Volume 1 — Anthon Nisi Prius Cases

Assumpsit, on three promissory notes, made in New York, by Elliot Hackley in favor of the defendant, by him indorsed to Richard S. Hackley, and by him to the plaintiff. Plea, the general issue. The plaintiff produced in evidence, a protest of one of the notes, upon the face of which it appeared, that at the time the note became payable, due diligence had been used to find the maker, Elliot Hackley, and that he was, at that time, resident in France.

Assumpsit on a foreign bill of exchange, drawn in St. Kitts, in the West Indies, by one Robinson, on Wees wick & Allman, of Lancaster, England, in favor of Freeman, and indorsed by defendants. The bill was protested for non-acceptance, and the declaration was on the protest for non-acceptance. Plea, general issue.

Assumpsit, for money paid, &c. Plea, non-assumpsit. The defendant produced a receipt in full, signed by the plaintiff’s agent. . The plaintiff thereupon offered the agent as a witness, to prove a mistake in the giving of the receipt. He was objected to by the defendant, on the ground of interest; to prove which the defendant showed that the plaintiff, being in insolvent circumstances, had assigned all his property to the witness, for the benefit of his creditors.

<p>Preliminary proofs, under survey clause on a policy of insurance.</p>

Assumpsit, for money had and received. Plea, the general issue. The plaintiff offered testimony, arising after the commencement of the action, but merely going in explanation of facts which had occurred before the commencement. To this the defendant objected.

This was a special action on the case, for knowingly and deceitfully asserting and affirming to the plaintiffs, that one Crowell was a person of credit, and worthy to be trusted, whereby the plaintiffs were induced to sell him, on credit, a large quantity of goods; whereas, in fact, the said Crowell was not a person of credit, nor worthy to be trusted, by reason whereof the plaintiffs sustained damage, &c. Plea, not guilty.

<p>“ He will be a bankrupt in six months,” actionable per se. Under the general issue, the truth of words cannot be given in evidence in mitigation. That words were spoken in heat, goes in mitigation only.</p>

Assumpsit, for money had and received. Plea, non-assumpsit. The plaintiff claimed a return of premium, at 12 1-2 per cent, on 5,000 dollars, short interest. Three policies had been effected on the cargo of the schooner Hannah Barclay.

<p>Upon breach of contract, seamen are entitled to wages until their return home. Where a vessel, on a voyage, merely earns passage money, and no regular freight, seamen are not entitled to wages. Ut semb. sed quae, et vide note.</p> <p>Where shipping articles are in the admiralty court, in consequence of the ship’s capture, the plaintiff, after notice to the defendant to produce them, may give parol evidence of their contents.</p> <p>In an action, grounded on shipping articles, seamen not hound to produce them, even when they are on the records of an admiralty court.</p>

This was an action on a bill of exchange, drawn by Robert Brown, Jun., of New York, on Robert Brown,- of London, for 200Z. sterling, in favor of the defendant, and by him indorsed to the plaintiff. The bill was dated the Sd of June, 1805, and payable 60 days after sight. Plea, non-assumpsit.

<p>Assumpsit, for 1001, the price of a slave sold to the defendant by the plaintiff.</p> <p>Plea, the general issue, with special notice of the matter of the defence.</p> <p>The defendant, under the special notice, offered to prove, that in the year 1806, the slave was sold to him for life; that in 1804, previous to the sale, the plaintiff had executed, under his seal, a certain covenant, by which he bound himself to manumit the slave after the expiration of eight years, if, during that time, he conducted himself faithfully; that as soon as this covenant came to his knowledge, he tendered the slave to the plaintiff, who refused to receive him. The plaintiff’s counsel objected to this defence, and contended that the defendant ought to show that he had been damnified by the plaintiff’s covenant. They also offered to give the defendant a bill of sale, with full covenants of warranty, &c.</p>

Assumpsit, on a policy of insurance on profits. The vessel had been captured 'and carried into Bermuda, and there acquitted by the admiralty court. Immediately upon information of her capture, she was abandoned by the plaintiff to the defendant and the Columbian Insurance Company, the insurers on ship and cargo. After her acquittal at Bermuda, she arrived safe at New York, and was sold by the Columbia!! Insurance Company, under the abandonment.

This was an action for a trespass, by the defendants, on the plaintiff’s land. .. The declaration was entitled of August term, 1804, and set forth the commission of divers trespasses on the 1st day of January, 1804,- and often afterwards, to wit, until the day of exhibiting the bill in the cause. The plaintiff’s counsel offered to produce evidence of some acts of trespass, anterior to the 1st of January, 1804.

Assumpsit, for money had and received to the use of Cunningham, as survivor of Halsted. Plea, non-assumpsit. Cunningham & Halsted had been co-partners in trade. Halsted died in the fall of 1804, during the continuance of the co-partnership, and one Maver administered on his estate. Upon the death of Halsted, who was the acting partner in the firm, the affairs of the co-partnership were found to be considerably deranged.

This was an action of assumpsit for money had and received. Plea, the general issue. The first witness called by the plaintiffs, being sworn on his voir dire, testified, that he, the plaintiffs and a number of other persons, among whom was the defendant Myers, then of the firm of Myers & Phillips, entered into an India speculation for the purchase of teas.

This was an action of assumpsit. The declaration contained the common money counts. Plea, non-assumpsit. The defendants admitted the plaintiffs’ claim, but contended that they had fully paid it.

This was an action on the case against the defendant, as . owner of the ship Science. The plaintiffs’ declaration contained, 1st. A count alleging a loss by embezzlement. 2d. A count on the bills of lading; and, 3d. The common money counts. • Plea, the general issue, with notice of special matter. It appeared in evidence that the Science was a general ship, owned by the defendant, and bound from the port of New York to the port of London.

<p>Upon a contract for the sale of sugars, the delivery of the export entry is not a delivery of the articles sold, within the meaning of the statute. Neither is the delivery of samples, forming no part of the bulk sold. Where there is an agreement on a sale, that the vendee shall give notes, with an indorser, at four and five months, upon a demand of such notes, and a total disaffirmance of the contract by the vendee, general indebitatus assumpsit lies.</p>

Trespass, for entering the plaintiff’s office, and taking and carrying away a bill of lading, with a receipt indorsed thereon, the goods and chattels of the plaintiff Plea, the general issue, with notice of special matter. Two bags, containing 1,000 dollars each, had been consigned to the defendant from New Orleans, on board a vessel belonging to the plaintiff.

This was an action, by the first indorsee, against, the drawers of an inland bill of exchange. Í The count, under which the plaintiff offered his testimony, -alleged the making of the second of exchange by the defendants, and'the indorsement of that bill to the plaintiff, and then set forth notice of the indorsement, and the presentment of the first of exchange, without averring that the first of exchange had been indorsed to the plaintiff.

Action on the case for a breach of contract. Plea, general issue. The plaintiff was mate of the ship Magdalen, commanded by the defendant, on a voyage from New York to Canton and back to New York. On the outward voyage, he was degraded by the captain, and compelled to leave the ship. To prove the damages sustained, the plaintiff’s counsel demanded the shipping articles, which were produced, and were in the common form, and signed by the defendant.

This was an action of replevin. The plaintiffs counted on the writ de homine replegiando. The defendant avowed the taking and detention of the plaintiffs as her slaves. It appeared in testimony that the plaintiffs were brought into the United States regularly, as the slaves of the defendant. The plaintiffs claimed their freedom on the ground of an attempt, on the part of the defendant, to export them, con- . trary to the provisions of the statute of the state of New ■ York.

<p>In an action on the case for a libel, for publishing an address, adopted, &c., at a political meeting, a person present, and acting at such meeting, cannot be sworn as a juror.</p> <p>If an address to the people, published by order of a meeting of citizens, and signed by the chairman, contain false and slanderous charges against a candidate at an election, an action on the case will lie against such chairman.</p> <p>In an action for a libel, if the defendant demurs to evidence, and contingent damages are assessed, the truth of the charges contained in the libel, cannot be given in evidence, on such assessment, in mitigation of damages.</p>

This was an issue out of chancery, to try the fact of adultery, on a bill for a divorce, filed on the part of Grrif.fith, against his wife. The bill charged the wife with having committed adultery with one Byron; and Byron, being produced as a witness, proved the fact.

Assumpsit, for money had and received. Plea, the general issue. To support this action, the plaintiff offered, in evidence, an account of certain sales of goods made by the defendant, who was an auctioneer, by which account it appeared that the sales had been made at a credit of 60. days.

This was an action of trespass, laid with a continuando, to which the defendant pleaded not guilty. The trespass, complained of, was an alleged encroachment of about six inches, by the defendant’s wharf, on the plaintiff’s water-lot.

Assumpsit, on a promissory note, against the defendant, as maker. Plea, non-assumpsit. The note had been given on the purchase of a certain quantity of sumach, from the plaintiff, by the defendant, who was a tanner. The defendant’s counsel offered to prove that the sumach had copperas mixed with it, which rendered it of no value, and that this fact was known to the plaintiff at the time of sale, and fraudulently concealed from the defendant.

Assumpsit, for goods sold. Plea, non-assumpsit. It appeared in evidence that the plaintiff had sold to the defendants 1,340 quintals of fish, at 3 dollars and 50 cents per quintal, without any specific representation or warranty. That the defendants, previous to the purchase, had themselves examined the fish. It also appeared that the plaintiff was employed two or three days in delivering the fish.

This was an action on a policy of insurance on the sloop Friendship, of New York, lost or not lost on a voyage from Washington, in North Carolina, to Charleston, in South Carolina.

This was an action on the case, for enticing the plaintiff’s indented servant from his service. The declaration contained two counts; the first, for enticing the servant from her master’s service; the second, for harboring .and entertaining her. Plea, general issue.

This was an action on a promissory note, made by Horace Johnson, in favor of and purporting to be indorsed by the defendant. The defence set up was, that the indorsement was a forgery. The plaintiff produced many witnesses, who swore that they believed the instrument to be the hand-writing of the defendant; and on the part of the defendant many were produced who swore it was a forgery.

This was an action on a promissory note, made by the defendant in favor of Winship, and by him indorsed to the plaintiff. f The defence, set up by the defendant, was that the consideration of the note was usurious. To prove the usury, the defendant called Dr. Lord as a witness. The plaintiff’s counsel objected to his being sworn, and alleged that he was the real plaintiff in the suit.

Trover, for a quantity of corn. Plea, general issue. Plaintiff had employed an agent to purchase for him a cargo of corn. Defendant moved for a non-suit, contending that the plaintiff ought to have tendered the storage, to entitle him to bring the present action. . The agent placed the corn, when purchased, in the defendant’s store, on storage, without informing him that the corn belonged to the plaintiff.

This was an action on a promissory note, made by the defendant in favor of John and William Thorne, and by them indorsed to their father, the plaintiff. In the declaration the note was averred to have been indorsed in due season «before it had become payable. Plea, general issue, with notice of set-off. The subject of the defendant’s set-off was a promissory-note, drawn by John and William Thorne, in favor of Case-nave, and by him indorsed to the defendant Woodhull.

The plaintiff, in tracing his documentary title to the patentee, produced a lease from Petrus Stoutenburgh to Jacobus Kip, the ancestor of the lessor of the plaintiff, made a few years after the grant of the patent, and purporting to be a lease for a term of years, of all the lands of Petrus Stoutenburgh.

Assumpsit for wages as mate and captain on board the brig Aspasia, on a voyage from New York to Rio Janeiro, and back to New York. It appeared that the intestate had signed the usual shipping articles, as mate of the said vessel, on the voyage above mentioned; that he became captain at Rio Janeiro, and was lost overboard on the homeward voyage.

Ejectment for lands situated in the 6th ward of the city of Mew York. The plaintiff proved that Isaac Teller, the father of the lessors of the plaintiff, entered on the premises in question between the years 1761 and 1765, and built thereon three houses, and cultivated and improved the ground extensively, and died in possession in 1775.

This was an action on several foreign bills of exchange. Plea, non-assumpsit and statute of limitations. To show an acknowledgment of the debt, within six years, the plaintiffs’ counsel called a witness who had, within that time, as the agent of the defendant, made certain propositions of compromise to the plaintiffs and the other creditors of the defendant.

Assumpsit, on a policy of insurance on “goods, wares and merchandize,” laden on board the brig Margaret, on a voyage from New York to New Orleans. It appeared in evidence that the plaintiff had made a written application to the defendants for insurance “on merchandize,” to be laden on board the Margaret, on a voyage to New Orleans; that he did not specify the merchandize to be shipped, nor was he required, by the company, so to do.

<p>Shipping articles signed by an apprentice, an infant who had ran away from his master’s employ, are void, and consequently no forfeiture arising under them can be urged against such master in an action for the amount earned by such apprentice.</p>

The declaration in this action contained one count on a / promissory note, together with the common money counts. Plea, the general issue, with notice of set-off. The plaintiff produced, in evidence, a paper purporting to be an account stated between the plaintiff and defendants, and offered the confession of one of the defendants, made after the dissolution of the partnership, to show that the said account had been stated by the firm.

Assumpsit, for work and labor done and performed, and materials furnished, in and about the making of a suit of sails for the sloop Convention, owned by the defendants. Plea, the general issue. It appeared in evidence, that the defendants were the owners of the sloop Convention, in 1804. That, in February, 1805, one Vosburgh purchased one half of said vessel from one of the defendants, and, in June, 1806, the remaining half from the other defendant.

This was an action of covenant, on a single bill for 93/., made by Gerard I. Beekman, in favor of I. I. Beekman, payable on demand, and dated February 8th, 1792. Plea, non est factum, with a notice of set-off. In the course of the defendant’s defence, it appeared that one Franklin had acted as the agent of the defendant, in settling the estate of G. I. Beekman.

This was an action on a promissory note, brought by the first indorsee against the first indorser. The note was made on the 7th of January, 1808, and dated, by mistake, the 7th of January, 1807, payable eight months after date. The declaration alleged the note to have been made on the 7th of January, 1808, without any averment of mistake, and did not state its actual date.

The declaration in this cause consisted of a count on a special promise, and of the common money counts, with the usual proferí of the letters of administration, to which the defendant pleaded non-assumpsit and the statute of limitations. After the plaintiff had rested his cause, the defendant’s counsel called upon him to prove his title, by producing the letters of administration.

Assumpsit for money had and received, &c. Plea, the general issue. The defendant, being the owner of the schooner Columbia, chartered her to J. Kauman on a voyage from New York to St. Domingo, and back. Kauman insured his cargo on board said schooner on the said voyage at the office of the plaintiffs.

Assumpsit for money paid, laid out, and expended by the plaintiff, for the use of the defendant. Plea, the general issue. In the year 1801, Waer, the defendant, made a lease of certain premises for twenty-one years to one Harris, which lease contained a covenant for quiet enjoyment. A short time after the making of that lease, Harris died, leaving a widow, who intermarried with the plaintiff.

This was an action of assumpsit. The declaration contained three counts.

<p>This was an action of assumpsit. The declaration contained three counts. The first was a count for money had and received by the defendants, Gaze and Kichaud, as administrators of Ducasse, deceased; and the second and third counts were common money counts against the defendants in their own right.</p> <p>Plea, the general issue.</p>

This was an action of assumpsit on a promissory note, by the first indorsee against the first indorser. The only question in the cause was, whether sufficient notice of the dishonor of the note had been given to the defendant. It appeared in evidence, that he resided, at the time of the dishonor, at Kip’s Bay, on York Island, four or five miles from City Hall, but within the limits of the city, and that notice had been put in the post-office.

This was an action of a debt on bond. The declaration was in the common form.

<p>Insolvency of the maker of a note, is no excuse for not demanding payment.</p> <p>A promise by an indorser to pay, is not a waiver of notice, unless such promise was made under a full disclosure of the facts. If such promise is made to a third person, from motives of friendship, to relieve him from alleged liability arising from his laches, if it afterwards appears that there 'was no such liability, the indorser is not bound by it ntsemb.</p>

This was an action of assumpsit, brought by consent of parties, to test the right of the plaintiff in the seizure of certain flour of the defendant. The plaintiff, being an inspector of flour in the city of New York, seized 467 barrels of unbranded flour, belonging to the defendant, under the eighth section of the act entitled “An Act for the Inspection of Flour and Meal,” 2 R. L. 323, which section is as follows : “ Sec. 8.

This was an action of trover, for divers articles of merchandise. Plea, non cul. The value of the articles claimed had increased in the market, since the conversion complained of; and the only question was, whether the plaintiff should recover1 their then value, or their value at the time of the conversion.

One of the officers of the revenue, had seized a schooner belonging to the plaintiff, for an alleged breach of the embargo law. Shortly after the seizure, and before adjudication, the defendant, with the permission of the seizing officer, used the vessel for two days, in the transportation of goods belonging to defendant, from the city of New York to Hurlgate, and then returned her into the custody of the seizing officer.

<p>This was an action of assumpsit. The declaration contained all the common money counts, for goods sold and delivered, money had and received, &c.</p> <p>Plea, general issue and payment.</p> <p>It appeared in evidence, that some time in the month of May, 1814, the defendant purchased goods from the plaintiff, to the amount of $19 75 cts. That, on the 25th July following, he called in at their store, and said he was ready to pay them, and produced a check on the Mechanic’s Bank, in the city of New York, drawn by Joseph Wood, dated 27th July, 1814, payable to J. M., or bearer, for $277. That the plaintiffs received the check, and after deducting the sum of $19 75 cts. gave the defendant their check for the balance, which was duly paid, together with a receipt in full for the $19 75 cts.; the defendant at the same time telling them, the check was good, and would be paid on the 27th. That on the 27th July, and previous to the presentment of said check, Wood, the drawer, called at the store of the plaintiffs, to borrow money, and was then informed they had his check for $277, which was presented to him; he then told the plaintiffs that it had been given to Moffat on the 23d July previous, merely as a memorandum, to show the sum due to him, that it was expressly understood between the drawer and Moffat, that it should not be presented at the bank for payment, but that he should give up this check on the 27th July, and take a note with an indorser for the sum due. That he would, therefore, immediately stop payment at the bank. Wood, who was examined as a witness in the cause, testified to these facts, and that he did stop payment of the said check at the bank on the 27th, and that it had never been paid, and that he, a few weeks after, became insolvent. It also appeared, that on the 27th of July, Wood had funds in the Mechanic’s Bank to the amount of $160. ,</p>

Trover, for six chests of tea. Plea, the general issue. The plaintiff had negotiated a conditional sale of six chests of tea with ofie McNeil for cash, the contract to be binding, provided another person, who was the owner of the property, (the plaintiff being a factor only,) agreed to it.

Assumpsit for the freight of a quantity of flour transported by the plaintiffs, as common carriers, for the defendant, from Lamberton, in the state of Hew Jersey, to the city of Hew York. Plea, the general issue, with special notice that the flour had been damaged in the transportation, by the negligence of the plaintiffs.

This was a qui tarn action, brought against the defendant for a penalty of one thousand dollars, on the second section of the act entitled “ An Act to prevent the passing and receiving of bank notes, less than the nominal value of one dollar, and to restrain unincorporated banking associations,” 2nd Rev. Laws, 234. The section on which the action was founded, is in the following words: “ 2nd.

This action was brought to recover the sum of ten thousand dollars, insured by defendants on certain premises owned by the plaintiff, at Long Branch, in Monmouth county, New Jersey, which were destroyed by fire in May, 1815. The plaintiff having proved his case, the defendants offered to show that the plaintiff had bought the premises insured, subject to certain mortgages, and that his interest therein, was only about one thousand dollars.

This was an action on a promissory note, made by one Schieffelin, in favor of the defendant, by him indorsed to one Brown, and by him to plaintiff. The defence was, that the note had been made for the purpose of raising money for the benefit of Schieffelin, by discounting it, and had been delivered by Brown to the plaintiff for that purpose, who had applied it to his own use. The defendant offered to prove this fact by the declaration of Brown, while in extremis.

Assumpsit on several promissory notes. Plea, covenant not to sue. Eepn. non est factum. The deed, when produced under this issue, appeared to be a composition deed, subject to two conditions: First, to the payment of a certain sum of money, on a special day; and, secondly, to be void, unless signed by all the creditors.

“ From the first day of May,” is exclusive. Ejectment for a dwelling-house in the city of New-York, The demise in the declaration was laid “ on the first day of May, 1816.” The plaintiff opened, that the hiring had been for one year, ending the first of May, 1817, and that the tenant had, at the expiration of the term, held over.

<p>Words used by an attorney, in detailing a statement of a case to a person to whom he applies to become security, on the bringing of a writ of error, are to Joe deemed made in the course of judicial proceedings, and are privileged. XTt sernb.</p> <p>If the words laid in the declaration are not actionable, the defendant must demur or move in arrest of judgment, he cannot avail himself of the ground at the trial.</p>

Assault and battery. Plea, Moll Manus imp. . In the progress of this cause, the defendant offered to read a deposition of an absent witness, taken de bene esse, before the recorder of the city of New York. The reading of the deposition was'opposed by the plaintiff, on the ground that sufficient notice of the examination of the witness had not been given.

<p>In an action for slander, the plaintiff’s general character is in issue General suspicion that plaintiff had been guilty of the offence charged upon him in the words spoken, may be offered in mitigation.</p>

This was an application to discharge the defendant, B. Hoppin, from the custody of the sheriff of the city and county of New York, on the ground of privilege, as a suitor of the court. It appeared, from the affidavit of B. Hoppin, that he was an inhabitant of Rhode Island, and had come to the city of New York to attend the trial of an action in this court, brought by the above named plaintiff, against the above defendants as co-partners.

This was an action for a breach, of promise of marriage. To make out the promise, a witness was offered, who had been authorized by the defendant to offer terms of compromise to the plaintiff, and to whom the defendant, in stating the terms of compromise, had admitted the promise made. The defendant’s counsel objected to this testimony, alleging that it was matter of compromise, and, therefore, could not be offered against the defendant.

This action was brought against the defendant, as one of the managers of a certain lottery, to recover the penalty for selling tickets at an advance, contrary to the second section of the act, relative to the managers of lotteries. 1 R. L. 270.

Assumpsit for not accounting, &c. Plea, the general issue, with notice of coverture, &c. It appeared in evidence that Joseph Metzler was the reputed husband of the defendant, but that it was generally-known, among their acquaintance, that they were not actually married. Under these circumstances, the plaintiff had delivered to the defendant certain goods to sell for him on commission, for which she had never rendered him an account, and for which this action was brought.

<p>In cases of seduction, connivance of the parents a bar, and lewdness of the daughter a matter in mitigation.</p>

Assumpsit. Plea, the general issue, with notice of set-off. In this case, it appeared in evidence that the plaintiff, being in insolvent circumstances, assigned all his property to certain assignees, for the general benefit of all his creditors ; after which assignment, and with a full knowledge of it, and previous to the commencement of this action by the said assignees, the defendant, being indebted to the estate of the plaintiff, purchased in the market certain promissory…

<p>Where a party neglects to subpoena a witness, and relies upon his promise to attend, the court will not put off the cause in case of his non-attendance.</p>

Assumpsit. The declaration contained counts for goods sold and delivered, together with the common money counts, for money had and received, money paid, &c. Plea, non-assumpsit. In the progress of the suit, the defendant, according to the practice of the court, had demanded a bill of the particulars of the plaintiff’s claim.

This was an action for the use and occupation of certain premises in the city of New York. The plaintiff claimed the quarter’s rent ending in February, 1824. The following facts appeared in evidence: Brinckerhoff purchased the premises, in controversy, in 1822, subject to the plaintiff’s mortgage, and hired them out to the defendant in May, 1823, for one year.

<p>The defendants, merchants in the West Indies, consigned a quantity of tobacco to the plaintiff, at Baltimore, for sales and returns.</p> <p>The plaintiff, in anticipation of the sales, shipped to the defendants a quantity of soap.</p> <p>After this shipment the plaintiff sold a large part of the tobacco to one Causten, who, at the time of the sale, was a merchant in Baltimore, in good credit. For the amount of this sale the plaintiff received Causten’s note at four months. At maturity Causten represented to the plaintiff that he would be compelled to stop payment on that note, unless it was withdrawn from the bank. He gave him, at the same time, satisfactory assurances, that, if he renewed the note, he could get along and would be abundantly able to pay at maturity of such renewed note. The plaintiff, acting in good faith, granted the indulgence asked, and took a new note at an extended period, retaining, however, in his hands, the original note.</p> <p>At maturity of the second note, Causten nad become insolvent, and was utterly unable to pay it. The plaintiff sued him on the first note, and obtained judgment against him, and now in court delivered an assignment of that judgment to the defendant, and sought to recover the amount of the soap shipped to them.</p> <p>It did not appear that any account current had ever been rendered of the sales of the tobáceo by the plaintiff to the defendants.</p> <p>The defendants, on this evidence, moved a non-suit, and contended:</p> <p>1. That no action could be maintained by a factor against his principal, under circumstances like these, until he had duly rendered an account sales.</p> <p>2. That the plaintiff, by indulging Causten and taking a new note, had made the debt his own.</p>

Assumpsit on a promissory note, made by the defendants, payable “ to Thomas Buckley & Sons, agents of W. & E. Lawrence, of Liverpool, or order.” Plea, general issue.

Action on the case for a false return to an attachment issued under the act, for relief against absent and absconding debtors.

<p>Assumpsit for goods sold and delivered.</p> <p>Plea, general issue.</p>

Assumpsit on a promissory note, made by Hedden, in favor of Woods, and indorsed by Mm and by the defendant. The note was payable on demand, and in the declaration a demand was averred to have been made of the maker, and notice of non-payment given to the defendant sixteen months after the date.

Detinue, for divers ledgers, and books of account, belonging to the late mercantile firm of Murray & Mumford, of which plaintiff was the surviving partner.

The declaration in this case (which was an action of assumpsit,) contained a variety of counts, and, among them three, each of which was on a promissory note indorsed by the defendant, and contained a special averment excusing presentment to the maker and notice to the indorser, thus: “ that the plaintiff, when the note became due and payable, was ready and willing to present the same, and demand payment, but the defendant wholly dispensed with and discharged the said…

This was an action of debt on bond against the defendants, as sureties of one George B. Starks. In the month of- June, 1823, Starks was appointed, by the plaintiffs, first book-keeper, and, on that occasion, gave his bond to them, with the defendants as his sureties, in the penal sum of $8,000.

Assumpsit on a promissory note indorsed by the defendants. Several special pleas, in bar, had been interposed on the record, by the defendants, and, after issue was joined on these pleas, the defendants holding certain promissory notes indorsed by the plaintiff, who resided at Philadelphia, pro-1 ceeded against him as an absent debtor. Upon issuing the warrant, the debtor gave his bond to supersede it, pursuant to the statute.

<p>When the correspondence of a party is produced, on a petition for a discovery, the whole must be read to the jury; it is not competent to the party, who has so procured it, to read detached parts.</p>

<p>An authority to execute an instrument under seal, must be itself under seal.</p> <p>A sealed demise, executed under a parol authority, does not preclude evidence of a parol demise, which, when accompanied by occupancy^ is sufficient.</p> <p>Where a bulkhead, at the same time, formed the side of a street or public highway, it was held, that an incumbrance of such bulkhead was a public nuisance, and the lessee could not claim damages without proof of special injury.</p> <p>A remedy given by statute, does not supersede a remedy, already existing at common law, for the same injury.</p>

<p>Whether the oath of a party at the custom-house, stating the prime cost of an imported article, with a view to the duties to be paid, is conclusive on him in a controversy with a third person, in which such prime cost comes in question. Qucere.</p> <p>An award, upon an arbitration between partners, directed certain goods to be brought into account at prime cost. Qwxre, whether the entry, at the custom-house, on the oath of one of the parties, as to such prime cost, concludes such partner.</p>

Assumpsit for money had and received. Langlois, in June, 1834, recovered judgment against Scheltema et ux, in this court, and, upon a fi. fa. issued to the plaintiff, sheriff of New York, on the same, he levied . on the property of Scheltema and his wife.

<p>Trover. Plea, non-culp.</p> <p>In the month of January, 1833, the plaintiff’s store was broken open and robbed of property, in dry goods, to a large amount. Some months after the robbery, the plaintiff found a portion of his goods at the auction store of Mills & Co., in New York, who, upon the application of the plaintiff, produced the invoice which accompanied them when sent to their store for sale. On examining this invoice, the plaintiff discovered that it was in the hand-writing of one Pye, who, at the time of the robbery, was in plaintiff’s employment, writing up his books. He immediately caused him to be arrested for the felony, and, upon such arrest, letters were found upon him, addressed to him by the defendants, a respectable auction-house in Baltimore, under the assumed name of Joseph Richardson. These letters covered invoices of various goods sold by them, on his account, the proceeds of which were thereby remitted to him.</p> <p>Upon a petition presented to the court, pending the proceedings, the defendants were ordered to produce a letter of advice, and all invoices sent on to them by the- said Joseph Richardson. Under this order, the letter of advice, together with the original invoice, were produced by the defendants, and were proved to be in the hand-writing of Pye, and the goods, named in the invoice, were identified as part of the property of which the plaintiff had -been robbed. The sales had all taken place, and the proceeds, $381 93, been paid over, by the auctioneer, before the arrest of Pye. Pye was convicted of the burglary, and sent to the state prison.</p> <p>The true value of the goods, with interest, amounted to $610 46.</p>

<p>When a person employs another to make for him a certain number of steam boilers, on a special contract, and, when they are made, refuses to receive them, a recovery may be had on the count for work, labor and materials.</p>

This was an action of assumpsit to recover a sum of money due and owing by the firm of A. H. Lawrence & Co., of which the defendant was the surviving partner. To establish the partnership a record of judgment, rendered in favor of the defendants, as plaintiffs, against one Mowatt, on a promissory note, made to them as co-partners, was offered in evidence. The declaration contained an averment that they were co-partners, &e.

Assumpsit on a due-bill, alleged to have been made by the defendant to the plaintiff. The due-bill in question was averred, by the plaintiff, to be lost, and, after proof in chief of its existence, the wife of the plaintiff, in whose custody it had been, was offered as a witness to prove such loss, to the court, to justify the introduction of secondary evidence. The wife was objected to, as incompetent to testify in favor of her husband.

<p>Assumpsit on several promissory notes, signed by the defendant, Seneca Stewart.</p> <p>The plaintiff declared on these notes in the common form against partners, viz. that the defendants were partners, under the name, style and firm of “Seneca Stewart,” and as such, made the notes in question. Having proved the signature of Stewart, he produced various papers from the county cleric’s office, filed pursuant to the statute, authorizing the creation of limited partnership, from which it appeared that the other defendant, Isaac S. Hone, was a special partner, having entered into a limited partnership with the defendant, Stewart, who was the general partner, and that, as such special partner, he had contributed $30,000 to the funds of the partnership.</p> <p>The plaintiff also proved that the notes in question were given for goods purchased for the benefit of said concern.</p>

Trespass, de bonis asportatis. Plea, general issue, with special notice of demise of the locus in quo to one Milford; rent, arrear and distress, &c., which is the same trespass, &c. It appeared that the defendant, being the owner of an extensive hotel, in the city of New York, called Carlton House, demised the same by a very special lease under seal, to Eliza Milford, for a term of years, at an annual rent of $12,000, payable monthly, with full power to distrain.

<p>Replevin by third person claiming the articles as owner.</p> <p>Avowry, for rent arrear, by tenant and distress inda.</p> <p>Plea, no rent arrear and issue.</p> <p>The plaintiff being about to open the case, the defendant’s counsel insisted that he held the affirmative of the issue, and had the right to begin.</p>

<p>In the year 1823, the New York Gas Company was incorporated by the legislature of the state of New York, with a capital of one million of dollars, and, for an unlimited period, “ to manufacture, make and sell gas for the purpose of lighting the city of New York, &c.” Immediately after the passage of the law, the corporation of the city of New York entered into a contract, granting the company “the sole and exclusive right of laying pipes under ground for conducting gas to light the public lamps and houses in the city of New York, south of a line running from the east river through Grand street, Sullivan street and Canal street to the north river, for the period of thirty years,” which contract made it obligatory on the company to construct “their pipes in the most approved manner, of cast iron, of the best materials.”</p> <p>The company immediately erected their works for the manufacture of gas, and laid their pipes through the southern part of the city, within the prescribed limits, and lighted the city with gas, according to their contract.</p> <p>In the spring of the year 1849, Courtlandt street, one of the streets so lighted by this company, underwent great alterations on both sides, the houses being generally p'ulled down, or raised and converted into stores of larger capacity.</p> <p>The plaintiff was a house-mover, his business consisting in raising and moving buildings by the powers of the screw, and otherwise. He had, in the course of these improvements, been employed in the line of his calling in Courtlandt street for some time, and, on the 15th June, was at work at No. 4, in that street. This building was used as a bathing establishment, and had a vault under ground, in the front, for the keeping of the fuel necessary for heating the baths. The house was lighted with gas, the service pipe passing from the company’s main through the vault into the premises.</p> <p>On the 15th of June, the plaintiff had occasion to go into the vault for his tools, and called to one of his men to bring him a light, the vault being a dark one. He was in the vault searching for what he required, when the light was brought, and instantly the gas, which .had been, from some cause, accumulating there, exploded, and so severely burnt the plaintiff that he was deprived of all power of attending to his business for a period of about six weeks: suffered great bodily pain, and his life was considered for a part of the time, in much danger.</p> <p>Immediately after the explosion, an examination was made by the defendant of the premises, and it was discovered that the main gas pipe was broken opposite the vault, and that the gas insinuated itself through the loose sand into the vault.</p> <p>The fracture seemed to be recent, and over a hollow space, where the earth had sunk or caved away. On the 13tH June, coal had been taken into the vault, and a person had been at work there for upwards of half an hour, with a light.</p> <p>The smell of gas had been observed for some time, but in an increased degree on the 14th, when the principal occupant of the house, who was an extensive jeweller, and who used the gas in the course of his business, being apprehensive, not of danger, but that he might be charged with the wasted gas, informed the defendants that there was a leak. The defendants sent persons to examine it, who, on the same day, discovered it in the main pipe,' but made no repairs; they mentioned the danger to some of the workmen, but not to the plaintiff, the master workman.</p> <p>It appeared that the mischief could have been repaired in three hours. The excuse, on the part of the company, was the sudden indisposition of the person sent-by them to" take charge of it, which, however, it appeared, did not con. tinue after six o’clock P. M. on thb 14th, when he gave his attention to other work of defendants, and omitted to attend to this.</p> <p>The defendants also proved that large quantities of building materials were piled upon said street, and that heavy foundation stones and granite columns were brought, about this time, to the same place. They also proved that, on the day of the explosion, the smell of gas was very strong.</p>

<p>Assumpsit. Narr Com. counts, with note annexed.</p> <p>Plea, general issue.</p> <p>In the year 1838, the “ Staten Island Bank ” was created under the general banking law.</p> <p>In 1841 this bank suspended its payments, and its notes were then at about 18 per cent, discount.</p> <p>Littell, the president of the bank, with Totten and Bo* dine, two of the associates, were anxious to raise $3000 on their own individual credit, to enable the bank to resume. They applied to a broker for this purpose, who took their names to the plaintiffs, and asked a loan. After examining into the standing of the three persons, the plaintiffs agreed to make such loan. They accordingly paid the amount to one of the defendants, in May, 1841, and received as security the promissory note of the Staten Island Bank, of that date, signed by the president and cashier, at sixty days, in favor of Littell, the president, and indorsed by him, and by Totten and Bodine, the other defendants. At maturity it was dishonored, and notice given to the indorsers. -</p>

Trover, for divers goods, &c. Plea, general issue, with special notice that the goods, in ' the declaration mentioned, had been taken out of the possession of the defendants by process of foreign attachment duly issued, in the state of Connecticut, against one Cain, alleged to be the owner, and that the proceedings were still depending in the courts of that state undetermined. , The plaintiffs were wholesale tailors, and the defendants (who were residents in Connecticut,)…

<p>Judgment on any of the counts, in a declaration on demurrer, by any one of several defendants, enures to the benefit of all.</p> <p>The builder’s certificate of ownership of a vessel in himself and several others at the time of her launch, is no evidence of such fact against them.</p>

The plaintiff was the lessee of a house, No. 648 Broadway, which she occupied as a boarding-house, and the defendant, Fish, was the owner of the adjacent house, known by the name of Constitution Hall.