Reports of Cases Argued and Determined in the Supreme Court of Judicature, and in the Court for the Trial of Impeachments and the Correction of Errors of the State of New York [1828-1841]

FRAUDS.

Three of the Judges of Suffolk Co.

249

See CONSIDERATION, 4. EVIDENCE, 9, 10. 2. So, an order of commissioners subsequent-

FRAUDS, (STATUTE OF)

1. A covenant under seal, is not within the stat-
ute of frauds requiring an agreement to be in
writing, expressing the consideration. Dou-
glass v. Howland,

ly made, directing the gates and fence to be
removed, and that the road should be of the
width it had, previous to being enclosed, is
equally void; the first order being a nullity,
required no act on the part of the commis-
sioners to vacate it.
id

35 3. So, an order of three judges, to whom an
appeal was made from the second order, re
versing so much thereof as directed the road
to be restored to its original width, instead
of ordering it to be opened only three rods
wide, (the original width being from seven to
nine ods,) was also held to be void; the
judges in such case having no jurisdiction.

2. In a simple contract, the consideration must
appear on the face of the writing, or in oth-
er words, be expressed by it; but it need not
be in any particular form-it is enough, if
from the instrument, by reasonable construc-
tion, the consideration can be collected. Col-
lateral facts or surrounding circumstances to
which the promise has reference, may be
looked at to give effect to the contract. A4.
consideration implied or inferred from the terms
of the instrument, is as effectual as if express-
ly appearing on its face.

See PRINCIPAL AND SURETY, 1 to 5. BILLS
OF EXCHANGE, 9.

H
HIGHWAYS.

1. An order of commissioners of highways of a
town in one of the counties of Long-Island,
to close a road, on condition that proper
swing gates were made and supported, made
on a petition for the discontinuance of the
road supported by the oaths of twelve free-
holders, that the road had become useless
and unnecessary, is a void order: the com.
missioners not being authorized to make the
order upon such application. The People v.

Where application is made to commission-
ers of highways for the laying out of a pri-
vate roud, it is their duty to summon the re-
quired number of freeholders to view the
land, and not to delegate the authority to
another. The People, ex rel. Ellioll, v.
The Commissioners of Highways of Green-
bush,

367

7. Where, however, freeholders were summon-
ed by a constable, in compliance with a pre-
cept issued by the commisioners, who when
assembled were requested by the commis-
sioners to act, and acted accordingly, the
court refused to quash the proceedings it ap
pearing that the party through whose land
the road was laid was present and did not ob
ject to the proceeding.

8. A traveller on horseback meeting another
horseman or a vehicle on a public highway
is not required to turn out in any particular
direction to avoid collision; all that is re-
quired is prudent care under existing circum-
stances. Dudley v. Bolles,
465

9. The act relative to highways, authorizing
commissioners to ascertain, describe and en-
ter of record roads used as public highways
for 20 years, confers no authority upon the
commissioners to adjudge what was original-
ly intended in relation to the width or location
of the road, any further than such intention
is manifested by actual user, and they cannot
enlarge the width of the road or change its
location. The People, ex rel. The commission-
ers of Highways of Cortlandville, v. The Judy-
es of Cortland County,

491

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1. A policy of insurance upon the body, tackle,
&c. of a vessel, at and from New-Orleans,
Campeachy and Havanna, for the period of six
calendar months from a certain day, is a policy 6.
on time, and does not limit the navigation of
the vessel to voyages between the places
specified in the policy; provided the vessel
take her departure from either of them, let
her port of destination be where it may, she
is under the protection of the policy for the
whole period of the specified time. Grous-
sett v. The Sea Ins. Co

209

A policy of insurance on account of
is equivalent to a policy for whom it may con-
cern, and in such case proof aliunde may be
given to show the real parties in interest, al-
though it be a patent ambiguity.
id

Where a vessel insured for twelve calendar
months, and if at sea at the expiration of the
term, the risk to continue at the same rate
of premium until her arrival at the port of
destination, commenced (when 120 days of
the policy were unexpired) a voyage ordina-
rily occupying 70 days, and in the course of
her passages from place to place sprung
aleak so that repairs became necessary, and
whilst they were making the specified term
expired, it was held, that the insurers were
not liable for the loss of the vessel, which
happened on her return passage to the port
from which she departed when the voyage
commenced, she not being at sea within the
meaning of the policy at the expiration of
the specified term. The American Ins. Co. v.
Hutton,

330

Where a cargo of merchandise, which was
insured, was seized and condemned by the
French government under the Berlin and
Milan decrees, and a compromise was subse-
quently made between the underwriters and
the assured, by which the latter accepted
from the former $5000 in satisfaction of their
claim against the underwriters, which was
for $15,000, and surrendered the policy, but
did not assign or cede the right to claim in-
demnity from the French government, it was
held, on the underwriters subsequently ob-
taining $5000 under the convention between
the American and French governments, pro-
viding indemnity for spolation upon our
commerce, that the award of the commission-
ers under the treaty, giving the money to the
underwriters instead of the assured, was not
conclusive as between the parties; and that
the money thus obtained was held in trust
for the assured, and the underwriters were de-
creed to pay over the same. The N. Y. Ins.
Co. appellants, and Roulet and others, respond-

JOINT DEBTORS.

In a joint action against the maker and en-
dorser of a promissory note, which by the ev
idence of the maker, called as a witness for
the endorser, is proved to be usurious, the
plaintiff, although he cannot recover against
both defendants, is entitled to a verdict
against the maker whose evidence cannot

2. Where a lessor by deed demises a farm with the farming utensils and stock upon it for a specified term, reserving a right to sell the farm before the expiration of the term, and he exercises the right, it is questionable whether he can demand a return of the utensils and stock previous to the expiration of the term mentioned in the lease; but if he may demand such return, he cannot bring an action upon an implied covenant to do so, but must resort to the action of trover, or replevin id

LEASE.

Where the owner of a mill, by a written contract without seal, stipulated to pay a millwright for repairing the mill a certain sum in advance and a certain other sum when the mill should be finished; and further agreed to secure the mill to the mill-wright until the profits, of the mill should be sufficient to discharge his claim; IT WAS HELD that the contract was not a lease, but an agreement for a lease; and it was further held, that if it could be considered a lease, it created an estate for life determinable when the claim of the millwright should be paid, and thus the estate being an estate of freehold, it could not be granted by writing without seal. The People v. Gillis,

LIBEL.

See SLANDER.

LIMITATIONS, (STATUTE OF.)

201

1. The statute of limitations may be interposed as a bar to relief in equity on a bill filed for the settlement of boundaries between adjoining tracts of land alleged to be confused, and praying a discovery, and also for an account as between tenants in common, the same as it may be insisted on at law in an action of ejectment or of account: on the principle that where the jurisdiction of the court is concurrent, time is as absolute a bar in one court as in the other. Humbert and others appellants, and The Rector, &c. Trinity Church respondents,

587

3. Even in cases of exclusive equitable cognizance, the statute of limitations is generally permitted to prevail in equity as well as at law, on the principle of analogy; but there are exceptions (besides those enumerated in the statute,) such as frauds, trusts, &c. in which the court exercises its discretion in permitting the defence.

3. A provision in a lease that the rent shall
cease if the premises become untenantable
by fire or other casualty, does not extend to
the case of a building, in the city of New-4.
York, becoming untenantable in consequence
of the greater portion of it being taken down,
to conform to an order of the corporation
for the widening of the street on which it is
situate. Mills v. Baher's Executors,

254

4. A parol lease for four years, though void in itself, may be shown in evidence to support a distress for rent where the tenant enters

Neither fraud in obtaining or continuing the possession or knowledge on the part of the tenant, that his claim is unfounded, wrongful and fraudulent, will excuse the negligence of the owner in not bringing his action within the prescribed period; nor will his ignorance of the injury, until the statute, has attached, excuse him, though such injury was fraudu lently concealed by the contrivance of the wrongdoer. id

and occupies the demised premises. Ed- See EXECUTORS AND ADMINISTRATORS, 3, 4. wards v. Clemons,

480

See REPLEVIN, 1, 2.

LIMITED PARTNERSHIPS.

See PARTNERSHIP, 7 to 11.

LUNATIC.

See EJECTMENT, 1.

MESNE PROFITS.

See EJECTMENT, 10, 11.

MORTGAGE (OF PERSONAL PROPER-
TY.)

NEW TRIALS.

1. On a motion for a new trial on a case made, the court will receive documentary evidence, which could not have been controverted had it been produced at the trial, to defeat the motion; but this rule does not apply where the motion for a new trial is founded on a bill of exceptions. Hurt v. Coltrain, 14

2. Where on the trial of a cause certain facts are assumed to exist, without the proof of which the action could not have been maintained or defence sustained, the losing party on a motion for a new trial cannot insist upon the absence of such facts in a case made on which to move for a new trial. Holbrook v. Wight,

1. Where a schooner was mortgaged for a pre-
cedent debt whilst out on a voyage from 3.
Oswego on Lake Ontario to Cleveland on
Lake Erie, and delivery of the property was
not made until after a levy of an execution
against the mortgagor in favor of a third
person, IT WAS HELD, that as against a pur-
chaser under the execution, the mortgage was
void within the meaning of the 5th of the
act relative to fraudulent conveyances; that
although the absence of the vessel from port
at the time of the execution of the mortgage
was a sufficient excuse for not changing the 4.
possession, such excuse ceased when the
vessel returned to port and possession was
not forthwith taken by the mortgagee. Sed
vid. Smith & Hoe v. Acker, 23 Wendell, 653.
White v. Cole

116

169

A grantor's declarations after he has parted with his title are not admissible to affect his grantee; yet where such declarations have been received as evidence, a new trial will not on that ground be granted on a case made, where the court see that the result would be the same if the evidence was rejected-on a bill of exceptions, however, it would be of course in such case to grant a new trial. Northrop v. Wright,

221

A new trial will not be granted, in an action for an escape, because the judge refused to permit a question to be put to a witness in this form: "By what means and in what manner did the prisoner break jail?" on account of the generality of the question. To entitle a party to such an inquiry, he should apprize the judge of his intention to show such a state of facts as would excuse the sheriff. Fairchild v. Cuse, 381

See EJECTMENT, 2.

NEW-YORK, (CITY OF)

1. In an action by the Fire Department of the city of New-York, for the recovery of a penalty for keeping gun -powder beyond a certain quantity, within certain limits of the city, an order of the mayor and two aldermen directing the gun-powder to be restored to the owner, is not such an adjudication as may be given in evidence in bar of the suit; had an action been brought by the owner to try the question of forfeiture of the powder, and an adjudication made in his favor, it seems that such adjudication might be held as in the nature of an estoppel in the action for the pecuniary penalty. Talmage v. The Fire Department of the city of N. Y. 235

5. It seems, a mortgage of personal property is
not a pledge within the meaning of the stat-
ute,(2 R. S. 290, § 20, 2d ed,) authorizing the 2.
sale of the interest of the pledgor. A pledge|
as applied to chattels is a bailment, that is, an
actual delivery of the thing for the security
of some engagement. After the title of the
mortgagee has become absolute, the statute
cannot divest it, and the property is not the
subject of execution.
id

The CHANCELLOR and Senators Dixon, EDWARDS, FURMAN and VERPLANCK, hold that the second associate judge of the common pleas of New-York may preside in the court of oyer and terminer of that city and county, in the absence of a judge of the supreme court, a circuit judge or the first judge of the county, but cannot act conjointly with either of those officers. Senator WAGER is of opinion that he has no power under any

5. It seems the court of chancery is the appro priate forum to be resorted to by the solvent partner, or by the creditors of the firm against the purchaser for the enforcement of the lien, although courts of law in the exercise of their equitable powers, have sometimes interfered for the protection of the solvent partner or the creditors of the firm. The cases upon the subject adverted to, and commented upon, and the conclusion arrived at, that neither a court of equity or law have the power to stay an execution until an account be taken. id

8. A publication of the terms of partnership within three days after the registry thereof, was held a compliance with the requirement of the statute, that the same be published immediately, &c. provided that the publication be within the first seven days after the registry.

1. One partner may maintain an action of cove-
nant against his co-partner, whether the cove-
nant be to pay a sum or do an act for the
purpose of launching the partnership, or
whether it be to perform any of the articles
after the partnership has commenced. An
action of covenant will lie although there 9.
may be accounts between the parties which
require unravelling in equity. And where
the partnership covenants have not been in-
fringed for any length of time, the action of
covenant is the proper remedy; a court of
equity not interfering to restrain the breach
of covenant, unless the bill pray and there
are just grounds for a dissolution- Glover v.
Tuck.

153

2. On an execution against one of two partners, the sheriff may seize the entire parlnership effects, or so much thereof as may!

So the statute is complied with, if the terms of partnership be published in a daily paper once in each week for six successive weeks: each publication being deemed to represent seven days.

10. Whether placing the general partner upon a footing with other creditors in an assignment made by an insolvent firm, will be deemed contrary to the statute, quere: be that however as it may, such a provision will not convert a special partner into a general partner, and render him liable accordingly.

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Reports of Cases Argued and Determined in the Supreme Court of ..., Volume 24