New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1866-07-24

Magic Stern. respondent agf Mary ~ OConne adriDstra
tri1 OF Richard OConneIl doceased.-Samuel HAND for
appellants John II. Reynolds for respondent. -
Action to OrocOse mortgage issued by one % kliey
and wife to plaintiff July % 1859 Defsnsethat the mort
gege is no lien upon premises described therein the
ground that the lien Of the mortgage cut off, &c. BY the
filing Of notice OF Dends an action commenced by
Edison the foreclosure prior MORTGAGE and de rec
sale and purchase Hereunder BY defendants ntesate Plain
tiff mortgage executed the 23d July 1859 between
the hours OF and o'clock Edison caused summons
and complaint together with notice OF M Prdens tn be- fled
delivered the Sheriff 10 serve within
hour thereafter The question Is as to the Legality OF The Ser
vice OF notice Of pnds before service OF summons Inc
service OF and notice took place on the 25h
July 1852 The Court be'w held that the notice could not
be properly served until after the service OF summons conse
queuy that the proceedings In the Edison SUIT ala NOT pre-
vent the lien Of plaintiffs mortgage Held by the CouTt q
the Of the filing thereof and that every person receiving
recording his Conveyance, after the fling OF slch notice Is
deemed subsequent purchaser ncumbancer and SANDS
in the same position as II he had aetutg purchased or
received his membranes after the fling Of such notices. aud
IL bound to the same extent "a though he we're party 10 tne
action.
disposed Of by tho amendment to l2 made Ia eo& &c Dee
same
ct al respondents. j. H. Reynolds for appellants fraacis
Herman for Respondents. Dawes Cb j. delivered the
The action was brought to recover the value Of
certain stone taken and removed by defendants from premises
owned by the plaintiffs ostar ne stone wa Tb 'T
Durkes prior the taking Of the stone and were IN possession
Of ne the time taken The quarry was open
at the time Of the lease and stone had been luareo anu
taken from 1t for many years before Dy taeterms o e
action proceeded only for the injury TO the reyerson ana
question raised whether not under the lease tue
lessee Inc lessee lad already recovered for the injury
to his interests. and defendants counsel claimed
revesioner. and cited Saunderss Gaze as authority.
The saunders case % Cooke. ~ was an action oil "aste
brought against AanW Ood the assignee Of the term for
done digging Goals from pit which was open
and IN use at the time OF the demise IN when tn e
part of which there coal mine ope1 and he leases the lana
to for life years the lessee may dlg IN IT. Tor nasucn
ar fa INA
shall be intended that the intent a. general ~ s tease Is
namely that he shall take the profit Of all the land and by
conseq aencc Of the mine IN IT,"
This Court held thar by the terms of the lease the premises
NE intent inferred ia the Saunders case nferab in
this That the Limitation OF the use ol me premises 70
ura purposes excluded the right OF the lessee to d IN stone
quarry &c -. ,,
Daniel II Fitzhugh ct al Executors Of Alien Ayraut de-
ceased appellant egt. VIM H. Sacket respondent
Allen Ayrault in his life time sued The defendant as
the accep,or two drafts each made By his brother Elisha T.
Sacket Defendant bis denied all the allegations
oan that the defendant ala accept the drafts or either
them and reported and Judgment was rendered for the
defendant at the Special Term which was ahrred on appear
By the General Term and an appeal was ken 70 hs court
The referee found that the two pretended were
used b. the brother Of the to prevent tue esehage
Of tao judgments against him and one DAVIS WHICH were
claimed 20 be liens upon defendants lands wyoming County
aud IN favor OF Araut that suits were penulng Oenea
Ayraut and William b. Sacket pertaining. among other
things to such Judgment hens thai william - saekeu. W
Of such pretended accpances OF defendant procured
the satisfaction Of such Judgments and consequently the dis
OF such judgments, so, Injured 70 the benefit OF the de
PENDANT by tue release lien of the upon his real
esae Bat the referee did not fnd sufficient evdenee that
the defendant was priyy to the fraud 81 r. IS oacke 70
hold him responsible for the same aud the referee further
found that the defendant did not accept the s Of exchange
either Of them or In any manner become e6e or the pay
of the same TO which finding the painiih excepted
a. sea @ che senst Of TIE defendant aud held
principal sthonsh ignorant OF the fraud perpetraed
without adopting nstrumentaiss employees that where
an AGENT without Authority from his principal defauds the
lp uriucDal having participated
might rescind when he discovered It, by making
complete restitution But IL he retained he benefit OF the
fraud he cannot claim immunity on the ground that was
committed by his Ggent, and MOI by himself
The principle approved by the Court In the case
OF Harry agi Root &c Tiff $40 That by retaining the bene
m the dealing OF L. b. Saekett with Ayrault the defendant
adopted his sOs the Of the law the representa-
& Of h have ssSndSd the SeS be dsSoT
The Judgment was reversed and new trial was ordered
Dissenting Judge Wright and Justice Morgan. Judge
Hunt did not vote.
tTiI Of Abraham Lasher, deceased. A j. Parker for
plaintiff; ID. X Olney tor defendant
Action for breach OF warranty IN exchange OF
horses Answer denies the allegations and sets up copar
nersbP with one Dcyo who was Joint owner with defendant
the horses transferred plaintiff and that the contract OF
Deyo resident Of lexington IN this State and should have
Of 20 aud cots, upon which Judgment entered lie
found oopanershp in buying and selling OF horses
knowledge OF ~ That transferred TO the
plaintiff the defendant his own name and that he made
The warranty &C. conclusion OF law the Referee found
that cjptner transferring partnership property In his own
name and warranng The same without dssoving the part
ranty The ind gment affirmed by the General Term and
appeal was brought 10 the Court Of Appeals
The Judges Of the Cou unanimous that the Judgment
below should BE- affirmed That where partner dposes OF
partnership property 70 stranger without disclosing the
partnership aud warrants the quality &C. OF the property
he personally liable upon bis contract and cannot when
upon it, turn the ,ntif around to seek his remedy
against stranger Judgment affirmed
SUPREME C0URT-CHAMBERs--JUL 23.-Before