Volume 6 — New York Reports

(Reported below, on a former trial, 8 Barb. 334.) This was an action of assumpsit to recover damages for the non-delivery of a quantity of corn, sold by M. & S. Patten, the defendants, to the plaintiff, for the Irish relief committee, on the 12th March 1847, for which a bill of sale, admitted to be in the handwriting of S. Patten, one of the defendants, was given, in the following words: *“ Albany, March 12th 1847.

The wife of .Hendrickson died suddenly on the morning of Monday, the 7th of March, 1853, at his residence in Bethlehem, Albany county. When the prisoner, who was occupying the same bed with her, gave the alarm to the family about two o’clock, the death had apparently taken place but a few minutes before. In the evening of the same day a coroner’s jury was empanneled, and Hendrickson was called and sworn as a witness upon theinquest.

<headnotes id="b33-5"> <em> Promissory Note. </em> — Indorsement.—Notice <em> of </em> non-payment.— <em> Amendment. </em> </headnotes> <headnotes id="b33-6"> A notice of non-payment, though the note he misdescribed, will charge the indorser, if there were no other in existence to which it could be applied ; and this may be shown by extrinsic evidence. </headnotes> <headnotes id="b33-7"> In case of a joint indorsement, it is sufficient, in the notice of non-payment, to describe the note, as indorsed by the party to whom it is addressed, without mention of his co-indorser. </headnotes> <headnotes id="b33-8"> The sufficiency of a notice of non-payment, where there is no dispute about the facts, is a question of law for the court. </headnotes> <headnotes id="b33-9"> In an action by indorsee against indorser, the plaintiff can recover under the money counts, though the defendant was an accommodation indorser. The nature of the consideration has no effect upon the remedy. </headnotes> <headnotes id="b33-10"> The judge may allow an amendment, during the trial, without costs, under § 149 of the code. </headnotes> <summary id="b33-11"> * Appeal from the general term of the Supreme Court, in the seventh district, where a judgment <em> 'L </em> in favor of the plaintiff, in a case tried before the court, without a jury, had been affirmed. (For a former report of this case, see 1 N. Y. 413.) </summary> <summary id="b33-12"> This was an action of <em> assumpsit </em> brought by the Cayuga County Bank, as indorsee of a promissory note for $600, against E. A. Warden and F. L. Griswold, the joint indorsers thereof. The first count of the declaration was for work and labor done; goods sold and delivered; money lent, and money had and received; the other count, upon an <em> insimul computassent. </em> The following is a copy of the note sued on: </summary> <summary id="b33-13"> “600. </summary> <summary id="b33-14"> Ninety days days after date, I promise to pay to the order of F. L. Griswold and E. A. Warden, six hun-' <span citation-index="1" class="star-pagination" label="22"> *22 </span> hundred dollars, for value received, at the Cayuga County Bank. </summary> <summary id="b34-6"> Auburn, N. Y., January 30,1845. S. Warden.” Indorsed — F. L. Griswold, </summary> <summary id="b34-7"> E. A. Warden. </summary> <summary id="b34-8"> The note, at maturity, was in the plaintiff’s bank, and was protested for non-payment. A notice of non-payment was served on each of the defendants, addressed to them, severally, in the following words: • </summary> <summary id="b34-9"> “Cayuga County Bank, Auburn, May 3,1845. </summary> <summary id="b34-10"> $600. ■ </summary> <summary id="b34-11"> Sir: Take notice, that S. Warden’s note, for three hundred dollars, payable at this bank, and itidorsed by you, was, this evening, protested for non-payment, and the holders look to you for the payment-thereof. - ■ Your obedient servant, </summary> <summary id="b34-12"> P. B. Eaton, Notary Public.” </summary> <summary id="b34-13"> # *It was shown, on the trial; under objection, -1 that the bank held no other note of the maker, indorsed by the defendants, and that the one in question was given in renewal of a note of the same maker, indorsed by the same defendants; the defendant, Gris-wold, had procured the renewals. To the reception of this evidence, the defendants took an exception. </summary> <summary id="b34-15-pl-split"> The plaintiff’s counsel being requested to state under which count of the declaration he offered the note in evidence, answered, under the first count only. The defendants then objected to the reading of the note in evidence, for the following reasons: 1. That the notice of protest was not a notice of protest of the note in question. 2. That the note in suit was made payable to the order of defendants jointly, and was indorsed by them jointly, and the notice mentioned only an individual indorsement. 3. That the plaintiffs had no right to 'show that the defendants were not misled by the notice, <span citation-index="1" class="star-pagination" label="23"> *23 </span> and if they had such right, it could not be shown under the common counts, no such fact having been alleged in the declaration. 4. That the notice was defective, in not stating when the note was made, when it became due, and that payment had been demanded and refused. 5. That the note could not be read in evidence under the first count, either at common law, or under the statute; that the case required a special count against the defendants, as indorsers; also, that in order to support the promise stated in the first *count, it was necessary .. ^ to prove the several items of indebtedness, stated *- as the consideration of the promise, and that the note was not evidence of work and labor performed, or of goods sold and delivered. </summary> <summary id="b35-5"> The plaintiff’s counsel, thereupon, asked leave to amend by striking out so much of the count as stated work and labor, and goods sold, as the consideration of the promise; which was granted, without costs, and the defendant’s counsel took an exception. The learned judge (Maynard, J.) overruled the several objections to the reading of the note in evidence; and another exception was taken; as also, to the refusal of a motion for a nonsuit, upon similar grounds. </summary> <summary id="b35-6"> The judge directed a judgment in favor of the plaintiff for the amount due upon the note, which having been affirmed at general term, the defendants appealed to this court. </summary> <attorneys id="b35-7"> <em> Worden, </em> for the appellants. </attorneys> <attorneys id="ATz"> <em> Porter, </em> for the respondents. </attorneys>

(For a former report of this case, see 3 Denio 130.) This was an action of assumpsit, by B. & A. Norton against Joseph H. Coons, the defendant, for contribution, as co-sureties, in a promissory note, of which the following is a copy: $1000. One year after date, we, jointly and severally, promise to pay to the order of Olive Eldridge, one thousand dollars, for value received. Troy, March 31st, 1841, with interest. Schryver & Aikin, R. & A. Norton, Joseph H. Coons.

This was an action of assumpsit, commenced in the supreme court, by William Coleman against James Wade and David H. Van Amburgh, as sureties for George Wade, on a lease of a mill and the appurtenances, in Orange county, for the term of one year from the 1st November 1843, at the rent of $650, payable quarterly; with a covenant on the part of the lessee to keep the mill in good order and repair.

Writ op Error to the Supreme Court, sitting in the fifth district, where the judgment of the court of Oyer and Terminer of the county… Held: in the town of Salina, before the undersigned, police justice of the village of Syracuse, in said- county, Amison Powers was convicted of having, on the 30th day of Oct., instant, feloniously taken and carried away one pair of pantaloons, of the value of seven dollars, the property of Samuel P. Dewey and Alexander Thompson, at Salina…

On the 16th of April, 1849, an agreement was entered into by Benjamin Isaacs and Isaac S. Isaacs, of Oswego, and James H. Hooker, of-Troy, in the following terms: “ Memorandum of an agreement made' and entered into this 16th day of April,. 1849, by and between'James H. Hooker, of Troy, New-York, of the first part, and Benjamin Isaacs & Co., of Oswego, New-York, witnesseth: “ That the parties hereto hereby agree to continue to run the transportation line upon the Erie and…

This was an action of assumpsit, upon a policy of insurance, whereby the defendants insured one Charles L. Mann against loss or damage by fire, to the amount of $2000, upon a stock of goods, in a store in Lockport, for the term of one year from the 25th November 1839. Mann sold the goods insured, and assigned the policy, to the plaintiff, with the assent of the defendants, on the 7th September 1840. The goods were destroyed by fire on the 26th of the same month.

This was an action on a judgment for $1392.71, in favor of the Farmers and Manufacturers’ Bank, against the defendant as maker of certain promissory notes, and was commenced in the supreme court in January, 1851.

This was an action by Christophers, the plaintiff, against Andrew S. Garr, administrator of Colin Mitchell, deceased, upon a promissory note, dated the 2d April 1836, whereby the plaintiff’s intestate promised to pay to the order of T. Vemilya, the sum of $926.56, ten months after the date thereof; of which the plaintiff was the indorsee and owner.

^ g .. * Appeal from the general term of the Supreme J Court, in the eighth district, where a judgment entered upon a verdict, in favor of the plaintiff, had been affirmed. This was an action of trover for a quantity of wheat, brought by James S. Wadsworth and Martin Brunner, as executors of James Wadsworth, deceased, against Allcott & Smith, the defendants. Brunner died after issue joined, and the suit was continued by the surviving executor.

T-his action was brought in the superior court of the city of New-York to recover an alleged balance of account arising from deposits made by the intestate in the North River Bank, a banking association in the city of New-York. The plaintiffs claimed a balance of $1739.70 ; and the defendant admitted that there was in the bank to the credit of the intestate, at the time of his death, the sum of $1150.50.

^Appeal from the general term of the Supreme Court, in the fifth district, where a judg- L ment rendered for the defendant, in a case tried before the court, without a jury, had been affirmed.

This was a bill of foreclosure, filed in the late court of chancery, by Corning and Horner, the plaintiffs, against John Otto, James Otto and Elijah Smith, to foreclose a mortgage given to the plaintiffs by John Otto, in November 1843, upon certain lands in Wyoming county, to secure the payment of the sum of $3000, with interest, according to the condition of a bond executed by John and James Otto.

The will of William How contained a bequest in the following words: “I give and bequeath unto the trustees of the institution for the maintenance and instruction of the indigent blind, in the city of New-York, the sum of three thousand dollars.” This bequest was claimed by the plaintiffs, who were incorporated by the legislature in 1881, “for the purpose of instructing children who have been born blind, or who may have become blind by disease or accident.” Acts were passed…

* Appeal from the general term of the Supreme -* Court, in the first district, where, upon a writ of error to the Superior Court of the city of New York, a judgment entered in favor of the plaintiffs, upon a report of referees, had been affirmed in part, but reversed as to the residue, and a new trial ordered upon the latter portion of it.

(Reported below, 9 Barb. 152.) This was an action of assumpsit, by the Treasurer of the city of Schenectady, to recover the cost of pitching, grading, paving and flagging a street in that city, in front of lots owned by the defendant, amounting to about $820.

This action was commenced in the supreme court, in August, 1851, to recover for eight months’ service of the plaintiff as foreman of the defendant’s tannery. The answer alleged a set-off, and a counter-claim for so unskilfully and negligently conducting the tanning of a large quantity of hides as to injure the same to the amount of $1000. Upon the trial before a referee the employment of the plaintiff was proved, and the length of time that his service continued.

* Appeal from the general term of the Su- r * go preme Court, in the fifth district, where a judg- *- ment entered on a verdict in favor of the plaintiff, had been affirmed, on the plaintiff remitting a portion of the damages found. (Reported below, 1 Code Rep. N. S. 351.) This was an action, by Louisa F. Corning against Richard S. Corning, for an assault and battery upon the plaintiff, at the city of Syracuse, in June 1849. The damages were laid in the complaint at $2000.

This action was commenced prior to the enactment of the Code of Procedure. It was brought against the defendant as the endorser of a promissory note for $808.71, made by one Schiiver, payable at the Ogdensburgh Bank six months after date, and dated September 20th, 1834. The defendant Jessup pleaded, first, the general issue, and secondly, the statute of limitations.

Motion to dismiss appeal. This action was originally commenced in a court of a justice of the peace, at the town of Truxton, in the county of Cortland, on the 13th July 1846. The defendants set up title to land, and the action was transferred, pursuant to statute, to the court of common pleas of that county. It was pending in that' court on the first of July 1847, and, by the new constitution, transferred to the *supreme court.

* Appeal from the general term of the Su- |- * -^g preme Court, in the fifth district, where ajudg- L ment of nonsuit had been affirmed. (Reported below, 10 Barb. 576.) This wa s an action of assumpsit to recover an excess of money alleged to have been received by the defendant, beyond the principal and legal interest, upon a loan of money claimed to have been made to the plaintiff, Schroeppel.

The defendant was the proprietor and publisher of The New-York Herald; and it was the practice of that establishment, as well as of some other newspapers in New-York, to engage certain carriers for the different wards of the city, and to deliver to them, each day, at a stipulated price per copy, the papers to be delivered in their respective wards; the carriers receiving their remuneration from the advanced price at which they retailed the papers.

Action commenced in the supreme court in 1850, for waste committed by the defendant upon a farm occupied by him as tenant of the plaintiff, in the town of Delhi, Delaware county. The defence set up by the answer was, that the acts complained of were done by the express permission and license of the plaintiff.

There being no question about the due execution of the original will, dated the 18th September 1889, a decree was made admitting it to probate, without objection.

The plaintiff in error was convicted of the murder of his wife, at the court of oyer and terminer for the county of Erie, on the 15th day of December, 1852. A bill of exceptions was taken on the trial, and the presiding judge of the oyer and terminer having made a certificate of probable cause, the proceedings were removed into the supreme court by certiorari, where judgment was rendered in favor of the people, and the prisoner was sentenced to be hung.

<p>* Appeal from the general term of the Supreme ^ Court, in the first district, where a judgment of the Superior Court of the city of New York, in favor of the plaintiffs, had been affirmed.</p> <p>This was an action of assumpsit by Charles A. Davis and Louis McLane, describing themselves as survivors of “Charles A. Davis, Louis McLane and Joseph M, White, trustees of the Apalachicola Land Company,” against the defendant, as administrator of Colin Mitchell, deceased, upon three promissory notes, in the following form:</p> <p>“ $4492.50. Apalachicola, April 21,1836.</p> <p>Twelve months after date, I promise to pay to Joseph M. White, Charles A. Davis and Louis McLane, Trustees of the Apalachicola Land Company, or their successors in. office, or order four thousand, four hundred and ninety-two dollars and fifty cents, with interest from date, at eight per cent, per annum, for value received.</p> <p>Colin Mitchell.”</p> <p>The declaration contained three counts upon the respective notes; and a fourth, for work and labor, goods sold, moneys lent, &c. In each of the first three counts, the plaintiffs' averred a promise to pay to them and the said Joseph M. White, “as such trustees as aforesaid,!’ .. *and a breach in not paying to the plaintiffs J and the said Joseph M. White, “ as such trustees as aforesaid.”</p> <p>To the first and second counts, the defendants pleadéd : 1. That before the commencement of the suit, the term of office - of the plaintiffs, as trustees of the said company, ' had expired, and that other persons (naming them) had been appointed in their place, in whom alone the right of demanding and receiving payment on the note was vested. ■ 2. That the action did not accrue at any time within six years prior to the commencement of the suit. 3. Set-off. ■ To the third count, the pleas were substantially the same, except that in the first plea it was alleged, that before the note declared on became due, the term of office of the plaintiffs, as such trustees, had expired, and other persons had been appointed-in their place, &c. To the fourth count, the defendant pleaded the statute óf limitations only.</p> <p>The plaintiffs demurred' specially to each of defendant’s first pleas,"on the following grounds: That the said Apalachicola Land Company is a private and voluntary association of individuals, or copartnership for the sale of lands, represented by the plaintiffs as their trustees; and the -contract in said count mentioned was madé with said plaintiffs, under said description, for the benefit of said private association, and the cause ■ of action upon the same, in case of breach, vested in them-, and did not, by operation of law, pass to any new set of trustees created thereafter. That the words ‘Trustees of the Apalachicola Land Company’ are words of description in the law, and do not create an office recognised in law through which a right of action can be transferred. That if the contract, from such its tenor, can be considered as giving a cause of action to subsequent trustees, upon a breach of a contract to prior trustees, it is at the *option of the holder of the note in question to sue in the name of either. *- And also, for that the said plea amounts to the general issue, and is, in other respects, uncertain, informal and insufficient.” The. defendant joined in demurrer.</p> <p>The plaintiffs replied to the plea of the statute of limitations, that when the cause of action accrued,, and until the time of his decease, the intestate resided out of the state; that administration was granted to the defendant, on the first day of June 1844, and that the action was brought within six years thereafter. To each of these replications to the pleas of the statute of limitations to the first three counts, the defendant rejoined, that the promise was not made to be performed within the jurisdiction and limits of this state, but was made to be performed in Florida; that the intestate and White, one of the trustees mentioned, resided there until their respective deaths; that JMcLane, another of the said trustees, resided in the state of Maryland, and that the intestate died in August 1839, more than six years before the commencement of this suit. That the intestate had no assets within the limits and jurisdiction of this state, when the note was made and the cause of' action accrued. The plaintiffs demurred specially to each of these rejoinders; in that the rejoinder does not answer any part of the replication to which it purports to be an answer; that it tenders immaterial issues, and is double.</p> <p>To the replication to the plea of the statute of limitations pleaded to the fourth count, the defendant rejoined, that the intestate, after the making the promise in that count mentioned, returned into this state, and that the suit was not brought within six years next after his return. The plaintiffs took issue upon the return of the intestate to this state, after making the promise, as alleged in the rejoinder. Issue was also joined on the pleas of set-off.</p> <p>The court gave judgment for the plaintiffs upon all the demurrers; and appointed a referee to determine *the issues of fact, and assess the plaintiffs’ -1 damages under the counts upon the notes. The referee reported that the defendant, as administrator, was indebted to the plaintiffs, upon the notes, in the sum of $16,843.93; and that the intestate did return into the state, after the making of the promise alleged in the 4th count. Judgment was, thereupon, perfected in favor of the plaintiffs, for the amount found by the referee, upon the first three counts; and upon the 4th-count judgment was entered in favor- of the defendant. This judgment having been affirmed by the supreme court, the defendant took this appeal.</p>

* Appeal from the general term of the Supreme Court, in the eighth district, where a *- judgment of the Court of Common Pleas of Erie county, in favor of the defendant, had been reversed, on writ of error. This was an action of replevin by White, the lessee of certain premises in the city of Buffalo, against Coats* worth, his lessor, for goods distrained for rent alleged to be in arrear.

This was an action for money had and received to the use of the plaintiffs, under the following circumstances: *On the 26th April 1845, the plaintiffs were the holders of the promissory note of Osborn & *- Whallon, for $358.75, to mature on the 15th May, then next. On the said 26th April 1845, the plaintiffs indorsed the note, in blank, and delivered it to John T. Smith & Co., their brokers, for collection.

(Reported below, 6 Barb. 346.) This was a bill in equity, filed in the late court of chancery, by George Truscott and John C. Green, against the defendant, King, to have a mortgage for $50,000 upon certain real estate in the city of Buffalo, given to them by Russell S. Brown and Rodman Starkweather, on the 15th September 1837, declared to be a prior lien to a judgment confessed by Brown and Starkweather, in favor of Richard S. Williams, for the sum of $40,000, which was…

This suit was commenced in March, 1847, in the, names of David Denison and Ray Greene, then overseers of the poor of the town of Berlin, in the county of Rensselaer, to recover various penalties alleged to have been incurred by the defendant, under § 15, title 9, ch. 20, part 1 of the Revised Statutes.

<p>Executors. — Set-off.—Practice.—Burden of proof. — Opinion of witness.</p> <p>On a note given to an executor, for a debt due to his testator, he may sue, either in his own name, or as executor ; merely describing him as executor, in the commencement of the declaration, will not prevent its being regarded as a personal action ; it is a mere descriptio persona, and may be rejected as surplusage.</p> <p>In an action brought by an executor, in his own name, upon a note given to him for a debt due to his testator, the defendant cannot set off a cross-demand against the testator, and have judgment for a balance in his favor.</p> <p>A general objection to the admission of evidence, is sufficient, if it be one which could not have been obviated, had the grounds been specifically pointed out.</p> <p>A person who has promised to pay what was needed for the support of a minor, beyond his earnings, is not liable, without proof of the necessity of the expenditure.</p> <p>What are necessaries, is a mixed question of law and fact; and therefore, the opinion of a witness as to what was a proper expenditure, is not admissible.</p>

<p>This action was commenced in the supreme court, in 1844, upon a judgment recovered in the same court on the 13th of November, 1810, for the sum of $2758.83. The parties were the administrator de bonis non of the judgment creditor, plaintiff, and the administrators of the judgment debtor, defendants. The opinion of the court and the arguments of counsel sufficiently state the questions arising upon the trial, which was had before Mr. Justice Edwards and a jury, at New-York in 1850. A verdict was then given for the plaintiff for- the amount of the judgment and interest, and' the court at general term refused a new trial upon the exceptions. (See 12 Barb., 585.) The defendants appealed to this court.</p> <p>I. The judge erred in allowing proof to be given of various judgments against Lucas Elmendorf, from 1807 to 1839, in order to rebut the presumption of payment of this judgment, which was rendered in 1810.</p> <p>II. The judge erred in holding, and charging the jury, that parol acknowledgments of indebtedness would rebut the presumption of payment of this judgment; that such acknowledgments need not be in writing. (2 R. S., 301, ^ 46, 48; Laws of 1821, 245, § 4.)</p> <p>III. No evidence was admissible to repel the presumption of payment but the fact of payment of part or a written acknowledgment of indebtedness; all the other evidence received for that purpose was illegal.</p> <p>I. If presumption of payment from -lapse of time applies at all to the judgment in question in this cause, it applies in like manner as to a debt on bond or other specialty prior to 1821, and may be rebutted by proof of parol admissions of indebtedness, or proof of circumstances sufficient to satisfy a jury that payment has not in fact been made. The proof to repel such presumption is not restricted to proof of actual payments or of written acknowledgments of indebtedness. (Laws of 1821, ch. 238, §4 ; Livingstonv. Delafield, 3 Caines, 49 ; Bailey v. Jackson, 16 John., 210; Miller v. Smith’s Ex’r, 14 Wend., 188; 16 id., 425, S. C.; Jackson v. Hotchkiss, 6 Cow., 401; Oswald v. Leigh, 1 Term R., 270 ; Wanmaker’s Ex’rs v. Van Busldrk et al., Saxton’s Ch. R., 690, N. J.; 2 R." S., 398, §§ 46-8, 3d ed.; Jackson v. Pierce, 10 John., 414; Jackson v. Sackett, 7 Wend., 100 ; Morris v. Wadsworth, 17 Wend., 103; Boardman v. Be Forest, 5 Conn., 1; Hillary V. Waller, 12 Vesey, 266.)</p> <p>II. The 47th and 48th sections of title 2, chapter 4, part 3 of the Revised Statutes, have, no application to this case. Section 47 refers only to “ every judgment and decree hereafter rendered,” and § 48 applies only to suits upon sealed instruments for the payment of money, “ after the expiration of twenty years from the time a right of action shall accrue.” In the present case, the judgment had been rendered and the right of action had, accrued before the Revised Statutes were passed. 1. It is a well settled principle of law, that statutes not expressly retrospective in terms are not to be construed to affect past transactions; and this principle applies to statutes of limitation as well as to other statútes. (Bwarris on Statutes, 680; 1 Kent's Com., 454 [7th ed., 501] ; Bash V. Van Kleeck, 7 John., 477; Watkins v. Haight, 18 id., 138 ; Fairbanks v. Wood, 17 Wend., 329 ; Johnson v. Burrell, 2 Hill, 238; Millard v. Whittaker, 5 Hill, 408; Jarvis v. Jarvis, 3 Edw. Ch. R., 462; Quackenbush v. Banks, 1 Benio, 128 ; S. C., 3 id., 594; id., 1 Comst., 129; Whitman v. Hapgood, 10 Mass., 437; Medford v. Learned, 16 id., 215; Hastings v. Lane, 15 Maine, 134; Woart v. Winniclc, 3 N. LI., 473 ; Garrett v. Boe, 1 Scammoa, 335; Robinson v. Rowan, 2 id., 499; Forsyth v. Marbury, R. M. Charlt., 324 ; Hooker v. Hooker, 10 Sm. Sf Marsh., 599; Bruce v. Schuyler, 4 Gilman-, 221; Taylor v. Harrison, 2 Bevereux, 374; Society for the Propagation of the Gospel v. Wheeler, 2 Gallis., 105.) 2. The legislature of this state, in the Revised Statutes of 1830, and in the Code of Civil Procedure, have recognized this principle, and applied it to statutes of limitation. (2 R. S., 300, § 45, 778, § 9; 3 Revisors' Reports, part 3, ch. 4, title 2, art. 4, 5, %% 47-50; Code 1848, § 66 ; id. 1852, § 73.) 3. ' The provision of the,Revised Statutes, that presumption of payment of a judgment, arising from lapse of time, may be repelled by proof of payment or written acknowledgment of indebtedness, and not otherwise, does not apply to judgments rendered prior to 1830, when the Revised Statutes took effect. (2 R. S., 300, ^ 46-8; Smith's Ex'rs v. Miller, 14 Wend., 188; Miller v. Smith's Ex'r, 16 id., 425 ; Austin v. Tompkins, 3 Sandf. S. G. R., 23.)</p> <p>III. The presiding judge correctly and properly disposed of the points presented by defendants’ counsel, and which he requested the court to charge; because, 1. The alleged presumption of payment of the judgment in question, arising from lapse of time, may be repelled by other proof than that of payment on account, or admission in writing. 2. There is in the case evidence of circumstances tending to repel the alleged presumption of,payment, and the judge correctly refused to charge the contrary.</p> <p>IV. The facts and circumstances proved in this case are abundantly sufficient to repel the alleged presumption of payment. But whether sufficient or not, was a question for the jury, and the court will not disturb their verdict thereon.</p>

This was an action of assumpsit, commenced by the filing and service of a declaration in the usual form, containing the common counts. The damages claimed were $200; but there was no allegation as to the residence of the defendant. The defendant pleaded that the supreme court had exclusive jurisdiction of the cause of action, and that the same was not subject to the jurisdiction of the county court. The plaintiff demurred to the plea; and the defendant joined in demurrer.

The bill in this cause was filed in the late court of chancery, and its general object was to enjoin the defendant from enforcing a judgment of the supreme court in her favor against one Austin Cross, as it respects two lots of land owned by the complainants, upon which it was a lien at law, and which she was about to sell on execution.

This was a bill in equity filed by Field, the complainant, in the late court of chancery, against the Mayor, Aldermen and Commonalty of the City of New York, and Jared W. Bell, to enforce the payment of a claim against the city, assigned by Bell to John Garread, and by him to the plaintiff.

On the 22d of October, 1841, Rufus Scofield gave to the firm of Seymour, Ward & Co., of Albany, his note for $1327, payable one year from date, and endorsed by William Stewart, of Milo, Yates county, and one Pelton. Stewart at this time was the owner of two lots of land; one a farm of about forty acres, on which he resided, and the other a wood lot containing fourteen acres, in the town of Barrington in the same county.

<p>Appeal from the general term of the Supreme Court, in the third district, where a decree, made upon a receiver’s bill, had been vacated, on a rehearing, and the plaintiff’s bill dismissed, with costs.</p> <p>This was a receiver’s bill, filed in the late court of chancery, to subject the equitable interest of William P. Van Alstyne, a judgment-debtor, in a mortgage of $2000, given by Abraham P. Van Alstyne, one of the defendants, to John J. Van Valkenburgh, the other defendant, in trust for the said William P. Van Alstyne, to the payment of certain judgments obtained against him. Van Burén and Garner having obtained judgments against William P. Van Alstyne, and executions thereon having been returned unsatisfied, filed a creditors’ bill to reach * 191 1 e(lu^a^e assets) *wherein one Trimper was J appointed receiver, to whom the judgment-debtor executed an assignment of all his estate, real and personal, things in action, equitable interests and effects, without any reservation. Trimper commenced this suit, but died after decree at special term, and the present plaintiff was appointed receiver and substituted as plaintiff in the cause.</p> <p>In November 1837, Angelica Van Alstyne, the mother of Abraham P. Van Alstyne and of William ■ P. Van Alstyne, the judgment-debtor, being possessed of an estate of $6000 or $7000 in money, and other personal property, made her last will and testament, whereby, after certain specific bequests, she gave the residue of hei estate to her said two sons, to be equally divided between them, and directed the sum of $1000 (with power to the executor to increase the same to $1500 or $2000) to be put at interest by the executor, John J. Van Valken-burgh, on bond and mortgage, the interest to be paid annually, by the executor, to her son, William, “during his natural lifetime, for his comfortable support and maintenance,” and at his decease, the principal to go to his lawful heirs or children, if any should survive him, and if none, then to his brother Abraham, his heirs and assigns. The executor was also empowered to pay the principal sum to William, at any time, if, in his judgment, it would be wise and prudent to do so. The will was duly executed by the testatrix, but in the presence only of a single subscribing witness.</p> <p>After the decease of the testatrix, in August 1838, the will was presented for probate to the surrogate of Columbia county, who, after citation to the heirs and next of kin, *and on their consent in writing that it might be admitted to probate and recorded as a L will of personal estate, and the testimony of the single subscribing witness, made a decree, declaring the will to be valid, and its execution sufficiently provedand thereupon, letters testamentary were issued to the defendant Van Valkenburgh.</p> <p>On the 1st April 1839, the executor, Van Valkenburgh, in the exercise of the discretion vested in him by the testatrix, loaned to Abraham P. Van Alstyne, the sum of $2000 of William’s share of the estate; and received, as security therefor, the bond and mortgage in question. It was agreed, that William should reside in his brother’s family, and that his support should balance the interest on the mortgage.</p> <p>The complainant insisted, that the will, notwithstanding the decree of the surrogate, was void, and that the money invested was the absolute property of William. The bill prayed that the will might be declared void; the complainant’s right to the bond and' mortgage established ; and that the sum or the proceeds thereof might be paid over to him in- satisfaction of the judgments of Van Burén and Garner. The defendants contended, that the decree of the surrogate was conclusive, except on a direct appeal therefrom; or, if it were not, that Mrs. Van Alstyne died intestate, and an administrator of her estate was a necessary party to this suit; that William P. Van Alstyne was also a necessary party; and that if the complainant was entitled to any relief, his remedy was at law, and not in equity. They also denied the jurisdiction of a court of equity to declare the invalidity of the will, on the grounds set forth in the bill.</p> <p>' *The cause was heard on the pleadings and -* proofs, at special term, and the court (Watson, J.) made a decree granting the relief prayed for; on a rehearing at general term, however, this decree was vacated, and the bill dismissed with costs; whereupon, the plaintiff took this appeal.</p>

<p>Where two persons exchange with each other notes of equal amounts, for the purpose of raising money by a sale of the notes, each note is a valid consideration for the other, and a sale of either, at a discount greater than seven per cent, does not render it usurious in the hands of the purchaser.</p> <p>Where T, as an inducement to C to purchase the note of a third person, adds his own name upon the face of the note as “ security,” and the purchase is made by C at a discount greater than seven per cent, such transaction is not usurious, and T is liable to 0 for the amount paid for the note, with interest.</p> <p>Although the contract in such case is for the payment by the surety of the whole amount secured to be paid by the note, the courts will go behind the contract and limit the liability of the surety to the amount paid, with interest.</p>

Bill in equity for the foreclosure of a mortgage executed to the plaintiff, Samuel Spencer, by his father, Samuel W. Spencer, to secure the payment of $1362.08 due from the mortgagor, and to indemnify the plaintiff against a promissory note for $200, signed by him as surety for the mortgagor. The defendant, Allen Ayrault, was made a party as a judgment creditor of the mortgagor.

<p>* Appeal from the general term of the Su- ^ preme Court, in the sixth district, where a judg- *- ment for the defendants, upon demurrer to the complaint,, had been affirmed.</p> <p>This was an action to recover back the consideration paid by the plaintiff to the defendants, for the assignment to him of an interest in letters-patent for an improvement in wagon-wheels.</p> <p>The complaint, after stating the purchase by the plaintiff of the interest in the patent-right, set forth the written contract, whereby it was agreed, that if the plaintiff, after making a thorough trial of the improvement, for the term of nine months, should not be able to make the same useful or profitable to him, he should be at liberty to re-assign to the defendants, and on such re-assignment, they would repay him the consideration received. It then stated the amount and payment of the consideration, and averred that immediately after the sale was made, the defendants promised and agreed, that for the purpose of enabling the plaintiff to make a trial of the improvement, they would, in a few days or weeks, furnish or deliver to him some wheels manufactured according to the plan of the improvement, or some patterns thereof; that the defendants neglected and refused to furnish or deliver the wheels or patterns, although called upon and requested by the plaintiff to do so, whereby the plaintiff was prevented from making a trial of the improvement, and the assignment of the patent was rendered entirely valueless to him. That after a year from the date of the agreement, finding the patent entirely valueless, and of no profit to him, the plaintiff executed and delivered to the defendants a re-assignment of the patent, in which were set forth the * oak *reasons (given above) why a trial of the improvement had not been made. That the defendants accepted and received the assignment; but refused, although requested, to repay the consideration.</p> <p>The defendants demurred to the complaint, and assigned for cause of demurrer:</p> <p>1. That the complaint did not state facts sufficient to constitute a cause of action.</p> <p>2. That there was no averment of any consideration for the promise of the defendants to furnish or deliver the wheels to the plaintiff, manufactured according to the plan of the improvement mentioned in the complaint, or patterns thereof.</p> <p>3. That it was not averred, that the plaintiff gave the improvement a thorough trial for nine months.</p> <p>4. That it was not averred, that the plaintiff could not give the improvement a thorough trial, without obtaining the wheels or patterns.</p> <p>5. That it did not appear, that the plaintiff offered to pay for the wheels or patterns, at the time when he called for them.</p> <p>The plaintiff joined in demurrer; and on argument, the court (Mason, J.) gave judgment for the defendants, which having been affirmed at general term, the plaintiff took this appeal.</p>

This was an action of trespass on the case. The first count in the declaration was for obtaining from the plaintiff á quantity of sheathing copper, by false and fraudulent representations that the defendant was the authorized agent of the ship Thomas Williams and owners, to charge her and them with the price, whereby the plaintiff was induced to sell and deliver the copper, and afterwards to sue one of the owners for the price, in which action the plaintiff was defeated by…

<p>Appeal from the general term of the Superior Court of the city of New York, where a judgment in favor of the plaintiff, upon the report of a referee, had been affirmed, and a motion for a rehearing denied. (Reported below, 5 Sandf. 52.)</p> <p>This was an action upon a promissory note, dated the 13th October 1846, whereby the defendant promised to pay to the order of Adams & Brownell, $172.06, in eighteen months from the 1st November 1846, with interest from date. The complaint averred that the payees indorsed the note to the plaintiff, and that he was the lawful holder and owner thereof.</p> <p>The answer denied, upon information and belief, the indorsement of the note by the payees to the plaintiff; also, in like manner, denied that the plaintiff was the owner of the note, at the time the action was commenced. It also alleged, that since the note became due and payable, one John C. Beardsley was the owher of it, and was then indebted to the defendant for goods * 210 1 *so^’ <^C-’ *n a balance °f about $220, which -* remained due from Beardsley to the defendant, and the defendant asked to set off so much of the debt as might be equal to the plaintiff’s demand on the note. Also, that since the note became due, one Lucius T. Beardsley was the owner of it, and was then indebted to the defendant in about $10,000, on contract, &c., which indebtedness was then the subject of an action pending in the supreme court, between said L. T. Beardsley and the defendant, and he asked to set off sufficient of that indebtedness to satisfy plaintiff’s demand.</p> <p>The reply stated, that at the time of the commencement of the suit, the plaintiff was, and ever since has been, and then was, the owner of the note, &c., and denied that J. C. Beardsley, at any time, was its owner, or that he, or L. T. Beardsley, was indebted to the defendant, at any time after its maturity.</p> <p>After issue joined, a motion was made by the defendant to stay the trial, until after the trial of the action in the supreme court between L. T. Beardsley and the defendant, which motion was denied at special 'term, and on appeal from that decision to the general term, the order was affirmed.</p> <p>The cause was referred to M. Ulshoeffer, Esq., as referee, who reported that the plaintiff was entitled to recover the whole amount of the note, with interest. He also found specially, as matters of fact, that the note was indorsed to the plaintiff, by the payees, without recourse; and that from such fact, and all the proof in the cause, “the plaintiff presumptively paid value for such note, and that he is the owner of it.”</p> <p>It also appeared, that Lucius T. Beardsley was the witness by whom the proof in the case was made, in behalf of the plaintiff, and that the witness, at the defendant’s request, was sworn and examined by the defendant, as to his interest in the cause, and stated that he once owned the note in suit, after its maturity ; that he sold it to William M. Parks, after maturity, *and did not guaranty it, but could not state anything as to the time of the sale. The referee l decided, that he was a competent witness, however interested, unless excluded within § 399 of the code, and that such exclusion did not arise from his testimony. The defendant excepted to the decision.</p> <p>It was proved by Beardsley, on his examination in chief, that he purchased the note from the payees, about the time when it was made by the defendant, and was the owner of it until after its maturity; that he paid for it, its full amount; that John G. Beardsley never was the owner of it; that witness sold it to William M. Parks, for §75, but did not guaranty it.</p> <p>Judgment was entered at special term upon the report of the referee; and on a motion for a rehearing, at general term, the order was. affirmed, and final judgment rendered for the plaintiff; whereupon, the defendant took this appeal.</p>

Appeal by the defendants, Henry Wyckoff and Charles Burkhalter, from a judgment of the supreme court in the seventh district, rendered the 27th of March, 1849, affirming a decree of the vice-chancellor of - the seventh circuit, made the 24th of December, 1844.

This was an action upon a promissory note, dated the 15th March 1841, whereby Jophat Hasbrouck, of whose estate the defendant was administrator, promised to pay to Joseph 0.

<p>To invalidate a voluntary conveyance, as against creditors, it is not necessary that the debtor be or believe himself insolvent at the time of the grant; it is sufficient if his solvency is contingent upon the stability of the market in the business in which he is engaged.</p> <p>On the first of May, A., a com merchant, purchased certain real estate, taking a conveyance of it to his wife. On the fifteenth of June, he purchased of B. a lot of corn, giving therefor his check, post-dated the twenty-fourth. On the sixteenth, being largely indebted, but neither insolvent nor apprehending insolvency, he joined with his wife in conveying the real estate to their son-in-law, in trust for the wife of A., with remainder to, her heirs; and on the twenty-third, .in consequence of a sudden fall in the price of corn, occasioned hy the arrival of news from Europe, A. suspended payment; Held, that the trust for the benefit of A.’s wife, as well as the original conveyance to her, were fraudulent and void as against B. .</p>

Baldwin brought assumpsit against Palmer in the superior court of the city1 of New-York, in March, 1847. The declaration was upon a special agreement between the parties, and contained; also the usual money counts; The defendant: pleaded non-assumpsit.

This was an action of replevin in the delinet, for a canal-boat, in. which the property had been delivered to the plaintiff by virtue of the writ. The defendant pleaded: 1. That he did not detain the boat. 2. That the property in the same was in one Lowell. 3.

* Appeal from the general term of the Su- .. ... preme Court, in the third district, where a decree *- of the late vice-chancellor of the third circuit had been reversed.

This was an action for a malicious prosecution. The complaint alleged: that the defendant advised, procured and caused to be issued out of the Superior Court, in and for the city and county of New-York, a capias ad respondendum, in the name of William D. -Benson against the plaintiff, Besson, in a plea of trespass on the case, for divers alleged false, deceitful and -fraudulent misrepresentations made-by Besson to Benson on the sale of a certain lease and certain goods-and…

In January, 1835, the plaintiffs, with several other individuals, all being interested in steamboats running as passage boats on the Hudson river, formed an association under the name of “The Hudson River Steamboat Association,” for the purpose of keeping up a regular line of boats in accordance with the partnership articles then entered into. This association was to continue until the 1st of January, 1843.

Prior to the commencement of this suit one Lighthall had filed his bill in chancery against John Lintner, to obtain satisfaction of a judgment which he had recovered against him at law; and a receiver was appointed of the property and effects of Lintner. At the sale of the doubtful claims of Lintner, the complainant in this suit bought a claim against Robert Gf. Nellis, which he soon afterwards prosecuted and obtained judgment upon by default, to the amount of $1,668.12.

* Appeal from the general term of the Su- ,r ^gg preme Court, in the fifth district, where a judg- *- ment of nonsuit had been affirmed.

This was an action of covenant, commenced in 1847. The declaration set forth that on the 31st of October, 1843, one C. W. Adams and wife executed to the plaintiff a mortgage of one equal undivided fifth part of a farm on Staten island, being Mrs. Adams’ share of such real estate as one of the children and devisees of Isaac Cubberly, who died seised thereof.

(Reported at special term, 1 Barb. 408.) This was a bill in equity filed by the children and heirs-at-law of Elizabeth Sears against John and George Shafer, the sons of Frederick Shafer, deceased, who was a brother of the said Elizabeth Sears, to set aside and annul a deed of release executed by the latter to her brother Frederick, on the 5th February' 1820, on the ground of undue influence, and absence of consideration.

The complaint alleged, in substance, that in the spring of 1838, John Mason, since deceased, entrusted to the defendant the sum of $3500,… Held: and always had held, the title in trust for the use and benefit of James Mason; that by force of the statute no estate vested in the defendant, and that the deed to the defendant was a cloud upon the title of James Mason, in whom the legal and equitable title was absolutely vested; that on the 7th day of February, 1849, James Mason…

Oliver L. Poor made his promissory note for about $335, payable to E. M. Poor, or bearer. Early in the year 1843 E. M. Poor placed this note in the hands of Franklin Poor, an attorney, for collection.

(Reported below, 5 Den. 342.) This was an action of assumpsit by the indorsee of a promissory note against the maker and indorser. The maker, William J. Worth, died, after judgment below, and this appeal was taken by Denniston, the indorser.

Action for the partition of land. The plaintiff claimed an interest as an heir-at-law of Samuel Knapp, deceased, as tenant in common with the d.efendants, whom she also alleged to be heirs of said Knapp. The defendant denied the tenancy in common, and alleged that he owned the land in severalty, by virtue of the last will and testament of Samuel Knapp, deceased.

(Reported below, after a former trial, 5 Barb. 364.) This was an action of traver, brought by William 0. Pierrepont, and others, executors of Hezekiah B. Pierrepont, deceased, against Barnard, the defendant, for a large quantity of pine lumber and logs, alleged to have been converted by the defendant to his own use. The declaration was in the usual form, and the defendants pleaded the general issue.

• This was an action of ejectment brought in the superior court of the city of New-York by Jane Ann Ferris, in September, 1844, to recover possession of lot No. 267 in the Bowery. The plaintiff claimed the premises in fee, and there was no dispute about her title to the fee at the time of of the commencement of the action.

<p>Upon a sale of personal property, any acts of the parties indicative of the exercise of ownership by the vendee may he submitted to the jury as evidence of receipt and acceptance, to take the case out of the statute of frauds.</p> <p>A sold B a stock of goods in store. After the verbal bargain, an inventory of the goods was taken, B going through the store and calling off the parcels, and A entering them in the inventory, which was headed “ B bought of A,” &c. On leaving the store, A offered B the keys, which he declined to take until next day, saying that he had no insurance The vendor then offered to assign his own policies, when the purchaser requested the vendor’s clerk to take the keys for him until the morning, which he did: Held, that these facts were sufficient evidence to go to the jury of receipt and acceptance by the purchaser.</p> <p>Per Foot, J.: The facts in this case were even sufficient to have warranted the court in holding the delivery established, instead of taking the case from the jury upon the opposite ground.</p>

' On the 10th of July, 1839, the agent of the state prison at Mount Pleasant, of the first part, and William H. White, of the second part, entered into a sealed agreement embracing the following provisions: “ The party of the second part is to have the .labor of thirty of the convicts employed in said prison, to labor and work for said party of the second part, at the manufacturing of hats in all its branches, and all such work connected with such manufactory.

The plaintiff filed his bill of complaint in the late court of chancery for the foreclosure of a mortgage, made by the defendants, Smith and wife, to J. D. Beers, president of the North America Trust and Banking Company, and transferred, through several assignments, to the plaintiff.

(Reported below, 8 Barb. 519.) This was an action of assumpsit, brought by the plaintiff, as assignee in bankruptcy of the firm of Preston & Pomeroy, to recover a balance of account alleged to be due from the defendants to the bankrupts.

This was a proceeding in insolvency before P. Sheldon Root, first judge of the Oneida county court, on the application of Frederick… Held: that the affidavits upon which the motion for an adjournment was made, were regularly before the supreme court, and that the common pleas, had they refused, might have been compelled to return the same. . “ Roach v. Cosine (9 Wend. 227), was a case of summary proceedings by a landlord to evict his tenant; the supreme court reversed…

In October, 1S44, Adams, sheriff of Albany county, and Joel Rathbone filed their bill in chancery before the vice-chancellor of the third circuit, alleging that Rathbone had recovered a judgment against the defendant Isaac Brown, upon which an execution was issued to Adams, and his deputy Conklin, in virtue thereof, levied upon a quantity of goods in the possession of the defendant Brown; that after such levy, the defendant Davidson, claiming title under an alleged…

The complaint in this cause was upon a promissory note made by the defendants, and alleged “ that they have not paid the same but are justly indebted to the plaintiff therefor.” The defendants’ answer alleged “ that on or about the 10th day of August, 1849, they paid to the plaintiff the promissory note mentioned in the said complaint.” No reply was made to this answer.

This was a bill filed in the court of chancery in January, 1847, to correct a deed given by the complainant to the defendant, by making the description in the deed, which embraced more land than the complainant claimed to have sold, conform to the boundaries pointed out to the defendant at the time of the contract of sale; and to enjoin the defendant from prosecuting an action at law, which he had commenced against the plaintiff, upon the covenant of seisin in the deed, to…

Ejectment for two parcels of land occupied by the defendant with its railroad track, the one being in a street in the village of Whitehall, the other a strip of land running through the plaintiff’s farm. The trial was at the Washington circuit before Mr. Justice Willard, and the plaintiff was nonsuited. The case was heard on exceptions at general term, and judgment being rendered for the defendant, the plaintiff appealed to this court.

This was an action against the defendant, as treasurer of the county of Albany, for issuing certain tax warrants against the plaintiff, and procuring Oscar Tyler, the sheriff of said county, by virtue thereof, to seize and sell, at Watervleit, in the said county of Albany, a quantity of bank-notes, of the value of $2700, the property of the plaintiff, and receiving and retaining the proceeds, amounting to $2698.93. *The defendant, in his answer, justified the , taking by…

The complaint averred that the plaintiff, being the owner of three thousand five hundred bushels of wheat stored in the Atlantic Dock storehouses at Brooklyn, the defendants, Dows & Guiteau, without his consent, took therefrom two thousand and three bushels as the property of Church & Ball, the other defendants, for whom they were agents and commission merchants, and sold it for $2,924, which they paid to Church & Ball.

120.) This was an action, by the plaintiff, an attorney of the superior court, against Bennett,1 the publisher and editor of the New York Herald, for certain alleged libels upon the plaintiff’s character as an attorney, published in that paper.

(Reported below, 9 Barb. 219.) This was an ejectment to recover possession of two undivided eleventh parts of fifty acres of land, in the town of Riverhead, in Suffolk county, which the plaintiffs claimed in fee.

Appear from the general term of the Supreme Court, in the seventh district, where a judgment in favor of the plaintiff, entered on the report of a referee, had been affirmed. This was an action of assumpsit for work and labor done, and money lent. The defendant pleaded the general issue.

Action for an account and injunction restraining the defendant from further collecting certain wharfages claimed by the plaintiff.

* 348 1 Appeal from the general term of the Supreme -* Court, in the sixth district, where a judgment in favor of the plaintiff, in a foreclosure-suit, had been affirmed. This was a suit to foreclose a mortgage for $4500, given by James Hamilton to the plaintiff, on the 26th March 1839. The. mortgagor and all persons who had purchased and owned, dr had acquired liens upon, the ' equity of redemption, were made parties defendant.

<p>An appeal does not lie to the court of appeals, from the judgment of the supreme court on appeal from the decision of a county court, in regard to the change of location of a plank road toll gate.</p>

Bill filed by the plaintiff in the late court of chancery, to redeem certain land from a mortgage executed on the 29th December, 1830, by Charles Giles to the New York Life Insurance and Trust Company for $720. On the 18th May, 1832, Samuel and Schureman Halstead recovered a judgment in the supreme court against Giles for $3500, which was duly docketed.

Appeal by the defendant from the general term of the Supreme Court, in the second district, where a decree had been made for the specific performance by him of a contract for the purchase of certain lands in the city of Brooklyn, in a case submitted under § 372 of the code. The facts are fully stated in the opinion of the court.

This was a creditor’s bill upon a judgment in favor of the plaintiff’s bank against the defendants, William Ryder and Robert H., Jesse and Henry Lounsbury, recovered in August, 1843. Held: managed and sold, if a sale should be desirable, by them as trustees for his children.

This was a bill in equity to foreclose a mortgage for $2000, dated the 1st August 1837, given by Nathaniel Crosby to the plaintiff and Charles Crosby, since deceased ; and to have the said mortgage declared a prior lien to an older judgment obtained by the defendant, Bradford R Wood, against the mortgagor.

Lara way and Perkins entered into a contract under seal, by which the former agreed to sell to the latter a certain house and lot, and the latter to build a house for the former according to certain specifications, each of these mutual covenants being expressed as the consideration for the other. The house was to be finished, on the one part, and on the other possession given of the house and lot, and a deed executed on the first day of May, 1848.

(Reported below, on a former trial, 4 Den. 323; which, however, was reversed for an informality in the special verdict, 1 N. Y. 522.) This was an action of trover for a quantity of white pine lumber, the property of the plaintiff, which, it was alleged, the defendant had converted to his own use.

In Equity. Appeal by the plaintiff from the decree of the supreme court, rendered in the fifth district, affirming the decree pronounced by G ridley, J., at special term, dismissing the bill of complaint. (1 Barb., 648.) The bill was filed in 1846, before the chancellor, and was transferred under the constitution of 1845, to the supreme court.

This action was brought by Samuel Thomas and Mary Ann, his wife, against the defendants, Winchester and Gilbert, to recover damages for negligently putting up, labelling and selling, as and for extract of dandelion, a simple and harmless medicine, a jar of extract of belladonna, a deadly poison; by means whereof, the plaintiff, Mary Ann Thomas, to whom a dose of dandelion had been prescribed by a physician, and to whom a portion of the contents of the jar of belladonna had…

(Reported below, 4 Sandf. 450.) This was an action for malicious prosecution. The plaintiff had been acquitted on the trial of an indictment for perjury, in which the defendants were said to have been the prosecutors. The alleged perjury consisted in swearing that the plaintiff had no interest in the event of a suit, in which he had been examined as a witness.

(Reported below, 11 Barb. 315.) This was a suit brought by Eliza Hone, wife of Isaac S. Hone, and one of the daughters of the late Chancellor Kent, against the next of kin, and the executor of the decedent, to obtain a construction of certain clauses of his will, disposing of his “Commentaries on American Law,” including the copyright and unsold copies on hand. 391 ] *The late Chancellor Kent, on the 22d August 1846, made and published his last will and testament, in due…

Action against the sheriff of Washington for moneys alleged to have been collected upon an execution in favor of the plaintiff. Upon the trial at the Rensselaer circuit before Mr. Justice Habéis and a jury, the plaintiff- proved a judgment and an execution thereon, with a return signed by one Meecham, the defendant’s deputy, that he had made $660.95; of which $500, it was admitted, had been paid over to the plaintiff.

Abram Cook and wife executed a mortgage dated February 1, 1840, to secure 810,000 of property, known as the Plainville Mills, of which mortgage the Wayne Comity Bank became the owner. The bank had previously held an elder mortgage of the same property as security for $10,000, which it bad assigned to the people of the State of New-York to secure a loan made from the canal fund.

Action against the Board of Health of the city of New-York co nomine for services rendered by the plaintiff as a physician during the prevalence of the cholera in the summer of 1849.

Supreme Court, in the sixth district, where a judgment had been rendered in favor of the plaintiff, in a case submitted pursuant to § 372 of the code. Held: until it was presented for payment. On the 11th July, the defendant commenced an examination of the assets of the bank, under an order of the comptroller, the bank being insolvent.

This was an action of covenant to recover damages for an alleged breach of the covenant of seisin, contained in a deed from the defendants to the plaintiff, for certain premises in the city of Rochester.

The plaintiff commenced a suit in October, 1848, against the defendants before a justice of the peace of Columbia county, and complained against them for breaking and destroying his fences and entering upon and injuring his lands, and crops growing thereon.

Ejectment for a lot on Ful ton-street. It was admitted that Jane Van Winkle, from whom both parties claimed to deduce their title, was seised in fee of the premises, on and before May 5,1760. She was the wife of John Van Winkle, and on the day last mentioned joined with him in the execution of a deed of the lot to Jacob Van Winkle, under whom the defendant claimed.

<p>Acknowledgment of deed. — Statute of Uses.</p> <p>Certifying to the signature and authority of a commissioner of deeds, is a ministerial act, which the county clerk may perform by deputy.</p> <p>Taking the acknowledgment of a deed is not a judicial act; the commissioner is not disqualified, though related to one of the parties.</p> <p>The words, “remise, release and quit-claim,” accompanied with a pecuniary consideration, are effectual as words of bargain and sale, under the statute of uses.</p>

Action to recover the value of goods burnt in the great fire at Albany, August 18, 1848. Upon the trial at the Albany circuit, before Mr. Justice Parker, these facts appeared. The defendant was a common carrier between New-York and Albany, on the Hudson river. In that character it received the plaintiff’s goods upon the barge Superior, at New-York, marked for A. W. Miller, Rochester, care P. M. Adams, Albany.

<p>Master and servant. — Negligence.</p> <p>To render a person responsible for the negligence of another, the relation of master and servant, must, in fact, exist between them.</p>

' Appeal from the supreme court. The action was brought in the mayor’s court of the city of Albany. The complaint was in indebitatus assumpsit for goods, wares and merchandise. Plea general issue, with notice of set-off. Upon the trial before a referee these facts were found: On the 17th day of May, 1845, the defendant was indebted to the plaintiff, for goods sold and delivered, in the sum of $371.57.

* Appeal from the general term of the Su- ^ preme Court, in the third district, where a judg- *- ment entered upon a verdict in favor of the defendant, had been affirmed. Held: that the covenant and condition were void, and directed a verdict for the defendant; to which an exception was taken. And the judgment entered on the verdict having been affirmed at general term, the plaintiff took this appeal.

Rathbone, deceased, with the will annexed, to Samuel C. Harrison, a son of the testatrix, had been reversed. (Reported below, 10 Barb. 659; and before the surrogate, 1 Bradf. 283.) Samuel C. Harrison, a son of Ruth S. Rathbone, deceased, applied to the surrogate of the county of New York, for letters of administration upon her estate, with the will annexed.

<p>Appeal from the supreme court. The case is fully stated in the following opinion.</p>

, This was a bill in equity, filed in the late court of chancery, for a decree for the cancellation of a mortgage, given by Smith and wife to one Snow, and by him assigned to York, the defendant. Held: that the mortgagee cannot hold the mortgage as security for any claim which he has against the mortgagor, beyond the sum specifically secured by the mortgage, when objections are interposed by bond fide judgment-creditors.

The action was brought August 20th, 1846, against the defendant as a stockholder of the “Bossie Lead Mining Company,” a corporation created by statute “for the purpose of raising and smelting lead ore” (Laws of 1837, 441), to enforce in favor of the plaintiff as a creditor, the individual liability of the defendant under the 9th section of the charter.

<p>Appeal from the general term of the Supreme Court, in the seventh district, where a judgment for the defendant, in a case tried before the court, without a jury, had been affirmed.</p> <p>This was an ejectment to recover possession of twenty-seven acres of land, in Steuben county, which the plaintiff, Mary Stephens, claimed in fee.</p> <p>It appeared on the trial, before Welles, J., that on the 26th November 1847, the plaintiff was the owner in fee of the premises in question, which were agricultural lands, in part cultivated, with a dwelling-house thereon, in which the defendant resided at the time of the commencement of this suit. That on the said 26th November, an agreement was entered into between the plaintiff of one part, and the defendant and Hannah, his wife, of the other part, under the hands and seals of the parties, and duly acknowledged, whereby the plaintiff did “lease, sell and convey” to the defendant, Samuel Reynolds, “ for and during the natural life” of the plaintiff, “ the whole and entire use and benefit of all the real estate” of the said plaintiff (describing it, including * 455 1 *^e ^an<^s TU68^011)? “ and also the use of all the personal property and estate” of the plaintiff (except money, &c.), “ to have and to hold the same, and the use thereof, during the life of the plaintiff.” And in consideration of the agreement therein contained, and of five dollars paid to her, the plaintiff covenanted and agreed to devise, by her will, the lands in controversy, to the said Hannah, or to her executors,' in trust to convey to said Hannah, and her heirs for ever; such devise or conveyance to be to the said Hannah, and to such of her children as should be living at the decease of the said Mary, jointly. In consideration whereof, and of one dollar, the defendant, Samuel Reynolds, covenanted with the plaintiff, that he would remove on to the said land, and comfortably support, provide for and take care of the plaintiff, during her life, and that, in case of sickness, she should be well and faithfully taken care of, &c.; and that the said Hannah (the wife of the defendant and daughter of the plaintiff) should take care of the plaintiff and treat her kindly, as became the relation of parent and child. That the defendant, at the date of the agreement, and by virtue thereof, went into possession of the lands in question, and still continued in possession. That the plaintiff resided with, and was supported by the defendant, until November 1848, when she left the premises (for what reason did not appear), and after demanding possession, and giving the defendant thirty days’ notice to quit, commenced this action.</p> <p>The learned judge decided that the agreement was valid, and gave judgment for the defendant. The attorneys subsequently entered into a stipulation “ that the plaintiff’s counsel should be considered as having duly excepted to the finding and decision.” The judgment having been affirmed at general term, the plaintiff appealed to this court.</p>

This was an action upon a promissory note, dated the 5tK December 1845, whereby David J. Tysen, the defendant, promised to pay to the order of James S. Lake, the plaintiff, the sum of seventy-five… Held: among ■ other things, that the giving of the note by the defendant to the plaintiff was presumptive evidence that all prior claims between the parties were settled; and he assigned several other reasons for rejecting the claim for the injury to the horse. ' .

Motion to dismiss writ of error. Henry Carnal having been convicted of murder, in the court of oyer and terminer of New York, sued out a writ of error from the supreme court, where the judgment of the oyer and terminer was reversed, and a new trial awarded, in February 1852.

<p>Writ of error to the supreme court. The facts sufficiently appear in the following opinion.</p>

Some of the defendants had admitted the facts stated in the petition; others of them had traversed the same; after a verdict in favor of the petitioners, and the denial of a motion for a new trial, an order was made declaring the rights of the parties, and appointing commissioners to make partition; from which the parties who had traversed the petition took this appeal. The right to appeal was not contested by the respondents.

Bill in the late court of chancery for the specific performance of a contract.

Action of assumpsit brought in 1846, in the superior court of the city of New-York, by Leeds, as surviving partner of the firm of Leeds & Thayer, against the defendant as guarantor of the payment for goods sold to John H. Woodcock, on the credit of the defendant’s guaranty. At the trial before Mason, J., in February, 1851, the plaintiff was non-suited, and the nonsuit was sustained at the general term, from which decisión the plaintiff appealed to this court.

The original bill of complaint was filed on the 1st October, 1845, before the vice-chancellor of the eighth district. Its main object was to obtain a decree re-forming a lease, bearing date the 8th of November, 1843, from the defendants to the complainant, of a building in the city of Rochester, known as the Mansion House, for the term of eight years, from the 1st day of April, 1844.

Action to recover damages for the breach of a contract to continue a partnership. Upon the trial before the late Mr. Justice Sandfoed, it appeared that in December, 1846, the plaintiff entered into written articles of copartnership with the defendants, by which it was stipulated that the partnership was to continue until January 1851, unless sooner dissolved by one or more of the parties upon three months’ previous notice.

Appeal by the defendant, from a judgment of the supreme court in the eighth district, rendered in favor of the plaintiffs, on demurrer. The facts are fully stated in the opinion of Mason, J. The cause was submitted, here, by

The complaint states that on the 15.th January, 1849, the defendants passed an ordinance directing that Twenty-second street, between the Sixth and Seventh avenues, should be regulated and paved, and a space four feet wide flagged through the sidewalk under the direction of the street commissioner and one of the city surveyors.

The bill of complaint in this cause, was filed before the chancellor, in May, 1846, by Charles A. Peck, administrator with the will annexed of Thomas Tom, deceased, complainant, against John Mallams and others, for the purpose of foreclosing a mortgage made on the 1st of May, 1817, by Elias Kane, and Deborah his wife, of the first part, “ to Thomas Bloodgood acting executor of the estate of Thomas Tom deceased,” of the second part, to secure the payment of $13,000, in the…

(Reported below, 4 Sandf. 252.) This was a bill in equity, filed in the late court of chancery, by the plaintiffs, as judgment-creditors of the firm of J. W. & R. Leavitt, against the debtors and their assignees, to set aside certain assignments made by the firm, in trust for the benefit of creditors, on the ground that they were designed to hinder, delay and defraud the creditors of the assignors; and to obtain satisfaction of their judgments out of the property in the…

(Reported below, 12 Barb. 616.) This was an action to recover damages sustained by the plaintiff, in consequence of the construction of the defendant’s railroad between the plaintiff’s farm and the channel of the Hudson river. *The complaint alleged that the plaintiff was, -I and for three years past had been, the owner and in the actual occupation and possession of a farm of land, in the town of Stockport, in the county of Columbia, bounded on the west by the Hudson river,…

168.) This was a suit to set aside an assignment for the benefit of creditors, made by the firm of G. & H. Hunt-ting, on the 18th September 1848, as fraudulent and void, as to creditors; and to subject the assigned property to- the payment of the plaintiff’s judgment. It presented the same question as the case of Nicholson v. Leavitt.

In Equity. Appeal from the supreme court. These •causes were commenced by bill of complaint filed by the plaintiff as receiver, &c., of The Farmers’ Bank of Orleans, in the late court of chancery, before the vice-chancellor of the eighth circuit. The vice-chancellor made a decree in each cause, dismissing the bill filed therein without costs to either party.

(Reported below, 6 How. Pr. 241.) This was an action for false imprisonment brought by Corwin, the plaintiff, a merchant of Ithica, in Tompkins county, against the defendants, merchants in the city of New York, for an alleged illegal arrest and detention on final process. * Kfii i *The answer set up, by way of justification, ® J that on or about the 8th day of April 1850, the defendants commenced an action in the supreme court against the plaintiff in this suit, to recover…

(Reported below, 3 Sandf. 531.) This was a suit in equity, commenced in the late court of chancery, to subject a trust-estate to the costs and expenses of certain legal proceedings, for the protection of the interests of the cestui que trust.

In Equity. Appeal from the superior court of the city of New-York. The facts are fully stated in 5 Sandford's S. C. it., 16. From the judgment there rendered, the plaintiffs appealed to this court.

The defendant was sheriff of the city and county of New-York, and the action against him, commenced in February, 1850, was brought to recover the possession of personal property, consisting of a horse, and a quantity of cigars, alleged to belong to the plaintiff, and to be wrongfully detained by the defendant.

Appeal by the defendants from the judgment of the superior court of the city of New-York.

This was an action of assumpsit, to recover a balance alleged to be due upon a contract in writing, in the words following “ For value received, I promise to pay Martin Gilbert, three hundred and sixty-two dollars and fifty cents, in castings, such as said Gilbert shall select and direct, such as are cast at the Middleburgh furnace, which I agree to deliver at Gilbert’s dwelling-house, at Ghent, in Columbia county, at 4| cents per pound, to be delivered within, or by the 1st…

The plaintiff was a brother, and one of the heirs-at-law of Francis Kain, late of Westchester county, deceased ; the defendant was the executor of the widow. Francis Kain died in June 1844, without children, but leaving a widow, a mother, a brother (the plaintiff), and the children of a deceased brother. At the time of his death, there were fruits and grass growing upon lands, which the widow sold, after his decease, and received therefor the sum of $450.