Steuben County

Supreme Court

Reports of Cases in Law and Equity in the Supreme Court of the State of New York.
Vol. XXVII. By Oliver Lorenzo Barbour; Albany: W. C. Little & Co. 1859.

Hall vs. Thomas
 (pgs. 55-58)

     Where the land of M. bad been sold under a judgment and execution in favor of B., and been bid off by H. ; and T. as the assignee and owner of a subsequent judgment against M., for the purpose of redeeming the premises from the said sale, presented to, and left with, the sheriff, as evidence of his title to the junior judgment, his own affidavit that he was owner and assignee thereof, and a paper purporting to be an assignment of the judgment, from the plaintiffs therein, to him, which paper was not verified by the affidavit of any one ; and there was nothing in T.'s affidavit by which the paper was identified as the instrument under which he claimed to own, and hold, the judgment ; Held that this was not the evidence required by the statute, from a creditor coming to redeem ; and that the sheriff had no power to convey the title to the premises, upon it, to T.

     THIS was an action of ejectment brought co recover possession of certain lands situate in Steuben county. The cause was referred to a referee, who found the following facts : On the 8th of August, 1850, one Flavel W. Morrow was owner of the premises in question, and on that day a judgment was docketed in Steuben county in favor of one George A. Bush, against said Morrow and others, for $379.69. On the 12th of August, 1850, an execution was issued on said judgment to the sheriff of Steuben county, by virtue of which the sheriff sold the premises to the plaintiff on the 28th of February, 1851. On the 23d of November, 1850, Thomas J. Boyd and Stephen Paul recovered a judgment against said Morrow for $99.25, which was docketed in said county on the 27th of November, 1850, which thereby became and was a lien upon said premises. The defendant being the owner of said judgment by assignment, at the proper time paid to the sheriff of said county, the sum necessary to redeem said premises and acquire the rights of the purchaser, and at the same time presented to, and left with said sheriff, a copy of the docket of said last mentioned judgment, duly certified, with the original assignment of said judgment to him, with the affidavits attached, a copy of which affidavit was set out in the report of the referee, and was as follows :

[Title of cause.]

     "Judgment rendered against the defendant and in favor of the plaintiffs in the above entitled action, in the city and county of New York, for $99.25, and docketed there and perfected November 23. 1850, and docketed here in Steuben county, November 27, 1850. 
     State of New York, Steuben county, ss. Charles D. Thomas being duly sworn, says that he is the owner and holder of the above mentioned judgment, being sold and assigned to him on the 21st day of May, 1852, by Thomas J. Boyd and Stephen Paul, the above named plaintiffs in the above mentioned action and judgment, creditors of Flavel W. Morrow, the above named defendant, and named in the copy of the judgment hereunto annexed ; and that the true sum due on said judgment at the time of claiming the right to acquire the title of Samuel Hall, the original purchaser at the sheriff's sale of the real estate of Flavel W. Morrow, is ninety-nine dollars and twenty-five cents, with interest from the 23d day of November, 1850.      CHARLES D. THOMAS." 
     Sworn to, May 26, 1852. 
     Afterwards, and on the 1st of June, 1852, the said sheriff executed and delivered to the defendant a deed of said premises pursuant to said sale and redemption, which deed was duly recorded, December 28, 1852, and under which the defendant claimed title to said premises. On the 29th of July, 1853, the said sheriff executed and delivered to the plaintiff a deed of the same premises, upon ttie same sale, under which last mentioned deed the plaintiff claimed title to said premises. Upon these facts, the referee found and held as a 
conclusion of law, that the said affidavit of the defendant was defective in not verifying the assignment as required by law, and that his redemption was irregular, and he therefore got no title by the sheriff's deed to him, and for that reason the sheriff's deed subsequently given to the plaintiff conveyed the title. He therefore reported that the plaintiff was entitled to recover the possession of the premises, and damages for
the withholding of such possession. From the judgment entered upon that report, the defendant appealed. 

     Geo. B. Bradley, for the appellant.

     Joseph Herron, for the respondent.

     By the Court, JOHNSON, J. The only evidence which the defendant presented to, and left with, the sheriff, of his title to the judgment under which he claimed the right to redeem, was his own affidavit that he was owner, and assignee, and a paper purporting to be an assignment thereof from the plaintiffs therein to him. This paper was not verified by the affidavit of any one, and there is nothing in the defendant's affidavit by which it is identified as the instrument under which he claims to own, and hold, the judgment. This, clearly was not sufficient. It is not the evidence required by the statute, from a creditor coming to redeem ; and the sheriff had no power to convey the title to the premises upon it, to the defendant. The statute requires a true copy of all the assignments necessary to establish the claim, verified by the affidavit of the party claiming, or some witness to the assignment. The referee has found, from the evidence before him on the trial, that the paper purporting to be an assignment, left with the sheriff, was the original assignment, by the plaintiffs in the judgment, to the defendant. But there was no such evidence before the sheriff. The statute contemplates the exhibition of the evidence of the claimant's right, under the sanction of his oath, or the oath of some subscribing witness, so that the purchaser or officer may see from the papers presented and verified, that the right and claim are well founded. Had the paper purporting to be an assignment been verified by the 
defendant's affidavit, or identified as the assignment executed to him, under which he claimed, it would doubtless have been 
equivalent to a verified copy, and have fulfilled the statutory requisition. The original is the best evidence, and includes a
copy. But the sheriff could not dispense with the verification required by statute. It is an essential part of the evidence of right, and nothing else can be substituted for it, by the redeeming creditor. ( Waller v. Harris, 7 Paige, 167 ; S. C. in error, 20 Wend. 555. The People v. Covell, 18 id. 598. Butterfteld v. Howe, 19 id. 86. Ex parte Bank of Monroe, 7 Hill, 177. Silliman v. Wing, Id. 159. The People v. Fleming, 2 Comst. 484.) As the defendant was not entitled to redeem, upon his papers, he took nothing by his deed. The deed executed by the sheriff afterwards, to the plaintiff, vested the title in the latter, and the action is well brought. The defendant's deed, having been executed by the sheriff, without any power' or authority to execute it, was void, as against the plaintiff's deed, and it was not necessary to have it set aside, 
or canceled, by action, before bringing an action to recover possession of the land. The judgment must therefore be affirmed.
     [MONROE GENERAL TERM, March 1, 1858. Welles, Smith and Johnson, Justices.] 

The People vs. Jayne. (pgs. 59-64)

     THIS is an action brought upon a bond executed by the defendant Jayne as principal, and by the other defendants as sureties, and was given on the adjournment of an examination in a case of bastardy. The defendant Jayne was arrested on a warrant issued by E. P. Mulford, Esq., a justice of the peace of Steuben county, on a complaint before him, charging said Jayne with being the father of a child likely to be born a bastard, of which one Eliza Yost was then pregnant. On the defendant Jayne's being brought before him, the magistrate issuing the warrant called to his aid Stephen Aldrich, Esq., another magistrate of the same county, and was about to proceed with the examination, when the defendant applied for an adjournment. The application was granted by the magistrates, upon the execution by the defendant of. a bond in the penalty of six hundred dollars with sufficient surety. The bond in question was then executed by Jayne as principal, and the other defendants as sureties. The examination was thereupon adjourned until 
the 5th of May thereafter. On the adjourned day the parties appeared; the superintendent and overseer of the poor, by their counsel, and the defendant Jayne in person and by counsel. The examination was proceeded with, the witnesses were examined, and the testimony closed. The counsel on both sides summed up, and the case was submitted to the justices. The justices took a recess for tea. During the recess the defendant Jayne, without the leave of the court, left. After tea, and in the course of half an hour, the justices came together, and after deliberating upon the matter, made an order of filiation against the defendant Jayne, he having been adjudged to be the father of the child in question. He was called several times by the justices, after the recess, and before and after the adjudication, but failed to appear. The justices remained together until 10 o'clock, and then dissolved the court. The next morning the defendant Jayne, with his sureties, offered to the justices to surrender Jayne to them. The justices declined doing any thing in the premises, on the
ground that the court organized for the examination had been dissolved, and that they had no further jurisdiction in the matter. This action was brought on the bond. It came on to be tried at the Steuben county circuit in June, 1857. After hearing the testimony his honor, the judge, ordered a judgment in favor of the plaintiffs, subject to the opinion of the court, on a case and exceptions. 
     John Maynard, for the plaintiffs.
     L. B. Van Valkenburgh, for the defendants.

     By the Court, JOHNSON, J. There is no force in the point first raised by the defendants' counsel, that the complaint does not state facts sufficient to constitute a cause of .action, if the bond was valid, and all its conditions binding upon the defendants. But it is also insisted on behalf of the defendants, that the justices before whom the defendant Jayne was brought could only take a bond for his appearance, at the adjourned day, and had no power or authority to require, or take, as a further condition of such bond, that he should not depart without leave. This position cannot be maintained. It would require a construction of the statute so strict and literal as to defeat its whole object and intent. The statute, (1 R. S. 644, § 11,) requires the examination touching the paternity of the child, and on which an order of filiation can alone be founded, to be made in the presence of the person so charged or apprehended. The justices have no authority to make such examination in his absence, and if they should they clearly could found no valid order of filiation upon it. Whenever the examination is made, whether at the time the person charged is first brought before the magistrate issuing the warrant, or at the adjourned day, it is to be made in the same manner. And the statute, in either case, contemplates that such person shall be present until the final determination of the proceedings. In case there is no adjournment he is to
remain in the custody of the officer during the examination and until he shall be discharged. (§ 17.) If the examination is adjourned, the justices are to take a bond for his appearance 
at the adjourned day, (§ 12,) the penalty of which, must be in such a sum as shall be deemed a full indemnity for the expense of supporting such bastard and its mother. (§ 16.) The object ot this plainly was, that in case the person so charged should defeat an examination, and final order, by 
reason of his non-appearance, or non-attendance at the adjourned day, the public might be fully indemnified and secured against the support of the child. The policy of the statute looks, not so much to finding out who is the father of the child, as it does to providing for its support, and relieving 
the public from the burthen. And it inquires into and determines the former, only for the purpose, and as the means, of securing the latter. 
     The bond is intended to secure the appearance and presence of the person charged, at the adjourned day, as fully as it is secured by the warrant and arrest, upon an examination without adjournment. It is preposterous, as it seems to me, to suppose that the object and intent of the statute would be fulfilled by the momentary appearance of such person on the adjourned day, even though he might at once disappear, and remain away, or abscond, as he should see fit. The statute must receive such construction as will fulfill its plain object and intention. The obvious meaning and intention are as much a part of the statute as though expressed in ever so plain and explicit terms. The appearance, therefore, before the justices at the adjourned day, provided for by statute, must be held to mean, not his temporary appearance merely, but his continued appearance, and attendance, until the examination and subsequent proceedings are finally closed. This does no violence to the language, and gives full effect to the manifest will, of the legislature. (The People v. Stowell, 2 Denio, 127.) This part of the condition was, therefore, an essential part of the obligation, and was binding upon all the
defendants. It is entirely clear, from the evidence, that Jayne departed from the place where the examination was held, without leave, and went to his home, which was from a mile and a half to two miles distant, through the woods, and twice that distance by the highway ; and that he was not at the place of the examination, and did not answer, when the justices closed their proceedings, although repeatedly called by them. It also appears clearly and without any contradiction, that when the evidence upon the examination was closed, the justices took a recess for tea, and that Jayne was then informed, by one of them, that he must not depart, as they intended to return soon, and finish the proceedings that evening. The justices, on reassembling after tea, determined from the evidence that Jayne was the putative father, and made the order of filiation, and Jayne not appearing, adjourned finally, and without day. They remained in session awaiting Jayne's return, and deliberating what coarse they ought to take in the premises, until ten o'clock in the evening, before finally adjourning. This departure and continued absence of Jayne, without leave, was, I think, a clear breach of the condition of the bond. It is perfectly immaterial, in my judgment, for what purpose, or with what intent, he left. It is enough that he departed voluntarily, and was not present to answer, and receive notice of the order when it was made. It is no answer to say that he intended to return and did return the next morning. He could not, to suit his own convenience, compel the magistrates to remain in session, or to adjourn over until another day. And there is nothing in the evidence to justify the supposition that the justices designed to take any advantage of Jayne's temporary absence. It is quite evident from the whole testimony that the justices did not know, or suppose, that he intended to return in the morning or at any other time. But, however this may be, it does not, as I conceive, affect the question of the breach, under the circumstances of the absence in this case. It is clear that he was 
not present, and did not appear, when his bond required him
te be there. He was not present, either actually or constructively; as there can be no pretense that he intended returning, even if he intended to return at all, until the next day. The justices had the right to adjourn as, and when, they did. He had absented himself at his peril, and could not require the justices to follow him, or to remain in session until it might suit his convenience to return, for the purpose of giving him notice of the order they had made. This breach was in no respect healed or cured by the return of Jayne, the next morning, to the place, and his offer to the justices to submit himself to imprisonment in the county jail upon their warrant, as for a refusal or neglect to give the bond required by statute, upon notice of an order of filiation. The justices supposed that, having completed the examination, and made out the 
order, and adjourned without further day, their power in the premises was at an end; and they had no right to get together again, either for the purpose of taking the bond authorized by § 14 of the act, or of issuing their warrant for a neglect or refusal to give such bond. I am inclined to the opinion, 
however, that they still had the power to take such bond, or to issue such warrant, if they had seen fit to exercise it. In performing this duty they did not act strictly aad technically as a court, but as justices, and their powers were not spent until they had done all that the statute authorized them to 
do in the case. This necessarily includes the power on their part to waive a breach of the bond taken on the adjournment, on behalf of the people. And this power, I think, they possess, and may exercise, in furtherance of justice, and of the ultimate remedy contemplated by the statute. But whether 
this be so or not, it is clear, I think, that they were in no respect bound to exercise it in favor of the defendants. The latter had no right to require the magistrates to assume what they regarded as spent, or doubtful powers, to relieve them from the consequences of the default of Jayne.
There is more doubt, I think, whether the justices could proceed and determine who was the father of the child, and
make a valid order of filiation, after Jayne had absented himself. But as this was after the evidence on the examination was through with, I think the order was valid. This, however, 
is not material, as I view the case. If it was valid, Jayne was in default in not being there to receive it, or notice of it, when it was made ; and if it was invalid it worked no injury to the defendants. The proof that the order was made, was called out by the defendants. There was no error in refusing
to receive the evidence of what Jayne's counsel had told him, in respect to his right to leave and go home. The advice could not affect the question of his right to absent himself, nor could his intention to return, if he entertained it. The evidence allowed from the justice, Mulford, that he told Jayne 
not to leave, as they should finish the matter that evening, was material upon the issue on which the case turned. It went clearly to show that Jayne had departed without leave. But if not material, in no possible view could it have injured the defendants, as the verdict was ordered subject to the opinion 
of the court, wholly irrespective of the question of Jayne's intention in departing. And it is now apparent that Jayne's intention neither aided nor prevented a breach. On the undisputed facts, therefore, the plaintiffs are entitled to judgment. There was no disputed question of fact which was at 
all material, to submit to a jury. The bond being for the appearance of the defendant Jayne, the judgment must be for the whole penalty of the bond. (The People v. Tilton, 13 Wend. 597.)
     Judgment ordered accordingly.
[MONROE GENERAL TERM, March 1, 1858. Johnson, T, R. Strong and Smith, Justices.]

McKay vs. Harrower, late sheriff of Steuben county. (pgs. 463-473)

     Where property is seized by a sheriff by virtue of an attachment, under the code, he must retain it in his possession until the determination of the action in which the attachment was issued; and, if the plaintiff recovers judgment, until the property is sold, under an execution issued thereon; unless the judgment is otherwise satisfied, or unless, in case of perishable goods, &c. he is ordered by the officer who issued the attachment, to sell the same. 
     If he has the goods when a proper execution is presented to him, and proceeds to sell thereon, it is all the plaintiff has a right to require of him. 
     Where the person who was the sheriff when the attachment was issued, and who executed it, ceases to be sheriff, by the expiration of his term of office before the plaintiff' obtains his judgment and issues his execution, the execution should be directed, and delivered, to the former sheriff, and not to his successor. 
     The execution issued, in such a case, should be a special one, directed to the former sheriff as such, reciting the issuing of the attachment, and the 
taking of the property thereon, and requiring a sale of that property, by bim. After which it should direct him to sell the property of the defendant, 
     Until a proper execution has been put in his hands, directing a sale of the property seized, such former sheriff cannot be placed in default in respect to such property. He is not bound to deliver the property to his successor in office, to be sold on an execution directed, and delivered, to the latter ; and cannot be made liable, for a refusal so to deliver it.

     APPEAL from a judgment of nonsuit entered at the Steuben circuit in June, 1857. The complaint stated that on the 26th day of May, 1855, the plaintiff commenced an action by summons against one James M. Minier, to recover money due on contract. That on the same day he caused an 
attachment to be issued against the property of Minier, which was, on the same day, delivered to the defendant who was then sheriff of the county of Steuben. That on the same 26th day of May, 1855, the defendant by L. A. Jones 2d, one of his deputies, did by virtue of said attachment attach and 
take into his custody, of the property of said Minier, certain articles of personal property, enumerating them, and alleged in the complaint to be of the value of $500. That the plaintiff obtained judgment in his action against Minier, on the 27th day of May, 1856, for $213.33 damages, and $104.02
costs. That an execution on said judgment, against the property of Minier, was on the 26th May, 1856, duly issued to the sheriff of the county of Steuben. That said execution was offered to said L. A. Jones 2d, the deputy of said defendant, with a request that he should satisfy the same out 
of said attached property, which the said deputy refused to do. That said execution was delivered to Lewis D. Fay, on the 28th day of May, 1856, who was then sheriff of the county of Steuhen ; that he received the same, and by virtue of said execution did, by direction of the plaintiff, demand of the defendant and also of the said L. A. Jones 2d, the property attached as aforesaid, for the purpose of satisfying out of the same, the judgment aforesaid, and the defendant and the said Jones refused to deliver the said property, or any part thereof, to the said sheriff Fay. That the said defendant neglected and refused to keep the property attached as aforesaid to satisfy said judgment, but suffered the same to be lost or destroyed, so that no part of said judgment could be made out of the same; that Minier was at the time of the rendition of the said judgment and the issuing of said execution, wholly insolvent, and had no property out of which said judgment or any part thereof could be satisfied; and said sheriff Fay, on the 25th of July, 1856, returned the execution wholly unsatisfied. The complaint also alleged that at the time the attachment was issued, Minier was the owner 
of, or had an interest in, certain real estate in Steuben county, subject to be attached, of the value of five hundred dollars, which the, defendant and Jones, his deputy, neglected and refused to attach, by reason of which the plaintiff has lost the collection of his judgment against Minier, &c. 
     The defendant put in his answer to the complaint, the contents of which it is not necessary to state, as no question arose upon it, at the trial. 
     The cause was tried at the Steuben circuit in June, 1857, before Justice JOHNSON and a jury, when the plaintiff gave the following evidence, to wit: a judgment roll, by which it
appeared that the plaintiff in this action recovered a judgment against the said Minier for $317.34 damages and costs, on the 27th day of May, 1856. Also a warrant of attachment in due form, issued by a justice of the supreme court against the property of said Minier, as an absconding debtor, dated May 25, 1855, in the action wherein this plaintiff was the plaintiff, and the said Minier was the defendant, reciting that the application therefor was accompanied by the affidavit of the plaintiff verifying the facts and circumstances to entitle the plaintiff to said attachment according to the provisions of chapter 4, title 7 of the code of procedure, and showing that the sum of $200.02 was due from Minier to the plaintiff. 
The attachment was directed to the sheriff of the county of Steuben, and was in the usual form. Upon the back of said attachment was the following indorsement, to wit : " I have seized the personal property and real estate of James M. Minier, the absconding debtor within named, and have had 
the same appraised as by the annexed schedule and inventory appear. Gr. T. Harrower, by L. A. Jones deputy." The signature of said Jones to said indorsement was admitted to be genuine, and that said Jones was a deputy of the defendant. There was a schedule annexed to the return to the attachment, containing an inventory of the property attached, which was all personal property, and which was appraised by the appraisers therein named, under oath, at $466.50. Also an execution issued upon the judgment against Minier, in favor of the plaintiff, dated May 28th, 1856, directed, "To the sheriff of the county of Steuben," reciting the recovery of the judgment. The mandatory part of the execution was as follows : "You are therefore required to satisfy the said judgment out of the personal property of the defendant, James M. Minier, or, if sufficient cannot be found, then out of the real property in your county belonging to the said defendant, James M. Minier, on the 27th day of May, 1856, or at any time thereafter, and to return this execution with your proceedings thereon, to the clerk of the said county where said
 judgment was filed as aforesaid, within sixty days after the 
receipt thereof by you." The execution was indorsed generally, with a direction to levy the amount of the judgment, with interest, fees and poundage. The following indorsements appeared on the execution : "Received May 28th, 1856, at 9 o'clock A. M.  L. D. Fay, sheriff, by E. H. Ames, deputy. Filed July 26th, 1856."
     "No property found to satisfy the within execution, or any part thereof. L. D. Fay sheriff, by E. H. Ames, deputy. July 26th, 1856." 
     The plaintiff also gave evidence showing that the deputy sheriff, Jones, was informed on behalf of the plaintiff on the same day or the day after the judgment was entered, that the judgment was perfected, and that the plaintiff wanted him to take an execution and satisfy the judgment out of the property attached. That Jones said it was of no use for him to take an execution, as the property was all gone ; that none of the attached property was left, and he could not therefore make any thing on an execution, and it was useless for him to take it. Soon after, and on the same or the next day, Jones was again asked to take the execution and satisfy it out of the property attached, and he made the same reply as before, refusing to take the execution. The execution was then delivered to Ames, the deputy sheriff of Fay, who was the sheriff of Steuben county when the execution was issued. 
Ames was told to call on the then late sheriff for the attached property. Fay became sheriff on the 1st of January, 1856. That after Ames received the execution he called on the present defendant, and his deputy, Jones, and Minier for property to satisfy it, and did not get any. Ames told Jones and this defendant he was directed to call on them for the property attached. Jones replied that he had none of the property attached ; that it was all gone. The defendant Harrower said he had none of the property, and knew nothing about it. That Minier was in possession of a piece of land of 110 acres, about 40 acres under cultivation, and had be
en in possession of the premises four or five years before the attachment was issued, and had built a house and barn, on them. The plaintiff's counsel then offered to prove that the plaintiff requested the deputy Jones to attach the interest of Minier in the real estate occupied by him, and that he refused, saying he had already attached and taken personal property more than sufficient to pay the plaintiff's demand. This was objected to by the defendant's counsel, on the ground that it was immaterial, and the objection was sustained, to which the plaintiff's counsel excepted. 
     The plaintiff's counsel then offered to prove that the property attached by Jones was gone, and was beyond his reach, and that the same had been taken away with his knowledge and consent; to which the defendant's counsel objected, which objection was sustained, and the plaintiff's counsel excepted. The objection to the last evidence was on the ground that it was immaterial, and showed no right of action against the defendant. 
     The plaintiff then rested his cause. The counsel for the defendant moved for a nonsuit upon the grounds, among others, that the complaint did not state facts sufficient to institute a cause of action, it not appearing therein that a proper execution had been issued to the proper person, or that any default had been made by the defendant to the injury of the plaintiff; also that no cause of action had been made out by the evidence. That no action could be sustained by the plaintiff without showing a special execution directed to the late sheriff commanding him to satisfy the judgment out of the property attached. The court sustained the motion and nonsuited the plaintiff. To which decision the plaintiff's counsel excepted.

     J. W. Dimny, for the plaintiff.

     William Irvine, for the defendant.

     By the Court, WELLES, J. The attachment against Minier was issued in pursuance of the code of procedure, and the property taken by the sheriff thereon was required to be held by him as security for the satisfaction of such judgment as the plaintiff might recover in the action which he had commenced against Minier. (Code, §§ 227, 231.) The mode of executing such attachment is prescribed by § 232; which directs the sheriff, to whom the attachment is directed and delivered, among other things to keep the property seized by him to answer any judgment which may be obtained in such action, &c. Section 237 provides that in case judgment be entered for the plaintiff in the action, the sheriff shall satisfy the same out of the property attached by him, if sufficient for that purpose; 1. By paying over to such plaintiff the proceeds of all sales of perishable property &c., or so much as shall be necessary to satisfy such judgment; 2. If any balance remain due and an execution shall have been issued on such judgment, he shall proceed to sell under such execution so much of the attached property, except &c., as may be necessary to satisfy the balance, if enough for that purpose remain in his hands, &c. 
     It is quite clear that with respect to property seized by the sheriff by virtue of an attachment under the code, he must retain it in his possession until the determination of the action in which the attachment was issued; and if the plaintiff recover judgment, until the property is sold under an execution  
issued thereon; unless the judgment be otherwise satisfied, or unless, in case of perishable goods &c., he is ordered by the officer who issued the attachment to sell the same, in pursuance of those provisions of the revised statutes, which by sections 232 and 233 of the code, are made applicable. If he has the goods when a proper execution is presented to him, and proceeds to sell thereon, it is all the plaintiff has a right to require of him. The 3d subdivision of § 237 gives the sheriff ample powers and remedies where the property attached shall have passed out of his hands before execution on the judgment without being sold or converted into money. Where
the same person who was the sheriff when the attachment was issued, and who executed it, continues to be the sheriff of the same county when the execution upon the judgment is issued, the proceedings are sufficiently plain and simple. But in this case, the defendant had ceased to be sheriff, by the expiration of his term of office, before the plaintiff obtained his judgment against Minier, and consequently before any execution in an ordinary case could be properly delivered to him to be executed. And the question arises — to whom should the execution have been directed and delivered; whether to the defendant or his successor in office; and also, what kind of an execution was proper. The code has made no express provision for such a case. But it has declared that "until otherwise provided by the legislature, the existing provisions of law, not in conflict with this chapter, relating to executions and their incidents, the property liable to sale on execution, the sale and redemption thereof, the powers and rights of officers, their duties thereon, and the proceedings to enforce those duties, and the liability of their sureties, shall apply to the executions prescribed by this chapter." (§ 291.) 
     An attachment issued in pursuance of chapter 4 of title 7 of the 2d part of the code is more in the nature of the former writ of fieri facias, as to its object and effect, than of any other common law writ. It is in effect an initiatory execution against the defendant's property before judgment, and issued 
in anticipation thereof. But the sheriff cannot do any thing by virtue of it in regard to the defendant's property, except to take the property into his possession and keep it until an execution comes. He cannot sell property by virtue of the attachment. He can only sell under an order of the judge who issued it. When the execution comes he does not levy, for that has already been done by authority of the attachment. So that the attachment and execution, together, contain the same and no more authority or force than a common writ of fieri facias. It is contended by the plaintiff's counsel that the new sheriff could sell, by virtue of the execution delivered to him, the
attached property in the hands of the defendant, and that it was the duty of the latter to deliver up the property to the former for that purpose. But to this, it seems to me, there are insuperable objections. In the first place, the execution was a general one, issued according to the provisions of the code, and authorized the new sheriff to make the money out of the defendant's property generally. It should have required, even in case there had been no change in the incumbent of the office of sheriff, that the money be made, in the first place, of the attached property, and to have provided for the collecting of only the balance due upon the judgment, agreeably to the 
2d subdivision of § 237, in case any thing should be, or should have been, paid as provided by subdivision one of the same section. In the next place, if it was properly directed to the new sheriff, it should have recited the attachment and proceedings under it, and required the money to be made out of 
the attached property, if that property could be found. It could not, I apprehend, go against the defendant's property generally until the attached property, or its proceeds, had in some way been all applied on the judgment, or accounted for. But it seems to me the execution should have been a special one directed to the defendant as late or former sheriff, reciting the attachment, the taking of the property thereon, and requiring a sale of that property. If the property attached, or any part of it, had passed out of the defendant's hands after he had seized it under the attachment, he would probably be accountable for its value upon similar principles to those on which a sheriff would be accountable for property taken upon an ordinary execution. The plaintiff, as before remarked, would have no right to go against the property of Minier generally until the attached property had all been applied. By the common law, if the sheriff returned to a fieri facias, that he had taken goods, which remained in his hands for want of buyers, the plaintiff might sue out a writ of venditioni exponas, reciting the former writ and return, and commanding the sheriff to expose the goods for sale and have the
money in court at the return of it. (2 Tidd's Pr. 934.) And it seems that a venditioni exponas might be directed to the new sheriff where the old one had returned that he had taken goods which remained in his hands for want of buyers. (Id. Mildmay v. Smith, 2 Saund. R. 343, and notes.) But the more usual way of proceeding in such case was by writ of distringas to the new sheriff, commanding him to distrain the old one till he should sell the goods, &c. (Id.) 
     There cannot be found among the common law writs, one which is perfectly adapted to the present case ; for, while the writ of venditioni exponas might go to the new sheriff in a case where the sheriff who made the levy was out of office, yet it was always in a case where the old sheriff had all needful authority to sell, &c.; and where a distringas was awarded to the new sheriff it was in a case where the old one was supposed to be in default, and its office was to set him in motion, &c. (Tidd's App. ch. 41, § 67, p. 274, Caines' N. Y. ed. of 1808.) 
     In the case before us the old sheriff, (the defendant,) has never had in his hands, or in any way been vested with any authority to sell, the goods in question. Although there is no express provision in our statutes for this particular case, I think it is fairly to be implied from § 237 of the code, in connection with the revised statutes, that the execution, in a case like the present, should be directed and delivered to the individual who was sheriff when the attachment was issued, and who attached the property, and that it should be directed to him as late sheriff, &c. By the section last referred to it is provided that in case judgment be entered for the plaintiff the sheriff shall satisfy the same out of the property attached by him, &c. The section then proceeds, in four subdivisions, to direct the manner in which the satisfaction is to be made. By the first, he is required to pay over moneys in his hands the proceeds of sales of perishable property, &c. and of collections of debts, &c. By the second he is directed, in case a balance remains due and ean execution shall have been issued, to sell, under the execution, so much of the attached property, &c. as
may be necessary &c., if enough for that purpose shall remain in his hands, &c. 
     These provisions, it seems to me, contemplate a sale of the attached property, by the sheriff who took it under the attachment, and by no one else. 
     The revised statutes provide particularly for the case of an outgoing and incoming sheriff. (2 R. S. 438, 9, §§ 67 to 74 inclusive.) The old sheriff shall deliver among other things to his successor, "all executions, attachments and final process, then in his hands,
except such as the said former sheriff 
shall have executed, or shall have begun to execute, by the collection of money thereon, or by a levy on property in pursuance thereof."
(§ 69, subd. 5.) 
     There is no statute or other law, that I am aware of, authorizing or requiring an outgoing sheriff to deliver to his successor property taken by the former by virtue of any process whatever. And the law seems to contemplate that whatever official acts remain to be done or executed in relation to such property must be done and completed by the same person who took it — whose official powers for such purposes were intended to be preserved by § 71, on page 439 of the revised statutes, above referred to. 
     If the foregoing views are correct, the plaintiff entirely failed in making out a cause of action against the defendant. The execution offered to L. A. Jones, who had been a deputy of the defendant while his term of office of sheriff continued, was directed generally "to the sheriff of the county of Steuben," and was in the common form of an execution against the property of the defendant generally, as upon an ordinary judgment in an action for money. In my opinion neither the defendant nor Jones his deputy was bound to receive it, or had any right to execute it. The defendant could not be placed in default in relation to the property seized by virtue of the attachment, until a proper execution was put in his hands for that purpose. He could not sell it until the proper execution was delivered to him. He was not bound to deliver the prop
erty to the new sheriff to be sold on the execution delivered to him, and would not have been bound to deliver it to the new sheriff on any execution or process which could have been issued on the judgment against Minier. 
     The offer of the plaintiff, at the trial, to prove that the deputy of the defendant was requested to attach the interest of Minier in the real estate occupied by him, was properly overruled. The attachment recited a debt due from Minier of $200.02, and the return shows a levy on personal property to the value of $466.50. That would seem to have been a reasonable amount, and to have gone beyond it would have been prima facie oppressive. Besides, the adequacy of the extent of the levy is to be ascertained by the result of the sale. (Ransom v. Halcott, 18 Barb. 56, and authorities there cited.) 
     The plaintiff offered to prove upon the trial that the property attached by Jones, the defendant's deputy, was gone and was beyond his reach, and that the same had been taken away with his knowledge and consent; and that by the neglect of said Jones, the property was lost to the plaintiff and could not be applied in satisfaction of his claim. This evidence, on objection by the defendant's counsel, was rejected by the court, and the plaintiff's counsel excepted. 
     The plaintiff was not in a condition to demand the production of the attached property. No execution had been directed and delivered to the defendant, nor any issued upon which the attached property could be sold. The plaintiff was ahead of his time in demanding the attached property before he had issued the proper execution upon which it could be sold in satisfaction .of the judgment ; and had no more right to meddle with it than a stranger. The justice therefore properly overruled the offer. 
     For the foregoing reasons we are of the opinion that the plaintiff was properly nonsuited, and that the rulings at the trial were all correct.     
            New trial denied.
[CAYUGA GENERAL TERM, June 7, 1858. Welles, Smith and Johnson, Justices.]

Glann vs. Younglove. (pgs. 480-484)

     Where a married woman purchases property on her personal credit, the title becomes vested in her husband, and the property is liable to be taken on execution for his debts. 
     Where a married woman purchased a horse, in her own name, giving her individual notes for the price, and the husband immediately took the horse into his possession and used him in his own business for about a year ; Held that this was prima facie evidence of a purchase by him; which would not be rebutted by evidence of the purchase by the wife in her own name, upon her personal individual credit; unless it was also made to appear that she 
had separate property which, upon the purchase, she charged with the payment of the purchase price; and that the vendor gave her the credit upon 
the faith of that arrangement. 
     In an action to recover the possession of personal property, where the property has been delivered to the plaintiff, and the defendant, in his answer, claims a return thereof, if the verdict is for the defendant, the plaintiff has a right to return the property instead of paying the value of it; which can only be required of him in case a return cannot be had. And it is his right to have the damages for the taking and withholding of the property 
assessed. Tha judgment should be accordingly. 
     The defendant has not the right to a judgment for the value of the property, or the return thereof, as he shall elect. The jury should be instructed to 
find for the defendant generally, and to assess the value of the property, together with the damages for the taking and withholding thereof.

     THIS action was commenced October 13th, 1856, to recover the possession of a certain bay horse which the complaint alleged belonged to the plaintiff, and which the defendant wrongfully detained in his possession. The defendant in his answer denied each and every allegation of the complaint; and for a second defense set up a judgment in the supreme court in favor of one Veley, against John W. Lockwood, for $774.10, entered and docketed in the office of the clerk of the county of Steuben, August 26, 1856, and an execution issued thereon to the sheriff of the same county, by virtue of which the said sheriff levied upon and sold the horse in question; which at the time of the levy was the property of said Lockwood. That at the sale of the horse by said sheriff, the defendant was the purchaser, and that he is, and at the time of the commencement of this action was, the lawful owner of the said horse.
     The cause was tried before JOHNSON, justice, and a jury, at the circuit court held in Steuben county in March, 1857. On the trial the plaintiff proved that the horse in question was owned by Jonathan Lockwood, a brother of John W. Lockwood, on and previous to October 7th, 1855. That being 
such owner, the said Jonathan Lockwood sold the said horse on the day last mentioned, to Nancy Lockwood, the wife of the said John W. Lockwood. That on the purchase of said horse by said Nancy Lockwood, she gave to the said Jonathan Lockwood her two promissory notes as sole maker, one for $50 and one for $90 — the purchase price being $140. That the horse was used by her husband, the said John W. Lockwood, together with a gray horse of his own, in a team, down to the time of the levy and sale hereafter mentioned, in his ordinary business. That the said John W. Lockwood and Nancy his wife were married before the year 1848. That a day or two before the sale of the horse by the sheriff, the said Nancy Lockwood sold the horse in question to the plaintiff for $135, for which the plaintiff gave her his promissory note. That at the time of the sale of the horse to the plaintiff, the horse was in a barn occupied by the said John W. Lockwood. The plaintiff is a brother of the said Nancy Lockwood. The value of the horse was admitted to be $150. The plaintiff, after having proved a demand of the horse of the defendant, and his refusal to deliver him, rested. The defendant then gave in evidence the judgment and execution in favor of Veley against John W. Lockwood, as stated in the answer ; and proved that by virtue of the execution a deputy of the sheriff of Steuben county levied upon a span of horses, and harness, and a lumber wagon, on the 25th day of September, 1856. The bay horse in question was one of the span. That he duly advertised the property levied upon, and sold the same on the 13th 
day of October, 1856, by virtue of the said execution. That at the sale the defendant bid off the horse in question and took him away. That the plaintiff was present at and for
bade the sale by the deputy sheriff, the defendant being present at the same time. 
     The evidence being closed, the justice decided that the purchase of the horse by the wife of John W. Lockwood on her personal credit vested the title of the property in her husband, and it was therefore liable to be taken on execution for his debt. That the defendant was entitled to judgment for the value of the horse, or the return thereof, as he should elect. The defendant thereupon elected to take judgment for the value of the horse. The justice then directed the jury to assess the value of the property, and render a verdict for the defendant for the value thereof. To which ruling and decision the plaintiff's counsel excepted. The jury thereupon assessed the value of the property at $150, and rendered their verdict, by which they found for the defendant the sum of $150. The plaintiff now moved for a new trial, on a bill of exceptions, which was ordered to be heard at the general term, in the first instance.
     Clark Bell, for the plaintiff, 
     B. Bennett, for the defendant,

     By the Court, WELLES, J. We think the ruling of the justice before whom the action was tried was correct, that the purchase of the horse by the wife of John W. Lockwood on her personal credit, vested the title of the property in the husband, and that it was therefore liable to be taken on execution 
against him for his debt. Upon the purchase by her, the horse went into the possession of her husband, and was used by him in his ordinary business, down to the time of the levy and sale under the execution against her husband, and until it was purchased at the sheriff's sale by the defendant, a period of about a year. There is nothing in the case tending to show that the wife of John W. Lockwood had, or owned, any separate estate, or, if she owned any, that she ever agreed or
intended to charge it with the purchase price of the horse. Her services, talents and capacity for business, and credit, all belonged to her husband, and the person from whom she purchased the horse, and to whom she gave the notes, must be deemed to have relied upon one or all of these for payment, or upon his legal claim against her husband, as upon a sale to him of the horse. Possibly his reliance was upon all these considerations together. Be that as it may, all that he could by possibility, in any event, expect in payment, must of necessity come from what belonged to the husband. The wife, under the circumstances of this case, is to be regarded as having purchased the horse as agent for her husband; and although he cannot be made liable, directly, upon the notes given by her, we entertain no doubt of his liability to the vendor for the value of the horse, as upon a sale thereof to himself. Immediately upon the purchase, he took the horse into his possession and used him in his own business until the horse was taken on the execution. This would be prima facie evidence of a purchase by him, which would not be rebutted by evidence of the purchase by the wife in her own name upon her personal individual credit; unless it was also made to appear that she had separate property, which upon the purchase she charged with the payment of the purchase price, and that the vendor gave her the credit upon the faith of such arrangement. The case is not distinguishable in principle, in this respect, from Lovett v. Robinson and another, (7 How. Pr. Rep. 105,) which we think presents a correct view of the law on the subject. And we can discover nothing in any of the authorities cited by the plaintiff's counsel at variance 
with that case. 
     We think, however, that the learned justice fell into an error in holding that the defendant was entitled to a judgment for the value of the horse, or the return thereof, at his election; and after the defendant had elected to take judgment for the value of the horse, in directing the jury to render a verdict for the
defendant for the value of the property as they should assess such value. 
     The code, § 277, provides that in an action to recover the possession of personal property, "if the property have been delivered to the plaintiff, and the defendant claim a return thereof, judgment for the defendant may be for a return of the property, or the value, thereof in case a return cannot be had, and damages for taking and withholding the same." The answer of the defendant, to the complaint, concludes with a prayer or demand of judgment against the plaintiff, awarding the possession of the property to the defendant, together with $100 damages for the detention thereof by the plaintiff. The defendant had not the right of election, as held by the justice. The jury should have been instructed to find for the defendant generally, and to assess the value of the property, together with the damages for the taking and withholding thereof It was the right of the plaintiff to return the property instead of paying the value of it, which could only be required of him in case a return could not be had. And it was the right of the plaintiff to have the damages for the taking and withholding the property assessed; and the judgment should be accordingly. If, however, the defendant will waive the damages for the taking and withholding the property, I see no objection to entering the judgment for him for a return of the property if a return can be had, and if a return cannot be had then that the defendant recover the value of the property as assessed by the jury 
     If, therefore, the defendant will stipulate to waive the damages as above, a new trial should be denied, and judgment should be entered as above suggested. Unless the defendant will so stipulate, there should be a new trial, on the ground of the misdirection in respect to the form of the verdict. 
          Ordered accordingly.
[CUYUGA GENERAL TERM, June 7, 1858. Welles, Smith and Johnson, Justices.]

Robinson vs. The New York and Erie Rail Road Company. (pgs. 512-524)

     A general exception to the entire charge of a judge to the jury is unavailable for the purpose of raising any distinct points of error in the charge. It can only be sufficient where the charge consists of a single proposition; or where the whole scope of the charge asserts and explains a single question or principle. 
     In all cases, a rail road corporation, under the provisions of the general rail road act, or of any private charter, where it does not change or affect rights of property, or appropriate the game and make compensation therefor, must cross, intersect or run along streams and highways, &c., at its peril. If it alters, changes or affects the stream or the road, it must restore the same to its former state, so that the rights of third persons be in no way affected injuriously by such change; or the corporation will be responsible in damages for any injury sustained by reason of such omission. 
     Its liability does not depend upon the question of negligence or unskillfulness. 
     The rule of the liability of private corporations is precisely the same as that relating to individuals. 
     An act of the legislature, authorizing a company to construct a railway, does not give to the corporation any authority to invade private rights, without making just compensation. It merely gives a franchise, and the title and rights of a private corporation. It cannot confer upon the corporation any exemption for wrongs done to the rights of private property.
Where, in an action against a rail road company, to recover damages for injuries to the plaintiff's land and buildings, arising from the overflowing of 
a stream, caused by the acts of the defendant, it appeared that the defendant had, in constructing its road, excavated and removed the banks of 
the natural stream, in order to conform the ground to the grade of the rail road, it was held that it was proper for the judge to charge the jury that if 
they should find, from the evidence, that the injury and damage to the plaintiff was occasioned by such excavation and removal, and that but for 
each excavation and removal the injury and damage would not have occurred, the defendant was liable. 
     In such a case an action lies, against the company. 

     APPEAL from a judgment entered at a special term, upon the verdict of a jury. The action was commenced in July, 1855, for the recovery of damages to the plaintiff's land and buildings, in the village of Corning, arising from the overflow of a stream, known as Monkey run. It was claimed 
that this overflow was occasioned by the obstructions placed in the stream by the defendant at the point where it crosses Erie avenue in said village. The cause was tried at the Steuben circuit, in June, 1857, before Judge JOHNSON. It appeared on the trial, that the defendant's rail road runs along 
Erie avenue, and where it crosses the stream in question, an excavation of the banks of the creek was necessary to conform the ground to the grade of the rail road. The defendant deepened the channel of the creek, and constructed two sluices for the passage of the water, ten feet wide each, and three feet deep. In June, 1855, there were three extraordinary floods in the creek. The highest of these floods occurred on the 30th of June, when a great quantity of gravel and earth was washed down the stream, and filled up the sluices, under the rail road, and covered the track of the road itself, five or six feet deep. This obstruction turned the water of the creek into Erie avenue, and from thence it ran into, and filled, the cellars of the plaintiff's buildings, and did other damage to his premises. Testimony was given by the defendant, tending to show that the sluices constructed by the defendant were sufficient to pass all the water of the stream in the highest flood that had ever been known in the creek, and testimony was also given, tendi
ng to prove that the flood of the 30th of June, and which did the damage to the plaintiff's premises, was much the highest flood that had ever been known in the stream. This evidence was not controverted by the plaintiff. The plaintiff proved that the bank of the creek on the side of the plaintiff's premises 
was, in its natural state, five or six feet above the bed of the creek; and that the defendant had cut down this bank in grading its track. And it appeared by the same evidence, that the defendant had at the same time lowered the bed of the creek, but precisely to what extent did not clearly appear. 
The defendant proved that the plaintiff derived title to the premises in question from Hiram W. Bostwick, who was the owner of the premises at and prior to the time the defendant's road was constructed; and that the plaintiff erected the buildings which were claimed to have been damaged by the flood, 
after the construction of the road. The defendant offered in evidence, a grant from Bostwick and other owners to the defendant, of the right and privilege of locating and constructing the defendant's road along Erie avenue, and of lowering the grade of the street, to conform to the survey and grade adopted by the defendant for the track of its road. This grant appeared to have been executed while Bostwick was the owner of the plaintiff's premises. This evidence was excluded by the court, and the defendant excepted. The judge charged the jury, amongst other things, that the general course and flow of streams on the surface of the earth, being governed and controlled by the formation of the surface, no one had any right to make any change or innovation upon the surface, so as to change the established course and flow of any stream, to the prejudice of another. That every person owning and occupying premises in the vicinity of a stream of water was entitled to have the natural banks and barriers remain unmolested, 
so far as was necessary for his protection against the, overflow and diversion of the stream; and that any person digging down the bank, or removing a natural barrier, by reason of which such stream overflowed, or was diverted from
its natural and established course, to the injury of another, was liable for the injury thus occasioned. That the defendant, although it had by law the right to cross streams in the construction of its road, was liable, if in crossing any stream, it removed the banks to such an extent as to occasion the overflow, or diversion of the water of such stream, by which 
individuals in the vicinity sustained injury. And if the jury should find from the evidence, that the injury and damage to the plaintiff was occasioned by the excavation and removal of the banks of the stream by the defendant, and but for such excavation and removal, the injury and damage complained 
of, would not have occurred, the defendant was liable in this action. The defendants' counsel requested the judge to charge, 1st. That if the jury were satisfied from the evidence, that the defendant, in the construction of its road, made provision for the passage of any flood that had ever before been known in this stream, and had exercised such caution and care, to provide against damage to others, as prudent men would exercise, in like cases, for the protection of their own property, then the defendant was not liable for the damage resulting from this extraordinary flood. And 2d. That the defendant, in the construction of its road, was in the exercise of a lawful right, and was not responsible when all reasonable provision and caution was observed to protect others against injury. That if the jury believed from the evidence, that the defendant in the construction of the road over the water way in question exercised as much caution as a prudent man would exercise in the protection of his property, if he owned both the road and the property affected, then the defendant ought not to be made liable to the plaintiff. The judge refused to charge as thus requested; and to the charge and refusal, the defendant's counsel excepted. The jury found a verdict in favor of the plaintiff for $3735; for which sum, with costs, judgment was entered, and the defendant appealed.
S. Mathews, for the appellant. I. The judge erred in his charge to the jury. (1.) The true rule in cases of this kind is, that where any alteration is lawfully made in the natural course, or banks of a stream, the person making such alterations is bound to provide for the common and ordinary floods 
in the stream, and against such as from the experience of the past, might reasonably be expected to occur in the future, but not against uncommon, unexpected, and extraordinary freshets. The latter are regarded as providential, and against which, men of ordinary prudence and caution cannot be expected to provide. Damage resulting from such extraordinary freshets, is "damnum dbsque injuria." The judge, in his charge, seems to have lost sight of, or ignored the distinction here suggested. (Bell v. McClintock, 9 Watts, 119. Inhabitants of China v. Southwick, 12 Maine Rep. 238.
Mayor of N. Y. 
v. Bailey
, 2 Denio, 433. Angell on Water Courses, §§ 335, 336, 348, 349.) (2.) The judge erred, in charging the jury, that if they should find from the evidence, the injury and damage to the plaintiff was occasioned by the excavation and removal of the banks of the stream by the defendant, and but 
for such excavation and removal, the injury and damage complained of would not have occurred, the defendant was liable in this action. The rule as laid down, would cast upon the defendant the whole risk of any damage that might occur to the property of individuals, however remote from the stream, and however prudent or cautious the defendant might have been in constructing its bridge in crossing the stream; no allowance is made for fortuitous or providential causes. This is contrary to the principle maintained in the cases cited.
II. The judge erred in refusing to charge the jury as requested by the defendant's counsel. The two propositions submitted by the defendant's counsel are substantially alike, and contain the true principle applicable to the case. If the defendant, in constructing its bridge, used the same caution as a prudent man would exercise in the protection of his own property, were he owner of both the road and the property
affected, and in the exercise of this caution, made provision for the passage of any flood that had ever hefore been known in the stream, the defendant could not, according to well settled principles of law, be made liable for the injury sustained by the plaintiff. (Mayor of N. Y. v. Bailey, 2 Denio, 433. Angell on Water Courses, §§ 335, 336. Lapham v. Curtis, 5 Verm. Rep. 371.)
     Wm. Irvine, for the respondent. I. The question of law presented by this appeal, is whether under the provisions of the act of April 2, 1850, a rail road corporation in constructing its road, may cut down, dig away and remove the natural barriers of a stream of water, by means of which the water is 
diverted from its natural channel, thereby flooding and destroying the property of others, without being responsible for such injuries; provided that in constructing their road and in providing a water way under it, they use ordinary skill, care and prudence. This is the question which is in substance presented by the defendant's answer, and the only one involved in the exceptions to the charges and to the refusal of the court to charge on the trial And on the part of the plaintiff it is insisted, (1.) That a corporation is liable, and to be held responsible, to the same extent as an individual owner of the bank and stream would be held liable in case he caused a diversion of the water, to the injury of others; and the legislature had no warrant or power to absolve rail road corporations from such measure of responsibility. (Crittenden v. Wilson, 5 Cowen, 165. Bradley v. N. Y. and N. H. R. R. Co., 21 Conn. R. 305, 6.) (2.) But the statute does not profess to exempt corporations from such measure of responsibility, but simply to give them authority to acquire a right, equal to the right of an individual proprietor of the land and stream, so far as might be necessary in the due exercise of his franchise. (Brown v. The Cayuga and SusqueTianna Rail Road Co., 2 Kern. 487. Angell on Water Courses, § 331, n. a. Fletcher v. Auburn and Syracuse R. R. Co., 25 Wend. 462. Critten
den v. Wilson, supra. Malion v. Utica andSchen. B. B. Co.. Lalor's Sup. 156. Presb. Society in Waterloo v. Auburn and 
Rochester R. R. Co.
, 3 Hill, 567.) 
     II. But if any doubt existed upon any supposed conflict of authority as to the construction of this statute, the case of Brown v. The Cayuga and Susquehanna R. R. Co. has settled the doctrine. (1.) The 10th section of the act, incorporating the Ithaca and Oswego Rail Road Company, is in substance the same as the 5th subdivision of § 28 of the act of April 2d, 1850, notwithstanding the remark of the court in the case of Corey v. The Buffalo, Corning and New York R. R. Co, (23 Barb. 482,) to the contrary; the difference is simply in the terms used, conferring the power to do the 
same thing. In the one case the language is, " the said corporation may construct the said rail road across, or upon any road, highway, stream of water or water course, if the same shall be necessary; but the said corporation shall restore such road, highway, stream of water, or water course, thus intersected, to its former state, or in a sufficient manner not to have impaired its usefulness or value to the owner." See the other. " Every corporation formed under the provisions of the act, shall have power to construct their road, across, along, or upon any stream of water, water course, street, highway, plank road, turnpike, or canal, which the route of its road shall intersect or touch ; but the company shall restore the same to its former state, or to such state as not unnecessarily to have impaired its usefulness. (Sess. L. of 1828, ch. 21, § 10. Id of 1850, ch. 140, § 28, sub. 5.) (2.) This construction of the legislative grant is in accordance with the doctrine of the earlier cases, and if as the learned judge remarks in Corey's case, the case of Fletcher v. The Auburn and Syracuse Rail Road Co. has been overruled, we suggest with all deference that it is good law nevertheless; and that the late case of Williams v. The N. Y. Central R. R. Co., not yet reported, approves it well. (Bradley v. N. Y. and N. N. R. R. Co., 21 Conn. R. 294 Nicholson v. Same, 22 id. 74)
By the Court, E. DARWIN SMITH, J. The case, upon this appeal, sets out the charge of the judge at the trial considerably in extenso, and then states that to such charge the defendants' counsel did then and there except. Such a general exception is unavailable to raise any distinct points of error in 
the charge. It can only be sufficient where the charge consists of a single proposition, or where the whole scope of the charge asserts and explains a single question or principle. At the conclusion of the charge, it also appears that the defendants' counsel submitted to the circuit judge two propositions, and requested him to charge in accordance therewith, which the judge refused to do, and for this refusal "the defendants' counsel did also then and there except." If these propositions, thus submitted, contained the true theory or principle upon which the defendants' liability in this action depended, then the circuit judge erred in his refusal to charge as requested; and his charge being in conflict with such propositions taken in connection with such request, was also erroneous in its general scope and meaning. It distinctly appearing that the defendants had excavated and removed the banks of the natural stream whose overflow caused the damages for which the action was brought, the judge, as the final proposition upon which he gave the case to the jury, charged them that "if they shall find from the evidence that the injury and damage to the plaintiff was occasioned by such excavation and removal, and that but for such excavation and removal the injury and damage complained of would not have occurred, the defendants were liable in this action." In the two propositions submitted by the defendants' counsel they claimed, in substance, that the defendants were in the exercise of a lawful right in constructing their rail road at the place in question, and that in the exercise of that right they were not responsible, when all 
reasonable prudence and caution was observed on their part to protect others from injury. The charge treats the defendant — a rail road corporation— as the private owner of property, using and improving it for its own benefit, and
like natural persons responsible for all direct or consequential 
injuries resulting to others from such use or improvement. The defendants' counsel claimed, in effect, that the defendants, as such corporation, were only liable for injuries resulting from negligence or unskiUfulness, like municipal corporations or public officers acting in the discharge of a public duty. The rule of liability of private corporations is precisely the same as that of individuals. (9 Wheat . 904. 12 id. 40. 4 id. 688. 4 Hammond, 500, 514. 3 Hill, 529.) It is true that the defendants, under the general rail road act, were entitled to construct their road across, along or upon any stream of water, 
water course, street, highway, plank road, turnpike road or canal which the route of its road might touch or intersect, restoring the same to its former state so as not unnecessarily to have impaired its usefulness. (Sess. L. of 1850, ch. 140, § 28.) But I do not see that this act relieves the defendants 
from their liability in this action. The right of the defendants to construct their rail road across this creek is not denied, and is undeniable. But this act of the legislature merely gave authority to the defendants to cross this creek. It did not, and could not give any authority to them to invade any private 
right without just compensation. The force of a legislative grant of this kind is well declared in the case of Fletcher v. The Auburn and Syracuse Rail Road Co., (25 Wend. 462,) recently reaffirmed in Brown v. The, Cayuga and Susquehanna Rail Road Co., (2 Kern. 487.) The legislative grant authorized the defendants to enter upon, take and appropriate to their own use, on making a just compensation therefor, such lands as they might require for the use of their said rail road, and to cross all intervening waters and streams. But the legislative grant could go no further, so far as it affected private rights. It exempted the defendants from all liabilities, as respects the public, to indictment for a nuisance or otherwise; but it left all rights of property unaffected. It gave merely a franchise, and the title and rights of a private corporation. It conferred and could confer no exemption upon the defendants
for wrongs to the rights of private property. (21 Conn. Rep. 294. Williams v. The Central Sail Road Co., 16 N. York Rep. 97. 3 Hill, 567.) Under the charge in this case the jury have found that the injuries sustained by the plaintiff would not have occurred but for the excavation and removal of the banks of the stream, made by the defendants. Such removal and excavation were made by the defendants for their own use and benefit, and necessarily at their own risk, so far as the rights of others might be affected thereby. No one has the right to change or interfere with the flow, course, channel or banks of a natural stream, at the risk of others or to their prejudice. The legislature authorized the defendants to cross this stream, but it bound them, if they in any way interfered with the flow of the water on the banks of the stream, "to restore it to its former state, so as not unnecessarily to have impaired its usefulness. The defendants interfered with the banks and channel of the stream. Did they restore it to its 
former state, so as not to have impaired its usefulness? They were bound so to restore it as to leave the rights of other persons in respect to the stream precisely as before they interfered with it — precisely as they stood in the former state of the stream and its banks. In all cases a rail road corporation, under the provisions of the general rail road act or of any private charter, where they do not change or affect rights of property or appropriate the same and make compensation therefor, must cross, intersect or run along streams and highways, or other roads, at their peril. If they alter, change or affect the stream or the road, they must restore it to its former state, so that the rights of third persons be in no way affected injuriously by such change, or they will be responsible in damages for any injury sustained from such omission. And this is practically the rule asserted by the judge at the circuit, as the basis of the defendants' liability, in this action. The defendants claim that they are not liable unless they are guilty of negligence or unskillfulness in making the erection or alteration involved in crossing a stream or road. The riparian owner
upon a stream, or the private owner of the lot situate upon a street or highway, except as against the public authorities, is entitled to have such street or highway remain in its former 
state. He has nothing to do with the question of negligence or unskillfulness in respect to a change of its banks or channel. The question for him, in respect to his rights, is simply and solely, is he damaged by the change or alteration made? If so, he is entitled to be compensated, to the extent of such damage. A man owning both sides of a private stream has a right to erect a dam upon his own land and use the water thereon, but he has no right to flow his neighbor's land or do him any injury by the erection of such dam. Such neighbor has nothing to do with the question whether the dam is or is not negligently or unskillfully constructed. He is not bound to submit to injury from a dam skillfully constructed and in respect to which no allegation of negligence could be maintained. The question for him is simply, is he injured, or not, by the construction of such dam? (5 Cowcn, 165.) There is, it is 
true, a large class of cases where the rule of liability would be that claimed by the defendants in this case, where no action can be sustained for injuries received not resulting from negligence or unskillfulness or some omission of duty. These cases rest upon the sic utere tuum ut alienum non Icedas, and embrace a large class of injuries to the relative rights of the citizen, redress for which can be based upon no other rule than this broad principle of equity and natural justice. But the plaintiff's right of action does not rest upon this principle. It is based upon the fundamental right of property, the right 
in and to the soil and to the things upon and pertaining to the earth's surface. The cardinal maxim, agues, curret et debet currere, &c. implies that no one has the right to change or divert the course, direction or flow of a natural stream, to the injury of another. All men have a right to base their claims 
to property, so far as such claims relate to the earth's surface, upon nature's law, upon the assumption that the earth's surface is to remain substantially unchanged. Every change or
alteration of such surface, where such alteration involves an injury to others, is therefore a violation of natural right. And it is upon this violation that the plaintiff is entitled to maintain this action, independently of the questions of negligence or unskillfulness of the defendants. In the case of Bailey v. The Mayor of New York, 3 Hill, 531 ; 2 Denio, 433,) the action was sustained on the ground of negligence; and the rule is there stated as claimed by the defendants' counsel. The plaintiff in that case was a riparian owner below the defendant's 
dam, and the injury resulted from the breaking away of the dam. The construction of the dam was lawful, and the injury resulted from its negligent construction. If in this case the injury had resulted from the breaking away of the defendants' track-works, or artificial water-way, then the case 
would have been parallel with this case of Bailey, and the action could only be sustained, as in that case, on the ground of negligence. But if in the case of Bailey the damages had been caused by the giving away of the banks of the stream, or by an excess of water cast upon Bailey's land, in consequence of the construction of the dam, then the question of negligence or unskillfulness in the construction of such dam would not have been in the case, and the action would have been maintainable, as in this case, for an injury or invasion of the primary right of property of the plaintiff. It seems to me that there is a very obvious distinction between the two cases. This action might have been sustainable, perhaps, on the ground of the insufficiency of the water-way provided by the defendants, or for their neglect to keep it open and clear for the flow of the water. But the plaintiff is not driven to these grounds. The excavation and removal of the banks of the stream left the water to flow out of the natural channel of the creek and 
to overflow the plaintiff's premises. And this overflow the jury have found would not have happened but for such alteration and excavation of the natural banks of the stream. For the damages resulting from such alteration and excavation, I think this action clearly maintainable.
Besides the question arising upon the charge of the circuit judge, the case presents an exception to the refusal of the judge to allow the defendants to introduce in evidence an agreement signed by quite a number of citizens of Corning, consenting that the defendants lower the grade of Erie street, 
in which the defendants' track is laid. I cannot see that this instrument, if admitted, could have had any proper influence upon the merits in this case. It would absolve the defendants from any liability to damage for lowering the grade of that street, and I cannot see that it can have any further operation 
or effect. The plaintiff's premises are not on that street, and he did not sign this agreement, and it does not distinctly appear that it was so signed by any grantor of his. But if this had been otherwise, I do not think it could have had any proper influence upon the questions in controversy in this 
suit, and was therefore rightly excluded. The case, upon the whole, I think, was rightly disposed of at the circuit, and the judgment should therefore be affirmed. 
          Judgment affirmed. 
[CAYUGA GENERAL TERM, June 7, 1858. Johnson, Welles and Smith, Justices.] 

The Trustees of the First Society of the Methodist Episcopal Church of the Town of Pultney vs. Bichard S. Stewart and others. (pgs. 553-555)

     No one can be both plaintiff and defendant, in an action. A party cannot have a right of action against himself either as debtor or tort-feasor. 
     A trustee of a religious society cannot be sued by his co-trustees, as a trespasser, in respect to the property of the society, until he has been divested of his character and authority as trustee. His possession is the possession of his co-trustees, and his right equal to that of the others. 
     A majority of the trustees cannot, by any rule or resolution which they may adopt, exclude one of their number, and so divest him of his rights as to 
make his subsequent act of obtaining possession of the trust property, a tort. 

     APPEAL from a judgment of the county court of Steuben county, affirming the judgment of a justice of the peace. The action was commenced in a justice's court, to recover the possession of a quantity of Sunday School books, alleged to have been wrongfully taken by the defendants, from the house of worship of the Methodist Episcopal Church of the town of Pultney. such books being the property of that society. It was proved on the trial, that at the time of the taking of the property, the defendant Stewart was one of the trustees of the society; the other trustees being A. L. Parker, W. A. Parker, George Stewart. A. Parker, H. H. McConnell and L. Parker. The taking of the books by the defendants was proved. It was also proved that, previous to the taking of the books in question, by the defendants, a majority of the trustees had passed a resolution, forbidding all persons, trustee or trustees, from opening the church for any purpose whatever, without the consent of a majority of the trustees. The justice denied a motion tor a nonsuit, and the jury found a verdict in favor of the plaintiffs for $10 damages: for which sum, with $5 costs, judgment was rendered by the justice. 

     B. Bennett, for the appellants. 

     Clark Bell, for the plaintiffs. 

     By the Court, JOHNSON, J. It is a good answer to an action that a party is legally interested on each side of the question. No party can be both plaintiff and defendant in an action. (1 Chit. PI. 46. Blaisdett v. Ladd, 14 N. Hamp. R. 129.) And this answer could always be given under the general 
issue. (Hammond v. Teague, 6 Bing. 197.) 
The action here was in the name of the trustees, of which the defendant Stewart was one, as was clearly proved on the part of the plaintiffs. He was therefore a plaintiff as well as a defendant. Trustees, in law, are but a single person. (Brinckerhoff v. Henkle, 1 Wend. 470.) And it was expressly 
held in Blaisdell v. Ladd, that an action at law cannot be maintained, where the same person is one of the trustees, who are plaintiffs, and also sole defendant, or one of several defendants. A party can have no right of action against himself, either as debtor or tort-feasor. It was claimed, upon the argument, that the action was in fact by the corporation, against the defendants. But it appears on the record to be in the name of the trustees. 
     Besides this, trustees of a religious society have possession and custody of the temporalities of the church, whether real or personal estate, and are the proper parties to bring an action for any injury to either. (Green v. Cady, 9 Wend. 414. The People v. Bunkel, 8 John. 364. S. C. 9 id. 147.) 
     As a general rule, a cestui que trust cannot sue, in courts of law, his trustee, (1 Chit. PI. 69,) or, indeed, a third person, except a mere wrongdoer, and for an injury to the actual possession of the cestui que trust. The defendant Stewart, being one of the trustees, could not be sued by the trustees, as a trespasser, in regard to the trust property, until he had been divested of the character and authority with which the law clothed him, in virtue of his office. His possession was the possession of his co-trustees, and his right equal to that of the others. It is impossible, in the nature of things, that a 
majority can, by any Mile or resolution which they may adopt, exclude one of their number, and so divest him of his rights as to make his subsequent act of obtaining possession a tort. All are in possession, while any are, as there can be no several possession amongst trustees. The justice should have granted a nonsuit, as the defendant put his motion distinctly upon the ground that being a trustee he could not be sued by the trustees. It is clear enough from the case, that the justice must have placed his decision upon the legal ground that such an action could be maintained. In this he was in error. It is unnecessary to notice any other questions in the case. The judgment of the county court, and of the justice, must be reversed.
[CAYUGA GENERAL TERM, June 7, 1858. Welles, Smith and Johnson, Justices.]

Robins and others, appellants, vs. Coryell, respondent. (pgs. 556-562)

     The law, in regard to the execution of wills, remains as it is in England and as it was in this state before the revision of 1830; except that a subscription at the end of the will is substituted for a signing, and provision made for acknowledging and publishing the will, and the number of witnesses is reduced from three to two. No other alteration was intended by the legislature, at the time of the revision. 
     Accordingly, where the testator had received an injury, which made it difficult for him to hold a pen — his fingers being partially paralyzed, and another person signed his (the testator's) name to his will at the testator's request and in Ins presence ; after which the testator acknowledged the 
signature to be his, and declared the instrument to be his last will and testament, and requested two persons to sign it as witnesses; Held that this 
waa a valid execution of the will.

     APPEAL from a decree of the surrogate of the county of Steuben, establishing the will of John Robins deceased, as a valid will of real and personal estate, and admitting the same to probate as such. The will was contested by the children and heirs at law of the deceased, on the ground that the 
same was not properly executed. The proof in regard to the execution was that the testator had received an injury to the spinal marrow, a little below the points of the shoulders, the effect of which was to paralyze the parts below; that it, in a measure, paralyzed the arms and the fingers, which made it 
difficult, at least, to hold a pen. That the doctor told him he had better not try to write; he did not think he could use his fingers to do it. The testator then requested Mr. Cobb, one of the attesting witnesses, (the other attesting witness being also present,) to sign his (the testator's) name, at the end of the will. Mr. Cobb did so in his presence ; after which he took the paper and held it up to the testator, and asked him if he could read it. He replied that he could. Mr. Cobb then asked him if he acknowledged it as his signature. He said he did, and at the same time declared it to be his last will and testament, and requested the witnesses to sign it as such. It had been previously read over to him, and he appeared to understand it. Cobb then wrote the attestation clause, and he, and another person,
signed the same as witnesses, in the presence of the testator and in the presence of each other. 
     Two of the heirs at law of the testator appealed from the decree.

     S. H. Hammond, for the appellants.

     G. H. McMaster, for the respondent.

     By the Court, E. DARWIN SMITH, J. The only question presented upon this appeal is, whether under our statute a will can be properly executed without being attested by the actual sign manual of the testator. The statute of frauds and perjuries, of the 29th of Charles 2, ch. 3, declared that "all devises of lands and tenements should not only be in writing but signed by the testator or some other person in his presence and by his express directions, and be subscribed in his presence by three or more credible witnesses." This statute was re-enacted in this state after the revolution, and remained the law until the revision of 1830. (1 Rev. Laws of 1813, .p. 364, §2.) 
     The revisers proposed to re-enact this statute precisely as it stood, in substance, and reported a section for that purpose, and also reported an additional section which was enacted as reported, and was numbered 33 in the first edition of the statute, and is now section 41 of the fourth edition. Instead of enacting section 5 of the revisers' report, the legislature substituted the present section, number 32, in the first edition of the statutes, which is as follows: Sec. 32. "Every last will and testament of real or personal property, or both, shall be executed and attested in the following manner : 1st. It shall be subscribed by the testator, at the end of the will. 2d. Such subscription shall be made by the testator in the presence of each of the attesting witnesses, or shall be acknowledged by him to have been so made, to each of the attesting witnesses. 3d. The testator, at the time of making such sub
scription or at the time of acknowledging the same, shall declare the instrument so subscrihed to be his last will and testament. 4th. There shall be at least two attesting witnesses, each of whom shall sign his name as a witness at the end of the will, at the request of the testator." It is not claimed by 
the appellant, upon this appeal, that all the provisions of this section have not been fully complied with in respect to the execution and publishing of the, will in question, except the provisions relative to the subscription of the will by the testator. The name of the testator was put to this will by a subscribing 
witness, by the express direction of the testator. The question is, whether such a subscription is valid, under this statute. The provision in this section, that the will shall be subscribed by the testator at the end of the will, coupled with the omission of the provision in the act of 29 Charles 2, and 
in our statutes, before the revision of 1830, and in the section as reported by the revisers, of the words "or some other person in his presence, and by his express direction," is supposed to imply a purpose on the part of the legislature to alter the law upon this subject so as to disallow such an attestation as was made in this case, and such as was clearly allowable before the revision. By requiring a subscription by the testator, and at the end of the will, the legislature clearly intended to repudiate the preposterous misconstruction which had been given by the English courts to the statute of Charles 2, that a will might be signed any where, at the beginning, upon the side or margin of any sheet, or at the end. (3 Levins, 86. v. Stanley, 9 Ves. 248.) But in requiring a subscription instead of signing, as in the old law, and at the end of the will, I think the legislature intended no other alteration 
of the law on that point. If they had not enacted the next section (§ 33,) precisely as reported by the revisers, or had stricken out of it the words "and every person who shall sign the testator's name to any will, by his directions, &c." then the inference would have been legitimate and unavoidable that 
they intended to alter the law, and disallow such a subscript
tion or signature. But it seems to me that the enactment of section 33, containing the words just quoted, is a clear legislative declaration that such signature or subscription to a will, that is, putting the testator's name thereto by his direction, 
is a proper and sufficient subscription thereof by the testator. It certainly negatives the idea that the legislature intended to change the law in that particular. And such is the view of this section entertained by Chancellor Walworth in 10 Paige, 91, 92. (And see 4 Comst. 146 ; Lewis v. Lewis, 13 Barb. 17.) The fact, also, that in subdivision 2 of said section 32, it is provided that the testator may acknowledge his subscription to the will to each of the attesting witnesses, confirms the view that the legislature did not intend to require an actual subscription in the presence of such witnesses, as indispensable to the validity of the will. When the witnesses do not see the will signed, its execution is equally valid if it is then acknowledged to them. And in such case the question could not arise, or the objection obviously could not be maintained, that the signature was not in the actual handwriting of the testator. When the testator has acknowledged the execution of the will, as prescribed in the statute, it cannot be material that the signature was, or is, his actual sign manual or handwriting, or was put thereto by another, by his directions. If the statute requires, as the counsel for the appellant contends, an actual manual subscription by the testator, then it follows of course that no will can be valid without such subscription. This construction of the statute would preclude persons who were unable to write from physical disability, or other cause, from making a will at all ; for the subscription of the statute doubtless means and requires that the name of the testator be written in fact at the end of the will. Such construction would render entirely nugatory the above section 33, except the provision that the witnesses shall write opposite their names their places of residence. But this objection is met by the argument that this section is designed to apply to cases where the testator subscribed by making his mark. It seems
to me that this concession practically concedes the whole ground. It allows a species of substituted subscription in the place of an actual one in the hand writing of the testator, in person. If the legislature intended to require the actual personal subscription of the testator to prevent frauds and forgeries and perjuries, or any other rational object, such purpose is as completely frustrated by allowing a subscription by marks or signs as by allowing such subscription to be made by another person in the presence, and by the direction, of the testator. Marks are merely arbitrary signs or symbols — mean nothing, identify nothing, and constitute no material testimony in establishing a subscription in fact by the testator. (12 Ves. 458. 1 .Rob. on Wills, 94.) Such attestation, however, by the testator, was held valid before the revision of our statute, (5 John. 144. 1 Jarman on Wills, 111,) and since such revision in 10 Paige, 86. And it was also held under the statute 29 Car. 2, chap. 3, which requires that the will shall be subscribed by three witnesses, &c.; that the making 
of his mark by a witness was a sufficient subscription by him. (Addy v. Grix, 8 Ves. 504. Harrison v. Harrison, Id. 185. Jackson v. Van Dusen, 5 John. 144.) But the attestation by the testator by his mark being a sufficient signing by him, and the attestation by their marks a sufficient subscription 
for the witnesses, the provision in the statute for a subscription of the testator's name in his presence, and by his express directions, must have been intended for some other mode of subscription than by marks or signs. In none of the cases is the attestation by marks referred to, or based upon that provision of the statute. Signatures by marks are treated as original signatures, as a signing or subscription by the testator and witnesses, the same as the writing of their name in person; and so it is in respect to all deeds or written instruments. (7 Sing. 457. 2 Ves. 454. Atk. 177. 12 Peters, 150. Baker v. Deming, 8 Adolph. & Ellis, 94.) If, therefore, the subscription of the testator's name in his presence and by his express directions, to a will, was ever in
any case a valid subscription, without any mark or sign of the testator thereto, then the will in this case was properly executed. If not, this provision was always, in the act of 29 Car. 2, and in our former statute, (1 R. L. 364, sec. 2,) as well as the above provision in section 33 to the same effect, utterly 
unnecessary and nugatory. 
     But the counsel for the appellant also insists that a will must be personally signed by the testator, and cannot be executed by an agent; that while all other deeds and contracts or instruments in writing may be executed by an agent, wills cannot be so executed. If this be so, it is, I think, a mistake, 
to regard a will to which the testator's name is subscribed by another person in his presence and by his express directions, 
as executed by an agent. What is done for a man in his presence and by his express directions, is his act and deed. If a man tells his wife or his son, or any other person, to put his name to a deed or promissory note, and it is done in his presence and in pursuance of such directions, it is well executed 
by him. Such execution, not being in his handwriting, would of course require proof of such authority and directions and manner of execution. To meet this necessity in respect to wills, said section 33 requires that "every person who shall sign the testator's name to any will, by his direction, shall 
write his own name as a witness to the will." Such an execution of a will is not done by an agent. It is done by the testator himself.  
     Upon the point in question, I think the law in regard to the execution of wills remains as it is, in England, and as it was in this state before the revision of 1830 ; except that a subscription at the end of the will is substituted for a signing, and a provision made for acknowledging and publishing the 
will, and the number of witnesses is reduced from three to two. That no other alteration was intended by the legislature at the time of the revision; and that the execution of the will in this case in the manner stated in the case, as it would have been clearly valid before 1830, is valid still, under the present
 statute. The decree of the surrogate admitting the said will to probate and establishing the same as a valid will, should therefore be affirmed. 
          Decree affirmed.
[CAYUGA GENERAL TERM, June 7, 1858. Johnson, Welles and Smith, Justices.]