Volume 8 — Barbour's New York Supreme Court Reports

This action was upon a bond given by the defendant to John H. Tomlinson, on the 13th of August, 1847, to secure the purchase price of certain premises in the village of Baldwinsville, for which premises Tomlinson at the same time executed to the defendant a deed with covenants of warranty and for quiet enjoyment.

William Morton, deceased, the plaintiff’s testator, made and published his last will and testament, bearing date the 15th day of November, 1847, and thereby devised his real estate in the following words : “ First. I give and bequeath unto my beloved wife Chloe Morton, the use of all my real and personal estate of whatsoever kind and nature, to have and to hold during her natural life and as long as she remains my widow.

<p>By a lease in perpetuity, executed in 1789, the lessors covenanted among other things, for themselves, their heirs, executors, administrators or assigns, to pay all taxes that might he thereafter taxed, charged or assessed to or upon the said thereby granted premises, or upon the lessor, his heirs, &c. by any act of the legislature, for and in respect of the said premises, or any part thereof. Held that the tenant was not liable, under this covenant, to pay to the landlord the amount of a tax on the rents reserved in the lease, which the latter had been compelled to pay under an act of the legislature, passed May 13, 1846, entitled “ an act to equalize taxation.”</p> <p>Such a tax is not a tax charged or assessed upon th& premises granted by the lease, nor upon the landlord for and in respect of such premises. It is a tax on rents issuing out of the granted premises, property declared by the act of May, 1846, to be, for the purpose of taxation, personal estate.</p>

This was an action of ejectment, tried before Justice Willard, at the Albany circuit, in October, 1847. The suit was brought to recover a farm lying in Coeymans in the county of Albany, which the plaintiffs claimed in fee. The defendant pleaded the general issue.

This was an action of dssunlpsit, commenced before a justice of the peace; where the plaintiff recovered. The judgment was removed by certiorari, to the Wyoming county court and reversed. The defendant in error in the latter Court, the plaintiff before the justice, appealed to this court. It appeared by the return of the justice that the jury, during their deliberations, had the minutes of testimony taken on the trial by the plaintiff’s counsel.

This was an appeal, brought in 1847, from a decree of the surrogate of the county of Erie, in the matter of the accounting of the appellant, as the guardian of the respondent.

To a complaint on two drafts accepted by the defendants, one of the defendants pleaded that he denied that they accepted the drafts, and verified his answer, as required by the amended code. A motion was made at special term to strike out the answer as false, on affidavits showing that the defendants had in several letters to the plaintiff acknowledged their acceptance and liability; and had to an agent of the plaintiff repeatedly promised to pay the drafts.

In Equity. The plaintiff filed his bill of complaint in the late court of chancery, to enforce the execution of an appointment made by virtue of a post-nuptial settlement, or to revoke the settlement itself. The cause was heard before the late vice chancellor of the first circuit, and afterwards in this court, on appeal from his decision.

The plaintiffs, Dunham & Dimon, partners in trade, entered into a contract with the defendants to build a ship to run as a regular packet between New-York and Glasgow, to be built under the superintendence of Churchill, one of the defendants, and when finished to be commanded by him, under the agency of Dunham & Dimon. The plaintiffs owning one quarter, and the other three quarters being owned by the defendants, in shares of T~ or i each.

This was an appeal by the defendants, from an order made at a special term, granting an injunction to restrain the defendants from making any alteration in the grade of certain streets and avenues of the city of New-York, or from removing or disturbing the Avail, walks, trees, shrubbery or other property of the plaintiff, or from doing any thing which might injure or tend to injure his lands, buildings or property, or his free use and enjoyment thereof.

<p>This was an appeal by the defendant Bibby, from a judgment rendered at a special, term by which the suit was discontinued as to him, but without costs. The facts appear in the opinion of the court.</p>

This was an action for taking and detaining personal property. It was commenced on the 28th of Nov. 1848, and tried at the Jefferson circuit in April, 1849, before Justice C. Gray. The defendant justified taking the property, as under sheriff, by virtue of two executions, issued on two judgments against James and Abel Whitcomb. One judgment was docketed on the 29th day of May, 1848, and the other on the 23d of September, 1848.

This was a complaint in the nature of a creditor’s bill, founded upon a judgment against the defendant Lewis, and execution thereon returned unsatisfied. It was exhibited more particularly to set aside an assignment made by Lewis, on the second of October, 1848, to the defendant Osborn, of certain personal property mentioned therein, in trust, to pay certain creditors therein specified.

This was an action upon a note given by the defendants to the trustees of the First Baptist Church of Glen’s Falls or bearer, for $50, payable in four equal instalments, &c. and was dated November 1, 1845. It was given for the purchase money of a slip in the Baptist- meeting house at Glen’s Falls.

This action was brought by the plaintiffs to recover possession of pew No. 45, in the church of the defendants in the village of Amsterdam, or the place formerly occupied by such pew in the church edifice, and damages sustained by reason of the trustees of the church entering upon such pew and ej'ecting the plaintiffs therefrom, and removing such pew, with the appurtenances, &c. It appeared by the pleadings, and was conceded on the trial, that the church was regularly…

This cause was tried at the Montgomery circuit, by the court; a trial by jury having been waived by the parties. The action was for entering the plaintiff’s close, and' breaking and destroying his fences.

<p>Motion on the part of the prisoner to admit him to bailhe being in custody on an indictment for murder.</p>

<p>This was an action on a contract, in which no order to arrest was obtained. After judgment for the plaintiff and an execution against goods, &c. was returned unsatisfied, an execution against the person of the defendant was issued, and he was arrested and committed to jail in Queens county.</p>

This cause was tried by the court, without a jury, by consent, at the Washington circuit, on the 25th February, 1850. On the 13th April, 1843, Philander C. Moore & Co., the defendants, in the lifetime of Wm. P. Moore, made their certain promissory note in writing, of that date, by which they promised to pay to the order of the plaintiff, at the Bank of Whitehall, the sum of one thousand dollars, six months after date, with interest.

This was a motion to dissolve or modify an injunction. The \ complaint was filed by the plaintiffs, two of the original found- ' ers of the Literary and Theological Seminary at Hamilton, to restrain the defendants from removing the Madison University and the Theological Seminary from Hamilton. The complaint was very long, setting out all the grounds of equity at great length, and with great minuteness.

These causes were argued on demurrers to the answers. Both suits were brought by the attorney general of the state; the first, for land in the town of Guilderland in the county of Albany, particularly described in the complaint, and said to contain over 134 acres; and the other, for another parcel lying in the town of Poestenkill in the county of Rensselaer, also particularly described in the complaint, and said to contain 150 acres.

This was an action on the case upon a contract to carry 245 barrels of apples from Utica to the city of New-York. The plaintiffs alledged that in consequence of the carelessness, neglect and delay of the defendants the apples were injured and their value lost, to the plaintiffs. The defendants pleaded the general issue. The cause was tried at the Columbia circuit before Justice Watson. On the trial the. plaintiff introduced Dillon Bliss, as a witness.

This suit was commenced before a justice of the peace. The plaintiff declared in debt upon a bond. The defendants severally pleaded the general issue, and gave notice that they would prove on the trial that the plaintiff was largely indebted to the defendants for board, washing and mending, furnished to him at his request; also for money paid, work, labor and services done and performed, and claimed a judgment for one hundred dollars.

This was an action of replevin in the cepit, for 186 sheep. The defendants pleaded generally, non-cepit, and gave notice that they would prove the sheep belonged to one Guernsey, and that Thompson, as sheriff of Fulton county,took the sheep under an execution issued on a judgment in favor of Ide and others; Ide acting as his assistant. The cause was tried at the Fulton circuit in November, 1846, before Willard, circuit judge.

Demurrer to declaration in an action of replevin. The declaration alledged that the defendants were summoned to answer the plaintiff in a plea of taking and unjustly detaining divers goods and chattels which the plaintiff was entitled to the possession of, and which were thereinafter described and set forth.

<p>Assumpsit, tried at the Livingston circuit in February, 1848, before Allen, Justice. The declaration contained the common money counts only, to which the defendants pleaded the general issue, with notice of special matter. The action was brought to recover the amount secured by three instruments in writing, one of which was in the words and figures following :</p> <p>“ $212. Nunda, New-Y ork, August 26,1844. We jointly and severally promise to deliver to a responsible forwarding merchant at Rochester city, with directions to forward, two hundred and twelve dollars in superfine flour, well barrelled, directed to J. A. Taplin, Montpelier, Vt., to the care of Follett & Bradley, Burlington, Vt., and interest on or before the first day of September, 1845, it being for value received. H. N. Packard.</p> <p>A. Willis.”</p> <p>The other two instruments in writing were substantially like the above, excepting that one was for $77, payable the first day of November, and the other for $213, payable the first day of June next after their dates. Copies of the instruments were indorsed upon the copies of the declaration filed and served, with notice that the same would be given in evidence on the trial, under the money counts. Upon the trial, the execution of the three instruments by the defendants was admitted by their counsel. The plaintiff’s counsel offered to read them in evidence to the jury, to which the defendants’ counsel objected, on the ground that they were inadmissible under the money counts. The circuit judge sustained the objection. The plaintiff then offered to prove that the said instruments were founded upon a good consideration proceeding from the plaintiff. This was objected to by the.defendants’ counsel, and the objection was sustained by the court. The plaintiff, offering no other evidence, was nonsuited.</p> <p>A motion was now made to set aside the nonsuit, and for a new trial.</p>

Assumpsit, tried at the Wayne circuit in December, 1848, before Sill, justice. The action was against Sanford as maker, and Petit and Johnson as indorsers of a promissory note in the words and figures following: “ $1000. Palmyra, January 3d, 1848. Thirty days from date I promise to pay to the order of J. G. Petit, one thousand dollars, payable at the Farmers’ Bank of the city of Troy, for value received.

This was an action of assumpsit. The declaration contained the ordinary counts for money lent and advanced, paid, laid out and expended, money had and received, an account stated, and five special counts.

This was an appeal, by the plaintiffs, from a judgment of the Steuben county court, reversing that of a justice. The facts are sufficiently set forth in the opinion of the court.

This was an action of ejectment, tried at the Ontario circuit in February, 1849, before Welles, justice.

This was an action under the code, to foreclose a mortgage given with a bond to the plaintiff’s assignor, by one Potter, in 1812, and recorded in that year. The bond was payable by installments, and the last payment became due about thirty years before suit.

This was an action in the nature of an ejectment, brought by the people, to recover the possession of land lying in the county of Columbia, being part of the manor of Livingston. The cause was tried at the circuit court, held in Columbia county, in April, 1850, before Mr. Justice Wright; a trial by jury having been waived by the consent of parties.

Motion by the plaintiff to strike out a part of the defendant’s answer. The complaint alledged that at the time of committing the acts complained of, the plaintiff was the owner and in possession of a certain lot of land, with a crop of wheat growing thereon, under and by virtue of a deed of conveyance from the defendant; and that the defendant wrongfully and forcibly entered upon the said lot of land, and cut and carried away the wheat.

Judgment in this case was perfected in favor of the plaintiff, on the 13th June, 1849, for $291,56, damages and costs, in the clerk’s office of Livingston county. Held: in consequence of the ill health of the justice assigned to hold it. And the notice was renewed for the term held in January; when the motion was made, and the order granted as above stated.

This was an action to recover the value of a note of which the following is a copy : “ $116,64. New-York, May 26,1848. Six months after date I promise to pay to the.order of James Van Amee & Co. one hundred and sixteen -ftiV dollars at the Troy City Bank, value received. (Signed) B. F. McNitt.” (Indorsed) “Jas. Van Amee & Co.—Pay John Paine, Esq. cashier, or order. T. Olcott, Cash.” Paine was cashier of the defendants.

This action was brought to recover damages for the breach of a marriage contract. The cause was tried at the Chenango circuit, in February, 1850, before H. Gray, justice. The plaintiff proved an admission by the defendant that he had promised to marry her, and a promise made to a third person that he would marry the plaintiff. It appeared that the plaintiff had given birth to a child, of which the defendant admitted himself to be the father.

This was an action of assumpsit, tried at the Columbia circuit, in October, 1847, before Justice Parker. The jury rendered a verdict for the plaintiffs; and the defendant, upon a bill of exceptions, moved for a new trial. The material- facts are stated in the opinion of the court.

This was an appeal by the plaintiffs from a judgment entered upon the report of a referee. The facts are stated in the opinion of the court.

Motion by the plaintiff to set aside the report of a referee, and for a new trial. The facts are sufficiently detailed in the opinion of Justice Brown.

Demurrer. The facts, and the questions of law raised by the demurrers, are stated sufficiently in the opinion of the court.

<p>This was an action of assumpsit. The declaration was on a special contract, as follows: “ Albany March 12, 1847. Mr. Thomas James bought of M. & S. Patten (for the relief committee) 3000 bushels of yellow corn, (fifty-six pounds per bushel,) to be delivered at the opening of the Hudson river navigation, at our store in Albany, at eighty-one cents per bushel, $2430.” The bill of sale was admitted to be in the hand-writing of Samuel Patten, one of the defendants; and it was shown in proof that after a negotiation and agreement for the purchase of the corn the bill of sale was delivered to. the plaintiff. After the opening of the Hudson river navigation a tender of the money was made by the plaintiff, and a delivery of the corn demanded. The defendants refused to deliver the corn or take the money. The plaintiff rested, after showing that the market price of corn at Albany, at the opening of navigati on, was ninety-seven cents per bushel. On motion of the defendants’ counsel his honor Judge Parker nonsuited the plaintiff, on the ground that the bill of sale was not a sufficient compliance with the statute of frauds, as the names of the defendants were' not signed at the bottom of said bill of sale. To which decision the plaintiff’s counsel excepted.</p>

<p>In respect to causes originating in a justice’s court, the supreme court has merely an appellate jurisdiction. It can only review and correct the decisions of the county court actually made, after a hearing of both parties.</p> <p>It has no power to review a judgment rendered in the county court by default.</p> <p>Dorr sued Birge and Wells before a justice of the peace in . the town of Lansingburgh, for taking away a wagon, and recovered a judgment for $73,17, damages and costs. The defendants appealed to the county court of Rensselaer county, where the judgment was reversed with costs. The plaintiff then appealed to this court. It appeared by the papers returned on appeal to this court, that the judgment of reversal in the county court was recovered by default.</p>

This was an action of-trespass, for taking personal property, tried before a justice of the peace. The defence was that an attachment had been taken out by Fox, and placed in the hands of Stone, a constable, under which he had levied upon and seized the property in question. The cause was tried before a jury, who gave a verdict for Jackson, the plaintiff, for $20 damages, on which the justice rendered judgment.

This was an appeal by the defendants, from a judgment rendered at the circuit in favor of the plaintiff. The pleadings were framed under the code of 1848.

a justice of the peace of Saratoga county, to remove a conviction for petit larceny. The facts are set forth in the opinion of the court.

This was an appeal from the Saratoga county court. The action was commenced against the defendants in a justice’s court, and was for killing a horse of the plaintiffs by running over him with an engine and train of cars. All the material allegations in the plaintiff’s complaint were denied by the defendants in their answer.

This was an appeal by the defendants, from a judgment rendered at the circuit in favor of the plaintiffs. On the 7th of June, 1848, the plaintiffs discounted for Jones & Hart a draft of that date, drawn by Loucks & Gray, of Canajoharie, on Morgan Gray of New-York, in favor of Jones & Hart, or order, for $1800, thirty days after date. Jones & Hart indorsed the draft to the plaintiffs, who then and there advanced the money for it.

This was an action of ejectment, brought to recover dower in a certain lot in the village of Sandy Hill, in the county of Washington, and was commenced in January, 1842. It was tried the third time before Willard, Justice, in December, 1848. On the trial the plaintiff proved her marriage with Wilr liam Finn in 1801, and his death in 1841.

This was an. action of assumpsit to recover the amount of two promissory notes, copies of which were annexed to the declaration; one for $500, dated August 12, 1846, signed by Charles Dewey and payable to the defendant or order, and indorsed by him, payable in three months, at the Bank of Troy. The other note was like it in all respects, except that it was payable in four months.

This cause, was tried before Mr. Justice Watson at the Clinton circuit, in April, 1849, and a verdict rendered for the plaintiff, which the defendant, upon a case, now moved to set aside.

This was an appeal by the defendants from a judgment by default. The action was trespass, for entering a church and breaking down the seats, &c. <fcc.

This was a motion, made upon a case, to set aside the report of a referee. The action was to recover damages for a, breach of contract by which, as alledged, the plaintiff was to take the defendant’s piles to New-York, for one dollar and twenty-five cents, and his dock logs for sixty-two and an half cents; averring that the plaintiff had offered to fulfil, and that the defendant had refused to allow him to do so.

<p>Where a horse, while being led along the highway, by its owner, is so frightened by an engine and train of cars rapidly passing along upon a railroad near by, that he bursts a blood vessel, and dies, no action will lie against the railroad company, for the injury; unless it was the result of some wrongful act of the «company, either of omission or commission.</p> <p>The mere noise made by an engine and train of cars, in the abstract, affords no evidence of a culpable inattention to the rights of others.</p> <p>An authority to use an engine for the purpose of propelling cars upon a railroad, is an authority to make a noise, whether it awakens fear or not.</p> <p>But where the charter of a railroad company required them to purchase a turnpike road running parallel to the proposed railroad, and to assume the liabilities of that corporation, before'they should be permitted to run cars upon their own road; and gave them the right to lay their railroad track across and along the bed of the turnpike, but required them “ to restore the road to its former' state, or in a sufficient manner not to impair its usefulness;” Held, that if the taking of a part of the bed of the turnpike, for the track of the railroad, or the bringing the railroad into close proximity to the turnpike, rendered it dangerous to persons travelling with teams on the latter, and thus impaired its usefulness to the public, the railroad company was bound either to remove the two roads further from each other, or to separate them by protecting guards.</p> <p>It is, in such a case, the duty of the railroad company to see that the two roads do not interfere with each other.</p> <p>And if an encroachment is made by the railroad company upon the turnpike, and it neglects to restore the turnpike to its required width, and omits all other precautions against accidents, in consequence of which neglect of duty the noise and sight of a train of cars upon the railroad frighten a horse lawfully passing along the turnpike and thus cause his death, the railroad company is liable to the owner for the injury.</p> <p>Such an encroachment by a railroad company, upon a turnpike, is a public nuisance, for which any person sustaining a particular injury may maintain an action.</p> <p>In such an action the questions, whether the defendants have been guilty of a want of ordinary care and foresight, in constructing their railroad and turnpike too near to each other, and without any screen between them, and whether this was the proximate cause of the injury complained of, are proper questions for the consideration of the referees ; and their finding is conclusive.</p> <p>What degree of care in constructing a railroad does the law exact from a railroad company 1</p>

In April, 1841, the St. Lawrence Bank being embarrassed, authorized Henry Van Rensselaer, the president, and Egbert N. Fairchild, the cashier of the bank, to raise money to redeem the circulating notes of the bank.

<p>Demurrer to complaint. The facts are stated in the opinion of the court.</p>

The plaintiffs were incorporated by an act of the legislature passed May 22, 1841, and went into operation during that year.

This was an action of ejectment, tried at the New-York circuit in December, 1846, before S. Barculo, circuit judge. On the trial the following facts were admitted, as if proved: “ That Joanna Livingston, wife of Peter R Livingston, died in 1829, having never had any children. That she had four brothers and five sisters, viz. Mrs. Janet Montgomery, who died before Mrs. Livingston, leaving no descendant.

In Equity. The bill in this cause was filed in the court of chancery, before the vice chancellor of the first circuit, on the 29th of June, 1846. An answer was put in, and a general replication was filed, and proofs were taken. The nature and object of the bill, and the facts appearing from the pleadings and proofs, together with the legal questions arising thereon, are stated in the opinion of the court.

This was an action of ejectment brought by the plaintiff to recover the possession of two lots of ground situate on the easterly side of the eighth avenue, between Fortieth and Forty-first-streets, in the city of New-York, and came onto be tried before his Honor Justice Oakley, on the 22d of February, 1844. On the trial the counsel for the defendant admitted that the defendant was in possession of the premises in question, at the time of the commencement of this suit.

This was an action of trespass, for seizing and taking personal property. The defendant, by his plea, justified the entering upon the premises and seizing and taking the property in question, on the 7th of July, 1846, as and for a distress for rent due from the plaintiff on the 1st day of May, 1846, for the five months previous thereto. To this plea the plaintiff demurred. The other material facts appear from the opinion of the court.

This matter came before the court upon a special report of the commissioners of estimate and assessment, showing that the report heretofore presented to the court, purporting to be their estimate and assessment, was not, in its legal effect, in accordance with their intention and judgment as such commissioners, and asking that the same might be referred back to the commissioners, for revisal and correction.

The defendant was a dealer in produce in the city of New-York, and applied to certain produce brokers to purchase a quantity of com for shipment abroad. They refused to sell to him except for cash, and it was finally agreed to sell to him three boat-loads for cash payable on delivery. The corn was delivered directly from canal boats on board of a ship bound for London, and was three days in delivering.

Susan Ledyard, the defendant in error, sued Acker, as sheriff of the city and county of New-York, to recover the amount of rent due to her from a tenant, Mrs. McElroy, whose goods it was alledged the defendant had levied upon and sold, notwithstanding the plaintiff had caused an affidavit and notice of the amount of rent due to her to be served upon the sheriff, previous to the sale. The defendant pleaded the general issue.

Motion by defendants to set aside report of a jreferee. The action was assumpsit by the plaintiff as assignee in bankruptcy of Preston &• Pomeroy, commenced in May, 1844, to recover a balance of accounts, alledged to be due from the defendant to Preston &. Pomeroy. The defendant pleaded the general issue, and gave notice of set-off.

The action was ejectment, to recover the possession of a house and lot fronting on the Bowery in said city. The suit was commenced in the name of Jane Ann Ferrers, as plaintiff; but she dying, it was revived in the name of Golden and Ogden, her executors.

In EauiTY. This was an appeal by the defendant from a decree made by Justice Edmonds at a special term. The case at special term is reported in 2d Barb. Sup. Court Reports, 608, where the facts are stated.

Motion by the defendant for a new trial, on a bill of exceptions. The action was for slander, in accusing the plaintiff of stealing a check for $105 drawn by the defendant. On the trial, John D. Wright, a witness for the plaintiff, testified that on the 2d of May, 1840, he loaned to the plaintiff $105; that on the 14th of May thereafter he received a check for $100, and $5 in money.

H. Main and R P. Main, the plaintiffs in error, for money paid by King upon a contract with them for the purchase of $1000 worth of eggs, and which contract the defendants had rescinded and refused to perform. The facts are stated in the opinion of the court.

In Equity. This was an appeal, by the plaintiff, from, a decree made at a special term of the court, dismissing the bill of complaint, with costs. The case at special term is reported-in 4th Barbour’s Sup. Court Reports, 279.

This was a suit against a foreign corporation, commenced by the service of a summons and complaint upon the president thereof, not having any office or place of business in this state, but who happened to be within the state at the time of such service. No attachment or other process was issued. The defendants appeared voluntarily by attorney and put in an answer, denying the jurisdiction of the court.

This was a motion, by the defendants, who had been convicted upon an indictment for obtaining money by false presences, for a new trial, upon a bill of exceptions. The facts are stated in the opinion of the court.

The plaintiff in error was indicted, together with one Franklin L. Bragg, under the 58th section of the 2d volume of the revised statutes, page 764, 3d ed., for sending a threatening letter with a view and intent to extort money from William B. Astor. The prisoner having been convicted in the court of general sessions, upon the indictment generally, brought this writ of error; upon which the grounds of error alledged were in respect to the form of the indictment.

<p>A lunatic, by the appointment of a committee, loses none of his estate, rights of property, or rights of action. All suits affecting his person or property must be prosecuted in his name, except those which are authorized by statute to be brought in the name of the committee.</p> <p>In an action upon a bond conditioned for the support and maintenance of the obligee and his lunatic son, brought by a person who had furnished supplies to the obligee and his son, it is not a sufficient breach to alledge that the obligee and his son, after the death of the obligor, went to the plaintiff’s to reside, and were there supported; without any averment of a request that the defendants would perform the condition of the bond, or of their refusal or neglect to do so, except that the administratrix of the obligor had refused to pay the plaintiff's account for support and maintenance.</p> <p>Where a bond is conditioned for the support and maintenance of the obligee and his lunatic son, during life, and to furnish them with good and sufficient nursing and medical attendance, washing and lodging, both in sickness and in health, the obligor is only bound to maintain and support the obligee and his son, at his own dwelling house; provided it can there be done in a suitable manner, which will be presumed. And after the decease of the obligor, the family residence, so long as it is maintained, is the place of support.</p> <p>Such a bond is not a money bond, though it may perhaps become so, by breach, in which case a pecuniary liability arises.</p> <p>The doctrine of equitable lien upon land sold, for the purchase money, should not be extended beyond the vendor and vendee and privies in estate or in law; and then only for unpaid purchase money.</p> <p>Thus where A. conveys land to B. and in consideration thereof B. covenants with A. to support and maintain him and J. his lunatic son, the covenant creates no lien upon the land, in favor of J.</p> <p>Where a covenant of the vendee is substituted for the purchase money, or as a mode of payment of the price of the land, the land should be held discharged of the lien.</p> <p>Accordingly, where a vendee, by his bond, reciting the conveyance of the land to him as the consideration of such bond, covenanted to maintain the vendor and his son J. during their natural lives; Held that the covenant was the substituted consideration for the purchase money, and that the bond was not an equitable incumbrance on the land, in behalf either of the obligee, or of his son J., who was merely a beneficiary.</p>

• At the oyer and terminer in Herkimer county in October, 1849, the defendant was convicted of the crime of forgery in the third degree.

This was an appeal, by the defendants, from a judgment of the Oswego county court, affirming a judgment rendered by a justice of the peace. Before the justice the plaintiff recovered a judgment for $16. The opinion of the court contains a statement of the facts.

This was an appeal by the defendants from so much of a judgment rendered at a special term as awarded costs to the plaintiff.

This was an appeal, by the defendants Smith and Ayer, from an order made by Justice Allen, at a special term, granting a new trial. The pleadings and evidence established the following facts. The old firm of J. H. Tomlinson & Co. (of which the defendants were survivors,) borrowed $800 of James W. Lusk, the plaintiff, in June, 1845, for which they gave him their note. In 1846 the note was renewed for $856, including the interest.

This was an action brought by the plaintiff, Eve Maxwell, widow of Anthony Maxwell deceased, to recover her dower in the premises described in the complaint. The defendant, in his answer, denied that the plaintiff was thé widow of the said Anthony Maxwell, or that he ever was her husband ; or that he died at the time mentioned in the complaint.

This was an action of trover for a horse. The cause was tried at the Oswego circuit, in June, 1849, before Justice Mason. The jury, under the direction of the court, found a verdict for the defendant; and the plaintiff, upon a case, moved for a new trial.

In Equity. This was a creditor’s bill, upon a judgment recovered by the plaintiff against the defendant James Henry, upon which an execution had been issued and returned unsatisfied. William Henry was made a defendant as the holder of a judgment against James Henry which was alledged to be fraudulent, and to have been confessed by James Henry for the purpose of defrauding his creditors.

Demurrer to complaint. The complaint alledged that in March, 1844, the defendants Brodhead & Oliver commenced business as merchants, at Woodbourne, Sullivan county* and continued to carry on the same until August, 1846, when they took one Skeel as a partner, who remained a partner until April, 1847; after which Brodhead & Oliver conducted the business until May, 1847, when they dissolved partnership as merchants, but still carried on the lumber business.

Motion to dissolve an order in the nature of an injunction. In the month of March, 1850, the plaintiff commenced an action against the defendants, and obtained from a judge, ex parte, an order in the nature of an injunction, restraining the defendants and each and every of them, their officers and agents, from in any way appropriating or paying out any money, funds or'property belonging to the corporation of the city of Albany, for the purchase of a picture or portrait of…

The plaintiff in error was indicted in the court of sessions of Ontario county, under the act entitled “ An act to punish abduction as a crime,” passed March 20,1848.

In EauiTY. This was a motion for an injunction; the bill being filed for the specific performance of an agreement. The facts are stated in the opinion of the court.

In Equity. This was an application by the defendant, Elizabeth Nanny, for surplus moneys, in a foreclosure suit. The facts are stated in the opinion of the court.

This action was commenced in a justice’s court. The complaint ailedged that the defendant was the owner of 15 hives of bees, which he wrongfully kept in his yard adjoining the public highway, and that the plaintiff’s horses, while travelling along the highway and passing the place where the bees were kept, were attacked and stung so severely that one of them died and the other was greatly injured, &c. The answer denied the charge contained in the complaint.

Motion in arrest of judgment. The defendant was indicted for grand larceny, in the court of oyer and terminer for the county of Wayne. The indictment having been removed into this court by certiorari, was sent to the circuit for trial on the defendant’s plea of not guilty. The trial came on at the circuit held in and for the county of Wayne, in April, 1850, before Selden, justice, when the defendant was convicted.

Demurrer to complaint. The nature of the action, and the legal questions raised by the demurrer, appear in the opinion of the court.

This was an action of assault and battery, tried at the Cortland circuit in March, 1850. After the plaintiff had proved his case and rested, each of the defendants called all of his co-defendants as witnesses for himself. ' The plaintiff objected to the competency of the witnesses, and the court sustained the objection, to which the defendants excep'ted; and now moved for a new trial.

This action was brought to recover the amount of a joint and several promissory note made by the defendants. On the trial before the referee, one defendant offered the other as a witness. The plaintiff’s counsel objected that in an action on such a note one defendant was not a competent witness for his co-defendant. The referee sustained this objection and excluded the witness. The defendants excepted, and appealed.