Volume 9 — New York Reports

Ejectment to recover possession of a. farm, in North Salem, Westchester county. The action ■ ^as- 'ii^hfíhlti^éS in February, 1848. The plaintiff alleges that she was possessed on. the first day of January, 1848, and that the defendant entered and ejected her on the second day of the same month. Plea not guilty.

the Supreme Court in the second district, affirming a decision of the Surrogate of the County of Dutchess, refusing to admit to probate the last will and testament of Trustrum Coffin, deceased. The testator, a resident of the town of Washington, in said county, died in March, 1857, leaving a widow, Jane Ann Coffin, and a son, Henry T. Coffin, about eleven years of age, and no other heirs or next of kin.

The deceased left a widow, Mary Talbot; two sons, Edward (who was made executor, and who propounded the will for probate) and Charles, who contested it; a daughter, Jane Barnes; and the children of two deceased daughters. By the will, dated May 7, 1853,' ■ there was given a legacy to his wife of $1; one to Jane Barnes of $200; one to Charles Talbot of $300; small legacies to the testator’s grandchildren; and the residue was given to his son Edward.

The action was brought by the executors of the will of John Mason, deceased, against one of the. daughters of their testator, and her husband. John Mason died September 26, 1839, and his will was admitted to probate, and letters testamentary issued to the plaintiffs in this action, as his sole executors, on the 25th of October following. On the 20th of October, 1840, Mrs. Alston and her husband filed before the surrogate allegations contesting the probate.

Appear from the Supreme Court. Upon the trial before Mr. Justice Emott, without jury, which was waived, he found these facts: On the 5th day of May, 1852, Obadiah Peck borrowed of the plaintiff $2,000, and made his promissory note therefor on that day, payable on demand, with interest, to the order of Bufos L Todd, who indorsed the note at the time it was made, with knowledge of the facts, and for the accommodation of Peck.

The lease upon which the question in this case arises contains the following clause: “ The above lease is upon the following conditions, all and every of which the party of the second part covenants with the party of the first part to perform and keepthen follow certain-conditions specified under five separate heads, of which the second, the only one material here, is: “ that he (the lessee) will not use the premises nor permit any part thereof to be used for any business or…

Ebrob to the supreme court in the fifth district. Alanson McIntyre, the plaintiff in error, and Carrington McIntyre were jointly indicted for burglary and larceny. When the case was moved by the district attorney for trial at the Madison county court of sessions, the defendants demanded separate trials, and that Carrington McIntyre be tried first. The district attorney elected to try Alanson first; the court sustained his right to do so, and the defendant excepted.

Action for the wrongful taking and conversion of two oxen, twenty tons of hay, a quantity of. oats, barlev, &c., the property of Edgerton. The property was taken by the defendant as sheriff, of Delaware county, on the farm occupied by Charles L. Strong and wife, and' by virtue of an execution against Strong, who, the defendant insisted, was the owner of the property taken.

The bill of complaint in this cause was filed before the vice-chancellor of the first circuit, in September, 1846, to foreclose a mortgage executed by Catharine Valentine, deceased, to secure the payment of a bond of James A. Valentine (her son), for $2500. The bill was taken as confessed against J. A. Valentine as an absent defendant.

The action was commenced in May, 1855, to recover damages against the defendant for “negligently, wrongfully and improperly” constructing its road across the West Canada creek, and across the lowlands forming the valley of said creek, in the town of Herkimer, by means of which the plaintiff’s lands in the valley on the east side of the creek were repeatedly overflowed, the soil, fences and manure washed away, and large quantities of rubbish left upon the ground, &c. The…

<p>A tenant cannot controvert the title of one under whom he has occupied, and whose title he has recognized.</p> <p>No presumption, from lapse of time, of the payment of a mortgage, can arise under our statutes within twenty years after the mortgage becomes due.</p> <p>A mortgage executed hy a lunatic is voidable only, not void; and no person except one claiming an interest under the mortgagor can set up his insanity as a defence against a title derived through the mortgage.</p>

On the 6th of December, 1831, Harris Medbury obtained a contract from the surveyor-general for a piece of land in Norwich, Chenango county, on which he paid one-fourth of the price at the date of the contract. On the 2d of May, 1835, Medbury conveyed by quit-claim deed to John Curtis, three acres and twenty-seven perches of the land included in the contract, óf which Curtis was then in possession.

The action was brought against the defendant as the endorser of a promissory note made by Jackson Pound, on the 3d day of November, 1845, for $2875, payable to the order of the defendant, at the Farmers and Mechanics’ Bank of Rahway, New Jersey, in «four months after date. The making and endorsement of the note, and its presentment, dishonor, and notice of non-payment, were admitted.

Action in the nature of quo warranto to oust the defendant from the office of colonel of the first regiment of the militia of this State.

Action to recover the possession of land in the city of Rochester. The plaintiffs claimed title under William W. Mumford. Upon the trial it was proved that, in 1825, Mumford was the owner of one half of a block of land in the city of Rochester, including the premises in controversy, which tract was surrounded on all sides by streets opened and used as public highways.

This was an action of trespass brought in August, 1847, in the supreme court, for entering upon, the land of the plaintiff, situated in the city of Rochester, and laying out and maintaining a highway thereon.

Action by William E. Dodge, surviving executor, for a construction of the will of Anson Gr. Phelps, who died November 30, 1853, leaving a will, executed March 26, 1852. He left surviving a widow, one son, four married daughters, and three grandchildren by a deceased daughter, Mrs. James. At the time of the testator’s death, he had living nineteen other grandchildren.

(See 11 Barb., 254.) This was an action of assumpsit, commenced February, 15, 1845, on two notes of Sherman dated December .11, 1834, for $626.31 each, payable at one and two years from date. Pleas, the general issue, the statute of limitations, and a discharge under the insolvent act.

Writ of error to the Superior Court of Buffalo. The prisoner was indicted for the crime of perjury, and, in February, 1859, was tried, convicted and sentenced to state prison.

of the Supreme Court, affirming a decree of the Surrogate of the county of New York, by which letters of administration upon the estate of Jeanne Du Lux, who was domiciled in that city, and died in November, 1854, were granted to John P. Ferrié, as the legitimate son and sole next of kin of the deceased.

(14 Barb., 174.) The material facts in the case will be found in the opinion of Johnson, J. The case was submitted on printed points by Livingston and Allegany. By the 49th section of the “ act to authorize the formation of railroad corporations, and to regulate the same,” passed April 2, 1850, that company, among others, was clothed with nearly all the powers and privileges, and subjected to the duties and liabilities prescribed by that act.

Each of these cases presented the same questions for decision. The Attica and Homellsville Railroad Company was incorporated by the legislature, May 14th, 1845, for the purpose of constructing a railroad from Attica in the county of Wyoming to. Homellsville in the county of Steuben, passing through parts of the counties of Genesee, parties to the proceedings should be barred of all estate and interest in the lands during that time.

<p>The complaint in this cause was exhibited in July, 1850 ; and its object and prayer is to obtain a construction of parts of the will of the late John Jacob Astor, and of certain codicils thereof. The plaintiff is the wife of the defendant, De Lancey Kane, and the daughter of the defendant, Dorothea A. Langdon, who is a daughter of the testator. The other defendants are the six executors of the will, one of them, William B. Astor, being also residuary devisee and legatee, the brothers and sisters of the plaintiff, her children, and the husband of her sister. The will bears date on the 4th day of July, 1836, and- the testator died on the 29th day of March, 1848, having, after making the will, executed eight several codicils, at different periods, the last being dated the 22d December, 1843. The questions in litigation mainly concern the family of Mrs. Langdon, and they relate to the effect of the sixth codicil upon certain devises and legacies to the plaintiff, or in which she and her issue are interested; which are contained in the will, and in the first, second and fifth codicils. The testator left surviving him, besides his daughter, Mrs. Langdon, two sons, John Jacob and William B. Astor, and a grandson, Charles Bristed, the son of a deceased daughter When the will was executed, another daughter, Mrs. Bumpff, who had married in Europe, was living ; but she died before his testamentary dispositions were completed. The children of Mrs. Langdon, living at the death of the testator, were the plaintiff, whose marriage to Mr. Kane took place between the making of the fifth and sixth codicils, Eliza, the wife of Matthew Weeks, Sarah,' the wife of Robert Boreel, Cecilia Langdon, who has since intermarried with the defendant, Jean de Yottbeck, Walter Langdon, Jr., Woodbury Langdon and Eugene Langdon. When the will was made there was another son „ of Mrs. Langdon living, John J. A. Langdon, but he died before the execution of the first codicil.</p> <p>The devises and bequests in favor of the plaintiff, and her issue are the following: By the first clause of Ms will he gave to his daughter, Dorothea Langdon, for life, his silver plate (with certain exceptions); $100,000 of the five per cent, debt of the city of Yew-York; five hundred shares of the capital stock of the Bank of America; one thousand shares of the capital stock of the Manhattan. Company; $25,000 in the certificates of the Yew-York Life Insurance and Trust Company, and a house and lot on La Fayette Place, occupied by her. “ On her death [he gave] the said plate (except as above), sums of debt and deposit and stocks to her then surviving issue, their executors and administrators.” He also devised the house and lot' “to her then surviving issue and their heirs and assigns forever; intending that if any of her children shall have died before her, leaving issue, such issue are together to take what their parent would have taken if surviving.”</p> <p>By the second clause he gave to six of the children of Mrs. Langdon, naming them, including, the plaintiff, and being all of them except Mrs. Boreel, all his lots on the easterly side of La Fayette Place and fronting on it, and those in rear of them and extending to the Bowery and fronting on it; also all Ms lands lying between Charlton, Morton and Greenwich streets and the Hudson river, being one hundred lots, “ to have and to hold to them, my said grandchildren, in- equal shares for and during their lives respectively : and on the death of each of them, my grandchildren, I give the share which he or she shall have enjoyed for life to their surviving issue in fee simple, to be divided according to the number of their children ; and in case of death without issue then surviving, I devise the share of such deceased to my said other grandchildren above named then surviving in fee simple.”</p> <p>In the third clause there is a devise and a bequest directly to the plaintiff, namely, a devise of four lots of land on the west side of Broadway, between Prince and Houston streets, to the plaintiff and her three sisters' “ or to such of them as may survive me,” in equal shares, during their lives. • There is then a limitation of a remainder in fee in their respective shares to their surviving issue, and in case of death without issue them surviving a devise of the share of each to her then surviving sisters in fee; a bequest to the plaintiff and her brothers and sisters, except Mrs. Boreel, of $25,000 each, on their respectively attaining the age of twenty-four years, and an equal sum each on their attaining the age of thirty years.</p> <p>In the same clause there is a devise to Mrs. Boreel, with a contingent limitation in favor of the plaintiff, thus: The City Hotel is devised to Mrs. B. for life, with remainder to •her surviving issue, and in case of her death without issue, the property is devised to her brothers and sisters in fee.</p> <p>By the fifth clause the testator devises sundry lots of land to his grandson, Charles Bristed, for life, and he bequeathes to him for life the interest on $115,000. On his death he gives the lots and the capital sum of $115,000 to his then surviving issue in fee and absolutely to be divided according to the number of his children. In case of his death without such issue he gives the lots and money, one-half to the children of William B. Astor and one-half to the children of Mrs. Langdon. After various other devises and- bequests the testator gives the rest and residue of his estate, real and personal, to his son, William B. Astor, for life, with power to appoint the same after his death among his children, and their issue, with a direction to him to employ the personal estate in the improvement of the real. By the first codicil this is modified so as to give to W. B. Astor one-half of the residuary personal estate absolutely.</p> <p>The tenants for life under any devise in the will are authorized to make leases for terms not exceeding twenty-one years, and also to sell to the extent of one-half in value of the lands held by them, to raise money for the improvement of the residue, but the execution of the powers requires the assent of one of the executors.</p> <p>By the first codicil, dated January 19th, 1838, and in the second clause, the testator, after reciting that his grandson, John J. A. Langdon, had departed this life, whereby two legacies of $25,000 each had become lapsed, adds to the devise contained in the second clause of his will in favor of the children of Mrs. Langdon therein named, or such of them as should survive him, three lots of land lying on the westerly side of La Fayette Place, which lots he devises to his said grandchildren in equal shares, as tenants in common 'for their lives respectively, and oh the death of each, devises his or her share to his .or her surviving issue in fee; and in ■ case of death without surviving issue, he devises the share of the one so dying to his surviving brothers and sisters named in that clause in fee.</p> <p>In the second codicil, dated: January 9th, 1839, a provision is made in which the plaintiff has a future interest, in the following words: " •</p> <p>“First. In order more comfortably to accommodate my unfortunate son, John, I have provided for the erection of a dwelling-house on Fourteenth-street, in the city of New-York, upon a certain piece of land'which I attach thereto, boxmded as follows: ” “ which house I intend to furnish and pi'ovide for his convenience and that of the persons who from time to time shall take charge of his personal comfort. Now, therefore, I do hereby give to my son John the said > house and land, with the furniture appropriated thereto; to have and to hold so long during his life as the same shall be used and kept for his personal accommodation and convenience ; with remainder to my daughter Dorothea, to be held by her so long during her life as she shall use the same or the income thereof for her own use, free from all control or interference of her husband, and so long as she or her husband shall not attempt to dispose of her interest therein, and shall not permit the same to be incumbered or taken under any incumbrance, and not longer. And in case, during her life, she or her husband, or any claiming under or against them, shall attempt to incumber or divert the same from her actual use, then I give the same to my executors in trust during her life, to receive the rents and profits thereof and apply the same to her use, for which her receipts shall be a full voucher to my executors. After her death I give and devise the said lands and furniture, one equal half part thereof to the then surviving children and issue of my daughter Dorothea, the other half to the then surviving children and issue of my son William, taking in fee simple, and the issue representing its parent deceased.” In relation to this land there was a power given to the executors to lease or sell it, but in case of a sale, the proceeds were limited in the same manner as the land.</p> <p>In a subsequent clause of the second codicil there is a bequest to Mrs. Langdon of the “ income of _ $100,000 deposited on interest with the New-York Life Insurance and Trust Company, and on her death the capital is given to her six children (including of course the plaintiff), or1 such of them as should survive the .testator, to be equally ' divided among • them, and to be accumulated, as to the share of each one under the age of twenty-one years, for his or. her benefit; and on their attaining that age respectively to be paid to them by the executors. The clause proceeds: “ And if any of them shall die before that age without surviving issue, his or her share shall be given to the survivors.” There is then given in the same clause to the six children of Mrs. Langdon, or to such of them as should survive the testator, $100,000 of the public debt of the city of New-York, bearing five per cent interest, usually called the water loan, “to be paid to each on their attaining their age of twenty-one years, and the interest of the shares of those under that age to be accumulated for their benefit until that period; and in case any of them shall die before that age without surviving issue, then his or her shares shall go to the survivors.” In the next clause of the same codicil, the testator devises to the same six grandchildren, or such of them as may survive him, in equal . shares for life, five lots on Grand-street, between Ludlow and Orchard streets, and four other lots on Grand-street, between Norfolk and Essex streets ; “ and on the death of each, I give the share enjoyed by such deceased, to his or her issue then surviving, in fee simple, to be divided according to the number of his or her children; and if such deceased shall leave no surviving issue, then I give the share of such deceased to the survivors of the said six, their heirs and assigns forever.”</p> <p>By the fifth codicil, in the fourth clause, the testator devises- to the plaintiff lot number four in an allotment' which he had caused to be made of land on La Fayette Place, in fee, with a power to his executors to settle the same to the plaintiff’s separate use for life, with authority in her to appoint the fee among her brothers and sisters and to make leases.</p> <p>So much of the sixth codicil, executed June 3d, 1841, as relates to the plaintiff, is in these words :</p> <p>“First. As to all such shares, estates and interests in land (except the lot on the west side of La Fayette Place, mentioned beneath), as are in my will, or in any codicil thereto, given on my decease to Louisa, daughter of Mrs. Dorothea Langdon, or to the issue of the said Louisa, I give one-half thereof to the other children of my daughter Dorothea, to be taken and held as an increase of the shares or sums-given to them and their issue in the same property; the other half I give to my executors in trust, to receive the rents, issues and profits thereof for the life of the said Louisa, and to apply the same to her use, clear" of any control, debts or right of her husband thereto; and after her death I give the same to her surviving children, or, if she leaves none, to her surviving brothers and sisters or their issue.</p> <p>- ■ “Second. As to all estates, rights or interests in lands, stocks,- personal effects or money, to which the said Louisa or her issue Would have been entitled under my will or any codicil thereto, after the death of her mother, brothers or sisters,-1 give the same to her brothers' and sisters and their issue, as an increase of their respective shares or interests in the same, property.'</p> <p>- “ Third. As to the two legacies of twenty-five thousand dollars.each,' and the- share of water stock to which the said. Louisa would have been entitled under my will and a codicil -thereto,;I-revoke .the two legacies entirely. I give the income of her share of , stock to my daughter Dorothea for .life, and on her death; I give the capital ;to her other children, and their; issue in -case of their decease.</p> <p>“ J-ówrth.- As to the lot on the westerly side of La .Fayette Place; -given to the said Louisa -in a codicil to my will, I give the .same to Cecilia Langdon, to be had and holden as if; her name, had, been .written in the devise thereof instead of Louisa, with every advantage, power and benefit, and subject tcpevery condition, power and limitation therein contained</p> <p>.. “Fifth. ,!- expressly,authorize my daughter Dorothea Lang-don, by deed or-will, to appoint and give to the said Louisa and her issue, or to her or their use, any part not exceeding in value one-half of the real or personal estate by this codicil taken from Louisa and given to others.</p> <p># * # # # ■ #</p> <p>“Last. I publish this as a codicil to my will, and as altering and revoking the same and the codicils thereto, so far as a different disposition is made by the present codicil.” There is a provision in the first codicil directing that in case any disposition in the will or in that or any future codicil should be held invalid,' that nevertheless all the other parts thereof should be deemed valid: and when any devise or legacy shall prove invalid the property attempted to be given shall still be given to the persons for whose benefit the same appears to have been intended, and the executors are accordingly directed so to appoint the same.</p> <p>The will and each of the codicils were attested anew on the 11th day of January, 1845, upon the acknowledgment of the testator.</p> <p>Shortly after the death of the testator, and on the 6th day of April, 1848, Mrs. Langdon executed under her hand and seal an instrument, whereby, after referring to the power conferred upon her by the sixth codicil, she declares that she has appointed and given, and thereby does appoint, give and convey unto the plaintiff, “ such part of the real and personal estate by said codicil taken from the said Louisa and given to others, as in and by said codicil I am authorized to give and appoint to the said Louisa and her issue, to have and to hold the same and every part and parcel thereof unto the said Louisa and her issue in as full and complete a manner as I can or may appoint and give under the provisions of the said codicil or any part thereof.” The complaint charges that some of the defendants set up claims and pretensions inconsistent with the plaintiff’s rights; that she is advised that the provisions in her favor are not revoked or changed by the sixth, codicil, which she insists is inoperative and void on account of uncertainty; but if this is not so, then she claims that the devises and bequests to her are restored by the execution by her mother of the power of appointment. She therefore prays that the meaning and construction * off the will and codicils may be settled by the judgment of the court.</p> <p>The defendants who are of lawful age. by their answers insist upon'the sixth codicil as a revocation in part of the provisions in favor of the plaintiff, and they and the infant defendants submit themselves to the judgment of the court.</p> <p>The cause was heard on pleadings and proofs in the superior court, at a special term before the late Justice Paine, who on the 7th day of May, 1851, made an order dismissing the complaint with costs.</p> <p>The plaintiff appealed to the general term, where a judgment was given, in May, 1852, reversing the judgment of the special term and declaring the effect of the several testamentary dispositions of the will and codicils, as respects the plaintiff, and settling the rights of the parties in much detail. (5 Sandf. S. C. R., 467.)</p> <p>The judgment affirms the validity of the sixth codicil, and declares that the instrument of appointment executed by Mrs. Langdon was a valid execution of the power. It also adjudges: 1. As to lot number four on La Fayette Place, devised to the plaintiff in fee by the fifth codicil, that the plaintiff is entitled to an equal half part of it for life, with a vested remainder in fee on her death in her children then born, subject to a like estate in remainder in her children thereafter to be born, to vest on their birth; all the children to take equal shares. 2. The several lots of land devised to the plaintiff, in connection with her five brothers and sisters, for life, with remainder to her surviving issue, and in default of issue living at her death to her brothers and sisters named in the respective devises, are disposed of together. These are the lots on the easterly side of La Fayette Place, and those in the rear and extending to the Bowery; and the lands lying between Charlton, Morton and Greenwich streets and the Hudson river, mentioned in the second clause of the original will; the three lots on the westerly side of La Fayette Place, added to the last mentioned devise by the second clause of the first codicil; and the nine lots on Grand-street, devised by a clause of the second codicil. The judgment declares that the plaintiff is entitled to one-fourth of one-sixth part of this property for life, and that the present and after bom children are together entitled to the same part in remainder in fee on her death; that the remainders are vested in those now in being, and to vest in the others on their birth; that the executors' are entitled to an estate in one-half of one-sixth of the property during the life of the plaintiff upon the trusts mentioned in the first clause of the sixth codicil, and on her death her surviving children are entitled to the same part in fee. 3. The devise to the plaintiff and her ■ three sisters for life, with remainder to their issue, of the four lots on Broadway, between Prince and Houston streets, contained in the third clause of the original will, which depends upon the same principle as the last, is disposed of'by the judgment in the same way; the only difference being as to the aliquot shares. The share of the plaintiff and her children is one-fourth of one-fourth, and the executors take one-half of one-fourth in trust, and the children a remainder in fee as in the last case. 4. As to the $100,000 of the public debt of the city of Hew-York, called water stock, which by the second codicil is. given to the plaintiff and her six brothers and sisters, with a provision for accumulation, &c., the judgment declares that the plaintiff is entitled to one-half of one-sixth part of it for the life of her mother, and for her own life, if she survives her; and that on the plaintiff’s death her issue are entitled to the same share absolutely. 5. The judgment declares that the plaintiff is entitled to the income of one-half of each of the two legacies of $25,000 given her by the third clause of the will, from the time they became payable and after she had attained the age as to each legacy prescribed in the bequest; and that after her death her issue are entitled to said equal, half of said legacies absolutely. 6. The remainders limited in favor of the plaintiff in the house and lot devised to Mrs. Langdon for life by the first clause of the will, and in the, dwelling-house and land on Fourteenth-street, devised to the testator’s unfortunate son, J. J. Astor, and to Mrs.' Langdon for life, were according to the primary devises vested in interest on the death of the testator and were to vest in possession on the death of Mrs. Langdon, and that the remainders were liable to be divested by the death of the' plaintiff during the continuance of the life estates, and that in case of her death before the termination of those estates her issue would have taken the remainder in her place. That by force of the sixth codicil, and the instrument of appointment, the executors take in remainder one-half of the share which would have belonged to the plaintiff, upon the trusts and with the subsequent limitations mentioned in the first clause of the said sixth codicil, and that the plaintiff takes a- vested remainder for life in one-fourth part of what would have been her share by the original devises, and on her death her issue take-the last mentioned share in remainder in.-fee. 7. The judgment declares the following, pecuniary legacies to be unaffected by the provisions of the sixth, codicil, viz. : ■ The household furniture, stocks and money bequeathed to Mrs. Langdon for life, and to her surviving issue on her death by the first clause of the will; the sum of $100,000, deposited in the New-York Life Insurance and Trust Company, also bequeathed to Mrs. Langdon for life with a similar limitation by the second codicil; and the furniture provided for the use of J. J. Astor in the house on Fourteenth-street;- bequeathed and limited in a similar manner. It states that they are vested legacies, and therefore not within the description of personal effects or money to which the plaintiff wo.uld have been entitled after the death of her mother, according to the terms of the second clause of the sixth codicil; and that as the first clause -does- not embrace personal property these legacies are untouched. 8. The eighth division of the judgment disposes of the contingent estates in land limited in favor of the plaintiff and her issue in the event of the death without issue of her brothers and sisters and of Charles Bristed; and in favor of her issue in the event of the plaintiff’s dying before the vesting in possession of the future estates limited to her, and in which her issue are .to stand in her place in case of her death before the termination of the precedent estates. It assumes that the provisions are revoked by the second clause of the sixth codicil, so far as they relate to the plaintiff and her issue; and that one-half thereof are given back by the execution of the deed of appointment to the plaintiff for life, with remainder in fee to her issue as to those which would take effect in favor of the plaintiff, and to her issue in fee as to those which may take effect in favor of such issue. 9. A like provision as to the contingent legacies in favor of the plaintiff and her issue is made, bringing them all within the scope of the second clause of the sixth codicil, and restoring them with a new limitation by force of the instrumént of appointment.</p> <p>The remainder of the judgment consists of directions for carrying out the provisions already mentioned. No costs are given to the parties against the others.</p> <p>The plaintiff appeals severally from the whole judgment. The executors ■ appeal from so much of the judgment as adjudges that the plaintiff and her issue are entitled to the two legacies of $25,000 each, mentioned in the third clause of the will; and Mr. De Nottbeck and his wife appeal from that part of it which relates to the devise of the house and lot on La Fayette Place in the first clause of the will, and to the devise of the estate on Fourteenth-street, and also from that part of the seventh division of the judgment which declares that the legacies therein mentioned are unaffected by the sixth codicil,</p>

<p>The town clerk’s minutes of the proceedings of a town meeting are con-elusive. Parol evidence cannot be received to show that the next annual meeting was in fact appointed, by the majority of the voters, to be held at a different place than that stated in the minutes.</p> <p>Though in actions to try the title to an office, parol evidence is, in general, admissible to impeach the certificate of the party holding it, an obstacle arising from the averments contained in a public record can, it seems, only be removed by a direct proceeding to correct the record.</p>

<p>On the 5th of January, 1850, the defendant Williams, who was then a debtor of The Dutchess County Iron Company, made an assignment of all his property, real and personal, except such as was by law exempt from execution, • to the defendant Clark, for the benefit of his creditors, according to a certain order of preference. By the terms of this instrument the assignee was authorized to dispose of the property assigned “ either at public or private sale, to such person or persons, for such price or prices and oh • such terms and conditions, and either for cash or credit, as in his judgment may appear best and most for the interest of the parties concerned.” On the 30th of March Williams executed and delivered to Clark an instrument, which, after reciting that doubts had arisen whether the authority to sell on credit did not vitiate the assignment of 5th of January, proceeded to direct the assignee to sell for cash only. On the 27th of February, The Dutchess County Iron Company recovered judgment for their debt against the defendant Williams, and upon the return of execution unsatisfied, supplementary proceedings under the Code were instituted. On the 28th of March an order was made by a justice of the supreme court requiring the judgment debtor to appear and answer before a referee appointed for that purpose, and on the 4th of April following the plaintiff was appointed receiver. No assignment was ever made to the receiver by the judgment debtor.</p> <p>This action was brought in the supreme court to set aside the assignment from Williams to Clark, and after judgment for the plaintiff, affirmed at general term, the defendants appealed to this court.</p> <p>I. There is no authority given at common law or by statute for a receiver to maintain an action at all to set aside an assignment. The 292d section of the Code only requires the “ debtor to appear and answer concerning Ms property.” Section 298 authorizes the appointment of a receiver of the property of the judgment debtor. It does not, however, appoint him the receiver of property, the title to which’ had passed out of the debtor prior to his appointment. Such a receiver never had the power to institute or maintain an action as receiver to set aside the conveyance of the judgment debtor as 'fraudulent, and the action cannot be •maintained; the injured party must commence the suit. (Greene v. Hicks, 1 Barb. Ch. Rep., 314; Dorr v. Noxon, 5 How. Pr. Rep., 29; Hyde v. Lynde, 4 Comst., 387, 392, 393.) At most he is but a ministerial officer of a court oí equity, to “ receive the rents, issues and profits of land, or any other thing in question in the court of chancery, pending a suit, where it does not seem reasonable to the court that either party should do it.” (The Chautauque Co. Bank v. White, 6 Barb., 597; 2 Paige, 452; Wyatt’s Prac. Reg., 355.) He is appointed to protect some fund during the litigation, and has no powers except such as are conferred by the order for his appointment and the course and practice of the court. (See authorities above cited.)</p> <p>II. A receiver can only maintain an action to recover personal property, or the rents, issues and profits, or dioses in action, pending a suit by a creditor or some other person, or after the court has judicially declared that said property, <&c., should be applied in payment, and directing the receiver, if already appointed, to take charge of and collect the same; but the creditor must institute in his own name the suit to remove the impediment in the way, before the property can be applied.</p> <p>' HI. The instrument of 30th March, 1850, was valid, and gave validity to that clause in the assignment of 5th of January, 1850, allowing the assigned property to be sold on credit, and should be taken as a part and parcel of said assignment. It is not inconsistent with it, but merely explanatory of what might be deemed an obscure direction, and does away with the idea of there being fraud on the face of the instrument. It was executed and delivered before any order for the appointment of a receiver; he was not appointed till 4th April, 1850. The assignor had a perfect right to execute, and the assignee to receive said wilting, which was delivered the day it bears date. No receiver had been appointed, and there is nothing in the Code authorizing his title or lien to have relation back to a day anterior to the day of its execution; he could only acquire a right under and from the date of the order appointing him, (2 Barb. Ch. Pr., 168,9; 9 Paige, 377.)</p> <p>IV. Although, the right of the receiver to the personal property, and rents and profits, became fixed by the order appointing him, and amounts to an equitable sequestration, yet for tile purpose of enforcing that right the practice has always been, previous to the decision in 6 Barb., 589, to require an assignment to the receiver, so as to vest the legal title really in him, and to require the tenants to att.om to him for the future rents, and he could not maintain an action at law till those requirements were fulfilled.</p> <p>V. Another question in this case is, whether the clause in the assignment allowing the assignee to sell on credit makes it fraudulent and void on its face. This is the only ground raised by plaintiff, and upon which the court adjudged the assignment fraudulent. The case shows a full surrender of all the debtor’s property to the assignee under and by virtue of the assignment, and his acceptance thereof and of its control until restrained by the court, and that he sold only for cash. In fact, the case is entirely free from any feature or badge of actual fraud. It is the well settled law of. this state that a person by assignment may dispose of all Ms property liable to execution, and may therein give preference or priority to his creditors, and may select Ms own assignee without consulting any creditor, provided the assignee is a suitable and proper person; and there is no objection to Clark, the "assignee in this case. (Hyslop v. Clarke, 14 John., 458; Austin v. Bell, 20 id., 442; Grover v. Wakeman, 4 Paige, 43; 11 Wend., 189, same case approved; Goodrich v. Downs, 6 Hill, 438; Webb v. Daggett, 2 Barb., 9.) The case now before the court makes it incumbent on the assignee, if he sells on credit, to convert the same into money, and he is personally liable to do so. Such an instrument is sustained as valid in Whitney v. Krows, 11 Barb., 198 per Harris, J.</p> <p>I. No assignment to the receiver was necessary. None is provided for in the Code (vide Code, %% 298, 299), and consequently the judge could not have ordered one made. In no case have the Revised Statutes, in making provisions for the appointment of receivers, required any assignment to be made; but they become, by the act of the court appointing them, vested with all the proper and necessary powers to enable them to sue and recover debts, demands, &c., &c. (2 R. S., 462, §§ 41, 42; id., 468, §§ 65, 66.)</p> <p>II. The assignment by defendant Williams to Clark provides for the sale by the assigned property on credit, if the assignee thinks best. The assignment, therefore, as against creditors, was void on its face. This court having, during the past year, in several instances settled this principle of law, and. affirmed, the doctrine as1 laid down by Judge Bronson, in Barney v. Griffin (2 Comst., 365), no further argument on that point would be useful or proper.</p> <p>III. The assignment being void on its face, the paper' executed by defendant Williams, and bearing date 30th March, 1850, could in no way affect the assignment, because, 1. Williams, the assignor, had by the assignment fully and entirely parted with all his right, title and interest in this property. As against him that assignment was valid, and divested him of all interest in or control over the property. He could not, then, attempt to control Clark in his management of the assigned effects. He had no greater power or right to do so than a vendor of property in any other case. 2. The paper of 30th March, 1850, was at the most but an unauthorized direction by Williams to Clark. Clark was not a party to it, did not agree to be governed by, nor in any manner assent to it, or agree to regard it, and surely this court will not hold that an assignor, after assignment made, and while the assignee is proceeding under the assignment, can direct or control the assignee in his execution of the trust, and by a simple direction vary the terms of the trust deed. If the assignor is permitted to vary its terms in one particular, on the same principle he may in others. If he can at will revoke one of its provisions he may equally revoke all of them. (See also Wakeman v. Grover, 4 Paige, 42.)</p>

ApPtva t, from the Supreme Court. Action upon a bond executed by one Herrick and the other defendants as his sureties, conditioned that Herrick should, within thirty days from the date thereof, September 15, 1856, apply for an assignment of all his property, and for a discharge as provided in the 12th section of the act to abolish imprisonment for debt and to punish fraudulent debtors (ch. 800 of 1881), and should diligently prosecute the same until he obtained such…

This was an action in the superior court of the city of New-York, by the plaintiff as trustee of the estate of Adeline Pickering, the wife of William L. Pickering. Held: with the income, was exclusively for the benefit of the wife during her life, with a contingent right of survivorship in the husband, and as the husband, prior to the filing of the bill, had released such contingent right, he had no interest whatever in the event of the suit, and could have none.

Action under the sta-. tute by the administrator of Sarah Dickins, deceased, for the damages sustained by her next of kin from the causing of her death through the negligence of the defendant’s servants. The, complaint averred, that the plaintiff, was the husband of Mrs. Dickins, and alleged damages from being deprived of her services and assistance in the management of his domestic affairs. It appeared upon the trial that the deceased left no children, father nor mother.

Motion to dismiss an appeal. The action was brought in th,e Supreme Court to foreclose a mortgage executed by one Frederick Q-eib to the plaintiff, on which about $480 was due at the time of the commencement of the action.

Motion to dismiss an appeal from an order made at general term in the Supreme Court, affirming an order made at special term, striking out an answer as sham, frivolous and false. Under which of these categories the answer was held to come in the court below, did not, it would seem, appear from the papers used on the motion in this court, otherwise than by an inference from the terms of the order appealed from.

<p>The corporation of the city of New-York is bound to keep the streets and avenues of that city, which are opened.for public use, in such repair that they may be safely traveled; and when they are negligently suffered to become and remain out of repair, the corporation is liable for injuries sustained by persons through such negligence.</p> <p>Where a public body is clothed by statute with power to do an act which the public interests require to be done, and the means for the performance are placed at its disposal, the execution of the power may he insisted on as a duty, although the statute conferring it be only permissive in its terms.</p>

<p>Motion for the correction of the remittitur which had been sent down upon the decision in this case, which was similar to, and received the samé disposition with, that in Briggs v. Vandenburgh (22 NT. Y., 467).</p>

Motion to set aside an ex parte order dismissing an appeal. The appeal was taken April 12, 1860. Printed copies of the Case were served upon the respondent’s attorney, May 18,1860. On the 28th May, 1860, the respondent’s attorney served the notice under Rule 7, requiring service of a copy of the return. The defect in the Case, as it had been previously served, was the omission of copies of the opinions delivered in the court below, at the special and general terms.

<p>On the petition of Claudius Dord,.a citizen of the State of New York, an attachment under part II chapter Y, title I, article I of the Revised Statutes of this State (2 R. S., p. 3), was issued on the 10th of December, 1847, to the sheriff of New York, against Edward Bonnaffé and August Bonnaffé, nonresident debtors, composing the firm of Bonnaffé & Company, citizens and residents of, and doing business at Havre in France. Such proceedings were had thereon that trustees were appointed, who proceeded to collect and realize the assets of the non-resident debtors attached within this State; and in compliance with the requirements of the statute, the trustees gave notice requiring all the creditors of such debtors to deliver to them their respective accounts and demands. Such demands against the estate of the debtors were adjusted by the trustees.</p> <p>In respect to certain French creditors, this state of facts was proved before the trustees: On the 30th of November, the Messrs. Bonnaffé were adjudged “ en faillite ” [declared bankrupt] by the Tribunal of Commerce in Havre, and provisional receivers [syndics] of their estate were appointed. The receivers proceeded to convert the assets of the Bonnaffés into cash, and soon learned from their agent in New York of the attachment issued in this State. In May, 1848,' the receivers convened the creditors and made a report of their proceedings, which included a statement of the pendency of the proceedings on attachment in New York. The Bonnaffés made to the assembled creditors (fifty-two, a majority in number, and holders of more than three-fourths of the debts of the insolvents), a proposition “to be entirely acquitted and discharged by making surrender to them of their assets, as well in the States of America, and particularly in the United. States of America and in Mississippi [s7c], as in Continental France and its colonies, and other places whatsoever.” The creditors present, with the approbation of the receivers and of the supervisory judge {Juge Gommissaire], accepted the proposition, and the judge thereupon drew up an agreement in writing \concordaf\, which was signed by all the creditors present. Its terms are sufficiently stated in the following opinion. This concordat was confirmed by the Tribunal of Commerce of Havre, on the 23d of May, 1848, and was declared obligatory upon ¿11 the creditors, subscribers or non-subscribers, as well as those whose claims had been proven and registered, as those whose claims had not been proven or registered.</p> <p>Claims were presented to the trustees under the attachment, amounting to about $876,000. Of these, $478,000 was due to creditors in France, and on debts contracted there: $158,000 was due to creditors residing in the United States, who had proved their debts under the proceedings in France, and had received dividends there: $89,000 was due to creditors residing in the United States, who had not proved their debts or received any dividend in France, and $61,000 was due to French creditors who had not proved their debts or received any dividend in France. The trustees decided that all the creditors, whether residing in this State or elsewhere, and whether or not they had made themselves parties to the proceedings in France, were entitled to prove their debts, and receive dividends, charging those who had received any payment from the assets of the Bonnaffés in France, with the sum so received as so much money paid to them on account of the dividends to be declared by the trustees, so that all the creditors who proved their debts should share equally in the entire estate and assets wheresoever administered. The trustees adjusted the debts and declared a dividend.upon this basis.</p> <p>The creditor taking out the attachment objected to such adjustment, upon two grounds: First. That the trustees erred in allowing the accounts and demands against the estates of the non-resident debtors, due and owing to, and held by creditors residing out of the State of New York. Second. That théy also erred in allowing the accounts and demands of creditors, citizens and residents of the Kingdom of France, and of such American creditors as had proved their debts and received dividends under the proceedings in France.</p> <p>' On motion to the Supreme Court at special term, to correct the decisions of the trustees in these two particulars, their action was affirmed, and on appeal, at the general term the order of the special term was also affirmed. From this order, the executor of the creditor taking out the attachment appealed tq thiq cou?t.</p>

This was an action of replevin, commenced in the supreme ' court in -July, 1847, and was tried at a circuit in the city of New-York, in July, 1848, and a verdict rendered for the defendant. The case having been transferred according to the statute to the superior court of the city of New-York, in January, 1850, a new trial was granted at a general term of that court in May of the same year.

This action was brought in the superior court of New-York on a bond dated October 21,1844, executed by Henry Lynch as principal and John L. Norton as surety, in the penalty of $10,000, to the people of the State of New-York. The bond recites that on the 10th of November, 1826, Norton transferred to Robert White and Edward A. Nicoll certain bonds and mortgages in trust for Mary 0.

<p>■.Action on the case 'by the purchaser against the seller of a tavern stand in the town of Oxford, Chenango county, for . 'fraud in misrepresenting the boundaries of the land. The cause was first tried before Mr. Jústice Morehouse, at .the Chenango, circuit, in August, 1848, and a verdict rendéred for the plaintiff.’ A new trial was- granted by the court at ¡general term.(7 Barb., 64), and was had before Mr. 'Justice Shankland in December, 1850.</p> <p>The fraud alleged was in representing that the. premises in Question were bounded on- the southerly or southwesterly side by a certain mill.racé, and that á certain buttonwood tree was in the southern boundary line of the lot. The material facts in the case, and the exceptions taken upon the,..trial, are sufficiently stated in the opinion of the court. The plaintiff again recovered a verdict, and on a new trial being refused at general term, the defendant appealed to this court.</p> <p>As to thé. admission of the "opinion of the witness with regard to the damages: Harger v. Edmonds (4 Barb., 258); Best on Presumptions {Law Library), 384; Sedgwick on Damages {2d ed.), 589. As to, the charge of the judge, that fraud might be establishéd by circumstantial or presumptive evidence : Flening v. Slocum (18 John., 403, per Spencer, J.); 1 Story’s Eq., §190; Best on Presumptions, 69. To show that continued possession by the boundaries not men-ti.on.ed in the deed, with the acquiescence of the grantor and his successors in title, for less than twenty-five years, had ripened into a right of possession which tolled an entry: Jackson v. Wheat (18 John., 44); Smith v. Lorillard (10 John., 356, -per Kent, Ch. J.); Smith v. Burtis (9 John., 180); Jackson v. Ellis (13 John., 120); 2 Caines, 183; Wendell v. Van Rennselaer (1 John. Ch. R., 344) ; Storrs v. Barker (6 John. Ch. R., 166),; Town v. Needham (3 Paige, 545).</p> <p>As to the admission of opinions on the question of value and damages, referred to the following: Morehouse v. Mathews (2 Comst., 514); Brill v. Flagler (23 Wend., 354) ; Joy v. Hopkins (5 Denio, 84). As to the charge of the judge on the subject of the' evidence of fraud: 18 Wend., 375; 3 Wend., 626 ; 1 Hill, 316; 1 Denio, 574, 577 ; 7 Cow., 301; 4 Wend., 300. That the monuments described in the deed control other monuments pointed out: Cameron v. Irwin (5 Hill, 272). As to the adverse possession claimed by defendant: McCormick v. Barnum (10 Wend., 104); Cole v. Irvine (6 Hill, 634,; Willson v. Betts (4 Denio, 201); 9 Wend., 516, 518 ; 5 Cow., 350, 351.</p>

That court, upon the application of the Bank of the Commonwealth, awarded a certiorari to the commissioners of assessments and taxes of the city and county of New York, for the purpose of reviewing their proceedings in assessing that corporation, in the year 1859.- It appeared from the admissions in the return of the commissioners, that the Bank of the Commonwealth was a banking association organized under the general banking law, with a capital actually paid in of $750,000,…

<p>Where the wife of a farmer, who was in the habit of directing the business of the farm, renting lands, purchasing tools, stock; merchandise, &c., purchased a span of horses for which she gave a note in her own name; Held, in an action against the husband to recover the value of the horses, that it was a question for the jury whether the wife did not act, in making the purchase, as the agent of her husband. That thl giving of the note was not conclusive evidence to the contrary; and That the act of 1848, in regard to the rights of married women, did not affect the case.</p>

Action against the defendant as sheriff of Madison county, for an escape. The plaintiff had recovered a judgment against one Lathrop in an action for wrongful conversion of property, for $67.77, on which an execution against property had been issued and returned unsatisfied.

On the 24th of August, 1850, the firm of W. C. & A, A. Hunter, having become insolvent, made a general assignment of their property to the plaintiff, as trustee, for the benefit of their creditors. This action was brought by the assignee to recover the sum of $3600, which at the date of assignment was on deposit in the Union Bank to the credit of the insolvent firm.

<p>This was an action commenced in October, 1849, for detaining personal property, and would have been replevin under the former practice. The property was a quantity of groceries, the assortment of a retail store. The defendant in the answer justified as sheriff of the county of Monroe, under two executions issued out of the supreme court, and delivered to the defendant as sheriff to be executed, on the 4th day of October, 1849, against one Lyman Bostwick; under which the defendant says he took the property and detained it until it was taken from his possession by the proceedings in the action. The answer also states that the goods were the property of Bostwick, and at the time of the levy were in his possession, and a part of his stock in trade as a retail grocer in Rochester; that Bostwick was; and for a year past had been engaged in selling the stock of which they formed a part, for his own use.' The reply denies that the goods were Bostwick’s property, and sets out a chattel mortgage under which the plaintiff claims them. '</p> <p>On the trial at the Monroe circuit in June, 1852, before Pbatt, J., the plaintiff gave in evidence a chattel mortgage, executed to him by Bostwick on the 14th day of August, 1849. By it Bostwick mortgaged to the plaintiff the goods and property mentioned in a schedule annexed, aad which were in a certain store in Rochester; with a condition to be void if Bostwick should pay the plaintiff $1000, by instalments of $100 per month, the first instalment to be paid in twelve months from the giving of the mortgage. Until default Bostwick was to continue in quiet possession and enjoyment of the property, unless he should attempt to sell it, in which case the plaintiff might take and keep it until default and then sell it?</p> <p>The annexed schedule was a list of items of groceries and store furniture, at the foot of which was the following, the whole paper being signed by Bostwick: “Together with all other articles mentioned and specified in a bill of sale this day executed by the said party of the second part to the said party of the first part, and to include also all other articles of a like nature which may he put, or he in said store, whenever the said party of the second part may he entitled to enforce the within mortgage. Said party of the first part not to sell any of the said goods upon credit. If any of the said goods are sold upon credit, that shall he sufficient cause of forfeiture of the within mortgage, and entitle the said Edgell to treat the same accordingly, at his electionThe mortgage had been duly filed.</p> <p>The plaintiff proved that in August, 1848,' he soldJBostwick a stock of groceries, with which he, the plaintiff, had been trading as a grocer, for $2200, and took his notes payable $100 per month, and a chattel mortgage. Bostwick had paid eleven or twelve of the notes, and in August, 1849, gave the new mortgage, the schedule which had been attached to the first mortgage* being taken off and with a few items added annexed to the new one. In the meantime, and until the seizure, he had been selling the goods as a' retail merchant, and making fresh purchases. He púrchased about $800 worth in the fall of 1848, and about an equal amount in the spring of 1849. The new purchases, being of similar goods, answered the description in the former schedule. He had sold to the' amount of $1000 or $1500. The purchase in the fall of 1848, was made of a firm'in New-York, - who are the same persons with the plaintiffs in one of the executions under which the levy was made. A part of the goods seized belonged to the old stock, and the rest were of the new purchases. Bostwick supplied his family with necessaries from the store, and gave due bills payable in goods for clothing, &c., which were paid out of thé store. The plaintiff after selling out to Bostwick went into business again in the same street in .which Bostwick’s store was. ' Bostwick went away to California about a week before the sheriff closed his store. After the seizure the plaintiff demanded the property of the sheriff.</p> <p>The defendant moved for a nonsuit on the ground that the chattel mortgage under which the plaintiff claimed was fraudulent and void as against creditors. The judge non-suited the plaintiff, who excepted. Judgment for the defendant, which was affirmed at a general térm. (13 Barb., 380.) The cause was submitted here upon printed arguments by</p>

On the 27th of April, 1790, Nicholas Van der Volgen owned a lot in Schenectady-, the land out of which this controversy arose.

Upon a certiorari to the Commissioners of Taxes and Assessments for the city and county of Hew York, they made a return from which these facts appeared: The relator was assessed $4,000 for personal property. He applied for a correction of the assessment, and testified that the value of all his personal property within this State was exceeded in amount by his just debts and liabilities.

AVAit of error to the supreme court in the first district, to review a judgment rendered on certiorari to an alderman of the city of New-York, to remove an order of the aider-man made upon… Held: and that they by one Arnold and one Beman, their under-tenants, held over and continued in possession of the same-without permission of the landlord, after default as aforesaid, and that ■ satisfaction of the rent could not be obtained by distress of any goods.

This action was brought in the recorder’s court of the city of Buffalo, in May, 1849, and was tried before a referee. It appeared upon the trial that the defendant, a resident of Buffalo, was during the year 1848 owner of one-half of the schooner “ Billow,” and in possession thereof. .

Action .of debt on a judgment against Herter as principal and Dillenbeck as surety, commenced in the supreme court in October, 1843. Two new trials had been already granted (3 Denio, 157; 4 Barb., 346), and the third trial was had in October, 1849, at the Jefferson circuit, before Mr. Justice Pratt and a jury.

' Certiorari, under section 20 of the act of 1859 in relation to the assessment and taxation of property in the city of New York, to review the proceedings of the commissioners of taxes and assessments in imposing a personal tax upon the relator. From the commissioners’ return it appeared that the relator is a foreign corporation, manufacturing nails in the States of Massachusetts and Rhode Island.

This was an action of ejectment, commenced in the supreme court in the year 1845.

It was enacted, by chapter 193 of the Laws of 1840, that whenever the Long Island Bailroad Company should produce to the Comptroller the joint affidavits of five directors of said Company, that the sum of $400,000 of the moneys paid in on the capital stock of said company, had been actually expended by them in the construction of their road, he should issue and deliver to the treasurer of said company, special certificates of stock to the amount of $100,000, bearing an…

The action was brought for the purpose of setting aside the satisfaction of a mortgage, and to reinstate it as a lien,.on the ground that the satisfaction was… Held: in a different manner. He had contracted to sell a part of the mill lot, and proposed to have the mortgage in question and the plaintiffs’ other securities- discharged, and to give them a neV mortgage on the residue of the mill property and on other lands in Erie county, and to assign to them certain stock.

The1 relators, in December, 1852, as well on their own behalf as on the behalf of all other corporators and taxpayers of the city of Few-York who might be affected by the proceedings complained of, commenced an action before the . superior court against the mayor, aldermen^ and commonalty of said city.

Action to recover the possession of certain goods, upon the allegation of property in the- plaintiffs, and a joint detention by the defendants. In April, 1853, the defendant Pinner- purchased of the plaintiffs, the goods described in the complaint (the purchase amounting to $6,500), on a credit-of four and six months, for which he gave his two negotiable promissory notes.

The complaint set forth the appointment of the plaintiff as Beceiver. of the Island City Bank, an insolvent corporation, and averred that the bank, within a year preceding the commencement of the action, had paid, and the defendant had received, on the loan or forbearance of sundry sums of money upon a corrupt or usurious agreement, the sum of at least $10,000'; for the repayment of which he prayed- judgment.

■Appeal from a judgment of the superior court of the city df New-York at general term (5 SanJ/'S.' C. R., 330), affirming a judgment in favor of the plaintiff at special term. ’ The action was brought against the defendant as endorser of four promissory notes. One of these notes was as follows: “$740.

Action to recover the possession of land in a part of that city which was formerly the south village of Black Bock. The trial was in September, 1858, before the court, a jury having been waived.

<p>A joint action lies under section 120 of the Code against a lessor and one who is a party to the lease, and therein guarantees the performance of the lessor’s covenants.</p>

Actiou by the pkintiff, as the assignee of one Lyell, to recover of the defendant the proceeds of a bill of exchange for $2,000, remitted by Lyell to the Ohio Life Insurance and Trust Company at its office in New York, and by the latter transferred to the defendant, after acceptance, as security for a precedent debt. These facts were found by Mr. Justice Slosson, before whom the cause was tried without a jury, with other facts which are stated in the following opinion.

This action, framed under the fifth subdivision of § 143 of the Code of 1848, corresponding with § 167 of the present Code, was brought to recover real property, without damages for the withholding thereof, and is the substitute provided by .the Code for the action of ejectment under the former practice.

Wkit of error to the Supreme Court. The plaintiff in error was indicted at the Otsego General Sessions. The indictment contained eight counts. The eighth count charged that the prisoner, with intent feloniously to do bodily harm to one Allanson, made an assault on him with a certain sharp, dangerous weapon to the jurors unknown, and other outrages then and there did, &c. The prisoner was found guilty on this count. On error, the Supreme Court affirmed the conviction.

The complaint was filed in 1851, by the plaintiff, as administrator with the will annexed, to procure a judicial construction of the last will and testament of William Barthrop, late of Kinderhook in the county of Columbia, deceased.

<p>Appeal from the Supreme Court. Action to obtain a judgment of the court declaring void and setting aside a conveyance made by the corporation of the city of New York, under the common seal and the signatures of the Mayor and the Clerk of the Common Council, of a piece of land to be made, under the waters of the North river, and situated between Gansevoort street and Twelfth street, to the defendant, Joseph B. Varnum, and which he had conveyed to the defendant Coleman. The city was the owner of the adjacent uplands, which gave it and its grantee the right to sink bulkheads and make dry land of that which was under water. Simeon Draper was made a defendant, on the allegation that he was influential in rooming the conveyance and was interested in the purchase, asnd that, being one of the Governors of the Almshouse, he was prohibited by law from being a party in interest to a purchaste of any of the property of the city. The plaintiff averred that Be was a resident and taxpayer of the city of New York, owning real and personal property situated therein, and paying taxes thereon, and also that, as the holder and owner of a portion of the city stock, he was a creditor of the city to the amount of more than $100, which debt was payable with annual interest.</p> <p>To show that the sale was illegal, the complaint referred to and stated some of the provisions of an ordinance of the Common Council, relating to the sinking fund, adopted in 1844. (Revised Ordinances of 1845, p. 212.) So far as it is material to the present question, it declares that all money thereafter to be received from certain specified sources of revenue was thereby pledged to and constituted the sinking fund for the payment of the city debt, until the same should be redeemed; and among the sources mentioned are “ the net proceeds of all sales of real estate belonging to the corporation, when sold.” By another provision, certain other sources of revenue, including the sales of all property of the corporation other than real estate, were pledged to the payment of interest on the city stock. There is then a series of detailed provisions respecting the disposition of the real estate, (tit. 4) and among these are the directions respecting grants of lands under water on the shores of the island of New York. (Id., §§11, 12.) In all cases of such grants, it is provided that the Comptroller and Street Commissioner are to report to the Commissioners of the Sinking Fund what sum in their judgment ought to he charged as consideration for such grants; and if a majority of the Commissioners agree to those terms, the Comptroller is to cause the property to be conveyed to the parties who may be legally entitled to the same. But it is declared that these directions, “ so far as the consideration money is concerned,” are not to apply to grants to be made on the North river, between Hammond and Thirtieth streets, which section includes the premises in question; “ but the rates to be charged for grants between said Hammond and Thirtieth streets shaL be as follows for each running foot along the westerly line pf the Eleventh avenue: , . , . For grants between Gransevcaort and Twelfth streets, $14.” The grants to be made by virtue of these provisions are not to authorize the construction of bulkheads or the making of land without the permission first obtained of the Common Council, and then the work is to be done in conformity with its directions.</p> <p>It was further provided that interest should be reserved on the bonds and mortgages for the deferred payments, at the rate of seven per cent per annum. Section 17 of the same title authorizes the Trustees of the Sinking Fund to sell and dispose of the real estate belonging to the corporation and not in use for public purposes, at public auction, at such times and on such terms as they may deem most advantageous for the public interest, and twenty days’ notice by advertisement is required to be given. No sale is, however, to bb made at a less sum than the property shall be appraised at by the Commissioners of the Sinking Fund and the Street Commissioner, or a majority of them, at a meeting to be held within one month prior to the sale. (Tit. 4, § 17; tit. 5, § 3.) The conveyance complained of was made pursuant to a certain resolution of the Common Council, adopted December 20, 1852, by which it was resolved that the premises in question should be sold to D. B. Martin, or any other applicant for the purchase thereof; and it was “ referred to the Commissioners of the Sinking Fund to fix the terms and price, the proceeds of which to be paid into the sinking fund for the redemption of the city debt.” The Commissioners of the Sinking Fund fixed the price at $160,000, requiring twenty-five per cent to be paid down, and the residue to remain on bond and mortgage for five years, with interest at the rate of six per cent per annum, and directed a conveyance upon these terms to be made to Beuben Lovejoy. There was no report as to price from the Street Commissioner or Comptroller, nor any appraisement preliminary to the sale. The Commissioners negatived a resolution to give notice of the sale by advertising, ánd to sell at auction, which was proposed by the Comptroller. The conveyance was, in fact, made to the defendant, Joseph B. Yamum, who executed a bond and mortgage for $120,000, the balance of the purchase money, payable with six per cent interest. The sum of $40,000 was paid down, and the payment was made in part, as the plaintiff believes, by the defendant Draper, who, it is alleged, was directly of indirectly interested in the property. The following averments as to the value of the property and the effect of the sale, conclude the stating part of the complaint : “ And the plaintiff shows that the property sold as aforesaid is of far greater value, as he is informed and believes, than the price aforesaid, and has been estimated by persons familiar with real estate as fully worth three hundred thousand dollars.” “And the plaintiff charges, upon information and belief, that the sale aforesaid was attempted without authority, and in breach of law and of trust, at the instance, under the influence and to subserve the interest, of an officer of the corporation, and that it tended to the sacrifice of the city property, the loss of taxpayers and ultimate injury of creditors; that the city debt now amounts to the sum of $14,578,905, and the city property available to pay the same is of the value of $7,542,103.” The plaintiff insists that the conveyance is a cloud upon the title, and he prays that it may be delivered up and canceled.</p> <p>The ordinance of 1844, organizing the sinking fund, is referred to in several subsequent acts of the legislature, passed to enable the city to borrow money for the introduction of the Croton water into the city. The act of 1845 (p. 247, § 5) declares that the ordinance shall remain in full force until the whole of the debt created on account of the Croton water shall be fully redeemed. (Laws of 1849, p. 128, § 5, et seq.; id., 1851, p. 454, §5.)</p> <p>To show that the sale was illegal, the plaintiff also relied upon certain provisions of the act to amend the charter of the city of New York, passed in 1849 (ch. 187), namely: Section 19, which declares “ that no member of the Common Council, head of department, chief of bureau, deputy thereof or clerk therein, or other officer of said corporation, shall be directly or indirectly interested in any contract, work or business, &c., &c., nor in the purchase of any real estate or other property belonging to the corporation, or which shall be sold for taxes or assessments;” and section 17, by which it is declared that “ there shall be an executive department known as the almshouse, which shall have cognizance of all matters relating to the almshouse and prisons of the city, the chief officers whereof shall be the Governors of the Almshouse.”</p> <p>The defendants Draper and Coleman demurred’ to the complaint, on the ground that it did not, as alleged, state facts sufficient to constitute a cause of action. The. case was heard before Mr. Justice Mitchell, at a special term, who made an order overruling the demurrer; but the order was appealed from to the general term, where it was reversed, and judgment was given for the defendants dismissing the complaint, with costs. The plaintiff appealed to this court.</p>

Paul Durando ■ died in 347, leaving a widow, to whom he devised his real estate for life; remainder to his children, of whom Peter Durando, the husband of the appellant, was one.

Action against the defendants, an Express Company, as common carriers, to recover the amount of a package of money, received by the defendants directed to the “People’s Bank, 173 Canal street, New York.” The defendants had a verdict at the circuit, which was affirmed at the general term of the Supreme Court in the seventh district, and the plaintiffs appealed to this court. The proof showed these facts: The plaintiffs were bankers at Dansville, Livingston county.

Action, under the statute, for damages to the next of kin of the plaintiff’s intestate, resulting from his death by the wrongful act of the defendant’s agent. On the trial these facts appeared : On the evening of December 30, 1855, the deceased entered one of the defendant’s cars in a street of New York city.

The nature of such of them as are of any interest, and the facts relating thereto, are sufficiently stated in the following opinion.

Complaint under the Code, filed by L. S. Chatfield, attorney-general, on the 31st day of October, 1849.

The action was brought on a covenant, dated April 15, 1851, for the payment by the defendants to the plaintiffs of $1,000. The instrument was set forth in hose verba, in a schedule annexed to the complaint.

<p>No appeal lies to the court of appeals from a decision of a general term reversing an order at special term amending a judgment.</p> <p>It seems that no appeal lies to the general term from the order of a special term amending a judgment by granting leave to a party to amend his pleading and proceed in the action.</p> <p>A judgment may be amended by the court at anytime before the time for an appeal has expired, and probably afterwards.</p> <p>A complaint may unite legal and equitable causes of action, and if the evidence sustains either the legal or equitable cause of action, judgment should be rendered accordingly, whether the cause be tried at the circuit or at special term. (This is adverse to the decision made at special term, 20 How» Pr. R., 424.)</p> <p>The legislature has united law and equity to the fullest extent, and its constitutional power to do so is now firmly settled.</p> <p>Rubens agt. Joel,. (13 JY. Y. R., 488,) is an authority for the rule that a creditor at large cannot sustain a creditor’s action, and for nothing more. (Dobson agt. Pearce, 12 JY. Y.R.,lñ$,and Phillips agt. Gorham, 17 N. Y.R., 270, reaffirmed.)</p>

<p>Appeal from the Superior Court of the city of New York. Action brought to recover one quarter’s ground and water rent due upon a lease, under seal, for three years. The first two years’ rents were paid; and the defence to the action .for the first quarter’s rent of the third year was, that the premises were surrendered by a parol agreement to pay $100, and the delivering up of the keys of the house and the tender of the $100, and that the plaintiff’s testator did actually accept the surrender upon the agreement to discharge the lease for $100, which was so tendered. The trial was before a referee, who, in the finding of facts, stated that “ the lease was for a term exceeding one year, and the same has not been surrendered, but is in full force and effect;” and then immediately follows the referee’s conclusion of law, in which he finds that the lease, being under seal and for a term exceeding one year, could not be surrendered by parol, and that the defendant is liable for the rent.</p> <p>The court, at general term, on appeal, held, that there being but a single year of the term remaining, it could be surrendered by a parol agreement, and reversed the judgment and granted a new trial.; and the plaintiff tendered a stipulation as required by the statute, and appealed to this court.</p>

Action brought by the executors of the will of Benjamin ■ Marshall, late of the city of Troy, in order to obtain the judgment of the Supreme Court as to the validity, construction and effect of several parts of such will. The defendants are the next of kin and heirs-at-law of the testator, and cer tain charitable and religious institutions or societies, to wit: The Marshall Infirmary, the American.

This is an action to recover real property, with damages for the withholding thereof. The plaintiff sought to recover twelve hundred and seventy-seven acres of land situated in the county of Ulster. No question arose upon the pleadings. The trial took place at the Ulster circuit on the 8th day of May, 1851, before Mr. Justice Haebis. Both parties claimed title under Henry Dewitt, who died on the 7th day of May, 1850.

Application was made in April, 1856, to the Surrogate of the county of Hew York, for the issuing of a commission to take proofs of the execution in Charleston, South Carolina, of an alleged will of Benjamin F. Hunt, who, it was averred in the petition, had died in the city of Hew York, having his residence and leaving personal property there.

Or the 22d of March, 1839, Martin Gage made his promissory note for $974.15, payable to John Martin (the appellant in this case) one day after date.

The questions presented in this case arose upon a,n application to the supreme court of the first district to compel Mr. Lord to complete the purchase of certain lots in the city of New-York, bid off by him at an auction sale under a decree made in a suit for the partition of the lands.

The plaintiffs claiming that certain lands in the Indian reservations within this State, to which they had become entitled, had been illegally assessed and sold for the non-payment of taxes, united with the Comptroller as representing the State, and with the assignee of the purchaser at the tax-sales, in a statement of facts which they submitted without action under section 372 of the Code of Procedure. The case thus made is sufficiently stated in the following opinion.

Isr the year 1802. Jonathan Wales was the owner of a tract of land on the Oriskany creek, in the county of Oneida, on which there was a dam across the creek, a raceway of eighty-three rods in length along the left hank of the creek, and a forge for the manufacture of wrought iron situated near the lower end of the race.

Loonie, Fitzgerald & Egan sued Hogan in the New-York common pleas to recover $150 and interest, for cut stone furnished by them, which were used in erecting -a building on Eleventh-street, in the city of New-York.

• Action to recover instalments of interest claimed to be due on two alleged obligations in writing, executed as hereinafter stated. On the trial, the judge directed a verdict for the plaintiff.

■ The plaintiffs, a corporation organized under the general plank road acts, had built their road upon the line of an old highway which bounded the defendant’s farm on one side, and had erected a toll-gate on that part of their road which ran by his farm.- After the erection of the gate the defendant moved his fence from' the line of the road where it originally stood, ’ back upon his farm some twenty or thirty feet, and graded a track by the side of the road, but' entirely…

, they suffered a large quantity of dust and rubbish to remain upon the carriage way in Chambers-street, whereby the plaintiff, who was passing through that street in his wagon on the 14th of September, 1849, was accidentally driven against the rubbish and overturned, by which his collar bone and two of his libs were broken, and his skull fractured, for which he demands judgment for $10,000.

<p>Upon the trial of a cause before a judge, a general exception to the decision of the judge drawing a single conclusion of law from an undisputed state of facts, is available on appeal.</p> <p>Where there is no conflict or uncertainty of evidence, the conclusion to he drawn from the facts proved is a question of law, and as such is reviewable in this court.</p> <p>One offered to a bank, in payment of a note nearly due, a check drawn upon the bank by one of its own customers; the bank declined to accept it as payment, but consented to retain and apply it to the note if the check were made good on the day the note fell due. On that day a balance appeared against the drawer of the check; but soon after, new credits having been made to him, the bank charged the check in his account, and credited the note as paid. This transaction was held to operate as an absolute payment of the note.</p> <p>Such entries upon the books of the bank were of precisely the same effect as if the money was first paid to the payee of the check, and instantly repaid to the bank.</p> <p>After the bankruptcy of the drawer of the check, a new note given for the original debt, in ignorance of the acceptance of «the check by the bank, was without consideration; and cannot even be regarded as given in compromise of a doubtful claim.</p>

<p>The statutes giving an action for damages resulting from a death caused by culpable negligence, do not.apply where the injury is not committed in this State, but in a foreign country.</p> <p>It does not vary the case that the negligence was that of a corporation chartered by this State for the purpose of operating a railroad in the foreign country, and which made the contract in this State for the conveyance of the injured party over such road.</p> <p>These statutes, it seems, are not simply remedial, but create a new cause of action in favor of the personal representative of the deceased, which is wholly distinct from and not a reviver of the cause of action which, if he had survived, he would have for his bodily injury.</p> <p>Whether a person entitled to the services of another, as a parent to those of a child, may not maintain an action against one by whose negligence, resulting in death, he has been deprived of such services, reserved as an open question in this court.</p>

This action was brought to recover possession of a canal boat taken by the defendants upon the 9th of September, 1851, out of the possession of Chauncey H. Bascom. The plaintiff claimed title by virtue of a bill of sale from Bascom and one Oliver Beckwith, dated February 21, 1851. The defence was that the sale by Bascom to the plaintiff was fraudulent as to the creditors of Bascom; but no prayer for relief was contained in the answer.

<p>This was an action of assumpsit, commenced in January, 1848, to recover the money paid upon four drafts, drawn by the agent of the defendants upon the plaintiffs, and accepted and paid by the latter. The drafts were as follows • 1 dated July 10th, 1845, at sight for $1600 1 . “ July 14th, “ “ 500 1 “ July 16th, “ 1000 1 “ July" 19 th, “ “ 400</p> <p>The plaintiffs during the year 1845 were commission merchants in the city of Philadelphia, and the defendants during the same time were manufacturers of woolen goods in the county of Oneida in this state.</p> <p>On the 10th day of July, 1845, the defendants by their agent consigned to the plaintiffs, to be sold by them on commission, seven cases of woolen cloths, of which the plaintiffs were apprized by letter accompanying the drafts drawn on that day.</p> <p>On the 15th day of July, 1845, the defendants made another consignment to the plaintiffs of seven more cases of cloths to be sold in like manner; and on the 9th of September, 1.845, a further consignment of three additional cases. Each of the drafts was accompanied by a letter referring to consignments of cloths made or to be made by the defendants to the plaintiffs. The goods consigned were all received by the plaintiffs by due course of transportation, and without any unreasonable delay.</p> <p>The cause was referred; and upon the trial before the referee, the plaintiffs sought to recover upon proof of the payment of the drafts by them, and that they were drawn against the consignments aforesaid; without showing what disposition had been made of the cloths or what were their proceeds, or that they had rendered any account of such proceeds.</p> <p>The referee reported in favor of the defendants, and the •supreme court at general term in the fifth district denied a motion to set aside this report, and ordered judgment for the defendants. The' plaintiffs appealed to this court.</p> <p>I. The plaintiffs were accommodation acceptors. They had no funds in their hands when the drafts were drawn : all the drafts were drawn in the space of nine days, and were all at sight and paid as soon as received. A right of action immediately accrued on the payment of the drafts. (Stevens v. Wilson, 6 Hill, 512; Suydam, v. Westfall, 4 Hill, 211; Chitty on Bills, 595, ed. of 1839 ; Luff v. Pope, 5 Hill, 413; Griffith v. Reed, 21 Wend., 502; 3 Barb., 634; Brink v. Dolsen, 8 Barb., 337.)</p> <p>II. Where goods are consigned to a factor to sell on commission, the law will raise a contract on his part to account for such as are sold, to pay over the proceeds' and re-deliver the residue unsold on demand, and an action does not lie against him, for not accounting, till after demand made of an account. (Topham v. Braddick, 1 Taunt., 571; Ferris v. Paris, 10 John., 285 ; 1 Espinasse Nisi Prius, 210; Cooley & Bangs v. Betts, 24 Wend., 203; 1 Pet., 444 ; 7 Cow., 328, 501; 2 Hill, 151, 2; Dresser v. Ainsworth, 9 Barb., 619; Livermore on Agency, 457.)</p> <p>III. By the usage of trade the consignee is to receive instructions as to the mode of remittance. (10 John., 285.) The defendants should have proved that the goods had been sold. (Elbourn v. Upjohn, 11 Com. Law R., 476 ; Leverick v. Meigs, 1. Cow., 645.)</p> <p>TV. From the lapse of time in this, case, it is to be presumed that the plaintiffs had accounted to the defendants for the sales of the goods. The defendants here should have shown that all the goods consigned had actually been sold. (Elbourn v. Upjohn, 1 Car. & Paine, 572 ; 11 Com. Law R., 476, S. C.)</p> <p>V. The drawees, by their acceptance and payment of these bills of exchange, became bound to pay, whether they had funds in their hands or not. (Cowperthwaite v. Sheffield, 3 Comst., 243.) There is no direction given by the drawer of the bill ■ as to the application of the proceeds. (Same case.)</p> <p>I. The cloths were sent to the plaintiffs to be sold on commission ; and the money paid on the bills was an advance on account of the consignments in the ordinary course of business between principal and factor. The goods had been sold long before the action was brought. To entitle the plaintiffs to recover they should have proved an account of the sales of the goods. (Montgomerie v. Ivers, 17 John., 38 ; Corlies v. Cumming, 6 Cow., 181, 182, 184; Clark v. Miller, 4 Wend., 628 ; Cutting and Lord, arguendo, 3 Comst., 68; 2 Sandf. S. C. R., 189; 7 Bing., 217; Chitty on Bills, 348.) 1. The plaintiffs cannot recover on the drafts. The acceptance and payment are prima facie an admission of funds to that amount. ( Griffith v. Reed, 21 Wend., 502; Suydam v. Westfall, 4 Hill, 211; Byles on Bills, 100.) 2. The admission may be rebutted by showing that the drafts were accepted for the accommodation of the drawer; but these drafts were not of that character. They were business and not accommodation paper. ( Cameron v. Chappell, 24 Wend., 94, and cases.) 3. It may also be rebutted by showing that property was not forwarded to be sold by the plaintiffs on commission as agreed ; but in this case a large amount of cloths was forwarded and delivered to the plaintiffs. 4. The property having been forwarded as agreed, the admission of funds implied by the acceptances can only be rebutted by the plaintiffs showing that upon a sale of the property, according to the usual course of business, the proceeds were insufficient to reimburse the advances. ( Cuses above.) 5. This is in accordance with the general principle that where a.fact is peculiarly within the knowledge of one of the parties to a suit, the burden of showing how the fact is rests on him. (Clark v. Miller, supra; 1 Phil. Ev., Gould's ed., 198; 1 Greenl. Ev., § 79.) 6. It is also in accordance with the rule that the obligation of proving any fact rests upon the party who, substantially, asserts the affirmative. Here the action is based upon the affirmative proposition that the property has been sold for an amount less than the aggregate amount of the drafts. The plaintiffs have failed to prove any such thing. ( Greenl. Ev., § 74, el seq.)</p> <p>II. The plaintiffs having failed to furnish proof, or even an account, of the actual sales, the defendants are entitled to be allowed the highest price which, according to the evidence in the case, the property would have sold for This would have more than covered the advances. (Clark v. Miller, 4 Wend., 628; see also Blot v. Boiceau, 3 Comst., 84, 86.)</p>

On the 1st day of April, 1839, Philip Thurber executed his bond and mortgage to Anson Thomas, president of the Bank of Central New-York, at Utica, an association organized under the general banking law, to secure the payment of $6500 and interest in one year. The mortgage covered one hundred and fourteen lots of land in the city of Rochester.

The judgment at special term was against the defendants on account of the frivolousness of their answer, and this was affirmed at general term in the third district. The defendants appealed to this court The complaint counted on a joint and several promissory note made by the defendants for the payment of $176, with interest, six months from its date, December 5th, 1855.

<p>The words “for value received” in a guaranty of a promissory note, are a sufficient expression of the consideration within the statute of frauds. '</p>

Ejectment for an acre of land, including a saw-mill, pond, dam-and the north bank of the Cattaraugus creek. Upon the trial at the Erie circuit, it •appeared that the premises in controversy were the slope of the north bank, and the land between the bank and the centre of the Cattaraugus creek, about one mile from its mouth.

This action was commenced in July, 1849, for the recovery of dower in fifty acres of land, in Reading, Steuben county, which the plaintiff claimed as the widow of George Lewis, deceased. The answer set up the defences which were relied on at the trial. The cause was first tried at the Steuben circuit, in February, 1850, before Mr. Justice Johnson, without a jury. Judgment was rendered for the defendant, which was reversed and a new trial ordered by the court at general term.

Appeal -from the Supreme Court. -Action against the sneriff of Washington county for the recovery of a quantity of household furniture. The plaintiff, who was a married woman, made her husband a defendant with the sheriff, alleging the furniture to belong to her separate estate.

<p>Appeal from the Supreme Court. The Hollister Bank, an association organized under the general banking law, and doing business at the city of Buffalo, was declared insolvent in September, 1857, and a receiver of its effects appointed. The time for his making a dividend and apportioning the debts among stockholders was by successive orders of the Supreme Court extended till September 1st, 1858. In August, 1858, the receiver made a detailed statement of the assets, condition and affairs of the bank and applied to the court for an order authorizing him to sell the remaining assets at public auction, or such portion of them as to the judge should seem proper under the circumstances disclosed by the report and petition. An order was thereupon made that the receiver proceed to sell certain classes of the assets specified, and that he refrain from selling the rest until farther order. September 27th, 1858, he rendered an account of all his proceedings, with a particular statement of all the debts, liabilities and remaining assets, and a list of stockholders. This report showed that he had exhausted in the payment of dividends, all the property and assets of the bank, except some demands in process of collection, —stated to be mostly in suit or in judgment—and which were the same that he had by the order of the court refrained from selling. Of these, demands to the amount of $34,000 were, in the receiver’s opinion, probably collectible, and the remainder, to the amount of $149,000, he. esteemed doubtful. This report and list of stockholders were, by order of the court, referred to a referee to apportion the debts and liabilities of the bank among its stockholders. Upon a petition of the stockholders, and on a special report of the referee, the time for the apportionment of the debts was extended to July, 1859, and the receiver was ordered to sell at auction some of the demands which the referee had reported could be best converted into cash in that mode, and to make a further dividend of the proceeds of such sale. Under this order a further dividend was. made of $24,375.63, leaving a considerable amount of demands uncollected and unsold. On the 13th February, 1860 (proceedings for the apportionment of debts having been further stayed by sundry orders of the court till 1st December, 1859), the referee made his general report and apportionment. ' The exceptions taken to the report by several stockholders were heard at special term on the 2d of April, I860, and an order was then made confirming the report and apportionment, and judgment was entered thereon against the several stockholders for the amount apportioned upon them respectively. Upon appeal by several stockholders, the court, at general term in the eighth district, reversed the order of confirmation, and the judgment entered thereon, and also reversed the order directing the reference and all the proceedings there* on. The receiver appealed to this court.</p>

<p>Appeal from the Supreme Court. Action to recover $2,000, insured by the defendant, a corporation chartered by the State of Hew Jersey, upon the life of one Bugbee, a resident of Florida. The plaintiff, who took out the policy for his own benefit and in his own name, was a resident in Georgia. In his written application for insurance he stated: “I have an interest in the life of the said I. D. Bugbee to the full amount of the said sum of two thousand dollars; and I hereby agree that this declaration [which was in the form of answers to various interrogatories in respect to the age, health, habits, &c., of Bugbee,] shall be the basis of the contract between myself and the said company.”</p> <p>The policy recited that it was “ in consideration of the sum of ninety-seven dollars and forty cents in hand paid by John 0. Buse-, and of the annual premium of ninety-seven dollars and forty cents to be paid on or before the tenth day of April in every year during the continuance of this policy.” It also provided that, “in case the said John C. Buse shall not pay the said annual premiums on or before the several days herein-before mentioned for the payment thereof, then and in every such case the said company shall not be liable to the payment of the sum insured or any part thereof; and this policy shall cease and determine.”</p> <p>Upon the trial it was proved that the premium for the second year, which, by the terms of the policy, became due April 10, 1847, was not then paid. Bugbee died April 13,1847. Within a day or two afterwards, the plaintiff tendered the premium to the defendant’s agent, and he declined to receive it.</p> <p>The plaintiff proved, under an exception by the defendant, that, at the time of the application for insurance, the defendant’s agent delivered to him a printed paper of several pages, entitled a prospectus, setting forth the advantages of life insurance in general, and the particular inducements held out by the defendant. So much of this as is material, is cited in the following opinion.</p> <p>The plaintiff gave no evidence of any pecuniary interest in the life of Bugbee, or of any relationship to him. The defendant moved for a nonsuit, on the ground that the policy was forfeited by the failure to pay the premium on the day appointed and that the plaintiff had shown no interest in the life insured. The nonsuit was refused, and the defendant took an exception. The plaintiff had a verdict and judgment, which having been affirmed at general term in the first district, the defendant appealed to this court.</p>

Ok the 35th of January, 1851, the plaintiff employed the defendant, a broker, to sell for him two hundred shares of Canton Company stock, at $66 per share, deliverable, at the plaintiff’s option, at any time within thirty days from that date.

This action was commenced in the supreme court in July, 1850.

<p>The marriage of a female mortgagee with the mortgagor, since the act for the protection of the rights of married women (ch. 200 of 1848), does not extinguish her right of action upon the mortgage.</p> <p>Where such mortgagee unites with her husband in a junior mortgage of the same land, the act affects only her inchoate dower interest, but does not in the absence of words for that purpose impair her right to priority of lien.</p>

<p>An admission in a hill of lading, signed by the carrier, that goods are received “ in good order,” does not conclude Mm, as against the parties to the instru-ment, from showing by parol evidence that the goods were not in good order when received.</p> <p>It is not material in this respect whether the goods were open to inspection when the hill of lading was given, or not.</p> <p>The owner of goods shipped by him to he transported to a particular place at a freight.agreed upon, having demanded and received them at an intermediate point, without waiver by the carrier of his claim for the full freight, is liable to the carrier for the full freight originally .agreed upon.</p>

Os the 1st day óf June, 1835, an agreement was made, under the hands and seals of the respective parties, between James D. Bemis, Pierre A. Barker, John W. Clark and Boswell W. Haskins, of the first, part, and Arenton J. Douglass Douglass, the party of the second part, covenanted and agreed as follows:to pay for said lot of land the sum of two thousand five hundred dollars, in ten equal annual payments, with annual interest on the whole sum; the first instalment and the…

The action was brought to recover damages on account of the seizure and sale of certain household furniture, which one Schenck had mortgaged to the plaintiff. The mortgage was given to secure $1,070, payable in one year, with a provision that until default, ■ the mortgagor should continue in the full possession and enjoyment of the goods.

The plaintiff brought an action in the supreme court for trespass upon lands against five defendants, who all joined in a single answer. Upon the trial the plaintiff obtained a verdict against two of the defendants; the other three had a verdict in their favor. The plaintiff entered judgment for his damages and costs against the two defendants.

In December, 1848, the plaintiff entered into an agree ment with a company of persons, of whom Gr. T. De Forest was one, by which, in consideration of the sum of $100 paid to him by each of the individuals composing the company, the plaintiff agreed to furnish them with a cabin passage to San Francisco, with subsistence for a year, and with the articles and tools necessary for carrying on mining operations in California.

70. The plaintiff had established a toll-gate, and had a keeper stationed at it, but the defendant drove through without paying toll, claiming that the road was out of repair. The gate-keeper was aware that the defendant was passing the gate, and did not do anything to prevent him. The plaintiff recovered the above amount with interest, and the defendant appealed. The case was submitted on printed points.

The action was to restrain the foreclosure by advertisement, and to compel the cancellation, of a mortgage held by the appellant against one Spicer. The trial was before a referee, who found these facts: On the 4th of March, 1852, Spicer procured from the defendant, on the security of the bond and mortgage in question, an advance of $200 on lumber to be thereafter furnished. The mortgage was recorded on the 8th of March, 1852.

Action to recover the possession of personal property, commenced in. May, 1849. The plaintiffs were warehouse-men at. Oswego and common carriers upon the lakes and canals, doing business under the name of H. Fitzhugh & Co. The property in question was shipped at Chicago, by G-eorge Steel, on board the propeller Genesee Chief.

Action by the receiver of the Farmers’ Insurance Company of Oneida county, an insolvent corporation, organized under the general law, chapter 308 of 1849, to recover the amount of a promissory note in these words: $320.

Action against the defendant as indorser of several instruments, in the following words: “ $50. TREASURY DEPARTMENT.

Action in the superior court of the city of New-York, upon a promissory note of which the following is a copy: “ $324.it,%. New-York, June 20th, 1850. “ Four months after date I promise to pay to the order of W. H. B. Smith, three hundred and twenty-four -/(% dollars, value received. “ David Hijbbell Hoyt, “ Agent for The Churchman.” Smith and Hoyt were also made defendants as endorsers, but suffered judgment by default.

<p>Motion to dismiss an appeal. The facts are stated in the following opinion.</p>

This action was brought to compel the defendants to extend a wharf of the plaintiff, situated upon a bay of the Hudson river, across the line of the defendants5 road, so as to give the plaintiff a river front upon his wharf outside of the railroad.

In 1851, the Bank of Utica transmitted to the defendant, the Bank of the State of New-York, for collection, a bill of exchange for $5000, drawn by the Empire Mills, a manufacturing corporation, addressed to E. C. Hamilton, Esq., New-York, and payable to the order of Frederick Hollister, four months after date. The bill was endorsed by Hollister,- the payee, and by two others, and discounted by the Bank of Utica for the benefit of the drawers.

On the 12th of November, 1847, the Pelican Mutual Insurance Company borrowed of 0. & Gr. Belden $2500, giving to the lenders the check of the company for the amount, and delivering to them, as collateral security therefor, three of their subscription notes to the amount, of $3500.

This action was brought in the superior court of New-York, against the sheriff of the city and county of Hew-York and one of his deputies, for taking and carrying away the plaintiff’s goods, consisting of merchandise in a furnishing store.