The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1854-02-27
Supreme Court-special Term.
Before Hon Judge Mitchell.

Before Hon Judge Mitchell
FER. 25-B1ly a0aina Nesucp Motion BY defendant
FOR new trial. Evidence was given By the plaintiff tend
ing to show that It the usage Of the defendant always
to charge freight trunks such those In which the
plaintiffs msrchaudiss carried This showed that
the appearance, size and form Of those trunks afforded
actual notice to the defendants that merchandise
articles liable to pay freight contained In them; thu
testimony was therefore admissible. The Judge charged
tho jury In substance that the jury mus be convinced
that the defendant his agents knew bound
know that thsss TRUNKS contained merchandise before
thsy could find for the plaintiff and b. satisfied that the
appearance Of the trunks themselves gave notice to thu
defendant that they did not contain pssssagsr baggage
This intended to b. and was favorable to hs defend
ant. If - trunks Ia might DO the easel clearly in
dcassd 1T ths c0tnh ms,ch andiss u the COM
mon wooden pasng nss0 would indicate there could be
no doubt that tAer sppsanos full notice Of their
contents express verbal written notice would b. or
% the opening Of the trunks would b. The testimony
& Psrdss w. Drew, Is Wsnd zsS i. quoted to show tSst
the psinh shouh b considered oonoeaHng the eoa.
tents Of the trunk The court IN that eass inferred
the coneeament although 1t mi9ht have bean unintsn-
tonsl frcn the appearance Of the box They say (p.
"Nsther the captain any Of the hands On board
msrchapdss requiring extraordinary attention and care
They could regard only the ordinary bagKsss trunk
Of the traveller eontanisg the usual personal eoovsa
customary faro and to b slowed away place where
such articles usually Deposited Bat here appear
packing trunk for nsrchants Tho Foods vers do.
msged late In winter By wet The weather was rough.
squan struck the steamboat In the Highlands and she
shipped some water. The fquan came rather sudden
~ and threw her on one side; two three Of the side
boards spng ont snd the water ran into the bsxEaSs
'a is.. :: n: TN: tn: hs 6,
The had .ss Il. oso. in tow S:,o % tia
AN - AahS -
the duty Of the defendant to make cut the part Of hs
which ooosistsd In Allowing that the damage wAs
vnsS It .s so
tbs whole Of the evidence that gvs. ths subject
Although the damage was caused By the sea water and
BY the bursting in OF the side psnk he did not show
that the side plsnks were and arm before the aos
dent happsnsd The probability would Be the other way
~ IL. %: S or from s
poition Those eide panka should b securely placed
that they would bear pressure arising from the leaning
squalls always 10 b looked for passing through the
Highlands. II, therefore, the steamboat ownsr, whom
exempt nom liability from psai y the ~ - tAs sSip
evnsr r when b sxprses soatrast he ss,. to carry
fsndant IN this would b exempt = hs has not
shown that the damage not caused defect Ia his
ys:.s! .. y. ~...s.%:.t A.d tns sh..ss Of he
carry fright was proved, the defendant would mot b
excused unless the storm Of Of such extra
provided against i effects. It not iDursus to the
dsssdan q he had not shown that his vessel was even
In such repair - man Of ordinary care voald have
svsr 1t intsndsd and probably understood fuy
sustained By the decision n MeArthur ". sssrs (2i
:" soa ss s,:
provoked against. But - carrier hsld liable, be-
cause it WAS cauasd b Hight in another ysssslb BY
there was no express contract Cowsn, sAy-In the
eass at bar there was no sxcspoa in the bin Of ladiag
OF course thsrs 10 ooatend that though the
ks may not have happened from natural eausss in
capable Of being forssssn yet II was By peril Of ths
lake The charge may b nlundsrsteod q stA!ng that
would Be deemed tie act Of Cod the dsfsndAnts would
not BE- protected unless they had ussd al the means 10
provide against s effects that human foresight could
devise; but It does not to have been Intended
It spoke and intended speak Of the character
the storm, which would afford proteotion and not the
character Of the used to prevent the effects Of thu
. storm trial 10 denied With costs would say
costs i vsrs not the general and perhaps uu
form TO allow them IN such cases. for would
been on the other SIDE
IMPORTANT TO REAL ESTATE OWNERS.
Peck o. kszruy-Same u Ogden and Murray Tho
actions for the specific performance Of contracts for
the sale Of lands Miss Ogden, Mr.. Murray and others
Of their family, owned In ssvsralty large number Of
lots Of land Thirty third and Thirty fourth ssss and
the adjoining Streets and caused thsm 10 b sold ct auo
ton the l7th and 18Th days Of Dsosm ssg 1861 By
a. Ludlow auetonssr. The terms Of sale we're written
ont In book BY the sonss before the SALE and con-
tanned agreement for the insertion of the covenants
erect nuanos And that 10 per cent should b paid
BY tbs purchasers the day Of sale also $40
each lot IS cent the LIST Of February
then next in mortgage and the rest OF the
money in cash, the l of February when the deeds
TO b delivered. Then followed iithographic map
Der then heading AID entries on the ssxt page Of
the auctioneers book, - follows
IS. one 10. corner Fourth and rhirsy .shird
Sc 70 H. sis iets on Fourth .vsnrs near ir, .hi 'O'O
street. $500 George Barker. 5000
a. one es Thirty street. near Your,h avenue T.
And sfssr other similar entries. then ''''' i'f'o
fa ore lot on Thirty fourth street. nsAr Fourth ave
ard this va. con inusd .iS other similar sn.;..
until All ,n.ustsa 70 ai.y .s.sn n All when The
Daniels Martins Ailn.on ...,a, Gibson 10 POI ssSs
no. ssid Auc'sn sor' fees NOT received Shsgss R.
and IS, for sl4oo and u $50 respectively and Also Of
twelve other io and the oath Of Decsber he paid
the auctionser his fees slso, being $40 each Io
and aked him to waive the payment Of the per cent
until the day for the compston Of the sale, and Me- n
further Il seems proesSis mat Murray had auts.rsv
to act for Miss Ogden After that and before OF
January, Murray met Peek and told him that Ne had
pay mp, and before that ums had get
Peek give his be- gain TO these lots bat Peek
refused On the 18th Of January Peck rendered 10 the
Auotoneer Inc Ten cent on these ten 0s bat he
fused 10 rsosiye H. Murray In ihe meantime having with
drawn his authority. Ali the material parts the paper
signed BY the suctoneer are stated above. His clerk
made the entries in lead pencil As above given, at the
sale, apd Afterwards went them with ink and Q
fsw days after the sale Mr.. Ludlow signed his name
at the end Of ali the entries above sho IN
II thus sure that II requires explanation t. I'M
derstasd the entries made by the CLERK, exps
rencs 10 relation to such entries with the aid Of either
IL may Be understood that "s4 10, Thirty third
street, near Fourth avenue, Z. Peck, soov means
that lot No "a the being lot Thirty third
street, near the Fourth avenue sold 70 G. Peek
for 81 on the terms Of sale previously written In the
book But there 10 nothing In the entries any part
Of the book to show vbo owned the lots any them
or who was the person Who contracted 10 sell thsm II
parole proof wsrs admissible show matera part Of
the contract Who the contracting party Ii, thsre
would Be difficulty. The question H. Gan that BE-
shown by parels, "a It implied heref The statute Ia
that evsy contract for tho sails Of any lands shall b
void unless the contract note memorandum
thereof expressing the confederation be In writing
b. subscribed By the party BY whom the sale IL to be
mads; and that every instrument thus required to b
subscribed by any pAty may b. subscribed By thu axsat