A DIGEST OF CASES IN LAW AND EQUITY, ARGUED AND DETERMINED IN THE COURT OF APPEALS OF THE STATE OF NEW YORK, DURING THE FIRST ELEVEN YEARS OF ITS ORGANIZATION, AS CONTAINED IN Entered according to Act of Congress, in the year MDCCCLIX, in the Clerk's Office of the District Court of the United States for the Northern District of New York, by WEARE C. LITTLE. Rec. 21.183 WEED, PARSONS & COMPANY, PREFACE. THE decisions of the Court of Appeals of the State of New York having, in the course of the eleven years that have elapsed since its organization, filled sixteen volumes of Reports, there seems to be an absolute necessity of some means of more ready reference to the several matters embraced in such decisions than is furnished to the Profession by the notes at the end of each volume-some means of avoiding the labor of going through, volume by volume, with the whole sixteen, in the investigation of a particular point of law or practice. The Digest here presented will, it is believed, to some extent, supply that need. It is a careful, and meant to be a complete, compilation of the points decided in the whole series of cases, from 1st Comstock to 16th New York Reports, inclusive, (except 6th Selden, not yet published,) and was suggested by the need of such a book, which for several years, in common with the Profession at large, the writer has felt in his own practice, as the volumes of Reports of this court have accumulated. In fact, a portion of it was prepared for his own use before he entertained the idea of publication. While the Digests already in use are necessary to the Lawyer for reference to the decisions of the old courts and the courts of inferior jurisdiction, it is indispensable that he should have a compendious reference to cases which contain the law as it is in his own time, and on the various questions that are perpetually arising in a great commercial State, and that grow out of the modern changes in statutes and organic laws. Few States or countries have been more fortunate in possessing an able and independent judiciary, than the State of New York, in its Court of Appeals — nor more illustrious in legal talent than it has been in the array of eminent counsel who, from time to time, have conducted the argument of causes in that court. There is thus especially imparted to the cases here digested that rare value which pertains only to decisions of a court of last resort, resulting, as they do, from thorough and complete discussion and deliberation, and being final and conclusive. In view of the fact that the best Digest is, after all, chiefly useful as an index, it has been the aim of the writer, in preparing the work, to omit nothing which might tend to make it, as far as possible, a full index to the several volumes of Reports, as well as a Digest of Cases; and with that view, numerous references are given to the reporter's index to the different volumes, pointing out where the particular subject may be found referred to in other connections, and with more or less remote shades of application—thus avoiding the necessity of a constant repetition of the same cases at length (they being also digested under their proper head), and at the same time preserving the most valuable of the references of that description, which the reporters have thought worthy of insertion in their index. It has also been his endeavor to give, as far as practicable, the facts of the particular case digested. And in doing this, he has frequently adopted the statement made by the reporters in their head notes, sometimes condensing, for the sake of brevity, and sometimes enlarging upon it for greater clearness. And at the same time what is conceived to be the point decided or the substance of the case, or the particular subject of it, is printed in italics at the beginning of each paragraph; so that in most cases a mere glance over the page, will possess the reader of the point decided, or the particular connection in which the general subject of his investigation comes in question. While a proper self-respect impels the writer to say that he has not servilely adopted the language of the reporters, or merely copied their notes, yet so far as he has any personal feeling in the matter or any individual reputation involved, it will be a satisfaction to him to be assured that wherein he has departed from their language or arrangement, he has not marred the work of reporters so eminent in the Legal Profession as COMSTOCK and SELDEN and their successors. The list of affirmed and overruled cases is not as full and complete as it should be; and it is impossible to prepare an index of cases digested until the whole body of the work has gone through the hands of the compositor. In view of these facts it is the design of the author (in case it should not be practicable to include them in this volume without incurring too much delay) to prepare such lists and index by themselves in a second volume that shall also include a Digest of such additional volumes of Reports beyond the 16th, as shall have appeared in the meantime. With unassumed diffidence in respect to the merit of so much of the work as has originated with himself, and made painfully conscious by deliberate review of the printed volume that there are many points of arrangement and otherwise that might have been made better, the writer can only ask for its faults the considerate indulgence of a Profession which is ever ready to appreciate any attempt to facilitate its researches or lighten the burden of its labors. BUFFALO, May, 1859. JUDGES OF THE COURT OF APPEALS, DURING THE PERIOD COVERED BY THIS DIGEST, From July 1, 1847, to and including March Term of 1858. 1. Those Elected or Appointed to the Office. Hon. FREEBORN G. JEWETT: Elected at the first election under the Constitution of 1846, drew for the short term, expiring December 31, 1849; was re-elected by the people for an eight years' term, commencing January 1, 1850, and served until June, 1853, when he resigned the office. He died in January, 1858. The high estimation in which he was held by his associates on the Bench, as well as by the Bar throughout the State, is fitly recorded in the following Memorandum, entered in the Minutes of the Court, under date of January 28, 1858: "The Court have received information of the death, on the twentyseventh day of January, instant, of FREEBORN G. JEWETT, formerly a Justice of the Supreme Court of Judicature of the People of the State of New York, and afterwards Judge and Chief Judge of the Court of Appeals. They are sensible of the great value of his judicial services to the People of this State. Deeply regretting his death, they remember the clearness of his intellect; the justness of his judgment; the purity and benevolence of his heart. They desire to preserve some public memorial of this event, which they deplore; and therefore order this entry to be made on the Records of the Court." Hon. GREENE C. BRONSON: Elected a Judge of this Court at the first election under the Constitution of 1846, and served until April, 1851, when he resigned the office. |