Reports of Cases in Law and Equity in the Supreme Court of the State of New York

cording to the testimony, upon the
amount of loss to A., and should
reduce the $500 note until it should
correspond with the amount of loss
determined by them; and that they
should then deliver such note to A.
and the receipt to G. In an action
by A. upon an alledged award made
by the arbitrators, under such sub-
mission, the declaration alledged
that on the hearing before the arbi-
trators, A., the plaintiff, introduced
testimony touching the amount of
damages which he should sustain in
moving from the town of E.; that
the arbitrators then decided the
amount of loss which A. would sus-
tain in moving from E., and that
they made an award directing that
G. should pay to A. $500 "in full
payment, discharge and satisfaction
of and for all damages and loss
which the plaintiff has or may sus-
tain in closing up his labors, and in
leaving the premises which he has fitted
up for himself, and for other inconve-
nience." HELD, on demurrer, that
the declaration was bad in sub-
stance, in not showing that the arbi-
trators had any power to make the
award declared on; and that the
award was void, for want of such
power. Allen v. Galpin,

246

2. Held also, that if the parties had
neglected to deliver the note and
receipt, according to the submis-
sion, it was a mutual abandonment
of the agreement, and neither party
had any right to complain of the
neglect of the other; and that the
arbitrators had, in that case, acted
without authority.

3. Held, further, that the submission
ought not to be understood as au-
thorizing the arbitrators to make an
award before any damages had in
fact been sustained by A.; and that
the award set out in the declaration,
being, not for damages which the
plaintiff had sustained before it was
made, but for damages which the
arbitrators supposed he would sus-
tain if he did remove from the town
of E., such award was void, for
being prematurely made.
ib

1. By a submission to arbitration, ex-
ecuted by and between A. & G., the
parties agreed to submit to arbitra-
tors the question as to the amount
of damages which A. might sustain
in leaving his residence in the town
of E. and in seeking another field of
labor, upon the following terms,
viz. that G. should put into the
hands of the arbitrators his note
for $500, and that A. should put
into their hands a receipt in full for
G.; that the parties should then in-
troduce all the testimony which
they might have, touching the
amount of damages A. should sus-
tain in moving from E.; that the 1.
arbitrators should then decide, ac-

ASSESSMENTS.

A municipal corporation has no su◄
thority to make an assessment of

tion, by an attorney, is not of itself
sufficient evidence of the intent
mentioned in the statute. The ille-
gal intent and purpose must be
proved.
ib

the expenses of grading a public | 3. The mere purchase of a chose in ac-
street or avenue, upon and amongst
the owners and occupants of the
lands benefited by such improve-
ments in proportion to the amount
of such benefits and the estimated
expense. MORSE, J. dissenting.
The People v. The Mayor, &c. of
Brooklyn,
535

2. Accordingly, where the expenses of
grading an avenue in the city of
Brooklyn were apportioned, not up-
on all the lands in the city, but upon
seventy-three lots of ground upon
or immediately adjacent to the
avenue, the property of seventeen
different proprietors, and the as-
sessments were to be collected from
them in consideration of the bene-
fits and advantages which such lands
would derive from the improve-
ment of the street; Held that the
proceedings were illegal and void,
and the assessment was vacated and
set aside. MORSE, J. dissenting. ib

3. Money, collected upon an assess-
ment for grading a public avenue
in a city, is property, within the mean-
ing of the section of the constitution,
which provides that "private prop-
erty shall not be taken for public
use, without just compensation." ib

See CERTIORARI.
COMPENSATION.

ASSIGNMENT.

See DEBTOR AND CREDITOR.

ATTACHMENT.

See AFFIDAVIT.

ATTORNEYS.

1. A mortgage is a chose in action.
The statute prohibiting attorneys,
&c. from buying choses in action
with the intent or for the purpose
of bringing suits thereon, extends
to suits in equity. Hall v. Bart-
lett,
297

2. But a proceeding to foreclose a
mortgage by advertisement, is not

a suit in any court, within the mean- A discharge under the bankrupt act
ing of that statute.

of 1841 may be pleaded in bar to

an action upon a judgment founded
on a debt existing when the bank-
rupt filed his petition, but which
judgment was recovered before the
discharge was granted, so that the
defendant had no opportunity of
pleading such discharge, in the suit.
Fox v. Woodruff,
498

BARGAIN AND SALE.

See DEED, 1.

BETS.

1. A bet, on the subject of an election,
is void at common law, as being

statute, and has no authority to en-
tertain claims not presented in the
mode, and within the period, pre-
scribed by the statute creating it
and defining its powers. The Peo-
ple, ex. rel. Buell, v. The Canal Ap-
praisers,
496
2. Accordingly, held, that the apprais-
ers had no jurisdiction in respect to
claims for damages not made within
one year after the appropriation by
the state of the lands, waters, or
streams taken for the use of the
canal.
ib

CASES OVERRULED, ETC.

against public policy. Like v. Thomp: 1. Matheson v. Weller, (3 Denio, 52,)

son,

315

2. Such a contract may be rescinded
by either party, while it is execu-
tory, but not after it has been de-
cided.
ib

3. An action of trover will not lie, at
common law, to recover from a
stakeholder the value of a watch
staked on the result of an election,
where notice not to deliver the
watch to the winning party was not
given to the defendant till two
weeks after the election; though at
the time such notice was given, the
watch still remained in the hands of
the stakeholder.
ib

overruled. Cole v. Stevens, 676

2. Dresser v. Brooks, (3 Barb. Sup. C.
Rep. 429,) approved. Fox v. Wood-
ruff,
498

CERTIORARI.

The act of a municipal corporation, in
confirming an assessment for grad-
ing an avenue, is an exercise of ju-
dicial authority; and the proceed-
ings may therefore be removed into
the supreme court, by the common
law writ of certiorari, for review.
The People, ex rel. Griffing, v. The
Mayor, &c. of Brooklyn,
535

1. An instrument by which one party
agrees to sell and the other to pur-
chase, certain personal property, at
a specified price, and that the vendor
shall retain a lien upon the property
until the puschase price is paid, is
in the nature of a chattel mortgage.
Dunning v. Stearns,
630

2. Where ashes, in an ashery, were
among the articles embraced in such
an instrument, but the number of
bushels was left in blank; Held that |
the omission to specify the quantity
did not render the instrument void
for uncertainty; but that as between
the parties, it was competent to
prove by parol evidence the quanti-
ty intended.

697

On the 6th of October, 1846, the plain-
tiffs shipped, at Albany, three cases
of goods for Buffalo, on a canal boat.
A bill of lading was made out by the
plaintiffs and forwarded by the cap-
tain of the canal boat, with direc-
tions to deliver the goods in the bill
as addressed, and collect the charges
for transporting on the canal. The
three cases were marked, on the
bill, "A. B. Case, Chicago, by ves-
sel, care of Sears & Griffith, Buffalo."
The cases were received by Sears &
Griffith (the defendants) at Buffalo,
on the 14th of October, and they
paid the canal charges, indorsing a
receipt therefor, and a memorandum
of the receipt of the goods, on the
bill of lading. The defendants were
at the time engaged in the forward-
ing and commission business, at B.
That was their principal business,
but they were interested to some
extent in a transportation line, on
the canal, and also in at least one
vessel carrying freight upon the
lakes. On the 17th of October the
defendant shipped the goods on
board the schooner C. a transient
vessel, which ran between Buffalo
and Chicago, in which they had no
interest. They took the captain's
receipt, and made a bill of lading
for the goods, agreeing with the cap-
tain as to the amount of freight he
should receive. The vessel was a
good one, and her captain in good
credit. In an action against S. & G.
to recover the value of one of the
cases of goods, which was lost, and
not delivered at Chicago, Held, 1.
That the legal import of the memo-
randum was, not that the goods

should be stored at Buffalo, and that
the defendants should act as agents
of the plaintiffs in procuring a car-
rier of them from Buffalo to Chica-
go; but that they were consigned
to the defendants at B., with a re-
quest or direction that they should
be carried, by vessel, from B. to
Chicago. 2. That the defendants,
receiving the goods, with the accom-
panying memorandum, and trans-
porting or causing the same to be
transported, by vessel, to Chicago,
were to be regarded as impliedly
contracting to carry; and that upon
such receipt the risk of a carrier,
and not that of a warehouseman or
forwarder, attached. Teall v, Sears,
317

COMPTROLLER'S DEED.

1. A deed executed by the comptroller
to a purchaser, upon a sale of lands
for taxes, which purports to be given
in pursuance of the statute relative
to the assessment and collection of
taxes, and recites a sale of the land
for taxes, to the grantee, by virtue
of that statute, is valid, although it
is not executed in the name of the
people. Leggett v. Rogers, 406

2. An error in the notice given to the
occupant, on a sale of lands for tax-
es, as to the amount claimed to be
due for taxes, per centage, &c. will
not vitiate a deed executed by the
comptroller to the purchaser at the
sale.
ib

3. A deed from the comptroller, con-
veying lands sold by him for tax-
es, is not even prima facie evi-
dence that the preliminary steps
required by law to give that officer
authority to sell have been complied
with. And without proof of these,
the deed is unavailing to the gran-
tee, in an action of ejectment brought
by him to recover the premises.
CADY, J. dissented.
ib

CONSIDERATION.

Although natural love and affection,
between near relatives, is a sufficient
consideration to support a deed, or
an executed contract, yet it will not
render obligatory a mere covenant or
promise, or executory agreement.
Duvoll v. Wilson,
487

See AGREEMENT, 1, 2.
DEED, 1, 2.

CONSTITUTIONAL LAW.

1. A law which authorizes an entry
upon a person's land, for the pur-
pose of making the preliminary or
final surveys for a railroad, before
compensation is made, is not uncon-
stitutional, if the act mas suitable
provision for compensation in case
the land shall subsequently be taken
for such railroad. Polly v. The Wash-
ington and Saratoga Railroad Com-
pany,
449

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