on his cross-examination he stated that nothing was said about the note not signed by Mitchell, as distinguished from the other notes; that he did not call Mitchell's attention to it.
To contradict Crawford and to explain the fact of some of the indorsements on the $275 note being in Mitchell's handwriting, and to show, from business transactions and relations between him and Mitchell, that even the subsequent use of the $500 for their joint benefit, as testified to by Crawford, would have been consistent with the presumption arising from the notes, that the original loan was to Crawford and on his responsibility alone, certain evidence, oral and documentary, was offered on the part of Mitchell, a part of which was received and a part rejected. Without noticing particularly the exceptions taken on the part of the defendant to the rejection of this evidence, I think the learned judge who tried the cause erred in submitting the question of the liability of the defendant Mitchell for the amount of the $275 note to the jury. I do not think that the evidence which was given and received on the trial, under the pleadings, authorized him to submit that question to the jury. The legal presumption from the acceptance by the lender of the $275 and $225 notes, was that the $500 was loaned to Crawford, and that the lender agreed to look to him exclusively for the payment of $275 of the $500 so loaned. This presumption was not conclusive, but might be rebutted by proof. That Mitchell subsequently participated in the use of the money borrowed, would seem rather to give an occasion for an application of the legal presumption, than to disprove it. The subsequent use or application of the money was immaterial, if Mitchell was not originally liable as borrower. If the debt was the debt of Crawford alone, and Mitchell was not originally liable, then any subsequent parol promise by Mitchell to pay the $275 note was void by the statute of frauds.
If the testimony was admissible to show an original liability, the promises proved by Dusenberry, under the circumstances, had little if any weight.
The testimony of Crawford, that the $500 was loaned and advanced to him and Mitchell, should, I think, under the pleadings and the other facts and circumstances of the case, have been looked upon as a mere statement of his legal conclusion.
Upon the whole, although I think the charge of the judge would have been well enough, had there been sufficient evidence to authorize him to submit the question of Mitchell's original liability for the amount of the $275 note to the jury, yet I think he erred in submitting that question to the jury at all; and I think Mitchell has a right to avail himself of that error on this motion for a new trial. He excepted to the whole charge; he objected to all the evidence given and offered on the part of the plaintiff to show his liability, and he moved for a nonsuit, which could not be granted because the plaintiff had an undisputed right to recover against him on three of the notes.
I cannot avoid the conclusion, from a careful examination of this whole case, that the trial below was a second lame attempt (for it appears there had been one trial before) on the part of the plaintiff, to make the defendant Mitchell liable on the $275 note which he never signed, by evading the statute of frauds and trying to get rid of the plain legal presumptions arising from the unexplained intentional acceptance by Peter Underhill of the $225 note signed by Mitchell as surety, and of the individual $275 note of Crawford, for the $500 loaned. My conclusion is that there should be a new trial, with the costs of this motion for a new trial to abide the event, unless the plaintiff elect, within ten days, to take judgment against the defendants for the amount of the three notes signed by Mitchell, with costs exclusive of costs on this motion for a new trial. If the plaintiff so elect, then the motion for a new trial is denied without costs to either party on such motion.
I think the plaintiff is also entitled to judgment against the defendant Crawford alone for the amount of the $275 note signed by him alone.
[NEW YORK SPECIAL TERM, October 21, 1859. Sutherland, Justice.]
1. Where money has been collected
and placed in the hands of town offi-
cers, for the purpose of paying the
interest upon bonds issued by the
town, pursuant to the provisions of a
statute, and the statute makes it the
duty of such officers to apply the
money in satisfaction of such inter-
est, a bondholder may maintain an
action against such officers, to recov-
er the interest due upon his bonds.
Murdock v. Aikin,
59
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But the inclosure need not be by an
artificial fence, or other erection.
Thus, where there was a fence on
the south and west sides of the
premises, and on the east and south-
east sides was a ledge of rocks from
200 to 400 feet in height, but no
other barrier; Held that such ledge
of rocks completed the inclosure, as
much so as if an artificial fence had
been constructed along that line. ib
Under the revised statutes, as form-
erly, if an adverse possession com-
mences in the lifetime of the ances-
tor, it will continue to run against
the heir, notwithstanding any exist-
ing disability on the part of the lat-
ter, when the right accrues to him
or her.
ib
5. In an action for trespass in cutting
timber, the plaintiffs showed a paper
title in them to the land on which
the timber was cut. The defense
was adverse possession. It was
proved that as early as the year
1823, the defendant V., under a li-
cense from his father, who claimed
the premises, entered upon them,
erected a house, and made a clear-
ing thereon. A part of the land was
then in the occupancy of B., the fa-
ther of two of the plaintiffs. V.'s
entry was under a claim of right,
open and notorious, and in hostility
to the grantors of the plaintiffs. He
lived on the lot, claiming it as his
own and cultivating a portion there-
of, and cutting his firewood and
timber therefrom. His possession
and claim was continued during the
lifetime of B., (who died in 1854,)
and afterwards, until 1848 or 1849,
the time of the alleged trespass.
The plaintiffs never attempted to
assert any claim to that portion of
the premises on which the trespass
was alleged to have occurred, until
1850 or 1851. Held that these facts
tended to establish an adverse pos-
session in V., and justified the find-
ing of the referee in favor of the de-
fendants
ib
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4. On the 19th of June, 1857, the
plaintiffs bought of the defendants
a quantity of sheep, for the sum of
$168, paying $50 of the price down,
and agreeing to pay $50 on the 22d
of that month, and to take the sheep
away and pay the balance of the
purchase money, within ten days
from the day of sale. The plaintiffs
did not pay the $50 on the 22d of
June, and did not call for the sheep,
and offer to pay the balance of the
price, within ten days. On the 7th
of July the defendant told the plain-
tiffs that the sheep were sold to an-
other person, and refused to let the
plaintiffs have them. In an action
to recover back the $50 paid by the
plaintiffs at the time of the sale, and
damages, Held that if the defendant
meant to enforce the contract, he
should have given the plaintiffs no-
tice that if they did not take the
sheep, and pay the balance of the
purchase money by a specified time,
he should sell the sheep, and look
to the plaintiffs for any deficiency.
That having resold the sheep, with-
out giving such notice, the defend-
ant rescinded the contract in toto,
and lost all right of action against
the plaintiffs for their breach of it,
and became liable to refund to them
the $50 paid on it. Fancher v.
Goodman,
315
5. Held, therefore, that the plaintiffs
were entitled to recover the $50 paid
by them, with interest thereon from
the time the defendant rescinded
the contract; but that, being them-
selves in the wrong, they could not
recover any damages of the defend-
ant for his rescission of the contract.
ib
6. Held also, that it was not necessary
for the plaintiffs to demand the $50
of the defendants, before bringing
their action to recover it back. ib
7. Where a subscription paper for the
erection of a church edifice, con-
taining certain conditions, was
signed by B., who, during the erec-
tion of the building, repeatedly told
those in charge of the work to go on
and finish the edifice, and he would
pay his subscription; Held that this
was a sufficient waiver of the condi-
tions in the subscription; and that
the fact that the society, on the
faith of these promises, and similar
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9. The defendants were partners, en-
gaged in building the A. and H.
rail road. The plaintiff entered
into a written contract with them
to do a part of the excavation &c.
on the road, and commenced work
under such contract. Unexpectedly
encountering a hard material, which
was difficult of excavation, he gave
notice to the defendants that he
could not go on and excavate that
material at the price named in the
contract, and must abandon the
work, unless the defendants would
allow more than the contract price,
for such material. The defendants
told him to quit that portion of the
work until some arrangement could
be made in regard to it. The plain-
tiff did quit the work, for about two
weeks, when it was resumed, under
a new agreement, by which he was
to have a reasonable compensation
for excavating the hard material.
Held, that this amounted to such a
rescission of the original contract,
in respect to that portion of the
work, as would have precluded the
defendants from maintaining an ac-
tion to recover damages for its non-
performance afterwards. Hart v.
Lauman,
price of the work in the stock of
the rail road company, and having
failed to tender such stock until
after it had become depreciated and
utterly valueless; Held that they
had by their own neglect forfeited
their right to pay the ten per cent
in stock.
ib
12. It seems that, under the contract,
the plaintiff was entitled to the ten
per cent in stock at its current mar-
ket value, at the time payment
should have been made or offered. ib
13. An agreement to pay a specified
amount in the capital stock of a
corporation, without naming any
price, per share, or otherwise, is an
agreement to pay stock to that
amount in value, according to its
market price, at the time.
17. The defendants (a canal company)
agreed with the plaintiffs (a coal
company) to allow the latter to
transport coal on the canal of the
former, in the same manner, and
with the same facilities, as they
themselves or any other persons
might enjoy; providing specially for
a rate of tolls, to be established on
the 1st of May in each year, by
ascertaining the quantity of lump
coal belonging to the defendants,
which at that period they should
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