SUPREME COURT OF NEW YORK.1

Trespass upon Land-Ejectment against Municipal Corporations.-To constitute a cause of action for trespass upon land, it must appear that the plaintiff, at the time of the alleged trespass, had the actual possession of the land, or that, being then disseised, he has since regained the possession by entry, or has obtained a judgment awarding it to him: Cowenhoven vs. City of Brooklyn.

A plaintiff cannot recover damages for injuries to his possession when the allegations in his complaint negative the existence of such possession in him: ld.

Ejectment cannot be maintained against a municipal corporation by proof that at the commencement of the action the locus in quo was in use by the public as one of the public streets of a city: such use being inconsistent with actual occupancy by the corporation, and not affording evidence of any claim by it that it owns or has any interest in the premises: Id.

The grading, paving, and cleaning of the street are acts necessary for the fair enjoyment of the public right of way; and may be regarded as showing that the corporation claimed an easement for the public upon the land; but cannot be considered evidence that it claimed any title to, or interest in the land itself: Id.

Insurance-Premium Notes-Assessments-Surrender of Policy.-An assessment made upon a premium note should be made without reference to a former assessment still in force against the maker of the note, and as to which the assessing power of the insurance company is expended. If it includes such former assessment it will be irregular: Campbell, Receiver, &c., v. Adams.

The surrender of a policy by the insured, and its cancellation by the insurance company, dissolves the relation of the insured as a member of the company, and the company has no further claims upon him, except for the unpaid assessments previously made: Id.

Husband and Wife.-Where land was purchased for a married woman as a homestead with her separate means, and she went into possession and

1 From the Hon. O. L. Barbour, Reporter; to appear in the 38th volume of his Reports.

made valuable improvements thereon with her separate funds: Held, that the arrangement between the wife and her husband in respect to such purchase, being without any fraudulent intent, was lawful and should be sustained: Damon vs. Hall and Wife.

And that notwithstanding the property so purchased was by mistake made to the husband instead of the wife, her equity was superior to that of a creditor of the husband whose debt matured and whose judgment was recovered long after the title to the property had passed from the husband and wife, by conveyances to bonâ fide purchasers: Id.

Contractors on Public Works-Liability for Damages.-A mere contractor, though upon a public work, who is not a public officer, is not liable to third persons for damages occasioned by the non-performance of the obligations of his contract: Fish et al. vs. Dodge.

Accordingly, Held, that one who had entered into a contract with the state to keep a section of the Erie Canal in repair, was not liable to an individual who had sustained damages in consequence of his neglecting to perform that duty: Id.

Neither the contracting board nor the Canal Commissioners can be held to incur any liability for accidents or injuries to third persons, by reason of the failure of the contractors to perform their contracts: Id.

Nor is the state liable in such a case, because negligence in the selection of an agent or servant cannot be imputed against the state: Id.

Chattel Mortgage-Execution.-In order to bring the interest of a mortgagor of chattels within the power of an execution, there must be an absolute right of possession, for a certain and definite period, at the time the levy is made: Farrell vs. Hildreth.

A provision in a mortgage, allowing the mortgagee, in case he shall at any time deem himself insecure, to take possession of the property and sell it, previous to the time fixed for the payment of the debt, destroys the mortgagor's implied right to remain in possession a moment, provided the mortgagee shall deem himself insecure, and leaves him a mere tenant at sufferance. The nature of his interest is thereby determined to be uncertain and contingent: Id.

And if a sheriff, in such a case, with notice of the mortgage, and after demand of the property by the mortgagee, proceeds to sell the same on execution against the mortgagor, he renders himself liable to the mortgagee: Id.

SUPREME COURT OF MASSACHUSETTS.1

Administrator-Expenses before discovery of Will, &c.—One who has been appointed administrator of the estate of his deceased wife, prior to the discovery of her last will, and under the supposition that no will existed, is not entitled to charge in his account of administration, after her will has been established, the expenses of opposing the probate thereof. But he may be allowed for expenses incurred in good faith, during his administration, before the establishment of the will, in procuring ancillary administration to be taken out in another state, for the collection of debts due to the estate of the deceased therein, and in indemnifying the administrator so appointed for his expenses in collecting such debts; and also for services performed and expenses incurred in good faith, with the knowledge of and without objection from the heirs at law, in securing the growing fruits and crops, and taking care of the stock, upon her farm, for which he has duly charged himself in his account: Edwards vs. Ela.

Devise-Trust-Failure of Trustee to accomplish purpose of Trust.— A devise of land and money in trust for the purpose of maintaining a "school-house and school, to be taught by a female or females, wherein no book of instruction is to be used to teach except spelling books and the Bible," is valid: Tainter et al. vs. Clark.

A trust under a will does not become extinguished by the failure of the trustee to accomplish its purpose within a reasonable time; but the trustee may be required to execute it, on a proper process by a proper party : Id.

Agreement to indorse-Liability on-Reasonable Notice.-Under an agreement to indorse any paper which another person may give for purchases made, to a certain amount each month, no liability arises until the purchases have been made and the notes given or requested to be given, or unless notice of the purchases has been given to the contracting party within a reasonable time; and a delay of nearly four months is unreasonable: Schlessinger et al. vs. Dickinson.

Limited Partnership-Strict compliance with Statutes respecting-Proof of special loss not necessary.-One who has not strictly complied with the requisitions of the statutes respecting limited partnerships cannot claim

1 From Charles Allen, Esq., Reporter; to appear in the 5th volume of his Reports.

exemption, as a special partner, for the debts of the firm of which he is a member: Pierce vs. Bryant and Another.

The provision of Gen. Sts. c. 55, § 22, requiring an actual cash payment, as capital, to be made by one who enters a firm as a special partner, in order to exonerate him from liability for the debts of the firm, is not complied with by the delivery to the firm of promissory notes, which are received and treated as cash: Id.

The actual cash payment, as capital, required by Gen. Sts. c. 55, § 22, of one who enters a firm as special partner must be made prior to the publication of the certificate of the formation of the firm: Id.

In order to charge as a general partner one who has entered a firm as a special partner, without complying with the requisitions of the statutes respecting limited partnerships, it is not necessary for the creditor to prove that he has sustained any special loss by reason of such want of compliance, or that the party sought to be charged has been guilty of bad faith: Id.

Injury to person on Sidewalk-Liability of Town therefor.-A town is liable, under Gen. Sts. c. 44, § 22, to pay damages to a person who receives an injury by the fall of an awning projected over the sidewalk of a street by the owner of a building, if the awning has been, for the space of twenty-four hours before the happening of the injury, so frail that in the winds, rains and snows ordinarily occurring in this climate it was likely to fall, and did fall, from such cause, although the direct cause was snow which fell thereon less than twenty-four hours before: Day vs. Inhabitants of Milford.

Equitable Jurisdiction-Fraudulent Deed-Reconveyance.-The equitable jurisdiction of this court does not extend to cases where the parties have a plain, adequate, and complete remedy, either at common law, or under the statutes of the Commonwealth: Pratt vs. Pond et al.

A bill in equity does not lie to compel a reconveyance of land by the grantee named in a deed, which has been fraudulently obtained of the grantor and put on record after the execution but before the delivery thercof: Id.

Equitable Jurisdiction-Refusal of Mortgagor to deliver up Mortgage.— This court has jurisdiction in equity to require the delivery and surrender of a deed of mortgage, which, after having been executed and delivered, though not acknowledged. has been intrusted to the mortgagor for the purpose of having it recorded, if he thereupon retains it in his own pos

session and refuses to deliver it up or have it recorded: Pierce vs. Lam

son.

Mortgage-Continuance of as Security for new Indebtedness by oral Agreement. Although a mortgage cannot, by an oral agreement, be continued in force as security for a new indebtedness, not embraced within the terms of its condition, yet, if such an agreement has been made, and money has been advanced in consequence thereof by the mortgagee to the mortgagor, a court of equity will not aid the latter, or one who has taken a conveyance from him with knowledge of the facts, in obtaining a release or discharge of the mortgage from the mortgagee: Joslyn vs. Wy

man.

Mortgage-Right of Holder of second Mortgage to compel Holder of first to use due diligence, &c.-The holder of a second mortgage of real estate, which is subject to the mortgagor's right of homestead in a part of the premises, may, in a bill to redeem, compel the holder of the first mortgage, which is not subject to the right of homestead, after he has taken and maintained actual and exclusive possession for the purpose of foreclosure, for breach of condition, to account to him for all the rents and profits which by due diligence he might have received, including rent for the homestead: Richardson vs. Wallis.

NOTICES OF NEW BOOKS.

REPORTS OF CASES DETERMINED IN THE SUPREME COURT OF THE STATE OF ILLINOIS, during the years 1861 and 1862. By E. PECK, Counsellor at Law. Vol. XXVII. Chicago: E. B. Myers.

1863.

We have here the twenty-seventh volume of the Reports of a State which was almost an unbroken wilderness within the professional life of many members of the bar not yet retired from active service. It seems wonderful, in reading its great number and variety of cases, that so new a state should already present so large a proportion of those important and perplexing problems which occupy the attention of the judicial tribunals in countries of more extended commerce and more advanced social and civil relations. We notice here almost all the questions discussed and determined which we should expect to find in the current volumes of reports in any of the older states. And although in none of them is there much reference to cases out of the state, we cannot perceive but