturing company, which were duly paid at maturity. The defendant was the agent of that company, and it was admitted that he was indemnified by the manufacturers of the goods.</p> <p>*On the trial of the cause, the court (VaNUER-roel, J.) nonsuited the plaintiff; and the supreme court, on error, affirmed tifie judgment of nonsuit, whereupon this appeal was taken.</p>

This was an action of assuvipsit for the breach of an alleged warranty of quality, on a sale of twenty-seven bales of French blankets, by the defendant to the plaintiffs, on the 28th September 1844. The goods were sold on a credit of sue months, for the price of $4185, for which the plaintiffs gave their negotiable promissory note.

Action in the nature of ejectment, brought to recover the possession of one hundred and twenty-one and a half acres of land in the town of Berne, in the county of Albany, tried before Mr. Justice W. F. Allen, without a jury, in January, 1857.

<p>Insolvency. — Jurisdiction.</p> <p>On an application for a discharge, under the act of 1831, “to abolish imprisonment for debt,” the appearance of an opposing creditor is a waiver of objections to the service of notice, &e. He cannot object to the “ proof of services” without an allegation that no service was, in fact, made.</p> <p>The petition must show such a state of facts, as will confer jurisdiction upon . the officer to grant the relief prayed.</p> <p>*The petition must show, upon its face, that the suit was commenced for a cause of action, in which the party was .not liable to arrest; it must state the facts, not merely the conclusion of law.</p> <p>If the application be made on the ground, that the petitioner has given bond conditioned that ho will apply for an assignment and discharge, the petition must show the warrant, and the proceedings under it.</p> <p>The inventory must contain an account of the petitioner’s property, both at the time of the arrest, and at the time of exhibiting the petition.1</p>

<p>An estoppel by record cannot be countervailed by argument, however conclusive.</p> <p>A party may, therefore, avail himself of a judgment, as an estoppel against the defendant therein, though he admits that, in a subsequent action brought ( by himself and a co-plaintiff against the same defendant, the latter had " judgment upon the contrary determination of questions of fact depending upon the same evidence, and which ought to have been determined in the same way.</p>

Action to recover damages for the breach of a contract alleged to have been made by the defendant with the firm of B. M. & O. S. Hough', to transport freight for that firm, from Chicago, in Illinois, to Hew York and Boston,- The plaintiff was a member of the firm, and-R. M. Hough, the other member, assigned to him his interest in the cause of action before the suit was- commenced.

The question came up on demurrer. The complaint made this case. The plaintiffs are persons assessed to raise $600 for the construction of a sewer in Syracusa The defendants, James Ley and William Ley, had constructed the sewer, under a contract with the city of Syracuse, and had been paid the full price stipulated in the contract.

<p>A defect in the proceedings to organize a corporation is no defence to a stockholder sued to enforce his individual liability, who has participated in its acts of user as a corporation de facto, and appeared as a shareholder upon its books when the debt for which he is sued was contracted.</p>

<p>Appeal from a judgment of the Superior Court of Buffalo. The action was in the nature of trover for a quantity of books, stationery and store furniture, which the plaintiff claimed title, to under a chattel mortgage, executed by John B. Collins on the 9th December, 1854, and which were afterwards sold on an execution issued on a judgment against Collins, in February, 1855. The defendant became the purchaser, and refused to deliver the property to the plaintiff on request. The mortgage was given to secure $272.91, and purported to convey, by way of mortgage, all the books, periodicals, stationery, papers, engravings, furniture and other personal property of Collins, in the store No. 154 Main street, Buffalo, or which might thereafter be purchased and put into the store by him, and was to be void if he paid the debt by certain installments therein mentioned. Upon default, or if the mortgagee should, at any time, deem himself in danger of losing his debt, he was at liberty to take possession of the property and sell it, paying thereout his debt and returning the surplus to Collins.</p> <p>On the trial, the mortgage, which had been duly filed, and the judgment and execution, under which the defendant claimed, were given in evidence by the respective parties. It appeared that the property sold by the sheriff consisted in part of the goods which were in the store when the mortgage was executed, and in part of such as had been subsequently purchased by Collins. The defendant then gave evidence tending to show, as the Case states, that from the time of the date of the mortgage to the sheriff’s sale Collins was in the actual possession of the whole of the stock in the store, acted as its owner, made retail and daily sales therefrom, received and retained the proceeds of such sales and made daily new purchases to replenish and keep up the stock, and to sustain his trade as a retail dealer; that his daily sales were from $15 to $20, and that his new purchases were for much of the time from $30 to $40 daily; that at the time of the sheriff’s sale there probably remained, of the goods which were in the store at the date of the mortgage, $150 to $200 in value; that they were indiscriminately intermingled and mixed up with goods of a similar character, which Collins had purchased after giving the mortgage; that they could not without difficulty be distinguished the one from the other, without the bills of purchase, but could be with them; that the plaintiff was often in the store from the date of the mortgage to the sheriff’s sale. The plaintiff proved that the debt mentioned in the mortgage was Iona fide owing to him, and that the mortgage was given after repeated endeavors of the plaintiff to obtain payment of his debt.</p> <p>The defendant moved for a nonsuit, for reasons stated in several separate propositions, which being refused, he requested the judge to charge the affirmative of each of the propositions, which he declined to do; and the defendant’s counsel excepted to both rulings. The positions taken by the counsel in his reasons for a nonsuit and the request to charge, were, that the mortgage was void for want of a schedule; on account of its professing to cover after-purchased property; on account of the property in the store at the date of the mortgage being mixed with that afterwards purchased; because Collins was suffered to sell by retail; for the want of a delivery of the property to the mortgagee, or any sufficient reason being shown for the absence of such delivery; and because the demand made by the plaintiff was not sufficiently specific in describing the property which the plaintiff claimed, and distinguishing it from the after-purchased property.</p> <p>The court charged that the plaintiff could not recover for any property not specified in the mortgage. Verdict and judgment for the plaintiff. After an affirmance at a general term, the defendant appealed.</p>

(Reported below, 3 Barb. 410.) Margaret McPherson, by her last will and testament, bearing date the 7th July 1844, gave and bequeathed “to the Associate Reformed church of Broadalbin, five hundred dollars; provided that *Rev. David Caw continue to be their pastor, for seven years; but, if not, then it must be paid over to David Caw, with interest.” The subscribing witnesses to the will were William Chambers, William Walker, and the said David Caw.

<p>A switch-tender, employed by a railroad company on a portion of its track upon which it permits another company to run trains, is not a servant of the latter; and an engineer of the latter, injured by the negligence of such switch-tender, may maintain an action against the switch-tender's employer.</p> <p>A railroad company is liable in damages for an injury resulting to any person lawfully using its road from its neglect to introduce any improvement in its apparatus which it knows to have been tested and found materially to contribute to safety, and the adoption of which is within its power so as to be reasonably practicable.</p>

<p>The law recognizes no difference of value in money at different localities within this State.</p> <p>There is no usury, therefore, in the discount of a note by a banker in the interior, made payable in the city of New Tork, not for the accommodation of the maker, nor upon the expectation that he will have any funds there at the time of its maturity, otherwise than by the purchase of them at a premium; but with the purpose in both parties to enable the banker to realize a profit from a difference of exchange existing in fact and expected to continue.</p>

(Reported below, 2 Sandf. 512.) This was an ejectment brought by Meakings against Cromwell and his tenants, for a house and lot of ground, at the northwesterly corner of Amity and Greene streets, in the city of New York.

(Reported below, 2 Sandf. 325.) *Thi¡3 was an ejectment for a lot of ground on Ninth street, in the city of New York. Both parties claimed under S. A. Bostwick, from whom the plaintiff deduced title to himself, in fee, by mesne conveyances, subsequent to the mortgage hereinafter mentioned. The defendant was in possession at the commencement of the suit.

Action, in the nature of a creditor’s bill, to set aside an assignment made by judgment debtors and to reach and apply their property in satisfaction of the plaintiff’s judgment. The trial was before Mr. Justice Marvin, without jury, and he directed judgment dismissing, the complaint.

<p>Appeal from the Superior Court of New York city. Action on a bond given by one Smith, as special administrator for the collection of the effects of O’Neil, deceased, with the other defendants as his sureties. The facts proved on the trial were these: One Henry had been a previous special administrator of the estate, and the defendant Smith was his agent, and as such collected rents to the amount of $1,080, which he had not paid over to Henry, and for which he was Henry’s debtor on February 16, 1850. On that day, Smith was appointed special administrator. On the 13th of July, 1850, Henry was cited to account before the surrogate, on the application of Smith, who on that day delivered to him a receipt for the $1,080. The sureties disputed their liability for this amount. The plaintiffs had judgment, which was affirmed at general term, and the sureties appealed to this court.</p>

(¡Reported, at the circuit, Edm. S. C. 210.) This was an action of assumpsit upon a policy of insurance, whereby the defendant insured the plaintiff against damage or loss by fire, for the term of one year from the 17th January 1843, to the amount of $5000, upon the Pavilion Hotel, at Saratoga Springs, of which the plaintiff was the owner.

The complaint averred that on the 15th of July, 1857, the Ontario Bank, an association organized under the general banking law, made and delivered to the defendant Frederic Hollister, a certificate, signed by James S. Lynch, its cashier, that the defendant Frederic Hollister had deposited in said bank $5,000, to the credit of himself, payable on the return of said certificate, properly indorsed; that Hollister indorsed the certificate in blank, and the same was thereupon,…

* Appeal from the general term of the Court of Common Pleas of the city of New York, where judgment had been entered upon a verdict in favor of the plaintiffs.

This was an action of trespass against the sheriff of New York, and others, for taking certain goods and chattels of the plaintiff. The plaintiff claimed title by virtue of a purchase of the property from'Joseph F. Rodriguez.

The action was brought to recover $3,600, which the plaintiff had, in August, 1853, deposited with the defendant, a broker in New York, to purchase stock, as the plaintiff should after-wards order; and also $349.76, which the plaintiff afterwards paid the defendant, as for the balance of the price of stock purchased for the latter by him, which, as the plaintiff contended, he had paid under a mistake of fact.

(Reported below, ■ 5 Barb. 520, and, at special term, 2 Id. 484.) This was a creditors’ suit, commenced by bill, in the usual form, by Hubbell & Curran, the plaintiffs, to reach the choses in action, &c., of the defendant, Carpenter, against whom an execution had been returned unsatisfied. On the 30th March 1843, the plaintiffs, Hubbell & Curran, recovered a judgment against one Joseph P. Ellis, for $843.68 and costs.

The complaint alleged that the defendant was, on the 11th of April, 1845, the proprietor of a newspaper called the New York Herald, which was on that day published in the city of New York, containing an article (which was set out at length) naming the plaintiff; stating that he was an applicant for appointment, by the common council, to the office of police justice, then vacant; that he had been a police officer; had-beaten, with a whalebone cane, a drunken woman, whom he…

* Appeal from the general term of the Supreme Court, in the first district, where the decree of assistant vice-chancellor Sandpoed, in the former court of chancery, had been reversed, and the bill dismissed. (Reported below, 5 Barb. 38, and in chancery, 3 Sandf. Ch. 313.) This was a bill in equity filed by Pulaski Jacks and Hamlet Jacks, late copartners, under the firm name of P. & PI.

The action was on a marine policy of insurance, dated July 19, 1853, issued by the defendant, of the steamer “Garden City,” to navigate Lakes Erie, St. Clair, Huron and Michigan, for one year from the date. The policy stated the insurance to be “on account of Erastus Crocker,” and in another place there was the expression “ loss, if any, payable to Vincent Bidwell” (the plaintiff).

Action on a marine policy on the steamer Chapin. The defence set up in the answer was, that, although the title in form was vested in the plaintiff, yet that, in fact, he had no insurable interest in the steamer, either at the date of the policy or of the loss; that, previous to the insurance, she had been registered under the act of Congress of December 31, 1792; that, subsequent to such registry, she had been sold to one James P. Fortier, an unnaturalized alien, and on…

(Reported below, 6 Barb. 537.) The declaration, which was in assumpsit, stated, in substance, that, on the 25th April 1844, the plaintiffs, doing business by the style of the Northern Transportation Company, at Troy, made an agreement with the defendant, whereby, in consideration that .the plaintiffs, among other things, agreed to relinquish and surrender unto the defendant that part of the mail-route No. 933, between Saratoga Springs and Griswold’s, a public-house on said…

Writ of error to the Supreme Court. Mandamus to restore the relator to office in the Metropolitan Police. The alternative mandamus was issued on the 11th of December, 1857.

* Appeal by tlie Union Theological Seminary from the decree of the Superior Court of the city of New York, giving a construction to the will of James Roosevelt, deceased, and directing a distribution of his estate in accordance therewith.

The action was commenced by bill in equity, filed in December, 1847, in the Supreme Court, by Jesse Hoyt against Abraham G. Thompson, the Long Island Eailroad Company, certain officers of the State of Michigan, and others, for the purpose of enforcing the right and title which the plaintiff claimed to have to a bond and mortgage of $60,000, executed by the said Long Island Railroad Company to the Morris Canal and Banking Company, on the 3d of November, 1839.

• Appeal from the Supreme Court. The complaint averred the making of a promissory note by the defendant, McGervey, payable to the order of the plaintiff, and that it was indorsed by the defendant Cross for the purpose of paying for coal sold and delivered by the plaintiff to McGervey on the credit of such indorsement, and was delivered, thus indorsed, to the plaintiff, with the privity of Cross in payment for coal then sold and delivered.

This was a bill in equity exhibited in the late court of chancery by Noah Worrall against the defendants, Munn and Trail, to compel the specific performance of a contract for the sale of certain lands in Haverstraw, Kochland county.

• Appeal from a judgment of the Mew York Common Pleas, sustaining a demurrer to a complaint. The plaintiff had declined to amend, under leave given him for that purpose, and the defendant had final judgment in his favor. The pleadings are sufficiently stated in the following opinion.

Action to recover the value of a building claimed by the plaintiffs, and alleged by them to have been converted by the defendant. In October, 1851, the defendant owned in fee the premises known as the ‘Mohégan Lake House,’ and appurtenances, together with about seven acres of land, situate In the town of Yorktown, Westchester county.

<p>Appeal from a judgment of the Superior Court of Buffalo, in favor of the plaintiff. The action was to recover the amount of a promissory note, dated at Buffalo, 26th April, 1855, for $5,000, made by B. Bradley & Co., and payable to the order of S. Pettebone, sixty days after date, at the office of S. H. Benedict & Co., in the city of New York. The note was indorsed by the defendants Pettebone and Woodruff. The summons and complaint were served on the defendant Woodruff at Dansville, in the county of Livingston, on the 19th of September, 1855. Woodruff did not reside, nor did he rent a tenement, in Buffalo. All the other parties to the action resided in Buffalo. The plaintiff deducted the discount from the note, at the rate of seven per cent per annum. Bradley & Co. purchased/ with the proceeds, drafts of the plaintiff, payable in the city of New York at sight; and paid to the plaintiff one-half of one per cent premium of exchange for such drafts, and used and applied them to the payment of other drafts drawn by them on, and accepted for their accommodation by, J. H. Benedict & Co., in the city of Hew York. The plaintiff previously discounted and owned the drafts which were paid out of the proceeds, but had no notice or information at the time it discounted the note in suit, or at the time it sold the drafts, that the proceeds were to be used by Bradley & Co. to take them up.</p> <p>The plaintiff, on the 1st day of December, 1845, was organized as a banking association, under the general banking law. Since that time the premium of exchange in Buffalo, on the city of Hew York, has been one-half of one per cent. On these facts, the court before which the cause was tried, rendered judgment in favor of the plaintiff, and the defendants appealed to this court.</p>

* Appeal from the general term of the Supreme Court, in the third district, where a motion for a new trial, after a verdict in favor of the plaintiff, had been denied; a demurrer to the plaintiff’s replication to the defendant’s third plea, overruled; and judgment perfected for the plaintiff, upon the record.

(Reported, in the court of chancery, 4 Sandf. Ch. 37.) This was a bill in equity filed by John L. Moore and others, heirs of Lewis Moore, late of Hackensack, in the state of New Jersey, deceased, against Michael Price Moore, and other heirs of the said decedent, and William B. Aitken, to have the purchase of a house and lot in Eighteenth street, near Fifth avenue, in the city of New York, by the said William B. Aitken, at a foreclosure sale, under a mortgage held by Lewis…

The plaintiff, owning a house fronting on a public green, in the unincorporated village of Water ville, in the county of Oneida, brought the action in behalf of himself and of the other inhabitants of the village interested in the preservation of the green, to restrain the defendants from proceeding in the erection of a barn upon it, and from otherwise encroaching upon it.

<p>The plaintiff holding the obligation of E. G-. R. to advance him §10,000, upon receiving security for the repayment thereof, by a mortgage of certain property, that property was, by agreement of all the parties, transferred to the defendant, who was to execute the mortgage, and the plaintiff to receive the §10,000 for his own benefit: Held, that the defendant had no interest or duty in respect to the actual payment of the money, and, when required by the plaintiff to deliver the mortgage to E. Gr. R., could not make it a condition of so doing that the money should be first paid.</p> <p>The plaintiff was entitled to the performance of the condition on which E. Gr. R. would be bound to pay him, and could, either before or after performance, arrange the time and manner of payment with the latter at his pleasure.</p> <p>No proof of damage was necessary on the part of the plaintiff to prevent a nonsuit. The solvency of E. Gr. R. not being questioned, and the plaintiff, on his failure to pay, being entitled in equity to be subrogated to the security which the defendant was to give, he was, it seems, prima facie, damnified to the extent of the §10,000.</p>

This was an ejectment to recover possession of a lot of ground, No. 49 Walnut street, in the city of New York, of which the defendants, Charles Marsh and Benjamin Andrews, were in possession, at the commencement of the action; the latter died before the trial, and his heirs were substituted as parties. *On the trial, at the circuit, before Mitchell, J., it appeared, that Denis McCarthy, a naturalized citizen, died seised of the premises, in 1835; the plaintiff claimed title…

Action on a bond, dated May 10, 1853, the condition of which is stated in the following opinion. The defendant demurred on the ground that the complaint did not allege facts sufficient to constitute a cause of action. The demurrer book, as made up, contained a sheriff’s certificate of service of the summons and complaint, on the 11th April, 1854. The hearing, at special term, was June 12,1854, and the demurrer was there sustained.

Action on a policy of insurance issued by the defendant at ¡New York city to the plaintiffs, under date July 23, 1842, for $10,000, upon all kinds of lawful goods laden on board the brig Alfred Hammond.’ The voyage was described as “at and from Santa Martha on the Main to ¡New York, with liberty of touching at two other ports.’’ For this risk the premium charged was “two and a half per cent, to return one-half per cent for each port not used.” The plaintiffs claimed for a…

The facts, and the questions raised upon them, sufficiently appear in the following opinion. The trial was before Mr. Justice Weight, at the Sullivan Circuit, in May, 1853. The plaintiffs had a verdict and judgment, which having been affirmed at general term, in the third district, the defendants appealed to this court.

exceptions. (Reported below, 2 Sandf. 355.) This was an action of assumpsit for money had and received, to recover back a sum of $10,000 paid by the plaintiff into the city treasury, under protest, and a threat of a criminal prosecution. The declaration contained the common counts; the defendant pleaded the general issue.

Action to recover compensation for services rendered by the plaintiff in negotiating the purchase of certain real estate in the city of Hew York for the defendant. The defendant, by his answer, denied that he had employed the plaintiff in respect to the purchase, and alleged that if the plaintiff had interfered in the negotiation, he did so as a volunteer.

* Appeal from the general term of the Supreme Court, in the seventh district, where a decree of the special term, at Canandaigua, in a suit in equity, had been affirmed. (Reported below, 7 Barb. 354.) This was a hill in equity filed by certain mortgagees of a farm in Seneca county, to have a discharge of the said mortgage annulled and set aside, their mortgage and the record thereof confirmed, and for a foreclosure of the same.

Action to recover $5,000¿ the amount of an insurance against fire, alleged to have been made -by the defendant.

<p>Appeal from the general term of the Supreme Court, in the first district, where judgment had been entered in favor of the defendant, on a special verdict.</p> <p>This was an ejectment by Archibald R. Bogardus to recover an undivided one-eighth part of a house and lot, in the city of New York, which he claimed as one of the heirs-at-law of his father, Robert Bogardus, deceased.</p> <p>On the trial of the cause, before Edmonds, J., the jury found a special verdict, setting forth, that on the 23d day of September 1814, Robert Bogardus, late of the city of New York, counsellor-at-law, made his last will and testament in writing, duly executed and attested to pass real estate, and thereby devised as follows: “ I do hereby give, devise and bequeath unto my loving wife, Maria S., all my estate, both real and personal, of what kind and nature soever the same may be, to have and to hold the same to her, her heirs and assigns, to the only proper use, benefit and behoof of my- said wife, her heirs and assigns for ever, with *full power to grant, bargain, sell, alien and dispose of the same.” That the said Robert Bogardus was not seised or possessed of any estate in the lands described in the declaration, until February 1825, when the same were granted to him in fee simple; under which grant he went into possession, and built a dwelling-house thereon, in ■which, he dwelt with the defendant (his wife) and his family, until September 1841, when he died, seised in fee of the premises, leaving the defendant, .his widow, the said Archibald R. Bogardus, the plaintiff, and seven other children, his heirs-at-law. That on the death of the said Robert Bogardus, the defendant retained possession of the whole of the lands described in the declaration, claiming to be seised in fee simple thereof, under and by virtue of the said will, and continued in possession thereof, with like claim, at the commencement of the suit.</p> <p>The court, at general term, gave judgment upon the verdict in favor of the defendant; and the original plaintiff having died, his executors and devisees took this appeal.</p>

<p>Appeal from the Supreme Court. Action against the defendant as indorser of a bill of exchange. On the trial, at the Genesee Circuit, before Mr. Justice Greene, it was proved that A. D. Patchin was the president and S. B. Stokes the cashier of the Patchin Bank of Buffalo; that it had but two stockholders and no board of directors, but was managed and directed by Patchin, who owned nine-tenths of the stock. • Patchin was also the president and R. Pomeroy the treasurer of the Buffalo and New York City Railroad. The bank had on hand a printed bill of exchange signed in blank by Thomas B. Parsons, and accepted by Pomeroy as the treasurer of the railroad company, for and on account of the company. The blank thus signed and accepted was filled up by a clerk in the defendant’s bank for ten thousand dollars, payable seventy days after date, to the order of S. B. Stokes, Cas., at the Bank of New York, and dated September 14, 1853. Patchin, on the 24th of the same month, directed the cashier Stokes to remit it to the plaintiff for discount, and himself wrote to the plaintiff that he had thus directed. In pursuance of this direction, Stokes, to whose order the defendant’s clerk had filled up the bill, indorsed it, “S. B. Stokes, Cas.,” and in a letter written by him, dated “ Patchin Bank of Buffalo, Sept. 24, 1853,” subscribed by him, with the addition of “ Cash.,” transmitted it to the plaintiff for discount. The plaintiff discounted it, and remitted the avails to the defendant, by draft upon the Metropolitan Bank, New York. This draft, at the request of the Patchin Bank, was credited tq.it by the Metropolitan Bank in New York. This being done, the Patchin Bank at once credited the railroad company with its amount. The bill was shown to have been made for the benefit of the railroad company; and evidence was given tending to show not only that the plaintiffs knew of the purposes for which it was made, but that they discounted it for the benefit of the - company. When the evidence closed, the defendant’s counsel requested the court to charge the jury that if the bill in question was made and indorsed for the accommodation of the railroad company, the defendant was not liable. The court refused, and the defendant excepted.</p> <p>The defendant also requested the court to charge the jury, that the indorsement on its face was prima facie the indorsement of Stokes, -and that the addition -of Gas.’ to his name was merely a description of the person; that the bank could only be made liable upon it by proof that it was made in the usual course of the legitimate business of the bank, and that it'was, therefore, .the duty of the plaintiffs to inquire, before discounting .it,, whether it was the paper of the Patehin Bank, or whether Stokes had authority so: to indorse it as to bind the bank.. The court-refused thus to charge, and-the defendant excepted;..but the court did charge the jury.that if Stokes had no authority in fact to send this to the plaintiff on behalf of the defendant, the plaintiff could, not recover; that the defendant could not become a mere accommodation indorser -for another of paper in which it had no interest; ■ that the proof was that the bill was made and indorsed for the sole benefit and accommodation of the railroad company, and if the plaintiff knew that it was so nfade and indorsed, or had such notice as would, in the exercise of ordinary prudence, put it on inquiry in respect to the fact, the plaintiff could not recover; but if Stokes was authorized to send the bill, and the plaintiff received it without knowledge or notice, and the bill was indorsed to the plaintiff under circumstances indicating that it was business, paper and indorsed by the defendant in the ordinary course of business, the plaintiff could recover. To so much of the charge as held that the plaintiff could recover under the circumstances stated by the court, the defendant excepted. The jury found a verdict for the plaintiff for $12,789.16, for which amount, with costs, judgment was entered. Upon appeal, the verdict was affirmed at general term in the' eighth district, and the defendant appealed to this court.</p>

This was an action of assumpsit upon a promissory note, bearing date the 22d June 1841, whereby the defendant, one day after the date thereof, promised to pay to the plaintiff, the sum of $337.

(Reported below, 3 Sandf. 416.) This was a hill in equity filed in the supreme court, hy the plaintiff, against Abraham G. Thompson, George B. Fisk, Digby Y. Bell, auditor-general, George B. Cooper, treasurer, and Gideon 0.

r ■ Action in the New York Common Pleas against Martine as the maker, and Kipp & Brown as the indorsers, of a promissory note for $5,000. The answer of Martine, who alone Appeared, set up that it was made and indorsed for the accommodation of, and was delivered to, one Okell, and that he negotiated it upon a usurious loan. ■ On the trial, the plaintiff proved the making and indorsement of the note, and rested.

The plaintiff, being the owner of certain premises in the city of Syracuse, on the 1st of May, 1851, leased them to a business firm styled Charles Pope & Co., consisting of the defendants, for the term of three years, with the privilege to the lessees of renewing the lease for three additional years. The lessees were, at the end of their term, to leave the premises in as good condition as they then ' were, natural wear by the-elements excepted.

The action was brought to recover for services as “ city surveyor” of the city of Utica; and was tried at the Oneida Circuit before Mr. Justice Bacon, without a jury, in June, 1856.

<p>Appeal from the Supreme Court-. Action to recover the value-of-six thousand bushels of wheat, alleged to have been the property of- the plaintiffs, and to have been converted by the defendant.- Upon-the trial-before Mr. Justice G-reene, at the-Erie-Circuit, it was proved that, one Dickinson had in warehouse, at Littlefort,-in Wisconsin; two piles of wheat, amounting to six thousand two hundred and forty-nine bushels. • John Shuttleworth proposed to purchase six thousand- bushels of wheat. Upon being-shown the piles, .he expressed a.doubt whether they - contained that, quantity. Dickinson declared his opinion that they did, and agreed to make up the quantity if'they-fell-short. A sale was-then made at seventy cents ; per bushel, 'Dickinson signing and delivering to Shuttleworth a iñemórandum,- -as follows: ...</p> <p>Littlefort, February 17, 1848. John Shuttleworth, ■■■•</p> <p>‘:: ■ Bought of D. O.- Dickinson,-</p> <p>6,000 bushels of wheat, delivered on board, 70 cents, $4,200. Received-his-draft upon . John Shuttleworth,. of Buffalo, for............"...........$2,100, To remit me............................ 1,600 Five "drafts of- $100- each,................ 500</p> <p>-— 4,200</p> <p>D. O: DICKINSON.</p> <p>He also signed and delivered to Shuttleworth, this paper, viz.:</p> <p>Littlefoet, February 18, 1848.</p> <p>6,000 bushels wheat.</p> <p>Eeceived in store 6,000 bushels of wheat, subject to the order of John Shuttleworth, free of all charges on board.</p> <p>D. O. DICKINSON.</p> <p>The wheat was left undisturbed in the warehouse. Shuttle-worth sold the wheat to the defendant, assigning to him the bill of sale and warehouse receipt. Dickinson, shortly after-wards, sold the whole quantity of wheat in the two piles, to a person under whom the plaintiffs derived title. The defendant having obtained the possession of the wheat, this action was brought. The judge, under exception by the defendant, directed a verdict for the plaintiffs, which was rendered, and the judgment thereon having been affirmed at general term, in the eighth district, the defendant appealed to this court.</p>

Action for damages from a collision between a train of the New York and Harlem Eailroad Company, on which the plaintiff was a passenger, and a freight train of the defendant, the New York and New Haven Eailroad Company.

Action to recover the possession of land. The plaintiffs claimed in the right of Mrs. Chrystie, under the will of her grandfather. Held: had a fee simple absolute, and rendered judgment for the defendants. The plaintiffs appealed to this court.

with costs. This was an equitable action, to restrain the prosecution of a suit at law, and to reform a deed of conveyance, so as to make it conform to the agreement of the parties.

<p>Appeal from tlie general term of the Supreme Court, in the fourth, district, where a nonsuit, granted on the trial, had been affirmed, and a motion for a new trial denied.</p> <p>This was an action of trespass, by Aletta Beekman and others, against Andrew Bigham, the defendant, for cutting and carrying away certain trees and timber from a lot of wild land in Saratoga county, to which the plaintiffs claimed title in fee.</p> <p>On the trial, the only evidence of title given by the plaintiffs, was a deed from the state comptroller to John K. Beekman, hearing date the 1st March 1834, in pursuance of a sale for taxes, reciting that default had been made in the payment of the taxes assessed on said lands in pursuance of chapter 13 of the 1st part of the revised statutes, entitled, “of the assessment and collection of taxes,” which taxes, with the interest and charges thereon, had remained unpaid in the comptroller’s office for two years from the first of May following the year in which they were assessed ; the sale of the lands in question by the comptroller, at public auction, in May 1830, and that they had not been redeemed within the two years prescribed by law for the redemption thereof; that said John K. Beekman had become entitled, by purchase and transfer from the original purchaser at said sale, to the said lands, and conveying the same lands to the said John K. Beekman, in fee.</p> <p>Plaintiffs offered evidence to deduce title from John K. Beekman, which was ruled out, as immaterial, on the ground that the comptroller’s deed showed no title in him; to which an exception was ■ taken. The court, then, on motion of the defendant’s counsel, entered a nonsuit; which having been affirmed at general term, and a motion for a new trial denied, the plaintiffs took this appeal.</p>

• This was an action against the. corporation of New York, for the negligence of its servants, in permitting an excavation made in Broome street, in that city, to remain unguarded in the night-time, in consequence whereof, the plaintiff’s horse, on the night of the 6th October 1849, was driven into it, and so badly injured that he died.

Ejectment for a lot of land in the village of Eredonia, Chautauque county. Upon the trial, before Mr. Justice Bowen, at the Chautauque Circuit, it was proved that the land in question belonged, previous to October 1, 1837, to one Saxton, who on that day assigned it, with other property, to trustees for the benefit of creditors.

(Reported below, 3 Sandf. 409.) This was an action of tiespass, brought by the plaintiff, Madame Chegary, the keeper of a young ladies’ boarding and day school, in the city of New York, against the defendant, Jenkins, a city constable, for the taking and conversion of certain property of the plaintiff by virtue of a warrant issued by the receiver of taxes for the collection of a tax assessed upon the plaintiff’s school building by the supervisors.

On the 5th April 1850, Joseph Benjamin, by his agent, instituted summary proceedings, under the statute, before the county judge of Tompkins county, against the widow of his late brother, Jonathan Benjamin, deceased, as a tenant holding over. *The preliminary affidavit set forth that Joña-than Benjamin, the complainant’s brother, for several years prior to his death, had been in possession of the premises in question, by permission of the complainant, with the understanding…

Action to recover the possession of a fractional undivided part of two parcels of land situated in Peelcskill, Dutchess county, of-which James Emans died seised in the year 1810. He left seven children, surviving him namely: three sons, Cornelius, James and John, and four daughters, Elizabeth, Catharine, Ann, the wife of JamesBeaty, and Margaret, the wife of John Miller, the said John and Margaret being the plaintiffs in the action.

* Appeal from the general term of the Superior Court of the city of New York, where a decree had been made, in a foreclosure suit, directing a sale of the mortgaged premises, to satisfy the amount due upon the mortgage.

<p>* Appeal from the general term of the Superior Court of the city of New York’ where a judgment entered upon a verdict in favor of the plaintiff had been affirmed.</p> <p>This was an action brought by the widow of Isaac Lawrence, deceased, against the defendant, Brown, for" the use and occupation of the premises Nos. 65 and 651-Canal street, in the city of New York, for the quarter preceding the 1st May 1847.</p> <p>The plaintiff was the widow of Isaac Lawrence, who died seised of the premises in question, on the 12th July 1841, having purchased the same in May 1825. In April 1842, the plaintiff filed her bill in chancery for the assignment of her dower, making the heirs-at-law of her late husband parties defendant. On the 23d January 1843, the premises in question, with other real estate, were assigned as her dower in the lands of her deceased husband, by decree of the court of chancery. Brown, the defendant, entered as the tenant of the widow, and continued to pay rent to ber, up to the 1st February 1847.</p> <p>On the trial, the defendant offered to prove, that the premises in question were sold on the 2d February 1847, under a surrogate’s decree, for the payment of the debts of Isaac Lawrence; that Joseph Harrison became the purchaser, for $7600 (which sum was the full value of the premises discharged from all claim of dower); that administrator of *Isaac Lawrence executed a deed to the purchaser, and that the defendant</p> <p>attorned to said purchaser, and paid him the quarter’s rent sought to be recovered in this suit.'. The defendant also offered to prove, that Isaac Lawrence died insolvent; that such insolvency was known to the plaintiff; that the latter, with the fraudulent design of incumbering certain specific portions of the real estate, with her claim of dower, and to embarrass the title, filed her bill in chancery for the assignment of her dower; that the heirs-at-law did not appear and contest the proceedings, but suffered her to procure to be assigned to herself, more than her one-third part in value of the real estate; and that the plaintiff filed her bill for the assignment of her dower, with full knowledge that the administrator of Isaac Lawrence intended to take legal proceedings for the sale of all the real estate of said Lawrence, for the payment of his debts. That the administrator, on the 11th July 1843, presented his petition to the surrogate for that purpose; that the order to show cause was personally served on the plaintiff, as the widow of Isaac Lawrence; that no cause was shown against the application for the sale; and that on the 2d September 1843, the surrogate made the order for the sale of all the real estate of which Isaac Lawrence died seised, including the parts assigned to the plaintiff for her dower, without noticing in the order any title thereto in the plaintiff; that the administrator sold all the real estate, except the parcels assigned to the plaintiff.</p> <p>That tbe plaintiff, for the purpose of defrauding the purchasers of the lands assigned to her for her dower, contrived, through a relative, who was a creditor of Isaac Lawrence, to coerce the administrator to sell such lands, under the surrogate’s order; that an order to that effect was obtained, and the administrator advertised such lands for sale; that, thereupon, the plaintiff published a notice, that the said lands had been assigned to her for her dower, and that the sale to be made would be subject to her estate for life therein; to enable herself and ^family to acquire a title thereto, pursuant to such fraudulent design, or to defraud the purchaser at such sale; that, thereupon, the administrator declined to proceed with the sale; that the plaintiff then, through the claim of a creditor of the estate, in which she was interested, caused another application to be made to the surrogate for an order requiring the administrator to sell the lands assigned to her; that a large majority in amount of the creditors opposed the application, and that, thereupon, the surrogate decided that the sale of the said lands, under his order, and the conveyance of the administrator, would convey to the purchasers all the estate of said Isaac Lawrence, free and discharged from all claims of dower, and all estate in dower of the plaintiff, and that the surrogate would set apart one-third of the purchase-money to satisfy the claim of dower of the plaintiff.</p> <p>That after such decision, the plaintiff, with full knowledge thereof, and with desire to cheat and defraud the purchasers, urged the sale of the said lands so assigned to her for her dower, and caused copies of the opinion of the surrogate to be circulated, to deceive the purchasers; that the administrator, in pursuance of the order of sale, and under the coercion of the plaintiff, on the 2d February. 1847, sold the lands so assigned to the plaintiff for her dower; that the premises in question in this suit were purchased at such sale by Joseph Harrison, for $7600, the full value thereof, discharged from any claim or estate in dower of the plaintiff therein; that the surrogate confirmed the sale; that the administrator represented at the sale, that a perfect title would be given to the purchasers at said sale, free from all dower and claim of dower of the plaintiff therein, and that the full value of the premises was paid therefor, by the purchaser, under that expectation and belief.</p> <p>That after the sale, the plaintiff, in pursuance of her fraudulent design to cheat the creditors and purchasers, represented to the creditors, that the surrogate would invest one-third part of the purchase-money to satisfy her dower, referring them to his decision, *and offering that, if the creditors would deduct the value of her life-estate, she would pay them the residue of the sum they would be entitled to .receive, for an assignment of their demands; that the creditors accepted this proposition, and assigned to the plaintiff and to her agents, their said demands.</p> <p>That after the plaintiff had obtained the control of the said demands, in further execution of her said fraudulent design, and to obtain the value of her dower in money, she caused an application to be made to the surrogate, in the name of one of her agents, for all the purchase-money arising from the sale of said premises, and wrote a letter to the surrogate, stating that she claimed an estate in dower for her life, in the premises which had been assigned to her, and waived all right to have one-third part of the purchase-money set apart to satisfy such claim; that the purchasers of the said premises opposed the application, and prayed that the surrogate would invest the purchase-moneys according to law, or require the plaintiff to release her alleged dower in the lands. That the surrogate thereupon decided, that the purchasers had acquired a perfect title to the lands, and that the plaintiff had no dower, or right to dower therein; and that, therefore, the purchasers had no claim to have said moneys invested, and he, thereupon, paid over the whole of the purchase-money to the plaintiff, through her agents; and that the plaintiff had fraudulently induced the persons under whom the defendant claimed, to purchase the premises in question, and by means of said fraud, had secured to herself upwards of $200,000.</p> <p>. On the objection of the plaintiff’s counsel, the whole of this offer was ruled out, except the defendant’s attornment to Harrison; and the defendant excepted.</p> <p>There was a verdict for the plaintiff, under the direction of the court, for $249.06; and a motion for a new trial having been denied, at general term, and judgment perfected on the verdict, the defendant took this appeal.</p>

Action to recover the balance due upon an account for manufacturing into garments cloth furnished by the defendant, and for supplying trimmings, &c. Counter-claim that the plaintiffs had procured insurance upon cloth of the defendant, in their possession for the purpose of manufacturing, to a larger value than the balance claimed; that the same had been destroyed by fire, and the plaintiffs had received such value from the insurers.

(Reported below, 7 Barb. 570.) This was an action of assumpsit, by Carlisle W. Tillou, Oliver W. Doty and Tilley Crouse, upon a policy of insurance, bearing date the 1st November 1842, whereby the defendants insured them against damage or loss by fire, to tire extent of $2500, upon their flouring-mill and the machinery therein, for the term of five years. The premises were destroyed by fire on the 28th July 1847.

* Apte at. from tbe general term of the Supreme Court, in the first district, where a decree of the special term, in a suit for the construction of the will of Gideon Tucker, deceased, had been modified, and the bill dismissed.

The action was for the purpose of determining where the plaintiff, a corporation having a capital stock of $900,000, was taxable. It had been assessed for such capital in the town of Wheatfield, Niagara county, and the complaint admitted its liability to such assessment.

An action was instituted in that court by the plaintiff against all the defendants except Mr. Kelsey, to foreclose a mortgage upon real estate in the city of Brooklyn.

The plaintiff brought the suit as receiver of the property of Ansel C. Durkee, under proceedings supplementary to execution, in an action commenced February 22, 1850, by Conrad Cramer. The trial was before a referee who found these facts: On the 22d February, 1850, Ansel Durkee was the owner of a mortgage executed to him by his brother Calvin, as security for an honest debt, good and valid as between the parties and as against creditors.

*-A-p:p:bal from the general term of the Superior Court of the city of New York, where a motion for a new trial, made upon a bill of exceptions, had been denied, and judgment perfected upon a verdict in favor of the plaintiffs.

The action was brought by the proprietors of the Albany Evening Journal, a newspaper published in Albany, against the Secretary, Comptroller and Treasurer of the State, and Messrs.

(Reported below, 7 Barb. 388.) This was an action against the executors of Gilbert Hunter, deceased, to recover a sum of money, which they had withheld from Mrs. Drake, a legatee under the will of their testator, by way of commissions. Robinson, one of the defendants, died, after the judgment below.

(Reported below, 7 Barb. 498.) This was an ejectment by William W. Dyckman against the corporation of the city of New York for an undivided seventh part of a piece of land in Greenburgh, Westchester county, which had been appropriated by the Croton water-commissioners for the construction of their aqueduct. *On the trial, in 1846, before Barculo, J., the plaintiff’s title, which was admitted by the defendant’s counsel, was shown, as follows: William N. Dyckman, the…

Action by the indorsee against the drawer of a bill of exchange drawn by the defendant at Carthagena, in New Granada, upon the New Granada Canal and Steam Navigation Company, a corporation created by and having its principal office in this State. It was payable to the order of Manuel Narcisso Jimenes, indorsed by him at Carthagena, and was protested for non-acceptance. The answer denied the indorsement by Jimenes, in general terms.

Several persons who had filed claims under the mechanics’ lien law, but whose liens had not been established by judgment, were parties to the action. The order under which the sale was had, at which the appellant purchased, required the surplus after satisfying the mortgages specifically directed to be paid, to be brought into court to await its further order in respect to the payment of the mechanic’s claims. The other facts sufficiently appear in the following opinion.

This was a suit to foreclose a mortgage for $15,000, with interest, made to the plaintiff by James L. Voorhees, on the 1st May 1844, upon a number of lots in the city of Brooklyn,- including within the boundaries thereof the shore of the East river, between high and low water mark. *One of the defendants, Samuel B. Ruggles, by his answer, denied that Voorhees had title to the land between high and low water mark, and averred that the title to the same was in the corporation…

<p>By will made in 1833. the testator devised two-fifths of his real estate to three executors as trustees for his two daughters respectively, who were to have the income for life, and their shares, at their respective deaths, to go to their issue. He gave to his executors discretionary power to sell and to invest the proceeds upon mortgage, or in the purchase of real estate. Two of the executors renounced; the third took out ■ letters and acted alone. He sold the real estate, taking a mortgage tkereon for the purchase-money; foreclosed and bought in the premises. He then brought an action in the Supreme Court against the testator’s daughters and all their children, then in esse, for the purpose of having another person substituted as trustee, and such person being substituted by the judgment of the court with all the powers, trusts and interests held by him under the will, he conveyed the property to such substituted trustee: Held that,</p> <p>1. The sole executor who qualified took all the powers conferred upon the three nominated in the will, in the capacity of trustees as well as executors.</p> <p>2. His conveyance and repurchase upon the mortgage sale was valid as an execution of Ms power to sell, and to invest the proceeds in the purchase of real estate.</p> <p>3. The Supreme Court could confer all the powers of the original upon a substituted trustee, and could exercise such jurisdiction as well in an action instituted for that purpose as upon petition.</p> <p>4. The substituted trustee having sold and conveyed the premises, his deed conveyed a perfect title, as well against the testator’s daughters and their children in esse as against their children who might subsequently be born' and acquire interests under the will.</p> <p>The Legislature, in the exercise of its tutelary power over the persons and property of infants and others under disability, may provide, by public or private acts, for converting real estate, in which they have vested or contingent interests, into personal property or securities, when necessary for their benefit. and may exercise this power as well in respect to the rights of persons in esse as to the contingent interests of persons yet to be born.</p> <p>Held accordingly, that an act of the Legislature (ch. 442, of 1853) is constitutional, authorizing the Supreme Court, upon the petition of the cestuis gue trust, to direct the sale of any part or parts of the trust estate from time to time, as might be judged calculated to promote the interests of the infants, whether yet in being or not; providing that the proceeds should be applied by the trustee in paying taxes and incumbrances upon the trust property, or in repairing and improving the unsold portions, or invested for the benefit of those who might become interested under the will; and that all conveyances under the act, if executed by the trustee, should vest in the grantee a fee simple absolute against all persons, whether in being or not, who might have or acquire any interest under the will.</p> <p>The trustee’s conveyance under the act conveys an indefeasible-title against anybody who-- might otherwise at any time claim an interest under the will, irrespective of the power of sale conferred on him by that instrument.</p> <p>The case of Powers v. Bergen (2 Seld., 368), considered and distinguished.</p>

* Appeal from the general term of the Supreme Court, in the first district, where a decree of the assistant vice-chancellor of the first circuit, had been affirmed. (Reported in chancery, 4 Sandf.

This was a suit brought by A. M. and E. Gr. Rawson against Sidney S. Lampman, to foreclose a purchase-money mortgage, given by Benjamin Cooper to David Spaulding, on the 1st December 1838, upon a piece of land in Johnstown, Fulton county, to secure the payment of the sum of $450, in instalments, with interest.

This was a summary proceeding, under the statute, by Young against Dake, before the lion.

Action commenced against the defendants’ testator to recover damages for fraud alleged to have been practised by him upon the sale of a farm. In 1850 Cornelius T. Pudney owned a farm in Putnam county. In February of that year he mortgaged it to Chauncey Delavan for $1,000. The mortgage was acknowledged and placed in the proper clerk’s office for record.

*-A-:i?:peal from the general of the Supreme Court, in the fifth district, where a judgment had been entered on a verdict in favor of the plaintiff, and a motion for a new trial, made upon a bill of exceptions, denied.

Action against the defendants as indorsers of two bills of exchange drawn upon the treasurer of the Buffalo and New York City Bail-road Company, at New York, by an agent of the same corporation at Buffalo, and by the treasurer “ accepted for and on account of the Buffalo and New York City Bailroad Company, payable at Continental Bank,'New York.” The drafts were severally indorsed “ Lauman, Boclcafellow and Moore,” and below this indorsement was written “ Philadephia, Pa.,…

(Reported below, 7 Barb. 431.) *This was an action of debt, brought by the administrators of Edward Ott, deceased, upon an award. The case first came before the supreme court, upon demurrers by the plaintiff to the defendant’s 3d, 4th and 6th pleas, and by the defendant to the replications to the 2d and 5th pleas; the court sustained certain of the demurrers and overruled the others, with leave to amend, on payments of costs.

<p>Appeal from the Supreme Court. Action to recover a subscription towards rebuilding the plaintiff’s church. On the trial at the Wayne Circuit before Mr. Justice Wells, the only question of any interest was, whether the plaintiff established its corporate character. For this purpose it gave in evidence a certificate, duly acknowledged and recorded April 6, 1827, in these words:</p> <p>Agreeably to a law of the State of New York, passed on the 5th day of April, 1813, authorizing the incorporation of "churches, the male members of the Methodist Episcopal Union Church, agreeably to public notice given, met on the 15th day of May, 1826, in the village of Lyons, Wayne county, New York, at their meeting-house, and by plurality of votes chose Eichard Jones and Orra Bennett to preside; then proceeded to the choice of five trustees. On canvassing the votes it was found the following persons were duly elected, viz.: Eichard Jones, &g. [naming four others]. We the returning officers do certify that Eichard Jones, &c. [repeating the names] were legally elected trustees for the Methodist Episcopal Union Church, in the village of Lyons, agreeably to a statute passed April 5, 1813.</p> <p>Given under our hands, &c.</p> <p>(Signed) EICHARD JONES. (Seal.)</p> <p>OREA BENNETT. (Seal.)</p> <p>To this certificate it was objected that it did not show the time, place, manner, nor by whom notice of the meeting therein mentioned was given; nor that the persons appointed to preside were elders, or church wardens, or that there were no such officers, or that the persons presiding were members of the church or society; that they were not stated to have been elected by a. majority of votes, but by a plurality of votes; that the certificate does not particularly mention and describe the name or title by which the trustees- and their successors should thereafter be called and! known?, that it does not show that there were any persons present at the meeting, except those who signed the certificate, nor that those who were present had the requisite jurisdiction, or had taken the steps necessary to incorporate a religious corporation under the act of 1813 (3 R S., 294).</p> <p>The plaintiff proved that certain persons were trustees of its society in 1850; that it then had had a house of worship; that at a meeting therein of the trustees it was resolved to demolish that building for the purpose of erecting a new church on the same site; that a subscription was made by the defendant and numerous others, by which the subscribers promise to pay the plaintiff, by its corporate name, the sums set opposite to their' respective names, to be used and applied by the plaintiff in removing the old and erecting the new house of worship. There was evidence of another meeting of trustees in 1851. This was all the evidence of the plaintiff’s incorporation. A nonsuit was asked and denied under exception by the defendant. The plaintiff had a verdict. The exceptions were heard in the first instance at general term in the seventh district, where judgment was rendered for the plaintiff, and the defendant appealed to this court.</p>

The action was commenced in May, 1850, for the purpose of recovering the rents and profits and damages for withholding the possession of a certain grist-mill, situate in Parma in the county of Monroe. The complaint set out a lease executed by the defendant to the plaintiff’s intestate of certain premises, including the grist-mill, and also a saw-mill and dwelling-house and piece of land, for a term of three years and some months, ending the 30th day of April, 1850.

* Appeal from the general term of the Supreme Court, in the fifth district, where a motion for a new trial had been denied, and 'a judgment of nonsuit affirmed. (Reported below, 6 Barb. 231.) This was an action upon the case, to recover damages for injuries sustained by the plaintiff, in consequence of being negligently run over by a train of cars on the defendant’s railroad. The defendant pleaded the general issue.

Action to recover damages for a false return upon an execution. March 14th, 1851, the plaintiff recovered a judgment in the New York Common Pleas against Joseph Bradley for $1,968.92. September 5th, same year, an execution was issued upon the judgment and placed in the hands of Abram T. Hillyer, a deputy of the defendant, who was sheriff of New York city and county, for collection.

(Reported below, 7 Barb. 39.) This was an ejectment to recover possession of the undivided third part of a farm in the town of Brutus, in Cayuga county, of which the plaintiff claimed to be the owner in fee.

Action to rescind a contract, which was alleged to be this: That the plaintiffs should pay to the defendant a loan which it had made to Robert and G. L. Schuyler of $25,000, with interest, in consideration of which the defendant should transfer to the plaintiffs the Schuylers’ notes, given on the loan, and three hundred and seventy shares of the capital stock of the New York and New Haven Railroad Company, held by the defendant as collateral security for the loan, and should…

<p>A notice of non-payment of a promissory note, not stating the maker’s name, is not sufficiently certain to charge the indorser.</p>

On the 7th of September, 1853, the defendant Underwood assigned to the defendants Ferris and Stewart, all his property “ except a claim he held against Sears Heusted and Platt Creed, then in suit in the Supreme Court,” in trust to sell and dispose of the same, “but not upon credit, for the purpose of paying his debts, in the order specified in the assignment.” After the assignment, and on the 18th of October, 1853, the plaintiff recovered a judgment against Underwood in the…

Action to recover rents reserved by a lease for nine hundred and ninety-nine years of one-half of the surplus waters of the Hudson river at the Troy dam, executed by the Canal Commissioners to George Tibbetts, the father of the defendant, in March, 1835. The dam had, previous to the execution of the lease, been erected for the improvement of canal navigation, and has ever since been in use as a part of the public works of the State.

(Memorandum of decision below, 3 Sandf. 263 n.) This was .a bill in equity, filed by John G. Winter against Samuel Drury and Richard Clarke, to recover from Drury a sum of $250, which he had received under the following circumstances: The plaintiff, a resident of Georgia, carried on, through an agent, the business of- exchange-broker, in New York.

■ Motion to dismiss an appeal. The action was commenced in September, 1847, by bill in the Supreme Court in equity.

Motion to dismiss appeal. The defendants were appointed commissioners under an act of the Legislature, passed April 17, 1854 (Laws of 1854, ch. 370), “’to provide for the continuation of Platbush avenue from the city line of Brooklyn to the town of Platbush.” They proceeded, under the act, to procure by dedication or appropriation the lands required. They also made the necessary contracts for grading, paving, &c., and the work was completed.

This was an action for an assault and battery, commenced in the county court, in September 1847. The declaration was in the usual form; to which the defendant pleaded the general issue, and son assault demesne; the replication traversed the latter plea.

Motion to dismiss an appeal. The action was to recover the amount due upon a mortgage of land to which the plaintiff claimed to be entitled by equitable subrogation.

Writ of error to the Supreme Court. The plaintiff in error was indicted, tried and convicted of arson in the first degree in the Court of General Sessions in and for the city and county of New York.

(For a former report of this case, see 4 Barb. 537.) This was an action of assumpsit, by McKnight against Dunlop, for the breach of a contract to deliver 5000 bushels of old barley malt. The defendant pleaded the general issue, and gave notice of special matter.

(Reported below, 2 Sandf. 693.) This was a bill in equity filed in the late court of chancery, by James G. King, against the Merchants’ Exchange Company and several of the persons holding the bonds of that company, secured mortgages to the plaintiff, for a sale of the mortgaged premises and a foreclosure of the equity of redemption.

<p>Writ of error to the Supreme Court. The facts are fully stated in the following opinion.</p>

The special term haying denied the motion, and the order haying been affirmed at general term, the plaintiff took this appeal.

(Reported below, 10 Barb. 216; and in the superior court, 5 N. Y. Leg. Obs. 175.) This was an action of debt, by Henry Cotheal, a stockholder in the East River Mutual Insurance Company, against John Brouwer, the president of the company, to recover the penalty of $250 imposed by the statute (1 R. S. 601, § 1) for refusing to exhibit the books of the corporation and to submit them to examination.

* Appeal from the general term of the Supreme Court, in the seventh district, where the decision of referees directing the opening of a road in the town of Ñiles, in the county of Cayuga, had been reversed, on certiorari. • In November 1848, Cornelius Adriance applied to the commissioners of highways of the town of Niles, for the laying out of a road therein, upon the certificate of twelve freeholders as to the necessity and propriety of laying out the same.

<p>An indictment for selling unwholesome provisions sufficiently avers a sale for consumption as food for man by stating that the prisoner sold to divers citizens beef as wholesome food, well knowing the same to be diseased, unwholesome and not fit to be eaten.</p> <p>The offence is made out by proof of the sale of flesh of an animal which the seller knew to have a disease, the nature and tendency of which are to taint and affect the flesh of the animal in any degree, although the taint was impel ceptible to the senses, and the eating of the flesh produced no apparent injury.</p> <p>Guilty knowledge that the disease, e. g., a running abscess in the head of a cow, which had been apparent and increasing for some months, would render her flesh unwholesome, may be inferred from circumstances without proving the defendant a person of skill.</p>

The action was brought to recover the possession of real estate in the city of Hew York. The defendant at the commencement of the- action was in possession as tenant. He delivered the declaration to his landlord, by whom the action was successfully defended*, and a judgment recovered against the plaintiffs for costs.

The defendant was tried in the Court' of General Sessions of Montgomery county, upon an indictment for embezzlement and grand larceny, and was found guilty of grand larceny. Before judgment a bill of exceptions was taken by the defendant, and a certificate made by the judge of probable cause. Judgment was stayed upon the indictment and the District Attorney sued out a certiorari to remove the indictment and bill of exceptions into the Supreme Court.

The plaintiff had a claim against the defendant for baking a quantity of bread to be used during the feast of the Passover. He brought his action to recover it in the Marine Court in the city of New York. During the pendency of the suit it was agreed between the parties to submit the matter to arbitration, and that judgment should be rendered upon the award in the Court of Common Pleas of New York.

<p>Motion to dismiss an appeal.</p>