there was on the part of the defendants a want of reasonable skill and pru- dence in the construction of their road at the place of the accident, or a ne- glect on their part to adopt a useful improvement in the construction of the switch, by which the danger of the accident would have been materially reduced, and which improvement was known to the defendants, and they had it in their power to apply it, the defendants were liable if their omis- sion to adopt the improvement caused the accident, unless there was negli- gence on the part of the deceased that concurred to produce the result. To this part of the charge the counsel for the defendants also excepted.
1. The deceased was an engineer in the employ of the New Haven Railroad Company and was killed by the ac- cident of the cars which he was run- ning being thrown off the tract of the road; the action was brought by his widow, as his administratrix, for the recovery of damages, under the statute, and was founded on the allegations.Held, that the exceptions were not well that the accident was caused, partly by the negligence of a switch-tender in the employ of the defendants, and partly by the insufficiency of the switch itself. Both these questions of fact were submitted to the jury, and were found by them in favor of the plaintiff.
The Judge, upon the trial, charged the jury that, although the deceased was in the employ of the New York and New Haven R. R. Co., yet if he was running their train upon the defend- ants' railroad, and by reason of the negligence of the switch-tender em- ployed by the defendants, that train was thrown from the track, and his death thus caused without any negli gence on his part concurring to pro- duce the accident, the defendants were responsible in the action.
To this portion of the charge the counsel for the defendants excepted. The Judge also charged the jury, that if D.-VI
taken, the charge of the Judge being, in point of law, entirely correct, and being directly applicable to the ques- tions of fact raised by the evidence.
Held, further, that the finding of the jury upon the questions of fact, spe- cially submitted to them, was fully sustained by the evidence. Smith, Ad- ministratrix, etc. v. New York and Har- lem R. R. Co., 225
The defendant sued Brooks & Hop- kins, had an attachment issued, and on it seized the property in question, be ing the property of the plaintiff's tes tator. T. Jackson, and Carr & Burnett, and S. V. Moers, subsequently and severally sued Brooks & Hopkins, and had attachments issued, which were levied on the same property, but with out their direction. Judgments were obtained, and executions issued in all of said actions. The sheriff refused to
sell on either of the executions, unless | indemnified for so doing. Carr & Burnett executed to the sheriff an indemnity bond in their own suit, and executed as sureties one given by Moers in his suit, by the terms of each of which the sheriff was indemnified against the consequences of levying and selling, under the executions, in those two actions. Johnson having, in his lifetime, sued Carr & Burnett for a forcible and wrongful taking of the property in question, the plaintiff, on the 31st of August, 1855, released them from all causes of action whatever. The present action was commenced about the 1st of July, 1852, after all the executions had been issued to the sheriff, and before the execution of the indemnity bonds. Townsend, Executor. v. Hoppock,
The execution of a bill of sale, expressing a pecuniary consideration, and a delivery of it with the property, present no obstacle to showing that such consideration was not wholly pecuniary, but consisted in fact of a special agreement in which E is interested, and its non-performance to E.'s damage. મો.
Whether, if the executory contract to sell and deliver had been rescinded before it was obligatory on either party to it, and it should appear that the delivery of the goods, and the execution and delivery of the bill of sale, and of the receipt, were cotempora neous acts, they would preclude the parties to them, or the plaintiff, from showing the agreement to have been such as the complaint states, Querc, id
10. When a constable, on an attachment issued out of a Justice's court against one person, seizes and removes property found in the possession of another, and the latter claiming to be the owner, and desiring to so proceed under Part 3, Title 4, § 31 of the Revised Statutes, as to perfect a right to have the property restored to his possession, he must, among other things, give a bond in a penalty equal to double the value of the property attached, though such value be $2800, and the debt which it was seized to satisfy be only $421. In such a case a bond in the penalty of $1000, though correct in all other respects, and duly approved and rendered to the constable attaching, will not make it his duty to deliver the property attached to such claimant, and consequently, will not make his refusal to deliver it to such claimant a wrongful act on his part, for which such claimant can maintain an action against him. John Kamena v. Wanner and Thompson, 698
a paper stating that he consents to sell See ANTE, pp. 225, 315, 351, 446, 549, such property for his indebtedness to
629, and (679, Corey v.).
6. Although a judgment was recovered for the amount of extra supplies, in favor of the defendant in the action, held, that he could insist upon retain ing the lien of the mortgage until it was paid, but was only entitled to the usual legal remedies of a judgment creditor.
3. The plaintiff had delivered to a third party a bond and mortgage in a speci- fied sum, to be held as security for the payment of the contract price of stone 7. to be supplied under a contract. The defendants subsequently supplied other stone under a separate agreement, and the defendants alleged that it was orally agreed that the mortgage should stand as security for such further sup- plies. The amount was ascertained and reported by the referee. id. Held, that, assuming the evidence satis- factory, parol evidence of such an ex- tension of the mortgage was inadmis- sible.
4. The English and American authorities bearing upon the point examined. The doctrine of tacking, in its less technical sense, and as between the debtor and the creditor, not repugnant to justice. The English cases of various classes :- 1st. Of bills to redeem, where the forfeit- ure being absolute at law, the court has refused its interference, except up- on payment of the demands partly due. This was held in the early cases, but it is doubtful whether it is now the law.
2d. Cases of mere equitable mortgages, where the whole principle rests upon the intention resulting from an advance of money, and deposit of title-deeds This peculiar equity appears to be un-
The plaintiff purchased of the defend- ants the one-sixth of 66 bales of cotton, for which he paid them in full. The purchase was made in Boston, under an agreement that the cotton should be delivered at New York, and be there sold on account of all the owners, and be divided between them. When the cotton arrived in New York, the defendants, instead of making a sale or division, by mistake, and without the consent or knowledge of the plaintiff, sent it out of the state to a manufac tory belonging to themselves in New Jersey.
Held, that the agreement did not consti
tute all who were interested in the cotton partners, so as to preclude the plaintiff from maintaining an action against the defendants alone for the eleven bales, or their value, to which he was entitled. The defendants, by not delivering the cotton in New York, according to their agreement, rendered themselves separately liable. Ward v. Gaunt, 257
8. Some time after the defendants had discovered their mistake in sending the cotton out of the state, they offered to bring back and deliver to the plain tiff the bales to which he was entitled,
And although the amount of alimony rests in the sound discretion of the court, the allowance ought not to be made on a condition that the wife re- lease all claim and right to dower. id.
10. It seems that on settling the final de- cree, and settling the amount of ali- mony, it would be proper to give leave to apply to the court for any modifica- tion of the allowance which the chang- ing circumstances of the parties-and especially the death of the husband, whereby the title to dower would be- come absolute-may render just. id
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