Volume 8 — New York Reports

On the 12th day of September 1809, Hannah Ryerson, the mother of the plaintiffs Elizabeth Ann Wright and ' Charles Miller, then being a single woman and entitled to an undivided interest in a large estate left by her grandfather Samuel Ellis, by indenture reciting that she was unable to take the care, burthen, and management thereof, except by a trustee, and that she was desirous to make partition and to divide and adjust her claim thereto, with the other heirs and devisees…

Decker brought an action against the defendants for the conversion of a promissory note. Both appeared by the same attorney and put in a single answer, in which, however, each defendant answered “separately and not jointly,” the matters of defence upon which he relied. The cause was tried before Mr. Justice Duer, on the 20th of February, 1851, when a verdict was found in favor of the defendant Gardiner, and in favor of the plaintiff against Matthews.

In March, 1845, an antenuptial agreement was entered into between the respondent and Ebenezer Sheldon, the appellant’s testator, both of Floyd, Onéida county, who were about to be married, by which it was provided that in case the marriage should take place, “the said Ebenezer Sheldon shall and will by his last will and testament, in writing or otherwise, give and assure unto the said Deborah Brooker the sum of fifty dollars yearly, each and every year during the said…

This action was brought against the defendant as a common carrier of passengers for the value of three chests and their contents lost by it.

This action was brought by the plaintiffs as the assignees of a lease of a part of certain real estate, known as the Empire block in Syracuse, to redeem a mortgage made by the defendant Voorhees and one Norton to the defendant Taylor, for the purchase money of the whole, and which Taylor by arrangement with Voorhees was foreclosing.

This was an action of debt brought in 1845 by the plaintiffs, to recover of the defendants the amount of damages assessed to them upon the opening of a street in the village of, Lockport, and adjudged to them by the president of the village, under the 43d section of the act incorporating it (Laws 1829, p. 141). The defense set up was, 1.

This was an appeal from a judgment of the supreme court upon a writ of error to the superior court of the city of New York. The facts necessary to an understanding of the case are contained in the opinion delivered in the supreme court, reported in 8 Barbour, 514. The case was argued in this court by

The relator Benjamin Welch, Jr., and the defendant, at the elec* tionheld in November 1851, were opposing candidates for the office of treasurer of the state, and the board of state canvassers had determined and declared tliat the defendant was by the greatest number of votes duly elected to the office; and this action was one in the nature of a writ of quo-warranto to defeat his title to the office, and establish that of the relator.

This was an action of covenant brought in the supreme court, in 1847, upon a lease of a lot of land in the city of New York, made by Henry Astor, deceased, to William D. Crolius, in which the lessee covenanted to pay certain rents and the taxes upon the lot for twenty years from May 1, 1825. The plaintiff was the devisee of the lessor. The defendant, on the seventh of November, 1830, purchased at a mortgage sale all the estate of the lessee.

This action was brought in the superior court of the city of New York by the plaintiff, as widow of Lewis Moore, to recover .dower of certain lands in the city of New York, of which her husband was seized in fee during her coverture. She was married to him in 1815, and remained his wife until his death in 1843.

On' the sixth day of September, 1849, the plaintiff entered into an agreement with the defendants to take a store which they were building, for five years from the first day of May, 1850, at the yearly rent of five hundred dollars, payable quarterly in advance.

<p>The corporation of the city of New York, has power to regulate a street at its own expense, and when the work is completed, cause the same to be estimated, assessed and collected of the persons benefited thereby.</p> <p>It may by ordinance direct the work to be done and the expense to be assessed, without designating the persons to be assessed or the limits of the territory within which the assessment is to he made, and then cause the work to bo done upon a contract providing for the payment when the money is collected upon the assessment. In such a case, the corporation assumes the responsibility of the payment to the contractor notwithstanding the time of making it is deferred, and the work is done at its expense.</p> <p>It is in the discretion of the corporation to include in a single assessment the regulation of several streets, or to cause the work upon each one to be separately assessed.</p> <p>Where a contract made in pursuance of an ordinance for regulating several streets and avenues above and below Thirty-fourth street, had been nearly completed, and a second ordinance was passed altering the regulation of the street above Thirty-fourth street, and thereby largely increasing the expense of the whole work; held that there was no error in including in the assessment the owners of lots lying below Thirty-fourth street.</p> <p>A personal demand of the assessment must be made before a levy. This need not however be by the collector, but may be by any one duly authorized to’ receive it: and where in the complaint the plaintiffs simply allege that no demand was made “ by A. S.,” (the collector), the defendant by omitting to answer the allegation does not admit that it was not made by his deputy collector.</p>

The appeal in this case was from a judgment of the Superior court of the city of New York, in an action brought to recover a quantity .of peanuts sold by the plaintiff upon credit to the defendant, Jacob Cholwell, and which had been transferred by him to the defendant George R. Cholwell, by an assignment for the benefit of creditors.

This action was brought for the recovery of the possession of about 220 acres of land, situated in the town of Big Flats, in the county of Chemung, and was commenced by the service of summons and complaint, in July, 1848.

<p>In an action upon a bond conditioned to indemnify the obligee against moneys which he may be compelled to pay for a third person, the obligee may recover the moneys he may be compelled so to pay, to the amount of the penalty together with interest upon the amount as damages for the detention.</p> <p>Such a bond although in form one of indemnity is a bond for the payment of money only, and the obligors although describing themselves as the attorneys of a third person are in no respect sureties.</p> <p>Where the sum actually due by the condition of a bond without interest equals the penalty, interest can be recovered as damages beyond the penalty.</p> <p>The apparent conflict in the cases upon the question whether a recovery in debt on a penal bond, can be had beyond the penalty, arises from confounding actions on bonds for the performance of covenants, with actions on bonds for the recovery of money only. In the former class of cases the recovery is generally limited to the amount of the penalty, while in the latter it is not.</p> <p>An allegation in a declaration that the plaintiff “ afterwards to wit,” on a day specified paid certain moneys, does not preclude him from showing that the payment was made at an earlier day for the purpose of claiming interest. The allegation of time was immaterial.</p>

The plaintiff in this action sued the defendants in the superior court of the city of New York, for a quantity of coal sold to them. They defended the action on the ground that, the plaintiff being a nonresident of the state, had been proceeded against by attachment, as a nonresident debtor, and that regular proceedings had been thereupon had'restraining the payment of debts due to him.

By the act for the incorporation of the Auburn and Rochester Rail Road company, passed May 13, 1836, the company was authorized to select a route for its road, and in case of an inability to purchase the right of way of any proprietor of the lands, required to apply by petition to the first or senior judge of the county, who, upon being shown that certain conditions had been complied, with, was authorized to draw from the grand jury box a jury of appraisers to make an…

This action was brought to recover a supposed balance due from the defendant to the Canal Bank of Albany. It was tried at the Albany circuit in June, 185 i, before -Mr. Justice Harris.

This was an. action for libel brought in the superior court of the city of New York, and tried before Mr. Justice Campbell in May, 1851, when a verdict was rendered against the defendants, upon which a judgment was entered, which was affirmed by the court at a general term. The defendants appealed therefrom to this court. The facts upon which the question disposed of here arose sufficiently appear in the opinion.

Action on the case commenced in the sureme court to recover damages for an injury sustained by the plaintiff by the bursting of a boiler of a locomotive engine upon which he was engaged as a fireman, on the defendants’ rail road.

<p>In an action by the vendee upon a contract for the sale of an article to be delivered at a particular place, if he show he was ready to pay at the time and place appointed, it is not necessary for him to prove payment or tender.</p> <p>If the payment was to be in “ New York funds,” and it is shown that the vendee had means to pay them, there is no necessity of showing that he had obtained such funds for'the purpose.</p> <p>If a vendor is not induced to enter into a contract by false representations of the vendee, the fact that the latter made such representations during the negotiation of the contract, will not avoid it.</p> <p>Where there is an attempt to impeach the good faith of a vendee in obtaining a contract of sale on the ground of fraudulent suppression of information obtained from a letter, he may show the contents of the letter to repel the presumption of fraud.</p> <p>Where one alleges fraud in a contract of sale, his declarations made subsequently . may be proved to show his affirmance of the contract with full knowledge oi . the facts.</p>

This was an action brought in the superior court of the city of New York by the plaintiffs as holders, against the defendants Searls as drawers and defendant Newell as endorser of an instrument of which the following is a copy: “ |2,000-00. “ New York, October 5th, 1849. “ Cashier of Thomson Bank— “ pay Zenas Newell or order two thousand dollars on the 12th inst. (Signed,) “ B. Searls & Son.

<p>A nuncupative will may be made by a captain of a coasting vessel while she is on a voyage, and while lying at anchor in an arm of the sea where the tide ebbs and flows.</p> <p>It is sufficient that the testator, in prospect of death, in answer to questions as to what disposition he desires to make of his property, states his wishes. No particular form of bequest is necessary, nor is it necessary for him to request any persons present to be witnesses that it is his will.</p>

This was an action against the endorser of a promissory note, commenced in the superior court of the city of New York and tried before a referee.

This was an action upon a guaranty of a promissory note. The note and guaranty were as follows: “$ 140-00. By the first of November next I promise to pay to the order of John Thompson, at the Rochester City Bank, one hundred and forty dollars—value received, with use. “George Silence. “Rochester, April 18, 1848.” “ I hereby guarantee the payment of the above note. “ F. Silence.” The action was tried at the Monroe circuit in October, 1849, before Mr. Justice Johnson.

In July, 1817) James Dobson and wife executed to Charles Racey a mortgage upon lands in Richmond county, as collateral security for the payment of $1,500 to Racey, for which Dobson gave his bond.

The defendants appealed from a judgment against them rendered by the court of common pleas of the city and county of New York, in an action on the case, for damages sustained by the plaintiff through the alleged negligence and carelessness of workmen engaged in grading one of the streets of that city; the carelessness and negligence being charged in the declaration, as the acts of the defendants, their servants and agents.

This was an appeal from a judgment of the superior court of the city of New York. In September, 1843, the sum of $29,000 was obtained from the defendants,- ten different banking corporations in the city of New York, upon checks forged by one Henry Saunders, jr., in the name of Austin, Wilmerding & Co. The defendants offered a reward in the words following: “EXTENSIVE FORGERIES. $5000 REWARD.

This was an appeal ‘from the decision of the superior court of the tiity of New York, dismissing the bill filed by the appellant (Anderson) against Lemon, his former partner, praying for a partition, or a sale and division of the proceeds of certain real estate occupied by the parties as copartners under a lease, the fee of which had been purchased by the defendant in his own name, during ■ the existence of the copartnership; and that the defendant account for the subsequent…

The plaintiff is a corporation formed under the provisions of an act passed May 21, 1841, with the powers and privileges, and -subject to the restrictions and limitations contained in the act incorporating the United Insurance Company, passed May 14, 1840.

<p>■ufae jurisdiction of any court exercising authority over a subject may be enquired into in any court where the proceedings of the former are brought by a party claiming the benefit of them.</p> <p>The district courts of the United States are not courts of inferior jurisdiction in the sense that renders it necessary to show their jurisdiction on the face of their records. If jurisdiction do not appear on the face of their proceedings, their judgments may be reversed on writ of error, but they are not nullities which in a collateral suit may be disregarded. In such a suit their jurisdiction is presumed until the contrary is shown.</p> <p>The jurisdiction of the district court over the person of one decreed a bankrupt will be presumed although the decree does not show affirmatively that the court had acquired jurisdiction.</p> <p>The district court had under the bankrupt act, jurisdiction in all matters and proceedings arising under it, and of all suits in law or equity to be brought by an assignee of the bankrupt and any persons claiming any adverse interest. It might entertain a proceeding in equity by the assignee although •an action at law could have been maintained upon the case made.</p> <p>The saving clause contained in the act repealing the bankrupt act extended to all the proceedings necessary to consummate the relief intended by the provisions of the act repealed, until the final distribution and settlement of the bankrupt’s estate, in any case commenced previous to the repeal.</p> <p>By the repeal of the bankrupt act,' the jurisdiction of the district courts to entertain a plenary suit in equity commenced by bill of complaint in matters relating to a case in bankruptcy was taken away, but the power to entertain summary proceedings on petition in a case commenced previous to the repeal was retained. TJnder the latter power a district court might dismiss a bill of complaint, and direct that it be retained as a petition, and further proceedings be had thereupon.</p> <p>Where the parties to a proceeding in bankruptcy had a defence in the nature of a statute of limitations, which they should have set up in the proceeding but did not, the matter can not be here shown against the decree made in such proceeding.</p> <p>Where a party has appeared in an action, and a decree has been made reciting his appearance at the hearing, he can not in another action object to the recital. If he did not appear at the hearing he should by motion have the recital corrected.</p> <p>In this action where one was declared a bankrupt under the bankrupt act of 1841, and the assignee in bankruptcy after its repeal filed his bill in equity in the district'court against fraudulent assignees of the bankrupt and persons having the proceeds of the fraudulent assignments, which bill was by the district court dismissed as a bill, but retained as a petition and proceedings and a decree subsequently had thereon, it was held that the decree was valid. Jewett, J., dissenting.</p>

The facts disclosed in the case were as follows. On the 17th of April, 1837, Stephen A. Halsey and wife made their mortgage to the plaintiffs conveying two hundred and ninety-four acres of land in Westchester county, described by certain bounds, and as “ all that part of the farm and premises lying on the easterly and southerly side of the post road which were heretofore conveyed to the said Stephen A. Halsey by Vanburgh Livingston.” The mortgage was conditioned for the…

This action was brought'to foreclose a mortgage made by the defendant, Moses Swezey, to James C. Reeve, on the 22d of June, 1842, to secure the' payment of $500. The mortgage had been assigned to the plaintiff. The answer admitted the making of the mortgage, but alleged that it was given upon an usurious loan, and that no more than $450 was loaned, and the remaining $50 was reserved ás an usurious premium upon the loan.

This was an action brought to recover the rent reserved upon two leases of lands held by the defendant of the plaintiff. Held: that if the jury came to the conclusion from the testimony that only one notice had been served upon the defendant, and that such notice was the one produced by defendant’s counsel, then the plaintiff was only entitled to recover the amount due upon the lease mentioned in that notice, being with the interest on the same $36-89, the…

This action was brought in the superior court of the city of New York to recover a deposit made by the plaintiff upon a contract with the defendants for the purchase of a quantity of cotton. It was tried before the late Mr. Justice Sandford, in April, 1848. The contract was made between the plaintiffs and defendants through the- agency of a broker, and the following notes were passed; that to the plaintiffs was as follows: “ New York, January 27th, 1847. Messrs.

This was an action brought in the supreme court in 1841 on a policy of insurance for $5000 made by the defendants upon the life of Hiram Comfort, on the 17th of April, 1839. It contained, among other provisions to avoid the policy that “ in case the assured shall die by his own hands, or in consequence of a duel, or by the hands of justice, or in the known violation of any law,” it should be void.

This action was brought in the superior court of the city of New York, to recover an amount claimed to be due upon a note for $5000 given by the defendant to the Alliance Mutual Insurance Company, dated May 1, 1846, and payable twelve months after date. The Alliance Mutual Insurance Company, was incorporated by chapter 94 of the laws of 1843.

<p>Where an objection to the validity of a law arises from a failure by the legislature to comply with the provisions of the constitution which is not apparent by the act itself, it can only be taken advantage of by alleging it distinctly in the pleadings i</p> <p>The presumption is that a law published under the authority of the govern ment, was correctly passed so far as it relates to matters of form.</p> <p>The provisions of the constitution requiring three-fifths to form a quorum on the passage of bills to impose taxes, have no reference to the passage of a military law by which a commutation tax is imposed upon the ununiformed militia in lieu of militia service. Such commutation is not a tax within the meaning of Article VII, 5 14 of the constitution.</p> <p>It is not necessary that the presiding officers of either- house of the legislature should certify that an act was passed by a majority of all the members elected. This is presumed, and the fact can not be questioned where no specific issue has been joined upon it.</p> <p>The “ Act for the enrollment of the militia, &e.,” passed April 16, 1851, was passed in the manner required by the constitution.</p> <p>It is not in conflict with the constitution of the United States or of any act oi congress.</p> <p>The requirement that the yeas and nays shall be taken upon the final passage of a bill and entered on the journal, (Cons. Art. Ill, § 15,) is complied with in either house when a bill has been passed in that manner, and subsequently amendments have been passed in the same manner, which upon being disagreed to by the other hpuse, are receded from by a vote without calling the yeas and nays.</p> <p>This requirement of the constitution is directory merely.</p> <p>The certificate of the presiding officers of each house of the legislature required by the Laws of 1847, p. 276, where a bill requires three-fifths of the members elected to form a quorum for its passage, is only presumptive evidence of the fact. If the certificate is omitted, the fact that three-fifths were present at the final passage of the bill may be shown by other evidence.</p> <p>Where the Supervisors of a county have neglected to perform any duty required of them at their annual meeting, they may be compelled .by mandamus to meet again and perform it. They can not by tbeir neglect nullify a statute imposing duties upon them.</p> <p>The board of Supervisors of Chenango county, at their annual meeting in 1851, neglected to issue warrants for the military commutation. The supreme court issued a mandamus requiring them to meet and issue the warrants. Held that the mandamus was properly issued. ></p>

<p>"Where the owner of real estate which had been sold for taxes but regularly redeemed from the sale, under a mistaken representation of the purchaser that he had received a conveyance which had become absolute, purchases his title of the latter, the price paid may be recovered as money paid by mistake.</p> <p>In such a case the purchaser at the tax sale having no title, his defed afforded no consideration to the owner of the land for the. price paid.</p>

This was an action of assumpsit, commenced in June, . 1846, for the use and occupation of. a farm in Greece, tried before Mr. Justice Selden, at Monroe Circuit, in June, 1848, when a nonsuit was ordered. A judgment entered thereon was affirmed at a general term of the supreme court in the seventh judicial district.

The appeal in this action was from a judgment of the superior court of tiie city of New York. The action was assumpsit upon an agreement made between the plaintiff and defendant, on the 22nd day of December, 1846, by which the defendant agreed to transport twelve thousand bushels of corn from New York to Liverpool, in the ship Yorkshire, at the price of sixteen pence sterling per bushel, payable at the port of delivery.

<p>An endorsee of a bill of exchange in an action against the acceptor might U common law give it in evidence under the common money counts.</p> <p>Where his action was brought under the “Act regulating suits on bills of exchange and promissory notes” (Laws of 1832, Ch. 276), and a copy of the acceptance omitting the endorsement was served with the declaration, it was a sufficient compliance with the statute to admit in evidence the acceptance with its endorsement to the plaintiff. Per Morse, J.</p> <p>The notice was not a bill of particulars.</p> <p>The effect of the common counts and notice is equivalent to an allegation of the title of the plaintiff to an. acceptance, which may be shown by the endorsement. Per Morse, J.</p>

This was an action upon a policy of insurance for $2000 upon the brig Tremont. It was on the third day of October, 1843, issued by the defendant, a corporation existing at Newark, New Jersey, through L. Gregory, its agent in the city of New York.

This was an appeal from a decree of the supreme court in the second judicial district, affirming a decree of the surrogate of Columbia county, requiring the administrators of William. Rowley to account for twenty shares of the stock of the Farmers’ Bank of Hudson which had been transferred by their intestate to Levi Rowley, one of the administrators, seven days before death. William Rowley died of delirium on the sixteenth day of July, 1840, without leaving a will.

This was an appeal from a decree of the superior court of the city of New York. On the 28th day of June, 1828, Thomas H. Smith and George W. Bruen were partners in business in the city of New York, under the style of Thomas H. Smith & Son. .Upon that day the firm became indebted, to Thomas Blood-good, the plaintiff’s testator, in the sum of $10,360T1 upon a promissory note, payable in ninety days from date.

This was an action of trespass on the case for negligence in towing the canal boat Jay, belonging to the plaintiffs, by means of which an accident occurred to her and caused'her to sink in the Hudson river near the city of New York. The defendants were the owners of the steam boat Sandusky, which was used for towing boats upon the Hudson river.

<p>The provisions of an act authorizing a lien in favor of mechanics for work performed towards the “ erection, construction or finishing” of buildings, do not apply to the flagging of side walks, yards and areas of buildings in the process of erection.</p>

This action was originally brought by leave of the court of chancery against James N. Sherman, the defendants’ testator, then a habitual drunkard under the charge of a committee, as an endorser upon a bill of exchange. The bill was dated July 9, 1845, payable six months after date to the order of the drawer, and by him endorsed, and subsequently endorsed by Sherman.

This action was brought in the supreme court upon a bill of exchange drawn upon the defendant by William G. Sanford to the order of the plaintiffs for $482-28, dated New York, October 29, 1846; and payable ninety days, after date. An acceptance was written upon it—“ Jeremiah G. Palmer, by James L. Palmer.” The cause was tried at the New York circuit in October, 1847, before Mr. Justice Edwards.

The plaintiff in this action and her sister were passen gers in a stage coach owned by the defendants, who used it for the carriage of passengers for hire between Bridge-water and New-Berlin. On the 13th of June, 1849, while passing from Bridgewater towards New Berlin, it was carelessly overturned and the plaintiff’s leg was badly broken and her side injured.

This action was brought upon three promissory notes, dated in the years 1845 and 1846, made by the defendant, David Hunt, as principal, and Stocking & Hunt, a firm consisting of the defendants Stocking and Alfred H. Hunt, as sureties. The notes were given for money borrowed by the defendant, David Hunt, the signature of Stocking & Hunt having been made for his accommodation by the defendant Alfred H. Hunt. . David Hunt failed in 1846, after the notes were made.

This action was brought in the supreme court against the defendants for a debt incurred by them, as partners, in May, 1845, on the purchase of a bill of goods, the partnership being conducted in the name of Rumsey alone.

This was an action brought in the Superior court of the city of New York upon a policy of insurance upon a hotel in Massachusetts, issued by the defendant to Joseph A. Slamm on the first of September, 1848. On the same day Slamm conveyed the premises to the plaintiff by a deed absolute on its face.

This was an action brought by the plaintiffs, who were partners in business at Portage, Allegany county, for goods sold to the defendant. It was tried at Livingston circuit in December, 1848, before Mr. Justice Hoyt, without a jury, The defendant proved the following facts: On the 15th day of October, 1842, the defendant owed the plaintiffs for goods previously sold, $ 1200.

<p>Phe late court of chancery had power to amend a hill filed before a vice chancellor, after an order taking the bill as confessed against a defendant who had not appeared, in order to show right jurisdiction of the vice chancellor, and a decree therein would be regular against the defendant not appearing.</p> <p>Accordingly, where a bill was exhibited before the vice chancellor of the second circuit, for the foreclosure of a mortgage upon lands lying in the first circuit, and one of the defendants whose residence was not stated resided in the second circuit, it .Was held that after taking the bill as confessed against him, an amendment might be made stating his residence, and a .decree be made thereupon.</p>

This was an action on the case, brought against the defendants as common carriers, to recover of them the plaintiff’s damages for a box containing clothing and money lost from the canal boat Brilliant, on a passage from Albany to Buffalo in 1841. The defendant pleaded the general issue, and the defendant Perkins, under his plea gave notice of his discharge as a bankrupt under the United States bankrupt act of 1841. The cause was twice tried.

This action was brought in the Superior court of the city of New York upon a bond given by the defendants to obtain the discharge of an attachment issued by the plaintiff against Thomas Tremlett, a nonresident debtor, upon which the ship James Edward belonging to him had been taken. The bond contained a recital that application had been made by the defendant Whitney, for the discharge of the attachment. The cause was tried in October, 1848, before Mr. Justice Vanderpoel.

<p>A notice of suit pending under “ An act to reduce the expense of foreclosing mortgages in the court of chancery,” passed May 14, 1840, describing the mortgage and the ward and county where they were situated, and setting forth that the mortgage was recorded, but without stating in what county, was a substantial compliance with the statute.</p> <p>Even if irregular so that a decree founded upon it might have been opened, the decree could not be objected to in a collateral action.</p> <p>A decree made without an affidavit of the filing of notice of suit pending would have been irregular, but not void.</p>

This was an action for a libel brought in the New York court of common pleas. The plaintiffs were merchants at Columbus, Mississippi, purchasing goods at New York and receiving from New York merchants, goods to sell at Columbus on commission. In the complaint they alleged that the defendant caused to be printed and published in the city of New York a libel upon them in the following words: “Taylor, Hale & Murdoch, Columbus, Miss. This concern does not seem to thrive here.

This action was brought in the supreme court by the ‘plaintiff as assignee of Gideon P. Hewett, against the defendant as assignee of the Poughkeepsie Silk Company, to compel the performance of covenants contained in a lease from the Poughkeepsie Silk Company to Hewett.

The questions in this action arose upon a demurrer to the complaint.

<p>Upon an appeal from a determination of commissioners of highways refusing to lay out a highway, the referees have all the powers and are charged with all the duties formerly possessed by the three judges of the court of common pleas under the provisions of the revised statutes.</p> <p>On reversing the determination of the commissioners, they should make such order in relation to the laying out the highway as in their judgment the commissioners should have made.</p> <p>Where they simply reverse an order refusing to lay out a highway without giving further directions, the commissioners are not bound to lay out the highway, and a mandamus will not be granted to compel them to proceed and do it.</p>

This action was brought to recover the value of a wagon levied by virtue of a warrant issued by the defendants to collect several sums of money voted to be raised by tax in school district number one in Ulysses and Covert, Tompkins county, among which was the sum of $250, under the provisions of the “ Act establishing free schools throughout the state,” passed March 26, 1849. In'the complaint the unlawful taking of the wagon in June, 1850, was simply alleged.

This action was brought upon, a contract to transport a box containing patent medicines from New York to Chicago in the fall of 1847.

This was an action brought in the court of common pleas of the city of New York, upon a contract made between the plaintiffs and the defendants in the following form-. “ Sold to Messrs. Pettee & Mann, for account of Messrs.

On the 16th of June, 1849, Henry Tifft, the husband of the plaintiff' died. At the time of his death he owned three hundred and sixty shares of the stock of the Cayuga County Bank.

<p>The law of charitable uses as it existed in England at the time of the revolution, and the jurisdiction of the court of chancery over the subject, became the law of this state upon the adoption of the constitution.of 1777, and has not been repealed.</p> <p>It does not derive its origin from the statute 43 Eliz. chap. 4, nor depend upon it. It was borrowed from the civil law as modified by the institutions of Christianity, and at a very early period became part of the common law.</p> <p>The statute of Elizabeth merely furnished a remedy for the abuse of charities. It was never applicable to the circumstances- of this country, and could never have been executed in it.</p> <p>Religious corporations formed under the general statute can receive bequests to an amount not exceeding that limited by its fourth section. (2 JR. S. 212.)</p> <p>The object of inis class of corporations being to perpetuate the uses of the property acquired by them, a donor may prescribe as a condition of his gift that it be preserved in a particular manner, in order to render it subservient to the object for which he gives it.</p> <p>The provisions of the Revised Statutes, ‘ Of accumulations of personal property and of expectant estates in such property,” do not affect property given in perpetuity to religious or charitable institutions.</p> <p>Where a legacy is given to a religious corporation for a purpose authorized by law, but with a direction that it accumulate until it reaches a certain sum i before its income shall be expended, the direction only is void, and the legacy is no*- defeated.</p> <p>Conveyances, devises and bequests for charitable uses, although defective for the want of a grantee or donee capable of talcing, are supported by courts of equity.</p> <p>The law in England by which the court of chancery applies a gift to charity generally, is here in force only so far as it is adapted to our political institutions. We have no magistrate clothed with the prerogative of the crown to direct the manner of executing an indefinite bequest to charity. Where a gift to a charitable use is so indefinite as to be incapable of being executed by a judicial decree, the representative of the donor must prevail over the charity.</p>