sentations were false and fraudulent,
and made with the intention to de-
ceive; that the defendant then was,
and still continues to be, a married
man; and that his promise to marry
was fraudulent, and to the plaintiff's
damage; Held that the complaint
stated sufficiently the defendant's
promise to marry, and his represen-
tation that he was unmarried, and
competent to marry the plaintiff;
and that it was unnecessary to allege
that he knew his representation to
be untrue. Blattmacher v. Saal, 22

2. Held also, that the complaint set
forth a good cause of action; that if
the plaintiff could not recover for the
deceit and damage, she might, upon
the contract and promise to marry,
which implied and involved a prom-
ise and agreement that the defend-
ant was competent, legally, to mar-
ry.
ib
3. Where a complaint against two de-
fendants alleged that one of the de-
fendants erected a building across
an alley belonging to the plaintiff
and thus obstructed his right of way;
and that such defendant then trans-
ferred and conveyed the possession
of the building to the other defend-
ant, who kept, continued and main-
tained such obstruction; and the
plaintiff prayed judgment for dam-
ages, against both defendants; Held
that the complaint stated facts suffi-
cient to show a cause of action
against each defendant separately,
but not a cause of action against
them jointly; and that such causes
of action could not, therefore, be
united, in the same complaint. Held
also, that the objection, of such mis-
joinder, might be taken by a joint
demurrer. Hess v. Buffalo and Ni-
agara Falls Rail Road Co., 391

4. It seems that, in such a case, the de-
fendants may move that the plaintiff
elect which of the causes of action
he will prosecute.
ib

CONSTITUTIONAL LAW.

1. An act of the legislature, which
prohibits the transportation, over a
specified plank road, of any load of
iron or iron ore, of more than two
tons' weight, unless it be upon a ve-
hicle with wheels having a tire of at

2.

least six inches in width, is not un-
constitutional and void on the
ground that it operates as an ob-
struction upon the iron business and
those engaged in it, which is not
extended to other articles of freight,
or classes of persons. Seward v.
Beach,
239

An act of the legislature, altering
the charter of a bank incorporated
previous to the adoption of the con-
stitution of 1846, is valid, if passed
according to the provisions of that
constitution. Hence a two-thirds
vote in favor of it is not necessary.
Matter of the Reciprocity Bank, 369

3. The court has power, under the act
of April 5, 1849, to order an appor-
tionment of the debts of a corpora-
tion among the stockholders, not-
withstanding there is a large amount
of assets in the receiver's hands not
disposed of.
ib

5. Authority being given to the towns,
by the statute, to issue bonds, in-
struments appearing on their face
to have been executed in pursuance
of that authority, and so far as ap-
pears, in accordance with it, are
valid. in the hands of, and may be
enforced by, bona fide holders there-
of; whether the prerequisites pre-
scribed by the statute to the issuing
of the bonds, beyond the organiza-
tion of a rail road company, &c.,
and the filing in the county clerk's
office of the assent of resident tax-
payers, with the affidavit attached,
as specified in the statute, were com-
plied with or not.
ib

6. Instruments without seal, issued by
a town, which contain an acknowl-
edgment that, in pursuance of the
statute, and for the purpose of aid-
ing in the construction of the rail
road therein specified, the town
owes, and a promise by the town to
pay to, or bearer, $1000, with

payable as therein mentioned, are
negotiable; although the statute
does not prescribe the form of the
bonds, nor expressly provide wheth-
er they shall or shall not be nego-
tiable.
ib

7. The omission of a seal is not a fatal
objection to instruments thus exe-
cuted by a town, as being instru-
ments not warranted by the law. ib

8. Although the statute specifies a
"bond or bonds" as the instruments
which it shall be lawful for the towns
to execute, this is to be deemed as
done with a view to the interests of
the creditors only; and if they are
willing to waive the proposed benefit
and accept unsealed obligations, the
towns cannot object that such obli-
gations were not authorized.

See BANKS, 2.

CONTEMPT.

ib

The supreme court cannot review, up-
on certiorari, the judgment of a
court ordering a commitment for a
contempt. The People ex rel. Mitch-
ell v. Sheriff of New York, 622

See HABEAS CORPUS.

CORPORATION.

1. Under the 12th section of the gen-
eral manufacturing act, (Laws of
1848, ch. 40,) requiring every compa-
ny incorporated under that act to
make and publish a report of its
condition, annually, within twenty
days from the 1st of January, and
providing that "if any of said com-
panies shall fail to make and pub-
lish such statement, all the trustees
of the company shall be jointly and
severally liable for all the debts of
the company then existing, and for
all that shall be contracted before
such report shall be made," those
trustees who are guilty of the neg-
lect of duty, and those only, are
liable to the penalty mentioned in
the statute. Boughton v. Otis, 196

2. For a neglect to make and publish
the statement, on the part of the
trustees in office on the 1st of Janu-
ary, trustees who are subsequently
elected are not liable.

ib

4.

5.

corporation, at any particular peri-
od, are equally interested in the
property and business of the corpo-
ration. Per INGRAHAM, J. Jones
v. The Terre Haute and Richmond
Rail Road Co.,
353

And when the directors undertake
to distribute among the stockholders
any portion of the funds or property
of a corporation-whether it be
called profits or not-all the then
stockholders are entitled to an equal
share in the fund, proportionate to
their stock; whether they have
been stockholders for a longer or
shorter period. Per INGRAHAM, J. ib

Unless the charter gives the direc-
tors power to discriminate between
the stockholders at different periods,
in the distribution of profits, they
are all entitled to share therein. b

8. Where the power to alter a charter
is reserved, in express terms, in the
act by which it is granted, and such
power is subsequently exercised, by
an authority adequate for that pur-
pose, and in accordance with the
forms prescribed by the constitution
in force when the alteration is made,
the law is not obnoxious to the ob-
jection that it violates the contract
with the corporation contained in
its charter. Matter of the Recipro-
city Bank,
369

9. In respect to real estate situated in
this state, claimed by a foreign cor-
poration, it is for the courts of this
state to construe the charter of such

corporation, and determine whether
the corporation is authorized there-

COVENANT.

Boyce v. City of St. Louis,

650

when stipulated for, passes to the
successive grantees. It is a covenant
that runs with the land, and as a
consequence is assigned by a con-
veyance of the land. Colby v. Os-
good,
339

2. Where a grantor conveys land.with
full covenants of seisin, warranty,
right to convey free from incum-
brances, and for further assurance;
the covenants being made with the
grantee, his heirs and assigns;"
and the grantee subsequently con-
veys the land to another, the latter
may maintain an action, in his own
name, against the grantor, for a
breach of the covenant against in-
cumbrances, in the existence of a
mortgage which was a lien upon the
premises at the time of the original
conveyance.
ib

3. A release of a mortgage is a "fur-
ther assurance."
ib

COSTS.

See SURROGATE, 3, 4.

COUNTER-CLAIM.

In an action upon a due-bill, or prom-
issory note, by the holder against
the maker, the defendant set up as
a counter-claim that one N., by an
instrument in writing signed by him,
became surety for the payee of the
note and another person, in the sum
of $200; that N. afterwards died,
and at the time of his death there
was $180 due and payable upon the
said instrument, which the defend-
ant paid. It appearing that N., who
was the father of the defendant, de-
vised certain lands to the latter,
upon condition that he should pay
the testator's debts, (of which the
sum due upon the said instrument
was one ;) Held that the payment so
made by the defendant could not be
allowed to him as a counter-claim
or set-off. Lyman v. Newman, 162

See JUSTICES' COURTS, 4.

COUNTY JUDGE.

See APPEAL.

CREDITORS' SUIT.
See PARTIES, 4.

D

DAMAGES.

1. In an action for an injury to the in-
heritance, by cutting wood and tim-
ber, evidence of the comparative
value of the premises, with or with-
out the wood and timber, is admis-
sible, as furnishing an appropriate
criterion of damage, after a proper
foundation has been laid by showing
the acquaintance of the witness with
that species of property. Van
Deusen v. Young,

2.

9

On the 22d of April, 1846, the plain-
tiff agreed to sell to the defendant a
canal boat and a pair of horses, at
the price of $800, payable by install-
ments of $40 per trip; the boat to
be employed in the business of the
plaintiff, and the boat and horses to
remain the property of the plain-
tiff, until the price should be paid.
In pursuance of this agreement,
the defendant made four trips with
the boat, paying to the plaintiff
$40 each trip. About the 1st of
September he abandoned the boat