Volume 50 — Barbour's New York Supreme Court Reports

70 damages and costs, entered upon the report of a referee, (Hon. Geo. Gould.) Exceptions were taken by the defendant to rulings during the course of the trial. Other exceptions were taken to findings, both of fact and of law ; and both defendant and plaintiffs appealed. The action is for alleged malfeasance, (not negligence,) done by the defendant as cashier of the plaintiffs; and the complaint sets out three causes of action.

Kerr. The premises in question were, on the 23d of April, 1831, conveyed hy their then owner to Uriah Drake, who, on the 18th of March, 1833, conveyed them, with another farm, to Elisha Purdy. The latter, in 1836, mortgaged these premises to one John W. Ward, for the sum of $800, which mortgage is still a subsisting lien on them, and is now held and owned hy the defendant George W. Purdy.

THIS is an appeal by the plaintiff from an order of Justice Gould granting a new trial for excessive damages in an action for assault and battery, tried before Justice Weight at the Sullivan circuit in J une, 1857, and in which the jury rendered a verdict for §500 in favor of the plaintiff, being the whole amount of damages claimed in the complaint.

<p>APPEAL by the defendant from a judgment rendered by Justice Gould, in favor of the plaintiff, for equitable relief and costs, in a case tried before him without a jury, at the Rensselaer circuit, in February, 1860. The facts are sufficiently stated in the opinion of the court.</p>

<p>APPEAL from a judgment entered upon the verdict of a jury, in an action to recover damages for a personal injury alleged to have been occasioned by the negligence of the defendants.</p>

APPEAL by the defendant from a judgment entered upon' the report of a referee in favor of the plaintiff. The action was brought against Charles Kinloch, as indorser, and against another defendant as maker, of a promissory note for the sum of $657, dated at Troy, July 13, 1865, made by Alexander Gr. Kinloch, andpayable to the order of the defendant Charles Kinloch, six months after date, at the Mutual National Bank, and indorsed by the defendant.

The action was brought to recover damages for a breach of a contract, by which the defendant agreed to furnish the plaintiff stoves, heaters and castings, to be manufactured by him, which the plaintiff agreed to sell in the cities of New York and Brooklyn, and their vicinities, and in certain states or places where said stoves were not then sold. The' plaintiff was to account to the defendant for the stoves, &c. at a certain sum per pound.

<p>The defect of parties for which a demurrer is allowed under section 44 of the Code of Procedure, is a deficiency of, and not too many, parties. A demurrer will not lie for a misjoinder of parties.</p> <p>The joinder of too many parties as defendants, when there is no misjoinder of subjects, is not a ground of demurrer hy any one of them against whom the plaintiff states a good cause of action.</p> <p>Trusts were created in real and personal estate belonging to the cestui que trust, by three different instruments, by the first and second of which the trustee was to receive the rents and profits of the property, and was to furnish the cestui que trust with necessary board and maintenance, and by the third, he was to secure to the cestui que trust a good and comfortable living and maintenance. Held that these instruments being between the same parties and relating to the same subject matter, embraced one transaction, and could not well be effectually closed up by a separate suit in reference to the personal, and another embracing only the real estate. And that as an action to close up the trust would lie, if both the parties were alive, there was no good reason why such an action could not be brought in the names of the personal representatives and heirs at law of the cestui que trust, against those who represented the trustee, viz. his widow and heirs.</p> <p>Held, also, that it was no objection to the maintenance of such an action that the plaintiffs, in their complaint, asked a conveyance of the real estate acquired by the trustee, to the parties entitled thereto; that being only a result which followed an accounting for the rents and profits of the real estate, and not an independent cause of action, and that it might properly be united with the-claim to account for the personal property received.'</p> <p>The administrators of the cestui que trust are proper parties plaintiffs in such an action, because they represent the personal estate which is blended with the real estate; and the heirs at law, because they represent, and ate enti- ' titled to, the real estate.</p> <p>It is proper to unite in such an action every thing connected with the trust and arising from it.</p> <p>If there is a misjoinder of parties, that is, if the facts stated in the complaint show no cause of action against the defendants, in favor of one of the plaintiffs, the defendants may demur, under the 6th subdivision of section 144 of the Code, as to such plaintiff, upon the ground that the complaint does not state facts sufficient to constitute- a cause of action, and as to such plaintiff the coinplaint will be dismissed.</p> <p>When a defendant demurs under the 6th subdivision he must specify the plaintiff to whom he objects as a party.</p>

<p>When, on the trial of an action, a fact is assumed by the court and counsel to exist, and the case is disposed of upon such assumption, the non-existence of the fact in the case presented to the court, on a motion for a new trial, cannot be urged in opposition to the application for a new trial.</p> <p>Thus, where the testimony given on the trial established the fact, that a receipt given by the plaintiff was given for a claim different from that sued for, and the case was tried on that hypothesis, and the defendants did not claim nor ask the referee to find otherwise; JECeld that, on a motion for a new trial, the defendants could not urge the objection that the receipt was a bar to the claim in suit.</p> <p>Evidence of a general mage or custom, in a particular locality or business, is not sufficient to ¡charge a party, where there is no proof that he knew, or had even heard of, such usage or custom.</p> <p>A custom, in order to become a part of a contract, must be so far established, and so far known to the parties, that it must be supposed that their contract was made in reference to it. For this purpose the custom must be established, and not casual—uniform and not'varying—general and not personal, and known to the parties.</p> <p>The rule, as modified by recent decisions, allows interest upon an unliquidated demand, the amount of which could be ascertained by computation, together with a reference to well established market values, because such values are so nearly certain, that it would be possible for the debtor to obtain some proximate knowledge of how much he is to pay.</p> <p>Where no exception is taken, specially, to the allowance of interest in the report o'f a referee, the party cannot avail himself of the objection on a motion for a new "trial.</p>

] “ To the sheriff of the county of Albany: You are hereby required forthwith to arrest William T. Veeder and Oren H. G-riffin, defendants in this action, and hold them to bail in the sum of thirteen hundred dollars, and to return this order to J. F. Crawford, plaintiffs’ attorney, at his office in Cohoes, N. Y. on the 24th day of Dec. 1866. Dated 14th of Dec. 1866.

The complaint alleged that, on the 6th day of July, 1864, the plaintiff, in due form of law, recovered a judgment for §60 and costs, in a justice’s court of the city and county of Schenectady, before Joseph Harman, one'of the justices of the peace of said city and county. That within twenty days thereafter, the defendant appealed from said judgment to the Schenectady county court.

The question in the case is whether the plaintiff is precluded from recovering liquidated damages in a contract to convey real estate.

<p>Where there are two appeals, from decisions of different commissioners of highways, one from an order refusing to lay out a highway, and the other from ari order laying out the same, although the county judge is authorized to appoint referees to hear and determine each case, by a separate order, yet there is no objection to the selection of the same referees' by one and the same order, to hear and decide both appeals ; they relating to and involving the same subject matter.</p> <p>Evidence to show that the certificate of freeholders, as to the necessity of a proposed road, was obtained by fraud or false representations, is not admissible, on the hearing before referees of an appeal from a decision of the commissioners of highways.</p> <p>Such evidence, if admitted, would not establish a jurisdictional defect which would render the proceedings void.</p> <p>IL the freeholders acted illegally, the proper remedy is to review their procedings directly, and not by proof before the referees.</p> <p>Where referees gave notice that they would meet to hear and determine the appeal., and they met accordingly and adjourned to a future day, and in due season served a notice upon the owners and occupants that they would meet on the adjourned day to decide apon the application to lay out the highway, and at the time and place named proceeded to take testimony, reversed the decision of the commissioner, and laid out the road immediately afterwards; Held that the last notice was evidently intended to embrace the laying out of the highway, and no additional notice was necessary, after the referees had decided to reverse the order of the commissioner.</p> <p>Where referees, appointed to hear and determine an appeal from an order of a commissioner of highways, have not exceeded their powers,' nor departed from the forms prescribed by law, their decisions upon the merits are final . and conclusive.</p>

THIS was an action against the defendant, as sheriff, for taking and selling property on execution alleged to be exempt. The complaint averred that the defendant was sheriff of Montgomery county ; that, in May, 1864, by his deputy, he took away and converted certain property of the plaintiff, of the value of $232 ; that the plaintiff was a householder, and had a family for which he provided, and that said property was his team, used in their support.

The action was brought by the plaintiff to recover damages for the alleged seduction of her daughter, Harriet Amanda Gray, a minor, whose father was -dead. The complaint alleged that the daughter at the time of the seduction was between the ages of sixteen and seventeen years, and resided with the plaintiff, who wasN entitled to her services and earnings.

THIS is an action for assault and battery, which was tried at. the circuit held in Ulster county, in October, 1866. The plaintiff alleged in his complaint an assault and battery, committed on the 28th of November, 1865, and proceeded to the proof of an assault and battery, committed on the 20th of November, 1865.

The evidence authorized the court below to find, as questions of fact, that on the 24th of October, 1865, the plaintiff received from the defendants, a national bank, duly organized, $276, in payment of a check indorsed to him for that amount. The plaintiff resided in Albany, where the defendants’ bank was located, and the money was paid him by one of the defendants’ tellers.

<p>HIS action was originally commenced before a justice of the peace. The complaint alleged that the defendant, in September, 1863, wrongfully and wilfully sold to the plaintiff a heifer, three or four years old, as provisions, to be killed and used for beef, for which the plaintiff paid him the sum of $14.33 ; that at the time of such sale said heifer was diseased and unfit to kill for beef, and was unwholesome and diseased provisions, and entirely worthless.</p> <p>The answer was a general denial of the complaint.</p> <p>Upon the trial, evidence was given showing that in September, 1863¿ the plaintiff bought of the defendant a heifer two or three years old, which the plaintiff told the defendant he was going to kill the next day; that when the heifer was butchered, she was found to be diseased and rotten in the kidneys, a quart of corrupted matter being discharged from that part of the body, when the heifer was butchered, the next day. The disease was not visible, externally.</p> <p>Ho evidence of any express warranty of the heifer by the defendant was shown, but there was evidence tending to show that the defendant knew, or had reason to suspect, the diseased condition of the heifer at the time of the sale.</p> <p>The jury, in the justice’s court, rendered a verdict of no cause of action, upon which a judgment was rendered in favor of the defendant, for.costs. The plaintiff appealed to the county court of Sullivan county, which court reversed the judgment of the justice, and the defendant appealed to this court.</p>

APPEAL, by the defendant, from a judgment entered upon the report of a referee.

The indictment charged that the defendants, on or about August 22,1866, at the town of Brighton, committed a rape upon one Mary A. Williams ; also, that they assaulted with intent to ravish ; and still another count, for a simple assault and battery. Upon the trial, the girl Mary A. Williams was not called as a witness, and the defendants claimed there was no evidence upon which they could properly be convicted of either charge in the indictment.

PPEALS by the defendants, respectively, from judgments rendered at a special term, awarding a perpetual injunction in each of the above causes. The defendants in both actions were owners or lessees of certain lots in the city of Brooklyn.

The action was brought to recover the possession of certain personal property, consisting of household furniture. The answer denied the allegations of the complaint, and alleged, that at the timg referred to in the complaint, and for a long time previously thereto, the defendant was, and still is, the owner, and was possessed of the goods and chattels named in said complaint, and, as such owner, maintained, and still maintains possession of the same.

EIT of error to the court of sessions of Kings county. The plaintiff in error was indicted, under section 22, art. 2, chap. 1, part 4, of the Eevised Statutes, for a rape upon Lucy S. Jones, and was tried and convicted of that crime, in that court, in December, 1865, and sentenced to imprisonment in the state prison for ten years.

0ERTIORARI to the Westchester oyer and terminer, to remove an indictment and bill of exceptions. Held: the names of so many persons as shall be sufficient, and as the court may direct.” (Id. § 2.) 4. When the defendant was put upon his trial the court was held at Bedford. A sufficient number of jurors, duly drawn and summoned, did not appear.

This action was brought by. Stephen P. Waterbnry against the Merchants’ Union Express Co., and Elmore P. Ross, and others, constituting the executive or managing committee of the affairs of that company. The facts involved in the present motion are sufficiently stated in the opinion.

The defendant Sperry, in July, 1866, was a steamboat pilot, licensed by the United States steamboat inspectors as such. He was employed as such by the owners of the steam tug O. Vanderbilt, during the month of July, 1866, and while so employed, in the month of July, 1866, the steamer 0. Vanderbilt towed the schooner Gopia through the channel of the East river commonly called “ Hell Gate.”.

THE following facts were agreed to by the respective parties : That James Barlow departed this life, having made a will, of which his son, Reuben S. Barlow, and the plaintiff were the executor and executrix. The said will was admitted to probate, and letters testamentary issued thereon March 27,1861. The testator left him surviving the widow, executrix aforesaid, and eight children, who still survive, excepting Reuben S. and Joseph Barlow.

<p>THIS is an appeal from an order of the special term overruling a demurrer to the complaint in the above action.</p>

This action was brought by Matthew W. Stewart against Jackson S. Schultz and others, Metropolitan Police Commissioners and members of the Metropolitan Board of Health, to obtain an injunction restraining the defendants from interfering with the business of the plaintiff. A temporary injunction was granted.

HIS is an appeal by the defendants from a judgment entered on the report of a referee. The action was brought to recover the value of a trunk and contents, the personal baggage of the plaintiff. Held: that after the voyage is ended, the boat owners are not responsible for the baggage of passengers, unless there is a special contract made. If the passenger leaves the boat at his journey’s end, and does not take his baggage, he leaves it at his own risk.

<p>This cáse is reported rntep. 160. The following dissenting opinion of Justice Hogeboom, was not received by the Reporter in time to be printed in connection with the prevailing opinion.</p>

<p>Usually the fact that a purchaser sells for less than he pays, almost immediately after he obtains possession of the purchased article, is considered a strong badge of fraud, and pretty conclusive evidence that the purchaser intended not to pay the price. Per Leobabd, P. J.</p> <p>But where, upon a purchase of cotton for cash on delivery, the purchaser, on the same day the cotton was delivered, sold it to a third party for about two cents per pound less than he had agreed to pay for the same, it appearing that the price for which he sol¿ the cotton was the full market value; it was held that this circumstance fully explained facts which ought otherwise to be regarded as conclusive evidence of a fraudulent intention not to pay for the cotton purchased, although the proceeds of the sale were not paid over to the original vendor, but were temporarily deposited by the purchaser with a friend, who refused to return the deposit, claiming to retain it for an indebtedness due him. Clebke, J. dissented.</p>

<p>Where the complaint states an employment of the defendant as a broker, by the plaintiff, in the buying and selling of gold coin and railway shares, for him; the deposit of a sum of money by the plaintiff with the defendant as security against loss on such transactions; the rendering of an account by the defendant, showing a balance due from him to the plaintiff; demand of the amount, and neglect or refusal to pay; a case of agency is set forth, in which there was no right to use the plaintiff’s money, by the defendant, except in the plaintiff’s business; making a clear case of money received by the defendant in a fiduciary capacity; and if such facts are not disproved, the defendant is liable to arrest. Sutherland, J. dissented.</p> <p>If the defendant, in such a case, fails to overcome, by a preponderance of evidence, the allegations of the plaintiff, that he deposited his money with • the defendant merely to secure him against loss in the performance of the plaintiff’s orders, as his agent, he ought not to be discharged from arrest, on the ground that the demand was not of a fiduciary character.</p> <p>There is no weight of proof in favor of the defendant, where the plaintiff and defendant are the only witnesses, and their evidence is in direct opposition. Per Leonard, J.</p> <p>TBe question whether a former partner ought not to have been joined as a defendant, cannot be tried upon a motion to discharge an order of arrest.</p>

CEBTIOBABI to remove summary proceedings to recover the possession of land, for the non-payment of rent, from a justice of the district court in the city of Mew York.

<p>APPEAL.from an order made at a special term, denying a motion to set aside a judgment as irregularly entered.</p>

The complaint'alleged, 1st. That the plaintiff is, and for a long period previous to the committing of the grievances hereinafter mentioned, had Been engaged in the sale of sewing machines, which he procures to he made for him, and on each of which machines is cast the name of this plaintiff, as follows, “Howe, Hew York.” That such machines, so stamped, have been advertised and sold by the plaintiff, under the title of “ The Howe Sewing Machines,” a designation which is the…

CEBTIOBABI to John A. Stammler, Esq. justice of the district court in the city of Hew York, for the seventh judicial district, to remove summary proceedings under the statute to recover the possession of land.

The complaint alleged that the defendants-, on or about the 23d day of August, 1864,' at the city of ¡New York, contracted' and agreed to and with the plaintiff, for and in consideration of the sum of seventeen hundred and fifty dollars, then and there paid by the plaintiff to the defendants, to sell and deliver to the said plaintiff seven hundred shares of the capital stock of “The Brevoort Petroleum Company,” the said defendants, and- that simultaneously with the making of…

The action is to recover for the conversion of forty-five shares of bank stock belonging to the plaintiff.

WRIT of error to the court of general sessions of the city of Hew York. The facts are sufficiently stated in the opinion of the court.

<p>Mandamus.—Compelling Production of Corporate Books.</p> <p>A corporation was required by its charter (in addition to the general provisions of the Revised Statutes upon the same subject), to cause a book to be kept containing the names and residences of all stockholders, the number of shares held by them respectively, &c., which book, the charter directed should, at all reasonable times be open for the inspection of the creditors and stockholders of the corporation. The corporation kept no book precisely answering to the requirement of the charter. It kept, however, a transfer book, a register of certificates of stock, and a stock ledger. On application by a stockholder, for an opportunity to inspect the book prescribed by the charter to be kept, the officers of the corporation offered an inspection of the transfer book and register, but refused to permit the stock ledger to be examined.</p> <p>Held, 1. That the stockholder was entitled to an inspection of the stock ledger; that being, of all the books kept by the company, the one which most nearly fulfilled the requisites of the charter provision. The circumstance, that it contained more facts than the charter required to be stated, formed no excuse for refusing to furnish it, so long as the company neglected to keep the book required.</p> <p>2. That the stockholder’s right to have an inspection of the stock ledger might be enforced by mandamus.</p>

THE plaintiffs, a railroad corporation, have a railroad running through certain streets in the city of Hew York, and in its course passing Fourth avenue, between Twenty-third and Fourteenth streets. The defendants are the proprietors of a railroad running from Fourth avenue west on Twenty-third street, and from Fourth avenue east on Fourteenth street.

<p>A PPEAL from an order made at a special term, vacating _Ol an order of arrest.</p>

THE plaintiff in this action claimed to recover damages for the cutting and carrying away of certain timber trees purchased by him, and then standing on premises situated upon Grand Island. The vendor of the trees, after making the contract for the sale of them to the plaintiff, and while those in controversy were standing upon the land, conveyed the premises in fee to the defendant.

<p>APPEAL from a judgment entered at a special term, dissolving an injunction. See report of case at special term, ante p. 285, where the facts are stated.</p>

<p>THIS was an action brought to restrain the defendant from digging on his own land, and thereby diverting the water from certain springs on the lands of England, from which the plaintiffs and others were in the habit of obtaining their necessary supply of water. .Upon the trial of the case at special term, before Justice Balcoh, the complaint was dismissed, and the plaintiffs appealed.</p> <p>The facts are, that the palintiff England and the defendant are adjoining owners of real estate in the town of Delhi; that there are no springs or water courses on the defendant’s lands; that there are two springs at least on England’s land, one close to the defendant’s line, and the other some two rods distant from such line; that these springs for many years have been conducted into a reservoir, and from thence by pipes distributed to the plaintiffs and others; the natural outlet from such springs was through said reservoir and in no event over the defendant’s land; that a well or excavation several feet deep was dug on the defendant’s premises several years since, and before the defendant owned them, where water was obtained for the use of stock on said lands; and such well or excavation did not materially affect the supply of water in such springs ; that said springs in their natural state ordinarily furnished the necessary supplies of water for the plaintiffs and others using therefrom, but after the interference of the defendant as hereinafter stated, such supply was diminished and was more frequently insufficient; that the slope of the land is from the defendant’s land on to said England’s lands, so that water upon or in the defendant’s land would naturally flow to and upon said England's land; that the water flows to said springs by percolation through the defendant’s soil and beneath the surface, and has no distinct and definite channel, or any known and defined course beneath the surface of the defendant’s land ; that before the commencement of this action, the defendant sunk a ditch near the line between him and said England, until such ditch cut off such percolation to some extent, and thereby interfered with and diminished to some extent the flow of waters in said springs, and laid a pipe in such ditch for the purpose of conducting such waters to his premises, and did so conduct such waters to his house, barn and stables, buildings of great value on said premises, for ordinary domestic and farming use, and such .water were essential and necessary for the defendant, for the purposes aforesaid ; that the plaintiffs had for many years owned and enjoyed the right to use the surplus waters running from said springs in the manner stated in the complaint, and that the defendant had no right to enter upon said England’s land, or to take water from said springs, or to divert the waters running therefrom into said reservoirs from such natural channel, nor has he done any of these things unless by the digging of the ditch upon his own lands near the line and near the said springs, and carrying the water obtained in such ditch in a pipe to his house, &c. as aforesaid.</p> <p>cited 6 Paige, 435; 1 Story C. C. R. 387; 28 Verm. Rep. 56 ; 3 Kent’s Com. 439, 442; 12 Wend. 330; 6 East, 214; Ang. on Water C. §§ 109,115, and notes; 1 Gamp. 463; Bassett v. Salisbury Manuf. Co. (Am. Law Reg. Feb. 1864, p. 223;) Dudden v. Guardians of the Poor, (1 Hurlst & N. 627;) 7 Exch. 300; Wheatley v. Baugh, (25 Penn. R. 528;) 3 Cush. 107; 21 Barb. 230; 12 Mass. R. 220; 18 Pick 117; Acton v. Blundell, (12 Mess. & Wels. 324;) 4 N. Y. Rep. 196; 19 Barb. 332; 21 id. 409; 15 id. 96; 17 John. 325; 1 Law and Eq. 241 ; Domat’s Civ. Law, (Cushing’s ed.) 615, 6; Gale & Whately on Easm. 216, etc.; 75 Law Lib. 28; 9 Eng. Law and Eq. 513; 3 Exch. 748.</p> <p>9 Cush. 171; 34 Eng. Law and Eq. 553; 1 Waits’ Law and Pr. 795, 6, and cases cited; 12 Mess. & Weis. 349, 350; 21 Barb. 230; 18 Pick 117; 12 Wend. 330; 6 Paige, 435.</p>

THE defendants are sons of Justice Blackman. In June, 1859, they entered into a written contract with the plaintiff, whereby she agreed to support and maintain the defendants’ father, then and now almost helpless, from age and infirmities, during his natural life, and the defendants agreed to pay her therefor $2 per week, to be paid semiannually.

<p>11HIS action was brought upon two promissory notes made . by the defendants, and payable to the plaintiff on demand, with interest. One was dated November 17, 1841, and the other February 28, 1842. The action was commenced in May, 1866. Interest was paid and indorsed on the notes in February, 1844; but- no interest or principal was subsequently paid on either note ; and no actual demand of payment of the notes was made of the defendants (who made the notes) until just previous to the time the action was commenced. The defense to the action was the statute of limitations. The action was tried before a referee, who overruled the defense, and decided that the plaintiff was entitled to recover the amount due upon the notes, viz. $535.99, for which sum judgment was entered, with costs, in favor of the plaintiff, in the office of the clerk of Otsego county. The defendants appealed from the judgment to the general term of this court.</p>

Motion to vacate an attachment. The defendants in this action were incorporated under the act of Congress authorizing the creation of National Banks, and were located in Boston, Massachusetts, as their place of business. An attachment having been issued against them, under the provisions of the Code of Procedure allowing suits to be commenced by attachment against foreign corporations, they now moved to set it aside.

The action was brought to foreclose a mortgage executed by Hiram Hovey and wife to the plaintiff, to secure the payment of §200 and interest. The defendants, other than the mortgagors, were made parties because they were judgment creditors, having liens upon the premises by judgment.

APPEAL by the defendants from a judgment entered upon the report of a referee in an action brought to foreclose a mortgage. The facts appear in the opinion of the court.

<p>Bounty money, paid by the government, or a county or town, to a minor, for enlisting into the military service of the United States, with the consent of his father, belongs to the son, and not to the father.</p> <p>When a parent consents that his minor son may enter into the military service of the government, he should be deemed to agree that the son shall receive all the bounty offered or paid for entering into such service, and also his wages earned therein, .</p> <p>The recovery or receipt by the father, as administrator of his minor son, of the bounty money agreed to be paid the latter as a substitute, and of the son’s back pay, of the government, are not tantamount to a consent by the father that his son might enter into the military service of the government as a substitute for another; and they will not constitute a defense to an action, by the father, against an individual for enticing the son from the plaintiff’s ser- . vice, and enlisting him into the army as the defendant’s substitute. Boabdmait, J. dissented.</p>

<p>APPEAL from the judgment of the county court of Broome county, on appeal from a judgment of a justice of the peace.</p>

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

APPEAL by the defendants from a judgment of the city court of Brooklyn, rendered upon the verdict of a jury, in an action to recover damages for a personal injury. The facts are fully detailed in the opinion of the court. The plaintiff, in going upon the defendants’ premises, was a voluntary trespasser.

THE first of the above actions was brought to recover damages for injuries sustained by the plaintiff in consequence of a public street in the city of Brooklyn, and the sewer and drain therein, being out of repair, and the plaintiff’s premises becoming flooded with water, by reason thereof. The second action was brought to recover damages for the loss of service of a minor child of the plaintiff, who fell though a hole in a public wharf owned by the city and under its charge.

THESE were all of them suits in equity—injunction suits brought to restrain the defendants from doing the acts complained of in the complaints—and the complaints were •all dismissed by the default of the plaintiffs.to appear, with costs. The defendants, being'public officers, claimed that they were entitled to double costs, and so presented their bills and the clerk taxed them, allowing to the defendants double costs.

The case tried in the county court was upon an appeal from a judgment rendered by a justice of the peace, in favor of the defendant, under section 352 of the Code of Procedure. .The only question was, whether the defendant had paid the plaintiff $40 and interest, which he had borrowed of him. The plaintiff and defendant were both examined as witnesses, on the trial.

The action was brought upon an indebitatus count, for goods sold and delivered; work, labor and services, and materials furnished at the defendant’s request, claiming judgment for $61.91. The defendant, by her guardian ad litem, in her answer, in substance, denied all the allegations set forth in the complaint.

MOTION by the plaintiff for a new trial, on a case. The plaintiff in his complaint states, that in the fall of 1862, he entered into an agreement with the defendants,' by which the defendants, in consideration of $700, agreed to repair, reconstruct, and rebuild a canal boat, known as the B. D. Yarnum, in a good and workmanlike manner, and so that she should be fit and suitable to navigate and transport merchandise upon the Brie canal and Hudson river; that the defendants did…

The action was brought to recover the possession of a horse, of the alleged value of $200. The defense, so far as the only question involved is concerned, is an estoppel, by a judgment obtained by this defendant against Thomas 0. Chase, sheriff of. Livingston county. The action was tried before Justice E. D. Smith, at the Livingston circuit in April, 1867, without a jury.

The action was brought to recover the price of .a crop of barley sold and delivered by the plaintiff to the defendants. The defense set up in the answer was that the barley'was represented by the plaintiff to be, and was bought as merchantable, but was not so ; that its value was over $100, and no money was paid thereon or earnest given ; and that the defendants did not receive the barley.

The action was brought by judgment creditors of the firm of Graydon, McCreery & Co. to set aside a general assignment made by them, dated, acknowledged and filed on May 7, 1861, to John C. Martin and John W. Graydon ; and transfers of collaterals made by them about the same time. The action was brought against the members of the firm of Graydon, McCreery & Co. their assignees, and against Samuel Graydon and four other of their favored creditors.

DEMURRER to the complaint in an action brought by a creditor of the grantor, against the grantee, in a deed of real estate, to set the same aside as fraudulent. '

<p>Although laws have no force, by their inherent vigor, beyond the territorial limits of the state in which they are made, yet a contract which is valid where it is made, is to be held valid everywhere.</p> <p>Where a complaint alleged that “ the defendant is a stockholder in the said Merchants’ Bank, and that under and by virtue of a law or laws of the said state of Georgia, the said defendant is liablewithout averring that such a law was in force at the time the debt was contracted, and without showing that the liability was founded on a contract, and not on a special provision in the nature of a penalty; Held, that the allegation was not sufficient to enable the court to assume that an original liability existed by the terms of the charter, as in unincorporated associations and co-partnerships, or that it devolved in consequence of some general law. And that the allegation was obnoxious to that rule of pleading which holds that when different meanings present themselves, that construction shall be adopted which is most unfavorable to the party pleading..</p> <p>Held, also, that it was to be inferred, from the terms of the allegation, that the liability of the defendants did not originate as a debt like that incurred by a member of a copartnership, which is due primarily by him, as well as by the other members, but that it was created solely by a statute of the state of Georgia, imposing a liability in the nature of a penalty; passed, (for all that could be learned from tlie complaint,) after the act of incorporation or even after the contracting of the debt.</p> <p>Although in this state, liabilities imposed on stockholders by the act of incorporation, or by a general statute, have been regarded by our courts in the nature of contracts, it does not follow that all liabilities created by the legislature of another state would be enforced here.</p> <p>The question is not whether they are technically regarded as contracts, but, even admitting that the nature of the liability, in certain cases, is equivalent to that of a contract, is it such a liability as the courts of this state will invariably enforce 1 Per Cbebke, J.</p>

THIS action, and four others, against the same defendant, were brought by the several plaintiffs as holders of the bills of a bank incorporated by the state of Georgia, against the defendant as a director of the corporation, to recover damages for the misconduct of the defendant as such director. The defendant demurred to the complaint in each action.

DEMURRER to supplemental reply. This is an action of claim and delivery of personal property, alleged to be of the value of $300. The prayer for relief claims a judgment for delivery of the property or its value in money and damages for its detention.

<p>THIS action was brought by the purchaser, against the vendor, to enforce the specific performance of a contract for the sale and conveyance of real estate.</p>

<p>THE only question in this case was whether all the members of a partnership firm, executing an assignment of property in trust for the benefit of creditors, were previously known to the officer who took their acknowledgment; it not being claimed that he took any proof of their identity.</p>

THIS action was brought to foreclose three mortgages, each of a single lot, made Try the defendants Sloan and Leggett and their wives, each dated August 17, 1854, and each for ' J $1000. The mortgages were recorded in the office of the register of the city and county of New York, on September 4, 1854. They were made to Caleb D. Grildersleeve, who assigned them to the plaintiff by three assignments, each dated August 28, 1854, and recorded January 24, 1855.

THIS was an action brought against the widow (who was also the administratrix) and heirs of Thomas Bussell, deceased, to have a deed, executed by the plaintiff to the said Thomas, declared null and void and the registry canceled. The plaintiff alleged in the complaint that on the 17th day of August, 1866, and prior thereto he was the owner in fee of certain premises therein described, situate on the corner of Thirteenth street and Eighth avenue, in the city of Hew York.

<p>APPEAL by the defendant from a judgment entered at a special term on the verdict of a jury.</p>

<p>APPEAL from an order made at a special term, vacating an order of arrest.</p>

<p>HABLES W. KING, the defendants’ testator, died September 26, 1845, leaving surviving Charlotte E. King, his widow, and three children, the plaintiff, aged five years and five months, William, Vernon, and Arthur. By his will, made at Macoa, China, August 8, 1845, the testator gave to each of his three children “ the sum of $15,000, the interest on the same, so far as required, to be applied to their maintenance and education, and the principal,- with the accumulations thereon, to be paid to them severally on their majority.” He appointed five executors, “ entrusting to their discretion the settlement of my affairs, and the investment of my estate for the benefit of my heirs.” Only two of those appointed executors qualified, viz. Talbot and Olyphant, to whom letters testamentary were issued on December 5, 1846, by the surrogate of New York, who admitted this will to probate. This action "was brought by the plaintiff, as one of the legatees of the testator, against the defendants as such executors for an account of their acts and dealings with the moneys and funds of the estate, and of the portion, thereof set apart by them for the payment of legacies and its increase and accumulations ; to have certain transfers of stock made to the plaintiff by the defendant Charles H. Talbot, surviving executor, and the receipt given by her therefor, set aside; that Charles H. Talbot be adjudged to pay to the plaintiff the amount of moneys invested by him in certain railroad, bank and canal .company stocks, with interest and all profits realized thereon ; for an account of what was due and owing to the plaintiff for the principal and interest of her legacy, its accumulations, &c. and of the dealings of the executors therewith ; and for a decree directing the payment by the defendants of what might appear to be due to the plaintiff, with costs, &c.</p> <p>The answer of the defendants put in issue the material allegations of the complaint.</p> <p>The following facts.were found by the justice before whom the action was tried :</p> <p>1st. That Charles W. King died, September. 26, 1845, on a voyage from Ceylon to Suez, leaving a widow and three children—the" plaintiff, Wm. V. King, and Arthur King— him surviving.</p> <p>2d. That the deceased left a will, dated August 1, 1845, as set forth in the answer in this action ; that said will was duly proved in the court of chancery of this state, October 30, 1846, and admitted to probate by the surrogate, December 5, 1846, and letters testamentary issued to David W. 0. Olyphant and Charles H. Talbot, two of the executors named in said will; that, said executors accepted and undertook the execution of said trust, and possessed themselves of the estate at various times prior to December 31, 1849, and in various sums amounting, in the whole, to about $105,955.33.</p> <p>3d. That said executors, on the 16th day of December, 1847, filed in the office of the surrogate of Hew .York an-inventory of the personal éstate of said testator, which is copied in schedule No. 1 to the complaint.</p> <p>4th. That between March 5 and December 19, 1847, the said executors invested in United States treasury notes and •Ohio state bonds a sum exceeding $45,000 moneys of said estate; that between August 1, 1848, and November 10, 1849, said executors sold $41,986 of said investment at a profit of $1312.77; that said executors reinvested the money realized from said sales in Delaware and Hudson Canal Company stocks, Saratoga and Washington Eailroad Company stocks, New York and New Haven Eailroad Company stocks, Harlem Eailroad Company stocks, Hudson Eiver Eailroad Company stocks and bonds, and the Bank of Commerce stock and scrip, for account of said children.</p> <p>5th. That on the first day of April, 1850, said executors set apart for said children, as an investment of their legacies, the following stocks and bonds, constituting a portion of the aforesaid investment, at an estimated valuation equal to the price paid by said executors therefor :</p> <p> m </p> <p>$4000 Ohio 7 pr. ct. stocks at 103 and \ brokerage .............. . $4,130 00</p> <p>$3500 Ohio 5 pr. ct. stocks at 92 and J broker- . . age.............. 3,228 75</p> <p>45 shares stock Del. & Hud. Canal Co.) _</p> <p>_ 5 “ scrip Del. & Hud. Canal Co.) ' ’ ^</p> <p>40 “ stock Sar. & Wash. Eailroad Co. . . 3,411 70</p> <p>2Ó0 “ preferred stock N. Y. & Har. Eailroad Co......... . . . 10,025 00</p> <p>$10,000 bonds Hudson Eiver Eailroad Co. . . 9,687 50</p> <p>125 shares scrip and stock Bank of Commerce, 4,306 25</p> <p>30 “ stock N. Y. & N. H. Eailroad Co. 2,482 50</p> <p>Making a total of.......$45,390 45</p> <p>And opened an account of said investment with said children, debiting said account with said sum, and the income therefrom, and crediting the same with payments made for the support and maintenance of said children.</p> <p>6th. That on the 21st day of December, 1849, the said executors, out of the proceeds of the stocks, &c. so set apart, paid an installment of §300 upon said Delaware and Hudson Canal Company shares ; that between June, 1850 and 1851, said defendant Talbot, with proceeds as aforesaid, paid several installments upon the aforementioned shares, amounting in the aggregate to §1600; that with proceeds as aforesaid, said Talbot purchased, October 9,1851, six shares of the Hew York and Hew Haven Bailroad Company stock at §607.92.</p> <p>7th. That said executors continued to hold said stocks and bonds so set apart, and those since purchased, except as hereinafter stated, until the plaintiff reached her majority ; that the Ohio 7 per cents were redeemed January, 1852 ; twenty-five shares Bank of Commerce scrip sold April 25, 1852; the Ohio 5 per cents were redeemed January, 1857; that the proceeds of the above were invested by the defendant Talbot in other stock of the Bank of Commerce, and in two bonds of the Hew York .Central Bailroad Company.</p> <p>8th. That at the time these investments were made, • and at the time these .stocks and bonds were set apart, as well as at the time others were subsequently purchased, said stocks and bonds were in good repute, and were considered by men upon whose judgment it was proper to rely, as safe and desirable investments ; said investments were made and set apart in good faith ; said executors having invested their own funds in similar stocks, and retained the same, except a small amount of Delaware and Hudson Canal Company, and Saratoga and Washington Bailroad Company stocks.</p> <p>9 th. That said D. W. C. Olyphant died in June, 1851, and the defendant Olyphant was appointed administrator of his estate.</p> <p>10th. That the testator made no provision for the support of his children, other than that contained in his will; that from his death to April, 1850, they resided with their mother; that on the 1st day of April, 1850, the mother presented to said executors bills for. expenses incurred by her for the plaintiff’s maintenance prior to that date, amounting to $2695.76; that said executors paid $2094.48, being the full amount of income then standing to plaintiff’s credit on their books, and that the amount unpaid, $601.22, was included in the residuary estate, and paid to the mother of said plaintiff as residuary legatee ; that the income which had been realized from the investments of the estate, up to April 1, 1850, was divided by the executors between the mother, as residuary legatee, and the said children in the proportions in which they were entitled to the estate.</p> <p>11th. That the said plaintiff became of age April 12, 1861; that from April 1, 1850, until her becoming of age, the said executors paid from the income of said legacy large sums of money to her and for her support, maintenance, and education.</p> <p>12th. That on the plaintiff’s becoming of age, the investment of her legacy stood upon the executors’ books, with the cost thereof, as follows :</p> <p>20 shares of Del. & Hud. Canal Co. stock . . $2,857 66</p> <p>66 “ H. T. & Harlem R. R. Co. preferred 3,308 25</p> <p>12 “ H. Y. & Hew Haven R. R. Co. stock 1,150 14</p> <p>.50 “ Bank of Commerce...... 4,744 63</p> <p>$3500 Hud. Riv. R. R. Co. bonds..... 3,390 62</p> <p>$1000 H. y. Central R. R. Co. bonds .... 920 00</p> <p>Saratoga & Wash. Railroad Co. stock .... 1,137 23-</p> <p>That, at this time, some of these stocks were below par and depreciated in value, and the stock of the Saratoga and Washington railroad was worthless.</p> <p>13th. That, on the 16th day of April, 1861, the defendant Talbot transferred to the plaintiff, as and for her legacy, the' said stocks and bonds described in the twelfth finding, except the stock of the Saratoga and Washington Eailroad Company ; and also, on the same day, handed a memorandum of her securities and a statement of her account; that, at the same time, the plaintiff expressed her unwillingness to accept said stocks and to sign a receipt therefor.</p> <p>14th. That, in May, 1861, the plaintiff, by counsel, notified the defendant Talbot that the said bonds and stock certificates, which he had placed in'her hands on account of her legacy under her father’s will, were not accepted by her, and that she required payment of the amount of such legacy; that, on the 10th of June, 1861, the plaintiff wrote personally to the defendant Talbot, referring to the aforesaid letter of counsel, and offering to deliver such bonds and stock certificates to said Talbot, and notifying him that so long as said bonds and certificates were left with her, they would be held only for his, said Talbot’s, account and for his risk.</p> <p>15th. That of the stock so transferred by Talbot to the plaintiff, the 66 shares of Hew York and Harlem Eailroad Company preferred, the 12 shares of the Hew York and Hew Haven Eailroad Company, and the 20 shares of the Delaware and Hudson Canal Company stock were sold in 1863, under a stipulation between the parties, and the proceeds received by said plaintiff, to be applied as by said stipulation provided.</p> <p>16th. That, treating the Saratoga and Washington Eailroad Company stock as a total loss, and estimating the stocks and bonds unsold at their value December 1, 1863, and the proceeds of- those sold under the stipulation, the investment set apart for the plaintiff, April 1, 1850, would have repaid the principal and more than six per cent per annum.</p> <p>17th. That the funds of the said estate were realized by said executors at different times after they accepted their trust, in December, 1846 ; that they did not collect or have in their hahds, for investments, so large 'an amount as #45,000 until June 9, 1847.</p> <p>. 18th. That, between December, 1846, and June 9, 1847, ¡United States 6 per cent stocks were at par, and Bew York state 6 per cent stocks at-.</p> <p>19 th. That neither of said executors had accounted before the surrogate for their or his administration of the estate of said'C. W. King, nor rendered any accounts thereof. ' 1 -</p> <p>From these facts the judge’s conclusions of law were :</p> <p>. 1st. That there was no such acceptance by the plaintiff of the stocks and bonds transferred- to her by Talbot as to estop, her. from repudiating the investments and calling upon the-executors to account.</p> <p>■ 2d. That it was the duty of said, executors, - within a reasonable time after the receipt of a sufficient' amount of . funds belonging • to the estate, to invest the amount of said legacies in stocks of the United States or the state of Bew York, and. have kept the amount so invested during the trust ; that not having done so, the investment-actually made is invalid, and the executors are personally liable-for the whole amount of said legacy, with interest from September 26, 1846, at seven per cent per annum.</p> <p>■ 3d. That as such omission was without fraud, and the management of the trust conducted in good faith, although the investments are not such as the law approves; the plaintiff must reject all or none of said investmentsit would be inequitable, - under such circumstances, to allow her to adopt one or more of such securities and reject others, thus accepting the profits and rejecting the losses.</p> <p>4th. That said Charles B. Talbot, personally, and the estate of the said David W. C. 'Olyphant, deceased, are accountable and responsible to said plaintiff for her legacy, with interest, as aforesaid. That, in stating the account, the defendants must be debited with said legacy, and the interest from the time aforesaid, computed with annual rests; and be credited with #2094.48, paid for the plaintiff’s support and maintenance previous to April 1, 1850, as of the date when the several items composing such sums were paid, and to a credit of $601.22, which had been advanced by her mother for the plaintiff’s support and maintenance prior to April 1, 1850, and which though not paid as such, was included in the residuary estate and paid to the mother as residuary legatee ; also all moneys paid subsequent to April 1, 1850, to the plaintiff or to others for her support, at the time or times when paid ; also the value of all stocks and .bonds transferred to the plaintiff, those sold under the stipulations, for the sums received, and at the date of their receipt, and the others at the date of the accounting, unless sooner returned; also the commissions allowed by law.</p> <p>5th. That it be referred to Edward Fitch, Esquire, of the city of New York, counsellor at law, as referee, to state the accounts of said executors upon the foregoing principles, with the further direction that said accounts be first stated as above directed, up to April 1, 1850 ; second, from that date up to the death of said D. W. O. Olyphant; and, third, from that daté up to the time of the referee’s report.</p> <p>6th. On the coming in and confirmation of the report, if there should appear to be a balance due the plaintiff from said executors, or from the surviving executor, judgment was directed for such balance against the surviving executor and the estate of the deceased executor, or against the surviving executor ■ solely, or against both defendants, in accordance with the facts as should be reported by the referee, with costs ; and the defendant Charles N. Talbot be discharged from all further duty as trustee for the plaintiff If no balance was found due the plaintiff on the coming in and confirmation of the report of the referee, then judgment was directed, dismissing the complaint, with costs.</p> <p>The said referee afterwards found and reported that the defendants were indebted to the plaintiff in the following sums, at the following dates, viz :</p> <p>1850, April 1,...........|15,608 96</p> <p>1851, June 1,........... 16,250 23</p> <p>1865, May 26,........... 13,877 06</p> <p>Exceptions were taken to his report, which were overruled, and the report was ratified and confirmed, and judgment given against the defendants for the amount reported due, with interest and costs.</p> <p>. Both parties appealed from different portions of the judgment.</p> <p>I. The plaintiff was entitled to an account.</p> <p>II. She was not estopped hy an' acceptance of the stocks mentioned in the 12th finding, from repudiating the investments of her legacy money. 1. She did not accept them, (13th finding of fact.) 2. An actual acceptance of them, under the advice given her, without more information than she had received from the executors in regard to those investments, would'not have constituted such estoppel. (Hill on Trustees, 382, 395. Munch v. Cocherell, 5 Mylne & Craig, 218. Davis v. Hodgson, 5 Beav. 177. Walker v. Symonds, 3 Swanst. 69, 72, 73.) It was the duty of the executors to give her a full, entire and minute account of his, and his co-executors’ administration, before asking an acceptance of their investments. ‘ (Hill on Trustees, 383. Fish v. Miller, 1 Hoff. Ch. 267. Rapelje v. Hall, 1 Sandf. Ch. 399. Brewer v. Van Arsdale, 6 Dana, 204 ) The account rendered by Mr. Talbot did not answer the requirements of the law. It contained no detailed statement of the acts of the executors; no intimation that the investments had been made by them. The loss of the investment in the stock of the Saratoga and Washington Railroad Co. was not disclosed. The plaintiff promptly rejected those investments, as she lawfully might, and placed all the securities at the disposal of the executors. (Matter of Van Horn, 7 Paige, 46.)</p> <p>III. These executors did not execute the trust created by the will of Mr. King, which they assumed, and have been justly charged with the legal consequences of its breach. That trust was : 1st. To invest the plaintiffs’ legacy. 2d. To apply the interest thereof, so far as required, to her maintenance and education; and 3d. To accumulate the surplus interest during her minority. Their first duty, on the acceptance of this trust, was to set apart the sum of $15,000 for her legacy. The law considers specific legacies separated from the general estate, and appropriated at the time of the testator’s death. ( Williams on Executors, 1278, 1284, and note 1.) It was equally their duty to have invested that sum, as soon as practicable after letters testamentary were issued, in such securities as the court had approved ; also the interest over the expenses of her maintenance, and to have kept both the principal and surplus interest so invested during the trust. (Hill on Trustees, 370, 376, 404.) Before April 1, 1850, they made no separate investment of any part of the estate for either, of the children ; at that time, the stocks, &c. mentioned in the fifth finding were set apart for them collectively. Between March 5, and December 19, 1847, the executors invested of the funds of the estate over $45,000, in U. S. treasury notes and Ohio stocks ; a part of which they sold between August 1, 1848, and November 10, 1849, at a profit of $1312.77. They apportioned, of this profit, to the children, $557.10, and to Mrs. King, $755.17. They reinvested the money realized from said sales, at different times, in railroad, canal and bank stocks, &c. for account of the estate, not “ for account of said children,” as found. The investments made in U. S. treasury notes and Ohio state stocks, were such as the law approves, and they had no right to change them. (Hill on Trustees, 381, 395. Depeyster v. Clarkson, 2 Wend. 77. Pocock v. Reddington, 5 Ves. 794.) The reinvestments of their proceeds in the railroad, canal and bank stocks, were such as the law condemns, and resulted in heavy losses. (Ryder v. Rickerton, 3 Swanst. 80, note.)</p> <p>IV. The setting apart of the stocks and bonds mentioned in the fifth finding, for the children of the testator, was not, in the judgment of law, an investment of the plaintiff’s legacy money, nor to any extent a valid execution of the trust created by the will. 1. They had no right or authority to invest her money in those stocks and bonds ; consequently the appropriation of them to her legacy account was unauthorized and invalid. The law has wisely prohibited the investment of trust money in any thing but government or state stocks, or upon real estate security, unless express direction is given in the instrument creating the trust, to invest in some specified mode, or other kind of securities. (Hill on Trustees, 368, 9, 378, 395. Trafford v. Boehm, 3 Atk. 441. (Robinson v. Robinson, 11 Beavan, 371. Manth v. Leith, 15 id. 524. S. c. 16 Jurist, 302. Harris v. Harris, 29 Beavan, 107. In re colne Valley, &C., 1 De Gex, Fisher & Jones, 53. Mortimore v. Mortimore, 4 De Gex & Jones, 472. Ackerman v. Emott, 4 Barb. 626. Hemphill’s appeal, 18 Penn. Rep. 303. Worrall’s appeal, 23 id. 44. Smith v. Smith, 7 J. J. Marsh, 238. 2 Story’s Eq. Jurisp. § 1273.) The only investments of trust moneys sanctioned by the law are loans, or in the nature of loans, upon interest—the repayment of the sum loaned, with interest, being properly secured. The trustee may not use the trust money in the purchase of any kind of property, except the public debt of the government, or bonds secured by real estate. It may not be adventured in any business enterprise, whether of a commercial firm, or an incorporated company. 2. The executors were not authorized by the will of Mr. King to invest in the stocks, &c. mentioned in the fifth and twelfth findings. The will gave no direction to, make such investment. The intention of the testator, that the investments should be made in securities yielding an “interest,” was plainly declared. “ I give and bequeath unto my three children * * * the sum of fifteen thousand dollars, the interest on the same, so far as required, to be applied to their maintenance and education, and the principal, with any accumulations thereon, to be paid to them severally on their majority.” Such investments, as he contemplated, were loans of the trust money, upon interest, properly secured. A purchase of stocks of the federal or state government, is essentially a loan to the government, the repayment of which, with interest, is secured in the best possible manner. An investment of this trust money in the shares of railroad and canal companies, or banks, could not have been contemplated by the testator. He entrusted the legacies of his children to the personal care of these executors ; and their duty required them to keep the trust money at all times under their own control. The money, invested by them in the purchase of those shares, was placed beyond their control, and subjected to all hazards incident to the business of those companies. In no event was “ interest ” payable upon the amounts so invested. Any income resulting therefrom was in the nature of profits, produced by the business in which the companies were engaged, and was dependent entirely upon the success of their enterprise, and the integrity of their managers. Such an investment has been declared to be “ embarking the trust funds in the speculations of the company.” (Harris v. Harris, 29 Beavan, 107. Hemphill’s appeal, 18 Penn. Rep. 303.) This, manifestly, was not the intention of Mr. King. By this clause of the will, “ entrusting to their discretion the settlement of my affairs, and the investment of my estate for the benefit of my heirs,” the testator did not, by implication, authorize the executors to make such investments as in no event could yield “interest.” A discretion expressly entrusted to executors in regard to the investment of an infant’s estate, can be lawfully exercised only by investing in such securities as the law has approved. (Hill on Trustees, 368, 9. Trafford v. Boehm, 3 Atkyns, 441. Wilkes v. Stewart, Cooper’s ch. Cases, 6. Pocock v. Beddington, 5 Vesey, 795. Stratton Ashmall, 3 Drewry’s Rep. 9, and cases supra. Gray v. Fox, Saxton’s Rep. 259.) The general discretion entrusted to trustees in regard to securities for the investment of trust money,-has not been enlarged by the testator in this case. If his intention on this point, as expressed in the whole will, is not explicit, the court will interpret the language he has used by the rule of investment which the law has established. (Hill on Trustees, 369.) It will not infer an authority to. make investments, which he has not expressly directed. (Adye v. Fullerton, 3 Swanston Rep. S3, note.)' 3. The duty of these executors, in the execution of this trust, was clearly defined by the-instrument creating it, and by the law, which has been well settled since the time of Lord Hardwicke. They have departed widely from that rule, which the law had prescribed for its administration ; and their unauthorized investments constitute a further breach of the trust. (Hill on Trustees, 370, 378, 9.) When the executor, Mr. Talbot, transferred to the plaintiff the stocks, &c. there was an actual loss by their depreciation of about $6000:</p> <p>On 20 shares of Delaware and Canal Co. stock, $1,807 66</p> <p>On 66 shares New York and Harlem R. R. Co. preferred stock,.....i...... 2,103 75:</p> <p>On 12 shares New York and New Haven R. R. 1,150.14</p> <p>. They were of merely nomial value, of no appreciable worth for sale.</p> <p>On the Saratoga and Washington R. R. Co. a total loss in 1855, . . ...... 1,137 23</p> <p>The 50 shares of the Bank of Commerce had fallen below the price of investment—$95 each share— and in the following October had further declined to $80 each share; loss by depreciation, . . . 750 00</p> <p>$6,227 78</p> <p>The Harlem Railroad shares had yielded but one dividend since November 9, 1854. The New Haven Railroad shares had yielded but three dividends of three per cent each, since March, 1853. There was a continued depreciation of their value until the commencement of this action, in October, 1861. The judgment charged the legacy to the executors, and, in effect, transferred the stocks, and all dividends received thereon, to them. 4. The plaintiff was under no obligation to accept from her trustee those stocks on account of her legacy; they were in no sense her property; they did not constitute investments of her legacy. When she attained her majority, she was entitled to her legacy with its accumulations, in securities authorized by the law of the trust. (Pocock v. Reddington, 5 Vesey, 800, Watts v. Girdlestone, 6 Beavan, 188. Ames v. Parkinson, 7 id. 377. 2 Atkyns, 120. Eckford v. DeKay, 8 Paige, 89. 2 Story’s Eg. Jurisp. §§ 1262, 1273, a.) 5. The original investments made by the executors in the stocks referred to, are regarded by the law, as investments made by them for their own benefit; and as between them and the plaintiff, they are deemed to have kept her money in their, hands uninvested. (Knott v. Cottee, 16 Jurist, 752. Raphael v. Boehm, 11 Vesey, 106, 107.) 6. The ninth exception of the defendant is not well taken. It involves the proposition that the investments shall be deemed as made for the' plaintiff's account—that she should take them subject to all future fluctuations—and that the executors may atone for their breach of trust by paying as damages “ the difference between what the investments as made, actually produced,” at a time of unprecedented inflation of' the Wall street stock market, <c and what would have resulted from an investment” in authorized securities. This proposition is untenable. (See cases, supra, 4. Raphael v. Boehm, 11 Ves. 108.)</p> <p>Y. The surviving, executor, and the estate of the deceased executor, were rightly charged with the amount of the plaintiff's legacy, with interest, to be computed with annual rests. 1. The execution of this trust involved not only the investment of this legacy, but also the accumulation of the surplus interest which would have been produced by such investment. That duty was imposed upon these trustees without any positive direction in the will. (Hill on Trustees, 376,404.) These executors not having made such investments and accumulation as the law required, are personally responsible for the loss caused thereby. (Hill on Trustees, 370.) It is the well settled rule of equity, “ that a trustee, directed to do an act from which the cestui que trust will derive a particular advantage, not performing that trust, shall be charged precisely in the same manner as if he had performed it.” (Raphael v. Boehm,13 Vesey, 411, per Lord Erskine. Hill on Trustees, 404. 2 Story’s Eq. Jurisp. §§ 1277, 1278.) 2. The neglect of these executors to perform their duty, involved a loss to the plaintiff. Of all the benefit of appreciation of government or state stocks in which her legacy should have been invested between 1847 and April, 1861. Of the interest which would have resulted from such investments ; and of interest fr.om the accumulation of her annual surplus income, had her legacy been invested. 3. In all cases of breach of trust, trustees are charged, in this country, with interest at the legal rate. (Ackerman v. Emott, 4 Barb. 626. The Utica Ins. Co. v. Lynch, 11 Paige, 520.) But in breaches of trust for investment and accumulation, interest is charged: 1st. Upon the principal sum directed to be invested. 2. Upon the annual surplus income directed to be accumulated. In this case, the interest upon the legacy being deemed the product of the investments directed to be made, the direction for its computation with annual rests, is manifestly just, and in accordance with the rule of equity. (13 Vesey, 411, supra.) By this mode of computing, the surplus interest remaining at the close of each year, after defraying the plaintiff’s annual expenses for maintenance, &c. commissions, &c. is added to the principal, commencing September 26, 1847, thus compounding only that surplus, and giving the plaintiff no more than she would have received if the trust had been executed, The cases in which equity directs the computation of interest, against a trustee, with periodical rests, may be arranged in two classes, viz: 1st. Oases of trusts for investment and accumulation. 2d. Those in which the trustee has in some way used the trust money for his benefit. 1. In cases of the first class, to which the present belongs, he is charged in this manner, so that the cestui que trust may obtain all that she would have received from him, at her majority, had he faithfully executed his trust; not upon the ground of any actual fraud, or bad faith, in its administration. (Raphael v. Boehm, 13 Vesey, 411, and cases post.) Whenever a trustee fails to execute a trust to invest money for the maintenance of an infant during minority and to accumulate the surplus income of the investments, as required, equity will charge interest against him, with rests, although he may not have used the trust money. (Newman v. Auling, 3 Athyns’ Rep. 579. Dornford v. Dornford, 12 Vesey’s R. 127. Byrne v. Norcott, 13 Beavan’s Rep. 336. Knott v. Cottee, 16 Jurist, 752. Lukin’s Appeal, 7 Watts & S. 48, 62. Bowles v. Drayton, 1 Desaus. Eq. Rep. 489. Emmonds v. Crenshaw, &c. Harper’s Eq. Rep. 22. Fall v. Simmons, 6 Georgia Rep. 271.) In some eases of this class, the trustee had used the trust money in his business, but the principle stated by Lord Erskine, (supra,) pervades all of them. (Raphaels. Boehm, 11 Vesey’s Rep. 105. Jones v. Foxall, 15 Beavan’s Rep. 388.) 2. The second class of trust cases, in which equity compounds interest against a trustee, embraces all those in which, there being no trust for accumulation, the trustee had used the trust moneys in his business, or had been guilty of fraud or willful misconduct in the administration of his trust, with a view to his own benefit. In all these cases, interest is charged against the trustee, with periodical rests, as a mode of charging him with all the profits he may have made by his use of the trust funds, and the cestui que trust will be allowed to elect between such interests and the actual profits made out of the trust fund. (Utica Ins. Co. v. Lynch, 11 Paige’s Rep. 520. Pocock v. Beddington, 5 Vesey’s Rep. 800.) 3. If improper conduct or gross negligence, in the administration of a trust, should be deemed necessary to subject.the trustee to an accountability for interest with annual rests, both are established in the present case. Before April, 1850,' they made no investment of the plaintiff’s legacy ; it had not been separated from the general funds of the estate. The estate of the testator, at his death, was in possession of the two commercial firms of the executors. Talbot, Olyphant & Oo. were debtors to the estate for balance of old account, $21,057.59. On the 16th of December, 1847, Olyphant & Son owed the estate $18,571.03., The latter firm had of the moneys of this estate over $70,000. When they were received by that firm, or whether they were passed to the credit of the executors in the books of that firm, before the stocks in question were bought by Mr. Olyphant, is not in proof. It may not be presumed, in the absence of proof, that they were not received before the several times at which they are credited in exhibit E, nor that the moneys of this estate remained idle in the hands of that firm after September, 1845. Before April, 1850, no credit was given to the plaintiff on account of interest upon her legacy. On that day, the amount which should have been placed to her . credit, with interest from the testator’s death, was $4725. The amount placed to the credit of her account at that time was only $2094.48, leaving her indebted for maintenance, &c. $601.22. The conduct of a trustee, in the administration of his trust, may be adjudged improper, and gross negligence in regard to his investments of the trust funds may be justly imputed to him, although he may not have used them for his own benefit, or may have invested his own moneys in like securities. The neglect of these executors to make any specific investment of this legacy, prior to April 1, 1850, or to make any subsequent investment on account of the plaintiff, except by appropriating to the legacy account of the children, on that day, the stocks, &c. mentioned in the fifth and twelfth findings, to render any account of their administration of the estate, as required by law ; also the neglect of .the executor,Mr. Talbot, to do any thing to avoid loss from the continued depreciation of those stocks, establish a strong case of gross negligence, amounting to a breach of trust. (Byne v. Norcott, 13 Beavan’s Rep. 336. Edmonds v. Grenshaw, Harpers’s Eq. Rep. 224. Rogers’ appeal, 11 Penn, Rep. 41.) The losses, upon the investments made, were not disclosed to the plaintiff. Imperfect information by a trustee to a minor respecting the administration of the trust fund is deemed equivalent to a concealment. (Walker v. Symonds, 3 Swanst. Rep. 69, 72, 73.) The investment of a minor’s estate in unauthorized securities, is a wrong act done to her by the trustee : which alleged good faith will not justify or excuse. (Hemphill’s appeal, 18 Penn, Rep. 303. Worrall’s appeal, 23 id. 44.) Good faith, in regard to the administration of a trust, is a question of law upon the facts proved. It is not predicable of such an administration as this ; and it cannot be rightly adjudged that a series of acts done by a trustee in disregard of the law, indicate good faith on his part in the management of the estate. (Harper’s Eq. Rep. 224.) Such acts are per se evidence of gross negligence in the execution of the trust, wholly inconsistent with the idea of good faith. In case of breach of a trust to invest or to accumulate, it would be unjust to cast upon the cestui que trust the loss caused by the acts or omissions of the trustee, upon the ground of his alleged good faith in the management of the estate. The trustee, alone, must bear the responsibility and consequences of his own acts.</p> <p>VI. The defendants should have been charged with interest' upon the plaintiff’s legacy from the 26th day of September, 1845, the day of the testator’s death. The provision made by him for his children, clearly indicates his intention, that their legacies should carry interest from that time. He made no other provision for the maintenance of either of them. 1. It is settled law, that when a parent bequeaths a sum of money to a child, and provides for its .maintenance out of the interest of such legacy, and makes no other provision for its maintenance, such legacy will carry interest from the testator’s death. (Williams on Executors, 1284. Beckford v. Tobin, 1 Vesey Sen. Rep. 308. Heath v. Perry, 3 Atkyns’ Rep. 102. Incledon v. Northcote, Id. 438. Cooke v. Meeker, 42 Barb. 533. Mole v. Mole, Dickens’ Rep. 310. Carey v. Askew, 2 Brown’s Ch. Rep. 58. Cook v. Meeker, N. Y. Transcript, Aug. 24, MS. case in Court of Appeals.) 2. This right to interest will not he prejudiced by any delay in the probate of the will, (Lawrence v. Embree, 3 Brad. Sur. Rep. 364,) nor by the condition of the estate, as that it was unproductive ; the legacies carry interest, if there is ever a fund for their payment. (Williams on Executors, 1285, 6.) 3. The executors received funds of this estate to an amount more than sufficient for the payment of the specific legacies, with interest from the- testator’s death.</p> <p>VII. The defendants are not entitled to a credit of §601.22, for money advanced by Mrs. King for the.plaintiff’s support, prior to April, 1850. 1. That amount was not paid by the executors. The amount of Mrs. King’s bills against the plaintiff to April, 1850, which she presented to the executors, was §2695.70. The only sum they paid to her on that account, was §2094.48. The moneys paid over to Mrs. King, as residuary legatee, wesre not accepted in- payment of this balance ;' nor did her receipt therefor operate to discharge the plaintiff ’s liability to pay her that amount. It does not appear that.Mrs. King has ever recognized such payment; •the' judgment in this case cannot affect her, nor protect the'.plaintiff. 2. There has been no final accounting and settlement between the executors and Mrs. King, as residuary ■legatee. It cannot be judicially determined here, that they have fully administered this estate, or that they are not now accountable to her for assets, she not being a party to this action. (Wainwright v. Waterman, 1 Vesey Jr. Rep. 311. Peacock v. Monk, 1 Vesey Sen. Rep. 127. 1 Brown Ch. Rep. 303. 2 id. 87.) 3.' The executors have never presented the accounts of their administration for settlement in the surrogate’s court, where only that question can be properly determined, and a decree made which will protect all parties.</p> <p>VIII. The defendants should have been adjudged accountable to the plaintiff for the following sums, with interest, viz : 1. For her portion of profits on state stocks sold in 1848-9, and placed to her credit by the executors, $185.70. 2. For one third profits on shares of Bank of Commerce, sold in May, 1852, $104.07. 3. For one third gain, upon the redemption of $3500 Ohio fives, in January, 1857, $86.66. In no event will trustees be permitted to make a profit by use of the trust funds. (Rill on Trustees, 534.)</p> <p>IX. The court below erred in crediting the executors “ with the value at the date of the accounting,” of the shares and bonds which the plaintiff should not return to them. They were entitled to a credit only for the amount invested therein.</p> <p>X. The executors were not entitled by law to commissions upon their unauthorized investments. (Hemphill’s appeal, 18 Penn. Rep. 303. Worrall’s appeal, 23 id. 44.</p> <p>XI. Upon the accounting before the referee, error was committed by him, in crediting the defendants with interest upon sums paid by the executors, for the support and education of the plaintiff, from the day of such payments respectively, to the 26th day of September next ensuing. 1. Those credits were not authorized by the judgment. The direction in the judgment to state the accounts with “annual rests’ at the 26th of September in each year, means, that on that day in each year, the income of the fund and the outgo for the plaintiff are to be balanced, and the resulting balance carried forward, as of that day, to one side or the other of the account, as the facts may warrant, which balance thenceforward is to carry interest. “Upon yearly rests the master calculates interest upon the last year’s balance for the whole year ; but then, being directed to make a rest, He ascertains all receipts and payments, strikes the balance, and adds to or takes from the last year’s balance ; and that is the-balance-upon which interest is to he calculated for the next year.” (Raphael v. Boehm, 11 Vesey Ch. Rep. 100, 111.) 2. Neither the law, nor the judgment, entitles the executors to interest upon the sums advanced by them for the plaintiff’s support and education. Allowances may be made to them, out of the assumed income with which they were charged, for all' those advances ; but upon no principle is interest ever allowed to a trustee for his disbursement of the trust, moneys in hand. 3. The order confirming the referee’s report should be overruled, and the plaintiff’s exceptions thereto allowed.</p> <p>XII. The judgment below should be modified in the particulars indicated in the plaintiff’s exceptions ; in all other respects it should be affirmed, with costs.</p> <p>I. The conclusion of law, that the trustees’ executors were bound to invest the legacy in stocks of the United States or of the state of New York as the only lawful investments, is erroneous. 1. Loans on real securities of bond and mortgage would by this rule be disallowed, contrary to all the received doctrine as 'to trust investments. 2. The counsel of the plaintiff admitted that the bonds of the Hudson Biver Bailroad, the New York Central Railroad, the Delaware and Hudson Canal Company (being secured- by mortgages,) were unexceptionable. 3.-No authority as to a trustee investment can be found which disallows a bond secured by an adequate mortgage of real estate. But if other real securities could be introduced by way of supposed exception into the rule as incautiously expressed by the judge, still there were no improper investments.</p> <p>II. By the terms of the will the testator entrusted to their (the executors) discretion, “ the settlement of my affairs, and the investment of my estate for the benefit of m.y heirs.” .1. No words can be more express to give a discretion to his friends and associates in business, and whose character and prudence he knew. 2. By the rule of the judge there was no alternative, and consequently no discretion possible. To limit the terms to a chgice between the stocks of the United States and the state of New York, is wholly insufficient to answer the language of the will. 3. If by a positive rule, New York and United States stocks only had been intended to be permitted, it was misleading the executors to present an ambiguity of this kind; that it did mislead them, if so understood, is plain from the fact that, with no motive, they honestly fell into the investments they made from the use of language giving express discretion. 4. The relations of the testator to the defendants call for a liberal construction of words of confidence. He confided in their' integrity, in their business knowledge and habits, and knew their views as to investments. He was a merchant; they were merchants, and had long known each other. 5. In the cases hereinafter referred to, especially Ackerman v. Emott, the knowledge of the usual investments of the party hore with weight on this question of interpretation. 6. To invite a discretion, on which the executors might act, when none is to be granted, is wholly inadmissible in the interpretation of a will made in China, and showing no technical preparation, even to the absence of subscribing witnesses. 7. “ To compel trustees to make up a deficiency not caused by their willful default is the harshest demand that can be made in a court of equity.” Lord Hadwicke, in Jackson v. Jackson, (1 Atk. 514,) “As a trustee ought not to gain, he should not lose, by his trust and services'1 for others; a jealous severity which deters prudent men from accepting these trusts, and a lax indulgence, which would invite men to accept them for their gains, are extremes which are equally inexpedient.” (Per Ch. Sanford, see Hopkins R. 426, 427.)</p> <p>III. The investments as actually made were not contrary to any rule of law as to trustee investments. 1. It is to be noticed that they are made on securities resting on specific property, real or personal, and not on mere individual responsibilities. The rule as laid down by Story (2 Eq. Jur. §§ 1, 274,) is, that courts of equity require security to be taken on real estate, or on something of permanent value. The distinction admits, that personal* property may be the basis of trust securities as well as real estate. 2. The reasoning of Judge Putnam in Harvard College v. Amory, (9 Pick. 460,) is, in principle, convincing on this subject. 3. The rule as laid down by the judge at special term is not the' law of this state, by any authoritative adjudication. Attention is called to the history of the ruling on this subject. The rule that a trustee may not rest on a mere personal obligation is admitted and well understood. In King v. King, (3 John. Ch. 552,) an executor was charged for a sale of land without any security but an individual note. In Smith v. Smith, (4 John. Cas. 281,) Chancellor Kent shows no knowledge of any absolute rule, other than due diligence. In Ackerman v. Emott, (4 Barb. 626,) no authority in this state is cited either by counsel or judge to show that, observing the rules of honesty and good faith, a trustee is precluded from every thing but public debt. That case (decided, in fact, after these investments in question were made,) rested wholly on the .English rule of British funds. This was established as a mere rule of local law in England. (See Trafford v. Boehm, 3 Atk. 444; Howe v. E. of Dartmouth, 7 Ves. 151; Hancom v. Allen, 2 Dick. 497, as to the origin of the rule of court.) There was never any such rule by order of court or judicial or legislative decision in New York, prior to Ackerman’s case. In that case the court proceeded on the testator’s usage as to his investments ; and, still more on the fact, that the executor had made the investment in stock furnished by himself. (See the opinion of Judge Strong, p. 649.) In Pennsylvania a statute was passed March 29, 1832, which regulated trustee investments in that state, and the cases there are founded on that statutory rule, •which has since been followed there, and are of no authority here. (See Worrall’s appeal, 9 Penn. Rep. 511.) In Massachusetts, the rule is fully discussed by Chief Justice Shaw, in Lovell v. Minot, (20 Pick. 119,) and shown to be local in England and not applicable to this country. (See also Harvard College v. Amory, 9 Pick. 446.) It is also to be considered, whether the supposed rule in Ackerman’s case excludes all public securities, including Ohio, Massachusetts, and other state stocks ; or whether, indeed, any such rule of investment can be deemed to have been established without some act of the legislature. In England it is mot a rule of the common law, but one resting on special local statutes not re-enacted or adopted in this country.. On principle, therefore, we submit, that there is no such rule as the judge applied, and that his decision in this respect is erroneous.</p> <p>IV. If the rule be, that the investments in this case should have been either in United States or Hew York stocks, still the judgment for seven per cent interest with annual rests was erroneous. 1. The law makes a clear distinction in dealing with a trustee, where he has acted with good faith and on reasonable grounds, and with no personal benefit to himself, but erring through ignorance or mistake; and, where he has acted for his own interest and gain, or fraudulently. In the first case the remedy is mere indemnity, measured by making good the subject, as if the trustee’s duty had been performed according to the rule. In the latter cases it is retributive and punitive in its redress. (See the discussion of Lord Cranworth in Robinson v. Robinson, 9 En. Law & Eq. 74, in 1851, reviewing all the English cases.) 2. Here, if the investment had been made in Hew York state stocks or United States public debt, the price of the same with interest received would have been less than the amount actually realized. 3. As the trustees acted with right intentions, even if in mistake, there is no rule of policy or of equity to require more than an indemnity to the legatee.-</p> <p>V. Compound interest, or the principle of a punitive judgment, is never applied, except to intentional violation of duty, or to investments in which the trustee served Ms own interest. 1. The cases support this rule: In Ackerman v. Emott, although the executor purchased his own stock illegally, he was charged with simple interest only. In De Peyster v. Clarkson, (2 Wend. 77,) although the guardian had used the money, the court refused interest. on interest. The decree went no farther than to apply the interest to the hearing of the infant’s expenses instead of the reduction of principal; the court expressly refused interest on balances of interest. (See Sutherland’s opinion, p. 106.) 2. See also. Rapelje v. Norsworthy, (1 Sandf. Ch. 399,) where compound interest was refused ; because, although the funds were not invested, yet the trustee was not shown to have used them. - And he was allowed his commissions." And was charged with interest on amounts invested only, when they amounted to $1000. (Also, Meacham v. Sternes, 9 Paige, 398.) 3. The duty of the trustees was no more nor other than the ordinary duty of a guardian ; it was not a direction to invest in any particular stock, and falls under only the ordinary rule as to surpluses of an infant. There is no express trust to accumulate contained in this will, nor any expressions which impose upon the. trustees any other than their ordinary duties in that respect.</p> <p>"VI. The judge rightly discarded the rule that the plaintiff could claim the' profits on some investments and the losses on others. 1. The plaintiff, by her express tender in the note of her counsel annexed to the complaint, held all the securities for the defendants, and all her claims rested on that admission. 2. Where the trustee has acted in good faith, with no personal interest, and from a mistake as to the general power as executor, the whole administration must be taken as one—all affirmed or all rejected. It was, if mistake, one mistake only, and to be treated as an entirety. 3. The rule of giving the cestui que trust an election, is designed only to protect against breaches of trust to the profit, or by the actual fraud, of the trustee. It is not to be applied to support inconsistent claims, that the administration by the trustee, made with a single purpose, has been partly fraudulent and partly upright; contrary to the fact. (Heathcote v. Holmes, Jac. & Walker, 122.)</p> <p>VII. The subordinate rulings of the judge and of the referee in favor of the defendants, should be adopted and affirmed.</p> <p>VIII. The judgment should be reversed, and the reference should be conducted on the principles claimed by the defendant. The costs are in the discretion of the court.</p>

<p>The proceeding under section 391 of the Code of Procedure is exclusively a statutory one, in derogation of the common law, and section 394 should be looked upon as a statutory definition and limitation of what may be done, or of what order or orders may be made, in case a party refuses to attend and testify as in the four preceding sections provided, when regularly notified and required to do so, under such sections.</p> <p>Section 394 does not give the court the power to stay the party's proceedings in the action, where he refuses or neglects to attend for examination before the trial. Olerke, J. dissented.</p> <p>The power of the Supreme Court is limited to the territory of the state, and in the absence of any statute authorizing a service out of the state, the service of a judge’s summons and. of notice to attend for examination, in another state, must be deemed to be utterly void and ineffectual ,for any purpose. Per Sutherland, J. .</p>

<p>The states have the right to enact laws creating liens upon domestic ships or vessels, for supplies, repairs, &c, furnished them in home ports; and the act of the legislature of this state “ to provide for the collection of demands against ships and vessels,” passed April 24, 1862, is constitutional and valid.</p> <p>An attachment may therefore be issued out of a state court against a steamboat, under that act, for supplies furnished for her in the city of New York, (her home port,) notwithstanding the provisions of the act of congress, giving to the district courts of the United States “ exclusive cognizance of all civil causes of admiralty and maritime jurisdiction.”</p> <p>It was not intended in or by the cases of Moses Taylor, (4 Wal. 427,) and the ■ Ad. Sine v. Trevor, (M. 569,) or either of them, to declare any principle of .exclusiveness of admiralty jurisdiction in the district Courts of the United States under the constitution and the judiciary act of the United States, inconsistent with state statutory liens and state statutory proceedings in rem, to enforce them, for supplies or repairs to or for domestic vessels in the home port; though it was intended, in both cases, to declare a principle of exclusiveness inconsistent with state statutory proceedings in rem for supplies or repairs to or for foreign vessels.</p> <p>Where warrants of attachment against a vessel are issued by justices of the Supreme Court under the act of the legislature, of April 24, 1862, sections 4 and6, as officers or commissioners; as the 17th section of the act directs the sheriff to return his proceedings under the order for the sale, to the officer who granted the order for the sale, and subsequent sections provide for an issue between the contestants for the proceeds of the sale; until this issue, the court cannot become possessed of the case, for the purpose of making any order. And until such issue, it seems, even the justice or officer who issued the warrants has no power to make any order not specified or provided for by the act. Still less can a different justice not sitting as a court, make such order, on motions not made in court, or in any action.</p> <p>It is a general principle that a sheriff must act on his own responsibility, in the execution of process; and the court will not direct or advise him as to the manner of executing it.</p>

<p>APPEAL from an order made at Chambers, by Justice G-eorge G-. Barnard.</p> <p>The respective parties consented that the appeal should be heard upon the following statement of facts:</p> <p>On the 10th day of December, 1866, Freeman B. Bird and Freeman B. Bird, Jr. the attaching creditors in the above entitled proceeding,' filed specifications of lien agains.t the steamboat Josephine, her tackle, &c. pursuant to the provisions of the act of the legislature of the state of Hew York, entitled' “ an act to provide for the collection of demands against ships and vessels,” passed April 24, 1862, for supplies furnished by them at the city of Hew York, to the said steamboat between the 1st day of June, 1866, and the 5th day of December, 1866. During the said time the said steamboat was enrolled at the custom house in the city of Hew York, and was engaged in running between the port of Hew York and the county of Monmouth, in the state of Hew Jersey. The residence of the owner of the steamboat did not appear.</p> <p>On the eleventh day'of April, 1867, the attaching creditors duly obtained from Justice Barnard a warrant of attachment against said steamboat to enforce their said lien, amL thereupon, on the 12th day of April, 1867, the sheriff of the city and county of Hew York, seized the said steamboat, and made his return of such seizure on the 12th day of April, 1867. On the 4th day of May, 1867, upon an affidavit setting forth the proceedings of the said attaching creditors, the nature and amount of their claim," and the belief that, by a late decision of the Supreme Court of the United States it was adjudged that the state courts had no jurisdiction to enforce a lien based upon claims of the character of the said attaching creditors, and that the power to enforce such lien was vested exclusively in courts of admiralty jurisdiction of the United States, an order to show cause was duly granted by his honor Justice Babnaed, upon motion of the attorney for ,the owner of the said steamboat, directing that the said attaching creditors show cause before him, on the 10th day of May, 1867, why the warrant of attachment theretofore issued by him on the 11th day of April, 1867, and all proceedings under the said warrant, should not be set aside and vacated, and staying, in the meantime, all proceedings on the part of said attaching creditors.</p> <p>Thereafter, upon a hearing of the said order to show cause, the said justice rendered his decision, and thereupon an order was duly entered herein on the 7th day of June, 1867, in the words and figures following :</p> <p>“ It satisfactorily appearing to me by the papers and affidavits on file herein, and by the admissions of the respective counsel upon the argument.of this motion, that the above entitled proceeding has been commenced by F. B. Bird & Son, the attaching creditors therein, to enforce a lien filed by them against the above named steamboat Josephine, pursuant to the provisions of an act of the legislature of the state of Hew York, entitled “an act to provide for the collection of demands against ships and vessels,” passed April 24, 1862, for supplies furnished to said steamboat at the port' of Hew York by the said attaching creditors for the use of the crew of the said steamboat Josephine, between the 1st day of June, 1866, and the 5th day of December, 1866, during, all of which last mentioned time the said steamboat was engaged in running between the'port of New York and the county of Monmouth in the state of New Jersey; and it also appearing that the said steamboat is duly enrolled and registered at the custom house in the city of New York, the home port of said vessel, and that a warrant of attachment to enforce the said lien was issued on the 11th day of April, 1867, and that in pursuance thereof the said steamboat has been seized and is now held by the sheriff of the city and county of New York.</p> <p>And a motion having been made on behalf of the owner of the said steamboat to vacate and discharge the said warrant of attachment, upon the ground that the officer issuing said warrant had not jurisdiction therefor, the provisions of the statute conferring such power being in contravention of the constitution of the United States, and of the acts of congress vesting jurisdiction in admiralty cases exclusively in the courts o'f admiralty of the United States. Now, on hearing Charles A. Rapallo, Esquire, of counsel for the owner of said steamboat, in support of the said motion, and Erwin I. Spink, Esquire, of counsel for the said attaching creditors in opposition, it is hereby ordered and adjudged, upon the grounds hereinbefore set forth, that the said motion to vacate the said warrant of attachment be, and the same hereby is granted.</p> <p>And it is further ordered that Jthe sheriff of the city and county of New York do discharge said steamboat from his said levy thereon, and surrender the possession of the said steamboat seized and held by him, as hereinbefore mentioned, to the owner thereof.</p> <p>And it is further ordered that all proceedings under this order be stayed, pending the appeal herefrom to the general term of this court, by the said attaching creditors, provided the said attaching creditors take the said appeal within ten days from the service hereof.”</p> <p>On the 19 th day of June, the said 'attaching creditors duly appealed from the said order to the general term of the Supreme Court.</p> <p>I. By the judiciary act of 1789, section 9, (Stat. at Large, 73,) it is enacted that the district courts of the United States shall have “ exclusive cognizance of all civil ■ causes of admiralty and maritime jurisdiction,” saving to suitors in all cases the right of a common law remedy, where the common law is competent to give it.</p> <p>II. ' This enactment is constitutional, and deprives state tribunals and officers of power to take cognizance of any civil case of admiralty or maritime jurisdiction, except for the purpose of administering a “ common law remedy.” (The Moses Taylor, 4 Wal. 411, 430, 431. The Hine v. Trevor, Id. 555, 568, 569.) . “ It must be taken, therefore, as the settled law of this court, that wherever the district courts of the United States have original cognizance of admiralty causes by virtue of the act of 1789, that cognizance is exclusive, and no other court, state or national, can exercise it, with' the exception always of such concurrent remedy as is given by the common law.” (4 Wal. 568.)</p> <p>III. The proceeding by attachment against the vessel, authorized by the statute in question, is not a common law remedy, and therefore not within the saving clause of the judiciary act. (4 Wal. 427, 431, 571.)</p> <p>■ TV. The statute in question is therefore unconstitutional and void, so far as it attempts to afford a reniedy in rem, in cases which are cognizable in the admiralty. (The Moses Taylor, 4 Wal. 427. The Bine v. Trevor, Id. 569.)</p> <p>' V. The foregoing propositions are incontestable. The only proposition remaining to be established is that the demand of the attaching creditors in this case was founded upon a maritime contract, and was cognizable in the admiralty.</p> <p>VI. The conceded facts are, that the demand was for supplies furnished to the vessel at the city of New York, while she was engaged in trading between the port of New York and a 'port in New Jersey ; that the vessel was enrolled at the custom house in the port of New York. {See recitals in the order.) It is stated that New York was the home port of the vessel. Nothing is stated as to her ownership. It may as well be stated here that she was owned by the Delaware and Raritan Bay Railroad Company, a New Jersey corporation. This fact may or may not be material, hut if material it is better for both parties that it should be considered by the court.</p> <p>VII. Assuming that New York was the home port of the vessel, still the claim of the attaching creditor was within the cognizance of the admiralty courts, and therefore within their exclusive jurisdiction. All demands for supplies furnished to vessels are maritime claims and within the exclusive jurisdiction of the admiralty, excepting only the cases of vessels engaged in the navigation of the internal waters of a state, or the lakes and the rivers connecting therewith. It is not the ownership of the vessel, but the commerce in which she is engaged, which determines the question whether the contract is maritime.</p> <p>VIII. Contracts with vessels engaged in purely internal navigation are not maritime contracts, and are not within the jurisdiction of the admiralty. (Maguire v. Card, 21 How. 248.) Neither are claims of builders of vessels within the jurisdiction of the admiralty. The contract is made on land, to be performed on land. (People’s Ferry Co. v. Beers, 20 How. 393.) As to certain vessels navigating the lakes and connecting rivers, the jurisdiction of the admiralty is made concurrent with that of the states by the act of congress of February 26, 1845. (The Hine v. Trevor, 4 Wal. 566.) The state lien laws are therefore operative as to the above mentioned classes of cases, and inoperative as to all others.</p> <p>IX. Subject only to those exceptions, contracts for supplies furnished to a vessel in her home port are as much. within the jurisdiction of the admiralty as contracts for supplies furnished in a foreign port. The only difference is that the courts of admiralty, in the exercise of their lawful powers, have from time to time made rules granting different remedies or process in these two classes of cases. (Steamer St. Lawrence, 1 Blade, 522; see head notes 5, 6, 7, 8.) The libel in that case was for supplies furnished in the home port (p. 523.) (12th rule, 3 How. 3. 21 id. 1.)</p> <p>X. The description of process issued does not'determine nor affect the question of jurisdiction. The courts of admiralty aré courts of limited and not general jurisdiction. Except in cases of admiralty jurisdiction, they cannot issue any process whatever. It being settled that they can issue process in personam in the case of a domestic-vessel for supplies furnished in her home port, it is thereby established that such cases are cases of admiralty jurisdiction. Neither has the question of lien any thing to do with the question of jurisdiction. If the courts of admiralty have jurisdiction of a case, that jurisdiction is exclusive, whether or not the maritime law recognizes a lien in such a case. If the state law- creates a lien when the maritime law does not, such lien can only be enforced by the state by common law remedies, for the state courts can only act in pursuance of the saving clause in the act of 1789. The states cannot, by creating liens which the admiralty does not recognize, obtain the right to exercise in admiralty cases, powers which are not within the terms of the saving clause. (Steamer St. Lawrence, 1 Blade, 526.) Congress, by the act of 1792, authorized the Supreme Court to prescribe the forms of proceeding, and it was by virtue of that power that the rules of 1844 and 1858 were made. (1 Blade, 528.) Those rules expressly affirm the jurisdiction of admiralty in cases of supplies to domestic as well as foreign vessels, but prescribe different remedies. Where the supplies are furnished in a foreign port, they are by maritime law presumed to be furnished on the credit of the vessel, and a lien is given. When furnished in the home port, they are, in the courts of ■the United States, presumed to be furnished oh the credit of the owner, and the creditor must seek his remedy against the person and not against the vessel. In either case, the contract is equally within the jurisdiction of a court of admiralty. (The General Smith, 4 Wheat. 438. The St. Lawrence, 1 Black, 529.) By the general maritime, law and the-laws of continental Europe, there is no distinction between claims for supplies furnished in the home port and those furnished in foreign ports. There is a lien in both cases which may be enforced in admiralty. (Ben. Ad. § 272. 2 Bell’s Com. 525, 526, 527. 1 Sumner, 79.)</p> <p>This was ' also the law of England until the reign of Charles II, when all jurisdiction in the case of material men was taken from the courts of admiralty. (Ben. Adm. §§ 95, 99, 269, 271. 1 Sumner, 79.)</p> <p>The jurisdiction of admiralty in such cases is maintained in the United States. (Id. § 257, 261, 269.)</p> <p>XI. Under the rule adopted by the U. S. Supreme Court in 1844, process in rem could have been' issued in this case by a court of admiralty. This rule was abrogated in 1858, but it is still in the power of the Supreme Court to restore it. (See 1 Black, 526, 529, 530.)</p> <p>The fact that in certain ‘cases of admiralty jurisdiction the courts of admiralty choose to refuse to suitors a particular description of process which they have power to grant, does not confer jurisdiction in such cases on state tribunals or officers, or deprive' the jurisdiction of the admiralty of its exclusive character. (See 1 Black, 529, 530.)</p> <p>It is a mere question of practice. (Id. 530.)</p> <p>XII. The conclusion arrived at in the case of the Moses Taylor and the Hine, that the state lien laws are inoperative as to all cases which are cognizable in the courts of admiralty, is conceded to be new, and in conflict with the jurisdiction hitherto exercised by the states.</p> <p>Mr. Justice Miller, in delivering the opinion of the court in the Hiñe case, remarks upon the fact of such jurisdiction having been exercised by the state courts until the case' of the Hiñe and the Moses Taylor, and says that the question as- to the right of the states to exercise it is for the first time ■ raised in the Supreme Court in those cases. (See 4 Wal. 567, 568.)</p> <p>Whatever dicta or decisions there may be to the contrary, are therefore overruled by the cases in 4 Wallace.</p>

<p>It would be very unsafe to determine the invalidity of an assignment in trust for the benefit of creditors, on the unsupported evidence of the assignor. Such evidence should only prevail when it is corroborated by the testimony of others, or by the facts and circumstances preceding and accompanying the execution of the instrument.</p> <p>But where the assignor positively swore that he executed the assignment, not for the purpose of having the assigned proper-ty distributed among his creditors according to the tenor and directions of the instrument, but with the hope, and for the purpose of effecting a compromise with them, and he was corroborated in his testimony by the assignees; it was held that the instrument was totally void.</p> <p>If the assignors, in an instrument of that description, are actuated by such an intent, it is void; whatever may have been the intent of the other parties to it.</p> <p>Whether a provision in an assignment, requiring or directing the assignees to sell the property at public auction makes it null and' void, or not, it is a strange provision, and tends to confirm the idea, authorized by other evidence, that the chief object of the whole transaction was to coerce or persuade the creditors into a settlement. Zer Ciebke, J.</p>

<p>H|'QTION to vacate an injunction.</p>

APPEAL by the defendants from.a judgment of Justice Milleb, given on the trial of an action at special term, without a jury.

<p>Money deposited by an individual in a bank, in his own name, and credited to his account, and on account of which the bank has certified checks drawn by him against the fund, is not capable of being attached as a debt due or owing from or by the bank to another person.</p> <p>And the service of a warrant of attachment upon the bank, by creditors of another person, claiming that the fund belongs to the latter, instead of the depositor, will not constitute a levy upon the fund.</p> <p>Creditors can only attach a fund in bank as a debt of the bank’s, to the debtor of the former. If the facts found show that the debt arising from a deposit by one person to his own account, and a credit given by the bank to the depositor, is a 'debt of the bank’s to such depositor, and not to another person, the fund cannot be attached as the property of thp latter; although the court finds that the transaction between the depositor and such third person was fraudulent and void, as to the plaintiffs and other creditors of the third person, and that the fund so deposited in equity belongs to such creditors.</p> <p>There is no such thing as an action, either by creditors' or the sheriff, to subject chattels or debts to an attachment issued under the Code. It is the Code which subjects property to an attachment.</p> <p>If moneys deposited in bank are regularly and properly attached, either as the money of the plaintiffs’ debtor, or as a debt of the bank’s to him, there is no necessity or occasion for an action in aid of the attachment; and if they are not so attached in the attachment suit, a second action, in aid of the attachment proceedings, or to declare or create a lien on the fund, when none was acquired by the attachment proceedings, cannot be maintained.</p> <p>In view of the maxim that “ equality is equity,” the court will not, under such circumstances, strain a point to initiate a principle, or to create a precedent, that the plaintiffs in the attachment suit may he paid their debt in full, at the expense of other creditors equally meritorious. 1</p>

<p>CERTIORARI to review the decision of Justice Jones of the Superior Court of the city of Hew York, refusing to discharge the relator on habeas corpus, from imprisonment under a commitment by the city judge.</p>

<p>Examination of Parties.—When Ordered.</p> <p>As a general rule, an issue must have been joined, before a party to an action can procure an. examination of an adverse party.</p> <p>The case of McVickar v. Ketchum (1 Ante, 452),—disapproved.</p>

<p>CERTIORARI to the Erie oyer and terminer. The facts appear sufficiently in the opinion of the court.</p>

<p>APPEAL from a judgment given at a special term dismissing the plaintiff's complaint.</p>

<p>THE plaintiff in this cause recovered a verdict at the circuit for damages occasioned to her by the destruction of her property by a riot or mob. And on the adjustment of the costs claimed on her behalf, the defendant objected to their allowance, on the ground that the claim on which the verdict was recovered, had not been presented for payment to the chief fiscal officer of the county before the commencement of the action. This objection was overruled by the clerk, who adjusted the costs at the sum of §206.77. The defendant, appealed from this decision to the special term, where it was affirmed; and from the order affirming it, the defendant appealed to this court.</p>

<p>The rule that a plaintiff is in any event entitled to recover the amount tendered and brought into court by the defendant, does not apply to an action brought to recover a penalty, of a fixed amount, and that alone. In such an action, unless the plaintiff recovers the amount of the penalty, he is not entitled to any judgment.</p> <p>In an action upon a penal statute, although the defendant can claim that he is not liable to the penalty which the statute imposes unless, upon a strict construction, his act comes within the letter of the statute and is expressly made subject to the penalty; yet where the statute was intended to remedy an existing evil, to protect road corporations from fraudulent and dishonest' attempts to use their roads and avoid the payment of the tolls, upon well settled rules of construction it is enough that the act done is one of the mischiefs sought to be prevented. To extend the penalty to such an act does no violence to the language of the statute, and is according to the intention of the legislature.</p> <p>Where the defendant, after traveling several miles upon the plaintiffs’ road, when close to its toll-gate, instead of continuing on the road a distance of about eighty-two rods to his house, turned off from the road and went,' with his teams, a distance of about one hundred and twenty rods, through the fields, where there was no wagon road, to his barn, near the plaintiffs’ road; and though himself a witness, no attempt was made to show that he had any object in so leaving the road other than to avoid the payment of toll; Meld, that his intention to avoid the payment of tolls was clear; and that it could make no difference that while so off the plaintiffs’ road he was on his own land.</p> <p>And though it was not proved, in terms, whether, after such passing around the gate, the defendant ever entered on the plaintiffs’ road, yet it did appear that he was a farmer; that his house and barn were close to "the plaintiffs’ road; that there was no other road leading across, or to, or from that road, any where in the vicinity of his house. Held that he must be deemed to have “ again entered on such road,” within the meaning of the statute, (1 M. S, 588, $ 55,) though the time when he did so enter, did not-affirmatively appear.</p> <p>Held, also, that the act of the defendant in so leaving the plaintiffs’ road near the toll-gate, and again entering upon it, was designed to defraud the plaintiffs of the tolls to which they were legally entitled; and that he thereby made himself liable to the penalty prescribed by the 55th section of the statute.</p> <p>So much of section 2, chapter 360 of the laws of 1848, as allowed persons living within one mile of a gate, to pass through the gate for half toll, when transporting the property of others, was repealed by the act of 1851, (latas of 1851, eh. 107;) and these provisions of the act of 1851 are still in force. Consequently, the persons exempted from the payment of more than half ■toll, hy the act of 1848, are now liable to pay full toll.</p> <p>The legislature of 1855, in amending the act of 1848, intended only to declare that it should have the same-effect as it had before the amendment "So made by it, except as they expressly declared.</p>

THIS action was brought to recover damages for an injury done to the property of the plaintiff by the defendants.The action was referred to a referee, who found the following facts : ■ 1. That at all the times mentioned in the complaint, and for a- considerable time previously, the plaintiff was, and she still is, the owner of the premises in the complaint mentioned, situate- on; the corner of Fifth Avenue and One Hundred and-Thirty-first street, in the city of New York. . 2.

ON the 11th day of November, 1863, the defendants entered into a written contract with the plaintiff to sell and convey to him certain lands and dock property in the town of Flushing, for the sum of $15,000. The contract provided,'among other things, that the party failing to fulfill the contract should pay the sum of $5000, as the agreed and fixed amount of liquidated damages.

<p>THIS is an appeal by the defendant from a judgment entered on the verdict of a jury, and from an order denying the defendant’s motion for a new trial on the judge’s minutes. The action, as appears from the complaint, was brought by the plaintiff against the defendant for carelessly and negligently driving his horses and sleigh against her while she, said plaintiff, after leaving a car of the Eighth Avenue Bailroad Company, was attempting to cross said avenue from the track of said railroad to the sidewalk. The answer denied all negligence, and set up concurrent negligence in the plaintiff.</p> <p>The jury rendered a verdict for the plaintiff for $>3500. At the close of the plaintiff’s case, the defendant’s counsel moved to dismiss the complaint on the ground of negligence on the part of the plaintiff, which motion was denied, and an exception taken. Various exceptions were taken to evidence introduced by the plaintiff.</p> <p>Exceptions were also taken to the exclusion of evidence offered by the defendant. And there was an exception to the allowance by the judge of proof of what the defendant paid for the horses he was driving, at the time of the accident.</p> <p>I. In actions of this description, the following legal propositions as conditions precedent to the plaintiff’s right of recovery, are believed to be settled by authority : 1. That the injury complained of resulted solely from the negligence of the defendant. (20 N, Y. Rep. 65.) 2. That the plaintiff was entirely free from any degree of negligence which contributed to the injury. 3. That' each of these essential elements of the cause of action must be by itself in the case, on the evidence, or there can be no recovery. (24 N. Y. Rep. 432.) 4. That the plaintiff has the burden of proof and must furnish to entitle him to recover, preponderating evidence. 5. That he is not entitled to recover on a case where the evidence is equally consistent with the absence as with the existence of negligence in the defendant. In support of the above propositions I refer to the following authorities: Wilds v. Hudson River Railroad Co., (24 N. Y. Rep. 432;) Lehman, administrator, v. The City of Brooklyn, (29 Barb. 234;) Wilds v. Hudson River Railroad Co. (Court of Appeals the second time, 29 N. Y Rep. 331, and cases cited by Mr. Reynolds, in his argument, p. 332.) No law laid down in those cases is at all altered or qualified by the recent case of Ernst v. The Hudson River Railroad Co., (35 N. Y. Rep. 10, see pages 37-40.) All that that case can be rightfully claimed to decide is, that at present the question of negligence is usually a question of fact to be disposed of by the jury under proper instructions from the court. As additional authorities in support of the view above suggested, as to the burden of proof being on the plaintiff, and that where the evidence is equally consistent with the existence or nonexistence of negligence, the plaintiff cannot recover, I cite: Withers v. North Kent R. Co., (3 H. & N. 969, Bramwell B.;) Cotton v. Wood, (8 J. Scott, N. S. 566;) Toomey v. London, Brighton, &c. R. R. Co., (3 id. 146.)</p> <p>II. If the above legal propositions are correct, the defendant, it is submitted, had a right to have them announced to the jury as single, definite, legal propositions, unaccompanied by any additions or explanations tending either to dilute their effect, or by rendering them uncertain, to confuse the jury. (See Wilds v. Hudson River Railroad Co., 24 N. Y.. Rep. 442.) 1. These propositions, or requests substantially embodying them, were presented by the defendants. 2. The first request certainly contained a sound legal proposition, (see Johnson v. Hudson River R. R. Co., 20 N. Y. Rep. 65, 5th marginal note to that case,) which the defendant was entitled to have clearly stated to the jury, separate from the commentary thereon in which the court indulged, and the exception to the refusal to charge that request, it is submitted, is well taken. 3. The same remark applies to the refusal to charge the second and third requests, and the exception to the qualification connected with the charge as given on those requests was well taken.</p> <p>III. The evidence on the part of the plaintiff contained, in her own testimony, shows that before she left the car she looked up and down while standing on the step, for vehicles, and that she turned around in alarm after she had taken four or five steps to the sidewalk. Other witnesses for the plaintiff clearly noticed that horses and sleighs were coming up the avenue at a rapid pace, and that there was danger, when -the plaintiff left the car to cross in front of them. This was legal negligence entitling us to a nonsuit. (29 N. Y. Rep. 321, 325, 331.) The defendant testified that if she had gone on to the side walk instead of turning around, he would have have cleared her, and his brother, who was in the sleigh with him, swore “ that the plaintiff walked on to about half way across from the car to the sidewalk, turned, hesitated, and, as it were, stopped.” The evidence shows that the defendant, ;the moment he observed the plaintiff, which he could not do at first by reason of her getting out at the upper end of the car, did all he could by pulling up his horses and turning their heads to the left, to clear her. Under such ■circumstances, the .defendant was .entitled, if not to all of the requests, at least to some one of them, and there is a specific exception to the refusal to charge each. (Delafield v. Union Ferry Co., 10 Bosw. 219.)</p> <p>IV. The judge erred in his charge on the question of damages.</p> <p>V. Under the appeal taken by the defendant from the order denying his motion for a new trial, the court should look at the whole case. If they will do so, it will be perceived that the defendant should have relief against a verdict which is : 1. Excessive as to damages. 2. The result of a charge from the court, the whole tone of which was unduly favorable to the plaintiff, and adverse to the defendant.</p> <p>I. The motion to dismiss the complaint was properly refused. There was no negligence on the part of the plaintiff. Her conduct did not come within the definition of negligence. Negligence is defined by Baron Alderson to be “ either the omitting to do something that a reasonable man would do, or doing something that a reasonable man would not do, either case causing mischief to the third party.” . (Blythe v. Waterworks, 36 E. Law & Eq. 506-8. Brown v. New York Central Railroad, 34 N. Y. Rep. 404. Stokes v. Saltonstall, 13 Peters, 181.) If the negligence of the plaintiff had nothing to do with the collision, the defendant had no right to seek on that account to excuse his negligence, which caused the injury to the plaintiff. (Haley v. Earle, 30 N. Y. Rep. 210.) The plaintiff acted with'such precaution as a person of ordinary prudence would use under the same circumstances, and that is sufficient. The plaintiff- was lawfully in the public highway. The right of the plaintiff to use it was as perfect as that of the defendant. In the exercise of her legal privilege she did not expose others to injury, and was charged with no duty of extraordinary vigilance. A man is under no obligation to be cautious and circumspect towards a wrong doer.' (Tonawanda Railroad Company v. Munger, 5 Denio, 266. Ernst v. Hudson River Railroad, 35 N. Y. Rep. 9. Fero v. Buffalo Railroad Company, 22 id. 213.)</p> <p>II. The charge of the court, submitted fairly to the jury the law of the case. It informed the jury that if they found the plaintiff was guilty of negligence, then no matter how they found as to the conduct of the defendant; whether he was guilty or not, the plaintiff could not recover ; but that if he was negligent and she was not, then the plaintiff was entitled to recover. Under such a charge, leaving the question of negligence entirely to the jury, the finding of a jury will not be disturbed by the court. (Ernst v. Hudson River Railroad, 35 N. Y. Rep. 9.)</p> <p>III. The rule of damages was properly given by the court to the jury. They were not to be vindictive, they were to be renumerative to the full extent for what, under the evidence, the plaintiff suffered, and for what the evidence satisfied the jury she would suffer hereafter. A plaintiff may recover damages not only for her pain and suffering down to the time of the trial, but for her future suffering, if the evidence shows such to be the effect of the injury. For an injury to the person resulting from a single act, a single action can be brought, and therefore on the trial the nature and extent of the injury in all its consequences should be considered, otherwise the plaintiff would be deprived, in many cases, of the larger portion of the compensation she may justly claim, and damages given be wholly disproportionate to the injury sustained. In a case like the present, where the defendant’s act evinced a reckless indifference to the rights of others, even, exemplary damages might be given. (Caldwell v. Murphy, 1 Duer, 233. S. C. 1 Kern. 416. Wallace v. Mayor, &c. 2 Hilton, 440.)</p>

The justice found the following facts: That the defendant is owner in fee of the four hundred and fifty-eight acres of land described in the complaint in this action, situated near Petroleum, in the county of Eitchie, in the state of West Virginia, in the oil district of West Virginia.

<p>APPEAL from a judgment entered upon the report of a referee. The material facts appear in the opinion of the court.</p>

Jones, deceased ; on the ground that Jonés was under charge of a committee, as an habitual drunkard, and, therefore, had no power to make a last will and testament without leave of the court. , .