Volume 54 — Barbour's New York Supreme Court Reports

<p>The premises intended to be conveyed by deeds were described as being 200 acres, more or less, in the right of W., K. & 0., in lot No. 1, in the 24th allotment of the patent of K. Seld that as this description contained several particulars, no lands could pass by the deeds, except such as corresponded with all the particulars.</p> <p>That it was necessary that those claiming under such deeds should show that the lands claimed were in lot 1, and in that part of the lot to which the right of W,, K. & C. extended; and if such right included more than 200 acres, the grantees would have been authorized to elect which 200 acres in the tract they would take, and such election would have made the grant operative, although the description was so uncertain that, of itself, it would convey nothing.</p> <p>And no evidence being given, as to what part of lot 1 was covered by the right of W., K. & C., it appearing that K. alone claimed lot 0 in lot 1, but the lands conveyed were not a part of those claimed by K. alone; it was held that the deeds were ineffectual to establish the plaintiff’s title to a particular portion of lot C in lot 1.</p> <p>Possession by a tenant, of a portion of a lot of land, 'under a lease, and the clearing up and cultivating a part thereof, such possession being under a claim of title by the lessor, which is evidenced iy his executing the lease and demanding and receiving rent, is a good dverse possession, at least to the extent of the land cleared and cultivated.</p> <p>A comptroller’s deed, given upon a sale of land for taxes, with actual possession of a part of the lot embraced in it, and claim of title to the whole, is a sufficient foundation for an adverse possession, even though the comptroller ' had not authority to sell.</p> <p>If such deed be fair upon its face, and contains no evidence of want of authority by the comptroller to execute it, inasmuch as it purports to be executed under an authority, it gives color of title to the grantee, although the pretended authority recited upon its face does not in fact exist.</p> <p>The possession and claim of title of the grantee in such a deed, and of those claiming under him, will be presumed to have been in accordance with the title apparently derived from the comptroller’s deed; and as that deed did not show that it was illegal or void, the possession and claim under it will be presumed to have been in good faith, and therefore adverse to the title of the former owner, and if continued for the period of twenty years, will ripen into a perfect title.</p> <p>Actual possession of a part of lot of land, with claim of title to the whole, the . entry and claim being under a written instrument, is sufficient to constitute an adverse holding of the whole lot.</p> <p>Persons in possession of land, under the title of another, are estopped to deny his title, or to set up an outstanding title in themselves or any* other person.</p> <p>Where a valid constructive possession of an entire lot is acquired by entry under claim of title founded upon a written instrument, and the actual occupation of a part, it cannot be defeated by a subsequent entry on the same lot by another, who makes an improvement on a part and obtains title to the whole lot. ‘ '</p> <p>The effect of such subsequent entry would be to give the person so entering a ■ possession of the part actually occupied and improved, But no further. A constructive possession of the unimproved part of -the lot would remain in him who made the first entry under claim and color of title and improved in part.</p> <p>Section 65 of the act of the legislature of 1855, (laws of 1855, p. 799,) made comptrollers’ deeds for lands sold for taxes, executed after the passage of that act, presumptive evidence that the sale and all proceedings prior thereto, from and including the a_ssessment of the land, and all notices required by law to be given previous to the expiration of the two years allowed to redeem, were regular. This section was amended in 1860, (Laws of 1860, eh. 209,) by adding thereto as follows: “ But where the person or persons claiming title under such conveyance, or the grantees or assignees of such persons, shall be in possession of the land described therein, either by himself or themselves, or his or their grantees, assignees, agents, tenants or servants, then such conveyances shall be presumptive evidence of the facts above stated, whatever may be the date of such tmveytmee," This amended section should be construed as including not only the case of an actual possession of the whole lot covered by the deed, but the constructive possession of the whole, when there is actual possession of a part of the land covered by the deed, with claim of title to the whole.</p> <p>Giving the section that construction, the „ title of a party claiming Under a comptroller’s deed is perfect, without proof of any other fact than that he was in possession of a part of a lot under the deed, claiming title to the whole.</p>

THIS is a 'demurrer to an answer. The action was for assault and battery, and the answer averred that at the time of committing the tort alleged in the complaint, the plaintiff and defendant were, and still are, subjects of Great Britain, and citizens and residents of Canada, and that the assault and battery complained of was committed in said province. The plaintiff demurred on the ground that the answer did not state facts constituting a defense.

<p>It is doubtful whether an appeal to the Supreme Court can be taken from an order of a county court denying a new trial, until after judgment, and then only in connection with an appeal from the judgment. Per James, J.</p> <p>Where the issue in a justice’s court is fraud, and the title to land only collateral—a fact from which the main issue may be inferred—evidence of title in another, instead of the defendant, may be received.</p> <p>Where the gravamen of an action was that the defendant, by false representations induced -the plaintiff to labor for him, under the belief that the defendant was solvent and able to pay the price agreed upon for such •work, and stated that he owned the farm, as an evidence of such ability, yet there was no proof of the defendant’s insolvency, or inability to pay for such labor, but on the contrary his responsibility affirmatively appeared; Held that unless the defendant was insolvent or unable to pay, po fraud was perpetrated upon the plaintiff; and that it was therefore erroneous for the judge to charge that “ if the jury found that the defendant was not the owner of the farm, it . was a misrepresentation which would justify their finding for the plaintiff;” the assertion of a falsehood as to the defendant’s ownership of the farm, of itself producing no injury to the plaintiff.</p> <p>To entitle a party to recover for fraud or deceit, there must have been an assertion of a falsehood, with a fraudulent design, as to a fact, with ,a direct anfl positive injury arising from such assertion.</p>

The relator was arrested under a warrant issued under the act of 1831, known as the “ Stillwell act,” at the instance of creditors, upon charges of having fraudulently purchased goods on credit, by false representations, and having removed them out of the State. The charges were substantiated in the proceedings against him, and he was committed to jail under the statute.

<p>APPEAL from an order made at a special term, adjudging the defendant to be in contempt for not appearing before a referee and submitting to an examination as to his property.</p>

<p>Corporations.—Articles of Association—Parties.— Receiver.</p> <p>A clause in the original articles of association of a company, prohibiting the union or consolidation of that company with any other, without the consent of a majority of the stockholders, is not controlled by a clause contained in those articles, providing for an amendment of the original articles by a concurrent vote of two-thirds of the executive committee and a majority of the trustees, so as to allow such officers to repeal the restriction upon consolidation. Such authority to amend extends only to such amendments as are pertinent to the business and objects_for which the association was organized.</p> <p>It is no objection to the continuance of an injunction to restrain one company from uniting and consolidating with another company, that the latter company, or that the stockholders severally, are not made parties.</p> <p>An executive committee of a company have no right to vote moneys to themselves, in addition to their regular compensation, for extra services previously rendered, or in consideration of their retirement; and a receiver will be appointed to recover back such moneys for the benefit of the company.</p>

a referee. The action was an equity action, brought by the plaintiffs to charge the real estate of the defendant Mary J. Lewis with a debt alleged to have been fraudulently contracted by her husband. John Lewis, in the purchase of certain materials (hardware) used in making repairs upon a dwelling-house upon her land.

MOTION by the plaintiff to open a judgment entered against him upon the report of a referee, and for leave to discontinue an appeal to the general term therefrom, and to serve a reply in the action, and for a rehearing before the referee, &c.

PPEAL by the defendants from an order made at a special term, directing the appointment of a receiver of trust property; for an… Held: at the commencement' of this action, 'and now holds, Hnited States bonds of the par value of twenty-three thousand five hundred dollars, ($23,500,) and of the market value of $24,685, and cash, one thousand and ninety-six dollars and seventy-four cents, (1096.74,) uninvested, and that the residée of the principal has been paid over…

<p>The notice, accompanying an attachment, to be served by the sheriff on a third person who is in possession of property claimed, to belong to the debtor, may describe the property in general terms, without specifying its precise nature and amount.</p> <p>This point, which was so decided at special term, in Greenleaf v. Mmnford, (19 Abb. 469,) was not considered by the general term, in that case, on appeal, nor was the ruling of the special term in respect to it overruled.</p>

<p>S. sold and sent to O. a quantity of liquors, under an agreement that if 0. sold out his hotel he might send hack the unsold liquors to S. 0., after having sold only a small portion of the liquors, sold his hotel, and sent the balance' of the liquors to' the railroad depot, to be shipped back to S. While they were still at the depot, marked and directed to S., they were seized by the defendant, as sheriff, upon an attachment against the property of 0. Held that even assuming that the title passed to 0. on the delivery of the goods to him, the delivery of the liquors at the depot, for reshipment to the vendor, in- pursuance of the original contract, reinvested the latter with the title.</p> <p>Held; also, that the assent of the vendor to receive back the property in case the purchaser should sell his hotel, made the delivery of the property to the carrier, for the purpose of returning the same to the vendor, valid and effectual to reinvest S. with the title, as upon a resale of the liquors.</p> <p>A bill of sale, containing a description of the goods sold, such as is generally furnished by vendors, is not conclusive as to the terms upon which the goods ' were sold. Though prima fade evidence of a sale, it does not preclude the vendor from showing the actual facts respecting such sale.</p>

MOTION by the defendant for a.new trial. The action is on a promissory note against the defendant as indorser. The defense was that the indorser was never properly charged. The note is dated December 26, 1865, at four months. At the time when the note was made, and until the 23d or 24th of February, 1866, the defendant resided and did business in Rochester. About that time he removed his place of residence to Bergen, Genesee county, where he received his mail matter.

APPEAL by the plaintiff from a judgment entered upon the report of a referee. The action was referred to a referee, who found the following facts: 1. That in the spring of 1856, Levi Van Inwagen was the owner and in possession of the land described in the complaint. 2.

Certiorari. This proceeding was taken in the name of the People of the State of New York on the relation of the Society for the Reformation of Juvenile Delinquents in the City of New York, against Francis Degnen, respondent, by certiorari to review an order made by Mr. Justice Baiibour, of the superior court of the city of New York, discharging the respondent Francis Degnen from the custody of the managers of the House of Refuge on Randall’s Island.

1ITTE plaintiff alleges in substance, in his complaint, that . he became a subscriber to the capital stock of the Northern Light Oil Company 'of Hew… Held: upon the evidence, that the company were the real principals, and so instructed the jury, in effect. Exceptions were taken to some of the rulings of the. learned judge upon the admission and exclusion of evidence, the denial of the defendants’ motion to dismiss the complaint, and to portions of his charge to the jury.

<p>Where persons acknowledging the execution of an instrument, although previously unknown to the officer, are introduced to him by a mutual acquaintance, this, if it satisfies the conscience of the officer as to the identity of the parties, is sufficient to authorize him to take the acknowledgment and give the certificate. Clerke, P. J., dissented.</p> <p>Although the statute requires that the officer taking an acknowledgment shall know, or have satisfactory evidence, that the person making such acknowledgment is the individual described in and Who executed the instrument, yet it nowhere prescribes either how such knowledge shall have been acquired, or that it must have existed for any definite period of time. Fer Cardozo, J.</p> <p>That is necessarily a question for the conscience of the officer; and the means through which he obtains knowledge of the person’s identity are not material.</p> <p>The right of the officer to take the acknowledgment does not depend upon the length of his acquaintance with the person, nor upon the manner in which his knowledge is acquired.</p>

OH the 25th day of August, 1868, the relators were summoned to appear before the board of commissioners of pilots, to answer to a complaint made by a member of the board, for several breaches of the regulations of the board alleged to have been committed at different times from the 16th of June to the 24th of August of that year.

THIS action was brought to recover the proceeds of a draft, dated 16th March, 1861, made by John C. Miller on the plaintiffs, accepted by them, payable at two months, to the order of and indorsed by the defendant, discounted by a bank, in Rochester, and which proceeds the complaint alleges the defendant wrongfully appropriated and converted to his own use.

This action was brought by David Phillips, plaintiff and respondent, against Abraham Snydam, John N. 01-cott and Edward C. Smith, upon a promissory note made by Suydam, and indorsed by the others. The defendants Suydam and Smith answered that the note was made by Suydam and indorsed by Smith as an accommodation for Olcott, and without consideration, which plaintiff knew before he became holder.

THIS action is brought upon a promissory note for $1100, made by the defendant, dated November 17, 1865, payable four months from date, to the order of one W. P. Sanger, and alleged to have been indorsed by him for value to the plaintiff. The amount claimed to be due upon the note was $735.39, and interest from March 20, 1866.

APPEAL by the defendants from an order made at a special term, overruling a demurrer to the complaint.

<p>APPEAL from an order made at a special term, denying a motion to dissolve an injunction issued to restrain the execution of a contract entered into by the defendants.</p>

THIS is an appeal by the defendant from a judgment rendered in favor of the plaintiff, on the report of a referee, for $2131,95.

1YFTF plaintiff in this action alleged in his complaint that on or about the first day of November, 1861, James F. Malcolm, one of the defendants, recovered a judgment in the county of Kings against this plaintiff and one Peter Ziglio, for the sum of $2202.90, and a transcript thereof was on the first day of November, 1861, duly filed in the city and county of New York.

<p>rHE plaintiff, by Ms complaint, demanded that the defendants should account to him for certain moneys alleged to have been deposited as margin on stock speculations, and for the profits and proceeds of certain stocks bought and sold on his account, and particularly for the value of 600 shares of Hudson Eiver Eailroad stock, bought on the 9th April, 1864, after deducting the costs, commissions and interest thereon. The complaint alleged, and it was established, that certain purchases and sales of stock were made, which are recited in the complaint, and which, excluding the purchase or sale of the 600 shares of Hudson, resulted, on the 9th April, 1864, in a profit of $3452.43.</p> <p>The defendants, by their answer, admitted that they did, at the request and on the account of the plaintiff!, purchase the several parcels of stock in the complaint alleged, and that they sold the several parcels of Pittsburgh, Port Wayne and Chicago stock, Michigan Southern and Horthern Indiana Eailroad stock, Illinois Central Eailroad stock, in the complaint mentioned, at the request and for the account of the plaintiff, and that such purchases and sales were made at the prices in the complaint alleged; but denied that they made the agreement in the complaint mentioned, or that any of the said purchases and sales were made under or in pursuance of said alleged agreement. They admitted and alleged that on the 9th April, 1864, they held six hundred shares of Hudson Eiver Eailroad stock, which they had purchased for account of the plaintiff; but denied that on that day or at any other time the plaintiff directed them to sell the same whenever they could obtain the prices named in the complaint; or that the plaintiff gave the order to sell in the complaint mentioned; or that they agreed to sell the same according, to such request; or that they neglected to comply with any request or directions given by the plaintiff in regard thereto; or converted the same, or sold the same without notice to him, or without his knowledge, as alleged in the complaint; or that on that day the market value oí the stoqk was as alleged, or that the. prices at which the plaintiff alleges he directed the same tobe sold on the 9th April, 1864, could have been obtained by them therefor; or that the omission to sell the same at said prices was owing to any negligence or default of these defendants. The defendants alleged, that in the transaction in the complaint mentioned, they purchased the said stocks in their own ñamó and paid therefor, and were entitled to charge interest at the rate of seven per cent per annum on the several sums so advanced and expended therefor, commission at the rate of one-eighth of one per cent on the par value of each share of stock sold or purchased, for making the purchase, and the same commission for making the sale, and were entitled to hold the stock so purchased as security for the said moneys; and were also entitled to hold any and all balances of money in their hands, whether deposited by the plaintiff or arising out of the sales or profits on the sales of other parcels of stock and standing to his credit with the defendants, and any and all stocks held by the defendants for the plaintiff as an additional security against any loss which the defendants might incur or he subjected to by reason of any depreciation in the market value of any of the stocks so purchased, and against any insufficiency of the values of any or all the stocks so purchased to pay thé defendants the amounts advanced and expended by them, interest and commission, and against any deficiencies which might exist after applying all or any of the said stocks to the repayment of said moneys, interest and commissions; and. were entitled to hold any of the said stocks so purchased, and the proceeds of the sale of any or all of the stocks as security for the repayment of the moneys advanced or expended by them for the purchase of any or all of said stocks, interest and commission, at the rate aforesaid; and that they were so entitled by a custom and usage to that effect, established and well known, and of which the plaintiff was well aware, and that the dealings between the plaintiff and the defendants referred to in the complaint were made with respect and in reference to said custom and usage. And that said arrangement above mentioned was in conformity with such custom and usage. The defendants further alleged, that on the 9th of April, 1864, and at the time of the commencement of this action, there was due to them, the defendants, from the plaintiff, on the several transactions in the complaint mentioned, a large sum of money, after applying to the credit of the plaintiff all sums proper to be credited, arising from the sales of stock or otherwise, and charging him with the sums paid for the purchase of said stock and interest, and commissions, and as security therefor, the defendants held the six hundred shares of Hudson River stock, mentioned in the complaint, which last mentioned shares were, after the commencement of this action, sold after due notice to the plaintiff, and demand of payment and neglect to pay the said balance, and that after crediting the proceeds of said sale the plaintiff was and is indebted to the defendants in a large sum of money, for which amount the defendants demanded judgment, with interest and costs.</p> <p>The referee found, as matter of fact: First. That on the 7th day of March, 1864, the defendants were doing business as bankers and stock brokers under the firm name of Clark, Dodge & Co.</p> <p>Second. That the plaintiff, on the 7th day of March, 1864, deposited with the defendants the sum of thirty-five hundred dollars, as a margin on which to purchase and sell stocks on his account, as he might order and direct; and the defendants agreed to execute the plaintiff’s orders for the commissions and interest which they should receive from said plaintiff in the purchase and sale of stocks.</p> <p>Third. That in pursuance of said agreement, the defendants, at the times in this complaint mentioned, purchased by order of the plaintiff, and for his account, the different shares of stock at the different times mentioned in said complaint, and at the prices therein stated, and that they sold said shares of stock, viz: two hundred and fifty shares of the stock of the Pittsburgh, Port Wayne and Chicago Railroad Company, two hundred and fifty shares of the stock of the Michigan Southern and Northern Indiana Railroad Company, one hundred shares of the said Michigan Southern and Northern Indian Railroad Company, and two hundred shares of the scrip stock of the Illinois Central Railroad Company, at the price stated in said complaint.</p> <p>Fourth. That the profits to the plaintiff upon the purchase and sale of the said shares of stock, over and above the defendants’ charges for commissions and interest, amounted to the sum of thirty-four hundred and fifty-two dollars and forty-three cents.</p> <p>Fifth. That at the times mentioned in the complaint the defendants purchased for the account of the plaintiff, and by his direction, six hundred shares of the stock of the Hudson River Railroad Company, and on the 18th of April, 1864, at the board of brokers, in the city of New York, the defendants sold said stock without notice to the plaintiff.</p> <p>And from the foregoing facts the referee found, as conclusions of law: First. That the plaintiff was not bound by the purchase or sale of said six hundred shares of the stock of the Hudson River Railroad Company, for the reason that the defendants sold said stock without notice to the plaintiff.</p> <p>Second. That the defendants are indebted .to the plaintiff in the sum of $3500, being the amount deposited by the plaintiff on the 7th of March, 1864, and in the further sum of $3452.43, the profits on the said stocks sold, with interest thereon from April 9, 1864, amounting to the sum of $1297.79, and making altogether for principal and interest, at the date of his report, the sum of $8250.22, besides costs. And he ordered judgment accordingly.</p> <p>To which report and findings of fact the defendants took various exceptions, and judgment being entered, they appealed therefrom.</p>

APPEAL by the plaintiff, from a judgment entered upon the report of a referee, dismissing the complaint. This was an action commenced against the defendant, Susan D. Brown, executrix, widow, sole legatee and next of kin of David Brown, deceased, to recover three several yearly subscriptions of one hundred dollars each, due and unpaid, upon a certain instrument or agreement in writing, executed by said David Brown in his lifetime.

THE defendants appealed, separately, from a judgment ordered at a special term, on a trial before the court, without a jury. The plaintiffs furnished supplies to the steamship Kalorama, at Hew York, in February, 1867, and claimed a lien therefor under the act of the legislature providing for collection of demands against ships and vessels, passed April 24th, 1862.

THE first of the above entitled actions was brought against the obligors on a bond, given pursuant to a statute of this State since declared unconstitutional. In October, 1865, the plaintiffs and Henry E. Hamill (the latter being the owner of the steamship King Philip) made an agreement by which Hamill was to use certain wharves belonging to the plaintiffs for his vessels, for which use he was to pay. them, half the usual wharfage rates.

<p>Sections 468 and 471 of the Code of Procedure continue the writ of ne exeat and the power to issue it, as a statutory remedy, in the Supreme Court. Clerks, P. J., dissented.</p> <p>Where a defendant does not move to vacate an order for a ne exeat, on the ground that he is in custody under the writ, but as having been discharged from custody on giving bail or security to the sheriff; a'nd in his notice of motion he does not ask to have the bail bond or undertaking given up to be canceled, it is not erroneous for the court to deny the motion; as the writ can do him no harm, if he does not intend to leave the jurisdiction.</p> <p>Although the codifiers may have intended to abolish the writ of ne exeat, it seems they did not succeed in doing so.</p>

APPEAL by the plaintiff from an order made at a special term, authorizing the defendant, as receiver, to lease certain premises in the city of blew York, known as the Olympic Theater, to James E. Hayes, for the term of three years, from the 1st day of September, 1868.

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

Tappan, to vacate certain assessments of property in the city of Hew York. The objections to the assessments were as follows: First. It was objected, to all the assessments, that they included a charge for assessing. The gross amount charged for assessing was $705.75. Second. That the assessments had never been confirmed by the common council. Third. That they did not state the name of the owner or owners, occupant or occupants, of the property assessed. Fourth.

<p>An appeal from a judgment, in the name of a State bank subsequently merged in a National bank, is the defense of a suit, within the meaning of the second section of the act of the legislature, of March 9, 1865, (Laws of 1865, p. 169,) which provides that any State bank,, by its organization under the laws of the United States, shall be deemed to have surrendered its State charter, but that “ every such bank shall nevertheless be continued a body corporate for tile term of three years * * for the purpose of prosecuting and defending suits by and against it, and of enabling it to close its concerns,” &c. And if such appeal is taken within the three years from the time of its conversion into a National bank, the State bank must be deemed to continue in exist- , ence as to such appeal or defense of the suit, until the appeal is heard and determined. .</p> <p>In case of the failure of the National bank, and the appointment of a receiver, such receiver may take, and has a right to prosecute, such appeal, under section 121 of the Code.</p>

OK the 21st July, 1863, the plaintiffs were the owners of a promissory note, made by R P. Myers of Cleveland, for $316.45, payable to the order of L. A. Carmer, and by him indorsed in blank. This note matured August 27, 1863. On the 21st July the plaintiffs indorsed the note and deposited it with Van Saun & Son, in Kew York city, for collection.

The action was brought upon a check drawn by R. Maplesden, upon the defendant, payable to the order of A. 0. Baker, and indorsed by said Baker and one Burn-ham, and certified by the defendant to be “good.” The defendant, by its answer, First.

This action was brought by the plaintiff, the grantor, against the defendant Mitchell Hart, trustee, and the other defendants, the beneficiaries thereunder, to set aside and vacate a deed of trust made on the 19th day of July, 1865.

<p>Upon a reference to ascertain what, if any, damages defendants have sustained in consequence of an injunction, it is the duty of the party claiming to have sustained damages, to establish the fact, and the amount, by satisfactory proof.</p> <p>If he fails to do so, and the referee, upon the evidence, finds that no damages have been sustained, his report will not be disturbed, on' exceptions.</p>

<p>The general rule is that two or more written instruments, executed at the same time, relating to the same subject matter, by the same party, or between the same parties, should be construed together, and viewed as one instrument.</p> <p>Two written instruments, executed by the same person, at the same time, may, . notwithstanding their repugnancy in certain particulars, or in certain respects, constitute a will, or the will of such person, and legally and properly be admitted to probate as such.</p> <p>The point or question of repugnancy or inconsistency in the provisions of the two instruments may be a subject or question for consideration, after the probate of the will, when the two instruments come to be carried into effect, or claimed or acted under, as a will, but does not arise, and cannot properly be considered, in the probate proceedings.</p> <p>Where one of the attesting witnesses to a will testified that the testatrix told her, in the room where and when the same was executed, before signature, that the paper or papers constituting the same was or were her will; and the other witness swore that although the testatrix did not say, wiile she was in the room, where and when the papers were executed, that they were her will; yet, that when the testatrix came to the kitchen to call her as a witness, she told her that she wanted her to witness her will; Held that this evidence, together with proof that the testatrix signed the instruments in the presence of the two witnesses, and that they signed their names as witnesses in her presence, and in the presence of each other, was sufficient to show that they were executed and attested in the manner required hy the statute.</p> <p>What is sufficient proof of the testamentary capacity of a testator at the time the will was executed and attested.</p> <p>The words “ mind and memory,” as used in our statute relating to wills of per- " sonal property, and as used at common law, are and were convertible terms.</p> <p>The question, in respect to testamentaiy capacity, in the abstract, is, had the testator, at the time, &e., a mind, or mind and memory, sufficiently sound to make a will; that is, to do the thing or act authorized hy the statutes; but practically, in most cases, the question is, had the testator, at the time, &c., a mind, or mind and memory, sufficiently sound to make the will in question.</p> <p>The only legal test of insanity is delusion. Insane delusion consists in a belief</p> <p>' of facts which no rational person would believe. A person maybe partially insane; that is, he may have an insane belief or delusion as to one or more subjects, and not as to others.</p> <p>Moral insanity is a disorder of the feelings and propensities, and may or may not impair the intellect. Legal insanity is a disorder of the intellect.</p> <p>Moral insanity, not proceeding from or accompanied by insane delusion, the legal test of insanity, is insufficient to set aside a will.</p> <p>Where it appeared from the evidence that at the time a will was executed the testatrix despised, distrusted and hated her husband, and probably feared him, and it was a fair inference from the evidence that these feelings towards her husband caused her to execute the will in question; and there was no doubt that she intended thereby to prevent him from getting any more of her estate than was given to him by such will; Held that in testing the test-" amentary capacity of the testatrix, the question was not whether these feelings towards her husband, at the time, &e., were unreasonable, excessive or unjustifiable merely, or even whether they amounted to, or showed, moral insanity as to her husband; but was whether these feelings were insane—. whether the contempt, distrust, hatred and fear, which she had of and for him, at the time, was insane contempt, insane distrust, insane hatred, insane fear; or, in other words, the contempt, the distrust, the hatred, the fear of an insane wife towards her husband.</p> <p>And, the preliminary proofs showing that the testatrix, at the time when, &e., was competent or had testamentary capacity to execute the will; and that her feelings towards her husband caused her to execute the instrument as and for her will, and influenced her dispositions of property by it; Held, further, that it was for the contestants satisfactorily to show that these feelings towards her husband came from, or originated in, or at least were accompanied by, delusion as to her husband, his character, conduct, motives or condition.</p> <p>And the proofs not showing that the testatrix’s contempt for her husband, her distrust, fear and hatred of him, when she executed the will, came from, or originated in, or were accompanied by, delusion as to her husband, his character,- conduct, motives or condition; it was held that the testatrix, at the time she executed the will, must be deemed to have had testamentary capacity, and was competent to execute the instrument as her will.</p> <p>Where a testatrix, at the time she tore up and destroyed a will previously executed by her, was, though not permanently insane, in a condition and laboring under an excitement, which, under the circumstances, incapacitated her for forming or having a reasonable or intelligent intention of revocation; Meld that such act was not to be regarded as a revocation of the will.</p>

THIS is a writ of error to the court of sessions of the county of Monroe. The defendant was tried, convicted, and sentenced by said court upon an indictment containing four counts. The first being for keeping a disorderly house; the second for keeping a gaming house; the third for keeping a bawdy house ; the fourth for renting a house with the intent that the same should he kept for the purposes of prostitution.

<p>FRAZER was indicted, tried and convicted, in the Lewis county sessions, of administering medicines and drugs to a pregnant female with intent to procure a miscarriage. The principal witness was the female upon whom the alleged offense was charged to have been committed, who, at the time of the offense, was a single woman, having been married in January, 1863. She testified to. her pregnancy by the defendant; that in May or June, 1861, he gave her pills and powders, which she took for the purpose named, and that he subsequently took her to a J)r. Bradish, that he might operate on her for an abortion, but that nothing was done to or for her by Dr. Bradish. She was delivered of a full grown, healthy child, November 24, 1861. The first complaint was made against the defendant in the spring of 1862, and on that complaint this female was sworn as a witness. On her cross-examination she was asked why she delayed, from the birth of the child until the spring, before making the complaint; which was objected to, and the objection was sustained, and the question disallowed. Dr. Peden, a physician, proved that he attended at the birth of the child, and was employed to do so by the defendant. The jury were charged “that the evidence of Dr. Peden might be considered by. the jury as corroborative of the witness Daly, (the mother of the child,) so far as to discover the defendant’s intent and connection with the alleged offense.”</p> <p>The defendant requested the court to charge the jury that the witness Daly was a partieeps eriminis or accomplice with the defendant, which discredited her; and that she should be corroborated,» to entitle her testimony to full credit; which was refused, and the defendant excepted. The court did charge the jury that the witness was not a legal accomplice, for the want of evidence and prosecution, although necessarily privy to the defendant’s acts; to which there was an exception. The jury were further instructed, that if they found from the evidence that the witness Daly was concerned in the alleged offense with -the defendant, they might give her evidence such weight and credibility as they thought best, and as it was entitled to. ■ And to this the defendant excepted.</p> <p>The defendant was convicted, and the proceedings and bill of exceptions were removed into this court, by certiorari, for review.</p>

THIS case came before the court on a bill of exceptions removed by certiorari from the court of general sessions of Oneida county. The defendants, commissioners of excise in' that county, were indicted for willfully, unlawfully and corruptly granting a tavern license to one George A. Allen, of the city of Utica.

The prisoner complained of certain errors alleged to have been committed on the trial, in respect to the organization of the jury, the rulings of the court as to evidence, and the charge of the court to the jury. On the trial the prisoner challenged the array of one thousand jurors returned by the sheriff, being an extra panel ordered by the court.

BIT of error to the ¡New York general sessions. The plaintiff in error was indicted in the general sessions, in February, 1865, for the murder of his wife, Johanna Lamb. The case was tried in that court on the 20th day of March, 1865, and resulted in a verdict of murder in the first degree. Upon the trial it appeared' that the prisoner and his wife resided in the basement of a tenement- house at 24 Oak street.

APPEAL by the defendant from a judgment entered upon the report of a referee. The action wag brought to recover on a note made by the defendant to the plaintiff, and on a note of the defendant’s, payable to O. P. Wolcott, and for money paid by the plaintiff for the defendant, and money paid by O. P. Wolcott for the defendant, the note to Wolcott, and the demand for money paid by him, having been assigned to the plaintiff.

<p>The good character of a prisoner cannot avail against clear proof of guilt. It is only where doubt exists as to the commission of the crime, and the intent of the party, that good character will protect him.</p> <p>An indictment charging the crime upon the “ oath ” of the jurors is sufficient. Although “ oaths ” is the proper word, using the singular, instead, is such a defect as, after verdict, will be cured by the statute.</p> <p>The objection that the crime was not shown to have been committed in the county alleged in the indictment, cannot be taken for the first time upon a writ of error.</p> <p>So as to the objection that the witnesses do not state the "year in which the fatal injury was inflicted, to show that it produced death within a year and a day; where there is sufficient evidence from which, if necessary, the jury could infer the killing to have been in the year alleged in the indictment.</p>

THE prisoner was convicted of murder in the first degree, for stabbing John Green. Hpon the'trial, evidence from Mrs. Green was admitted to show indebtedness from the prisoner^ wife to the wife of the deceased, «and of the existence of ill feeling between them. This was objected to by the prisoner’s counsel, and the objection overruled, because the district attorney expected to trace a knowledge of it to the-prisoner. The dying declarations of the deceased were admitted.

<p>A person standing in the position of agent of both parties cannot execute a ihortgage as the attorney of one, for the benefit of the other.</p> <p>A contract made by an individual as the agent of both' parties, is not void, but only voidable, at the election of the principal, if he come into court within a reasonable time.</p> <p>It is not necessary for a party seeking to avoid such a contract to show that any improper advantage has been gained over him. It is at his option to repudiate, or affirm, the contract, irrespective of any proof of actual fraud.</p> <p>But unless application be made, within a reasonable time, to set it aside, a valid title will pass, if it be upheld by a sufficient consideration and the proper forms have been observed. ^</p> <p>If application to set aside such a contract be not made within a reasonable time, the delay will be considered a waiver.</p> <p>S., being indebted to the plaintiff, the latter applied to him personally for a mortgage on certain land, as security for the debt. S. refused to give it. The plaintiff then telegraphed to A. to attach S.’s property for the debt. A. at the time Held a power of attorney from S. & K. authorizing him to lease, mortgage, sell and convey any lands or tenements, &c., that they or either of them had, or that they should afterwards become possessed of, within the State of New York; to make, execute and deliver contract?, deeds, &c. ; and to collect and receive all debts, dues, &c. Instead of attaching the property of S., as directed by the plaintiff, A., as attorney in fact for S., executed a mortgage upon the property of S.> to the plaintiff, for the amount of his debt, and delivered it to his law partner, for the plaintiff, who after-wards accepted it. Seld that A. being, by the telegram, constituted the agent and attorney of the plaintiff for collecting or securing the particular debt against S., could not, as the attorney in fact of S., execute a mortgage upon S.’s land, to secure the payment of such debt. And that the mortgage was voidable, and must be declared a nullity, unless S. was to be deerflfed, by his delay, to have waived that defense.</p> <p>Seld, also, that a delay of one year, in setting up the defense, by S., when it was interposed to an action of foreclosure, brought by the mortgagee, was not an unreasonable delay; more especially as the plaintiff parted with no new consideration, and there was no evidence in the case from which the court could infer that he had lost any rights, security, benefit or advantage.</p> <p>Seld, farther, that the power to A. did not authorize him to execute a mortgage as security for a debt or liability of his principal then existing.</p> <p>That the plaintiff was not a lana fde holder for value; no new consideration being parted with, by him, as a condition for the mortgage, nor any antecedent debt discharged. That it was simply given as security for a prior indebtedness; and that, too, after a refusal by the principal.</p> <p>That he held his mortgage as security for an antecedent debt, and took it with full knowledge, as the law presumes, of the nature and extent of the power under which-the agent who made it assumed to act; and being beyond, the scope of the power, it was void, and could not be enforced.</p>

THIS is an appeal from an order of the surrogate of Montgomery county, opening a decree entered on a final accounting by the defendants, as executors &c. of Archibald Campbell, deceased; and also from so much of the corrected decree as directs that the respondents be credited with the sum of $500 not allowed in the decree. The respondents were the executors of the will of said Archibald Campbell.

<p>W. and the East River Ferry Company claimed title to a certain strip of land - lying between First avenue and the East river ferry, in the city of New York", as assignees of a grant from the corporation of the city to the Farmers’ Loan and Trust Company. By that grant certain lands under water, east of First avenue, except a space of 100 feet in width eastward from First avenue, in continuation of 34th street, were conveyed to the grantees, and the latter covenanted that they would, within three months after being required to do so, by the grantors, at their own expense, build and erect a wharf, avenue or street, 100 feet in width, from First avenue to Avenue A, and that they would keep in good order said street, wharf and avenue embraced in said 100 feet, and that it should thereafter continue to be a public street of the city. Under this conveyance W. and the ferry company had been for several months, and at the commencement of this action still were, engaged in filling in the land owned by them, adjacent to the said 100 feet, as well as said space of 100 feet, and in constructing a sewer across the same, and were preparing to grade and pave said space. Although no proceedings had ever been taken by the city corporation to lay out 34th street as a public street, from First avenue to the ferry-house, the strip of land between those points had been so far filled out and graded as to be constantly used by the public, in going to and from the ferry, and for common highway purposes, generally.</p> <p>Two railroad companies having the right, under their respective charters and the permission of the corporation of the city, to extend their tracks across the strip of land in question, commenced, on different days, laying, constructing and extending their respective tracks in and through 34th street, and in continuation thereof, across the said strip, between First avenue and the East river ferry.</p> <p>Held, 1. That 34th street, or the strip of land in question, having been, at the time when the railroad companies commenced constructing and extending their tracks in and through it, so far filled out and graded as to be constantly used by the public as a street, those companies had a right, so far as the plaintiffs were concerned, to construct and extend their several tracks through and over 34th street, or the strip of land in question, as far easterly as the grading or the condition of the street or strip of land would permit.</p> <p>2. That the legal title to the strip of land in question was not in the plaintiffs, or in either, and neither had any beneficial interest in the soil thereof.</p> <p>3. That considering that such strip of land was already devoted to the public use, it did not sufficiently appear that the devotion of it to an additional public use by the construction and operation of a railroad, or railroads, upon or through it, would appreciably injure either of the plaintiffs, by interfering with the filling up, or the grading, or the construction of the sewer, so as to authorize an injunction at their suit, on the ground of such interference.</p> <p>4. That even though the plaintiffs might suffer some slight damage or inconvenience, from such interference, still, considering that all railroads must be deemed to be constructed and operated for public use,- an injunction ought not to be sustained, where the ability of either railroad company to pay any damages that might be recovered in an action at law was not questioned.</p> <p>6. That as between the two railroad companies, both having the right to extend their tracks in and through 34th street to the ferry, until one of them had actually commenced taking a qualified possession of the center or middle of 34th street, by locating and constructing their extension thereon, either had the right to make its extension there, to the exclusion of the other from that particular location.</p> <p>6. That the company which first actually took a qualified possession of the center or middle of the street, or strip of land, by locating and constructing their extension for a part of the distance, until interfered with by the agents or servants of the other company, acquired the right to complete the construction óf, and to operate, their extension, to the ferry, or as near to it ■ as the condition of the street or strip, and the convenient operation of the ferry, would permit, to the exclusion of the right of tire other company to interfere, in any way, with the construction and operation of the first mentioned company’s extension as thus located.</p>

THIS was an action against the defendant as sheriff, for taking and selling on execution property 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’s, 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.

THIS is an application for judgment upon a verdict subject to the opinion of the court at general term. The action was for wrongfully taking and carrying away and converting a. certain buggy wagon of the value of $250, for which sum the complaint demanded judgment.

THIS action was tried before T. Odell, Esq., as salé referee. It was brought to recover the amount of certain promissory notes, executed by the defendant to the plaintiff, for money loaned by the plaintiff to the defendant upon his (the plaintiff’s) checks, and for services rendered by the plaintiff for the defendant as attorney and counsel.

APPEAL by the defendants from a judgment entered upon the report of a referee. The complaint in this action alleges that on the 2d day of July, 1864, at Starkey, Yates county, the plaintiff shipped on board the canal boat Joseph Carley, then lying in the Seneca lake, 3880 bushels of oats, the property of the plaintiff, to the plaintiff at Yew York, to the care of the defendants, by the firm name of Demorest & Simons, 32 Moore street, they being commission merchants.

APPEAL by the defendant from a .judgment entered upon the report of a referee. The action was bfotight to restrain the defendant from selling under a statute foreclosure certain mortgaged premises, in which the plaintiffs were severally interested as purchasers from the mortgagor. On the 28th day of October, 1848, ’ Elias S. Hedges executed his bond to Nathaniel A. Lowry, conditioned for the payment of $5500 and interest, in future installments.

APPEAL by the defendants from a judgment entered upon the report of a referee. The action was brought by the plaintiffs as copartners in business under the firm name of Lewis C. Mead & Co., against the defendants and one Henry C. Spaulding as partners in business under the firm name and style of Henry C. Spaulding & Co., to recover for goods sold by them to said Spaulding & Co., and for demands for labor, assigned to them by others.

<p>Where the board of trustees of an incorporated village consisted of six members, three of whom voted to raise by tax a sum of money required by statute to be raised, and three voted against the raising of the same; Seld that this act of the board was, in legal effect, a refusal to raise the required sum, for the reason that a majority did not vote in favor of the requisition.</p> <p>Neither the officers created by the act of April 12,1867, “to consolidate the several school districts and parts of districts within the corporate limits of the village of Saratoga Springs, and to establish a free union school or schools therein," (Laws of 1867, eh. 363,) nqr the trustees of school districts within that village, are eomty, city, town or village officers, within the meaning of the first and'second branches of section 2 of article 10 of the State constitution.</p> <p>The third branch of section 2 of said 10th article of the constitution embraces, in its scope and language, not only trustees of school districts, but also all officers whose offices might be thereafter created; such as boards of education, and the like,.</p> <p>Hence, whether the officers named in the act of April, 1867, are called school trustees, or members of “ the board of education,” or by any other name, title or character of school officers, and though possessing by their creation substantially the same powers, and exercising or attempting to exercise, the functions or duties of school trustees, the legislature did not transcend its legitimate powers by the enactment of the said act, and in the creation of a board of education consisting of the persons named, with the powers therein conferred.</p> <p>Whether the hoard of education thus created possesses more or less powers than ordinary school district trustees, they are clearly brought within the third branch of section 2, article 10 of the constitution, as officers “ whose offices may hereafter be created by law," and may therefore be appointed by the legislature.</p> <p>The act of April 12, 1867, is not unconstitutional and void as being in violation of section 16, article 3 of the State constitution, which declares that “ no private or local bill which may be passed by the legislature shall embrace more than one subject, and that shall be expressed in the title.”</p> <p>Although the act in question is local, being confined to a particular locality, yet it embraces but one subject, viz., the establishment of a free union school or schools, within' the limits specified.</p> <p>Where trustees of a village, who were required by a statute to raise and collect by tax, in the same manner as other taxes are collected, such sums' as a board of education created by such statute should deem needful in order to organize and carry on the schools within the limits of'said village, on being duly notified by such board of its determination as to the sum needed for the purposes expressed in the act, refused to raise the same by tax; Peld that they could be compelled, by mandamus, to do so.</p>

THIS action is for falsely imprisoning the plaintiff, and charging it to be with a malicious intent to injure him. The defendant Butler was provost marshal of the 18th congressional district of the State of Hew York, and the defendant Marcell'us was his deputy, under the act of congress of March, 1863.

<p>It being made the duty of telegraph companies, by statute, to transmit dispatches received from other companies of the same character, on payment of the usual charges therefor, when one company receives from another a , message for transmission it is bound to send the same, with care and skill, and a reasonable dispatch, on receiving the compensation demanded; and for any neglect or breach of duty in transmitting such message, it is liable, ' either by virtue of a special contract, or one implied from its assuming the duty and receiving the compensation.</p> <p>A telegraph company, being required by a statute to transmit messages received from other telegraph lilies, on payment of the usual charges, having received its due share of the compensation paid to a connecting line for sending a message, there_is_%promise on its part, implied, at least, from its ] duty to the sender, and from its receipt of the consideration, that it will perform the duty.</p> <p>And this promise, being made for the benefit of the sender, enures to him, to the same effect as a promise made immediately to him, and he can maintain an action for its breach,</p> <p>Under the provisions of the statute making it the duty of connecting lines of telegraph to receive and transmit messages from other lines, where one company receives from another a message for transmission, it is to be implied in ■ law, and the courts may assume it to be true, that arrangements have been made between the connecting lines by which the compensation agreed upon and received at the office which receives the message, is the full compensa- ' tian for all the lines over which it is sent; and that, as between themselves, the proportion of consideration received or to be received by each line is understood and regulated. And this creates an undertaking on the part of each company with the sender of the message, that it shall be transmitted over its line, and delivered according to the contract made at the receiving office.</p> <p>It is also implied, in law, that each separate line so connecting and acting in concert, has constituted the line receiving the message, its agent for making contracts over the lines of the others.</p> <p>In an action against a telegraph company to recover damages for its failure to transmit a message, the complaint alleged that such message, after being delivered at' the office of a connecting line, and paid for, was transmitted to the defendant, but was never sent by the defendant to the person to whom it was addressed. The answer alleged that by the contract under which the message was received by the defendant for transmission, it was stipulated that the defendant would not be responsible for delays, errors, and remissness on the part of connecting lines; that it only guarantied entire correctness when messages were repeated back, for which repetition an extra charge would be made; and that such message was not repeated, nor re-i quested to be repeated. Held that the answer set up no defense; neither | delay, error nor remissness being charged, but an entire omission or refusal to i send or deliver the message, which was admitted; and that an(entire neglect I and refusal to perform the contract did not bring it within the excepted ' terms.</p> <p>An answer, in such an action, alleging that at the time of the delivery of the message to the defendant, it had established certain rules, regulations and conditions upon which it would accept and undertake to transmit and deliver messages, which rules &c. were well known to the connecting telegraph line from which the message was received, and that such rules &c. constituted the agreement in the case; but not alleging that it was an agreement made between the defendant and the plaintiffs, or that the latter had any knowledge or information of sucli rules &c., is also defective, and constitutes no defense to the charge against the defendant of a breach of duty.</p> <p>The statute having imposed upon connecting lines of telegraph the duty of transmitting messages for each other; and the company receiving the message and the consideration, being the agent to make contracts for the other lines with which it is in connection; the contract of the agent is the contract of the principal which undertakes the performance of the duty, and may be enforced, if made within the legitimate business of the principal, or power of the agent. The private or other arrangement between the principal and its agent, not brought home to the party who contracts with the agent, does not affect the contract, as to such party.</p> <p>By the well settled rules of pleading, each answer must of itself be a complete answer to the whole complaint; as perfectly so as if it stood alone. Unless in terms it adopts or refers to the matter contained in some other answer, it must be tested, as a pleading, alone by the matter itself contains.</p>

UPON the examination of the defendant before a referee, in proceedings supplementary to execution, the following interrogatories were propounded to him by the plaintiff’s counsel, viz: 1st. Whether he had seen the plaintiff, about the middle of December, 1865? 2d. Whether, about that time, he received from him, at Toronto, about $3060, in Canada, currency ? 3d. Whether he received any, and if any, how much money, in Canada, in December, 1865 ? 4th.

Motion .to dissolve an injunction. This action was brought by Jean Viany against Auguste Eerran, to obtain specific performance of a covenant in a lease of real property, for a renewal, at a rent to be fixed by arbitration. It appeared that the parties had agreed upon Judge Daly as their arbitrator, or referee, under the covenant in the lease, but he having been unable to attend to the case, they had failed to agree .upon, any other.

<p>Mandamus.—Expulsion oe Inmate oe Asylum.—Tbial OE ClIABGES.</p> <p>Where the trustees of a charitable asylum are authorized to direct the administration of the trust, and clothed with power to make necessary rules for its government, the action of the trustees or executive committee in investigating a charge, against an inmate, of a violation of the rules made by them, and in expelling him therefor, is subject to review by the supreme court.</p> <p>Itegulations of an asylum for aged seamen, which forbid inmates to leave the premises without permission from the governor or an assistant, and enjoin quiet demeanor at the table, on pain of expulsion, are reasonable regulations, and an expulsion for a breach of them is lawful.</p> <p>In the absence of any provision of the charter or by-laws on the point, the court will not deem the governor of an asylum vested with the power to expel an inmate without the authority of the trustees, or at least of the executive committee.</p> <p>The accused inmate should have notice of the examination of the charges against him, and an opportunity of being heard.</p>

<p>APPEAL from a judgment of the county court of Herkimer county, after a motion for a new trial had been denied.</p> <p>The action was originally tried in a justice’s court, and resulted in a verdict for the defendant. The plaintiff appealed to,the county court, and upon a trial in that court obtained a verdict for $50 damages.</p> <p>The case proved, showed that the plaintiff and one Henry Whitney were in the livery business, and the defendant sold them a span of ponies, warranting that they were all right in every shape, single or double, for the livery business. . It turned out that one of them was with foal, in consequence of which she became less valuable for the livery business, and the plaintiff traded her off" and got another mare. It was also proved that this mare was not as good a match as the one in question.</p> <p>The following question was asked of the plaintiff, who was a witness on the stand. “ How much less was the mare worth for livery purposes, as she was with foal, than what she would have been if as warranted or represented?” Objected to by the defendant on the grounds: “(1.) That it was not the correct manner of estimating damages. (2.) The question should have been, what would the mare be worth if she had been' as recommended, and what is. she worth as she proved to be. (3.) Ho warranty has been proved against the mare being with foal. A general warranty does not cover the defect complained of.” Objection overruled, and the defendant in due time excepted to the ruling of the court thereon, and the witness answered as follows : “ She was worth $50 less.”</p> <p>The plaintiff obtained a verdict for $50, and the defendant appealed from the judgment entered thereon.</p>

The 'action was brought to recover the amount of a deficiency arising from a foreclosure- sale. On the 20th of February, 1855, E. A. Walsh, being the owner of a lot of land in the city of Hew York, gave a mortgage thereon, accompanied by a bond, to one Whitehead, to secure the payment of' $3596. On the 20th of June, 1856, Walsh conveyed the property to the defendant, for the consideration of $9300, the grantee in such deed assuming and agreeing to pay the mortgage.

<p>An order made in an action brought by the plaintiff as a judgment and execution creditor, to set aside au alleged transfer of partnership property, for fraud, directed that the defendant produce for the inspection, examination • and copying of the plaintiff, all the books and papers of the defendant’s intestate containing partnership accounts, and also all papers, letters, &c., made or signed by the intestate, after a certain date. The affidavit for the discovery neither specified, nor referred to, any particular entry, or to any particular paper; nor did it state any fact or circumstance to show the materiality or necessity of an inspection of all the books and papers. Meld that the order was too sweeping and general, and the same was reversed.</p> <p>Meld, also, that the plaintiff not being the representative of the deceased partner, but making such decedent’s representatives parties defendants, the order could not be justified on the ground that a partner, or his representative, has a right to an inspection of all the copartnership books and papers.</p> <p>The affidavit for a production and discovery should be made by the plaintiff; or, if made by the attorney, some reason should be shown for his making it.</p>

THE defendants, a tow boat corporation, were owners of a line of tow boats which plied between Hew York and Albany in 1863; among them were the boats “ McDonald” and the “Austin.” The owners of a cargo of com in Buffalo on the 1st of August, 1863, shipped the corn on the canal boat “ J. L. Parsons,” to be conveyed from Buffalo to Hew York. At Albany, on the 19th of August, the captain of the canal boat engaged the defendants to tow the canal boat to Hew York.

<p>Whatever opinion may be entertained as to the remedies provided by the act of the legislature of May 9, 1867, (laws of 1867, ah. 814,) amending the act of 1862, entitled “ An act to prevent animals from running at large in the public highways,” in relation to private trespasses—concerning which, it seems, the act in its amended form is not obnoxious to judicial condemnation— it is beyond question that, as applied to the case of animals at large in the highways, the provisions of the act of 1867 are clearly Within the legislative authority, as a just and beneficent exercise of the police power of the government.</p> <p>The case of Rockwell v. Nearing, (35 N. T. Sep. 302,) distinguished from the present.</p> <p>Where animals are running at large upon the highway, and are seized by the overseer of highways in the district where found, such a case is not only not within the principle decided in Rockwell v. Nearing, but is expressly excepted from it in the opinions of both the judges, rendered in that case.</p> <p>Where animals are found running at large in the highway, and seized by the overseer of highways, and thereupon complaint is made in writing by him, stating the facts, to a justice of the town, it is not necessary the complaint should state that the animals were running at large “ by the sufferance or permission of the owner.”</p> <p>The question whether the escape has been suffered or permitted by the owner is not a jurisdictional fact.</p> <p>The first section of the act makes it unlawful for animals to run at large on the highways, and imposes upon overseers the duty of seizing and taking such animals into their possession; and this is the only fact necessary to be shown, to justify the officer in making the seizure. If the complaint shows this, it gives the justice jurisdiction, in the very Words of the statute, to hear and determine the matter.</p> <p>An affidavit, made by the person serving a summons issued by a justice of the peace, under the act of 1867, and indorsed thereon, stating that he has served the same, together with proof that such person is a constable, is sufficient to authorize the justice to proceed with the case; although it does not appear by the return that the person making it was a constable.</p> <p>The 3d section of the act of 1867, which provides that service of the summons shall be made by posting the same in at least six public and conspicuous places in the town, and that one of said places “shall be the nearest district school-house,” obviously means the district school-house nearest the place where the-seizure was made—not nearest to the justice’s office.</p> <p>A return stating that the officer served the summons “ by posting a copy thereof in six public and conspicuous places in said town, one of said places being the district school-house nearest to said premises,” being in the very words of the statute, is to be understood as having conformed to it, and is therefore sufficient.</p> <p>If it be held, as it must, that the constitution does not positively require personal notice in order to constitute a legal proceeding due process of law, thén it belongs to the legislature to determine, in the particular instance, whether the case calls for this kind of exceptional legislation, and what manner of constructive notice shall be sufficient to reasonably apprise the party proceeded against of the legal steps which were taken against him,</p>

THIS is a common law certiorari, brought to review the action of a jury in the reassessment of damages, under the highway act.

<p>Where the defendant, when called upon, on several occasions, to pay the plaintiff’s debt, put them off, stating that her husband, every night, took all the money which she had received during the day and paid it to persons from whom she had bought goods; which payment was disproved, by affidavit; Held that the act of the defendant, in allowing her husband to take possession of aII her money, coupled with a falsehood as to the purpose for which he took it, was to be deemed done with intent to defraud her creditors; that she was therefore amenable to the charge of having “disposed of’’ her “property with intent to defraud” them; and that, consequently, the plaintiff was entitled to a warrant of attachment, under the provisions of section 229 of the Code.</p>

THIS is a motion for a peremptory mandamus against the defendant, who is .president of the village of Saratoga Springs, to direct him, as such president, to sign certain bonds of said village and the coupons annexed, which bonds have been prepared by the trustees of said village, under the provisions of an act of the legislature, passed 21st April, 1869, entitled “An act to amend the charter of Saratoga Springs, passed May 26,1865, and for the purpose of securing a supply of…

<p>So far as the facts upon which an order of arrest, in an action of tort, is based are concerned, the court will, in ordinary cases, allow the order to stand, and abide the trial of the issues. The truth or falsity of such facts should never be decided on a motion.</p> <p>, But where, after the perpetration by the defendant of certain alleged frauds, in the purchase of stock for the plaintiff and refusing to transfer the same to him or to refund the money advanced for such purchase, there was a settlement between the parties, and the plaintiff accepted the defendant’s note for $700, 100 shares of a specified stock, and a due-bill for 200 shares of the Same stock, giving a receipt stating that it was a “receipt and settlement for all claims” which he held against the defendant; Held that this was a con-donation of the tort, and a waiver of the plaintiff’s right to arrest the defendant; and that it was a proper case for vacating the order of arrest, on motion.</p>