Volume 1 — Caines's Cases

This was an action for an escape from execution. The v'enue was laid in the city of New-York. The defendant, at a former term, on an affidavit stating the cause of action (if any) to have arisen in the county of Montgomery, and adding that his witnesses; who were numerous, resided in that county, moved -to change the venue from New-York to Montgomery.

<p>THIS was an appeal from the decision of his Honor the chancellor, permitting the respondent to redeem. The facts, as they appeared from the bill, answer, and testimony, were these. On the 12th of April, 1776, Wilhelmus Bennett, deceased, executed to John Vanderbilt, a bond for £600, payable in one year, with interest at 5 per cent.; and, for further security, he also gave a mortgage on 67 acres of land, situated at a place called Gowanes. Shortly after this, on the 8th of November, 1776, the mortgagor died intestate, leaving the respondent Wilhelmus, then a minor of fifteen years of age, his eldest son and heir at law. The usual power to sell was contained in the mortgage, which, together -with the power, was, on the 10th of April, 1777, registered in the office of the clerk of the county, in the book for registering mortgages. In the registry the mortgage was, as usual, abbreviated; but the power was, though not recorded as deeds usually are, set forth in the registry of the mortgage, in hzec verba, excepting as to the latter part, declaring the sale to' be a perpetual bar, &C. which was totally omitted. _ On the 13th of April, 1781, the appellant, Teunis Bergen, purchased the bond arid mortgage &r a hona fide consideration of £700. In 1783, the respondent left this state and went to Nova-Scotia. On the 11th of March, 1804, the appellant Teunis commenced the publication .of a notice of the sale of the premises, under the power containecl in the mortgage. The notice did not specify the boundaries of the, land mortgaged. It began on the 11th of March', 1784, by an advertisement in a weekly paper, and was, after the first week, regularly continued in the supplement, which was the usual mode observed by the printer. The publication of the noticé appeared, from a file of the papers, to have been duly except as-to the" 3 last days ; but for those days the paper or supplement was missing. A copy also of this advertisement was, six months previous to the sale, fixed up on the outward door of the court-house of the county in which the lands lay ; and there remained until after the sale, on the 11th 0f September following. At this, one Christopher Bennett, a schoolmaster in the neighbourhood, officiated as auctioneer, in consequence of a request from the appellant Tennis Bergen. The conditions exhibited at the time of Sale Wére as follows : “ Brooklyn Township. Articles of the Vendue, for the sale of “ the land and meadow land, belonging to the Estate of Wil- “ helmus Bennett, deceased, containing 60 acres, more or “ less, held this 11th day of September, 1784, by Teunis Ber- - “ gen. Art. 1. That the highest bidder is to have the lot or “ parcel óf land when struck off to him. 2. That the Indian “ corn and all the planting produce thereon is to be excepted. “ 3. That a drain of ten feet wide for the Coliick be excepted. “ 4. That 100 rails of the cross fence of the corn be excepted. “ Sc That the money bid for the land is to be paid at the ex- “ ecution 'and delivery of the writings. 6. That in case the person or persons, to whom it is struck off as aforesaid, can- “ not produce or procure a sufficient security, then and in 64 such case, the same lot or parcel of land ’shall be put up 44 again ; and if the same is then sold for‘less, the first buyer “ shall make up the deficiency ; if sold for more, the first buyer u shall have no benefit by the sale.” At the time of the vendue, no persons were present but’ the auctioneer, the appel¡ants, one Cowenhoven, and a tenant who lived on the land.</p> <p>There was but one bid, which was by the appellant Michael Bergen, for <£700; and, after having waited 2 hours, to see if any person would come and offer more, it was struck off at that sum to him ; and he, having attended to purchase on behalf of the other appellant Teunis, after a conveyance duly executed to him, reconveyed to Teunis.</p> <p>It appeared that the premises were not, at the time of sale, worth more than the principal and interest due ; one Cowenhoven, to whom the land was offered, and who was a creditor of the mortgagor, having declared he would not give the amount of the bid. In 1788 the respondent came back to this state, and on the 3d of February, 1800, filed his bill. The respondent in support of the decree, alleged in his case, that the sale could not bar the redemption for which he prayed, as it was null and void, on the following grounds. 1st, Because the power to sell, contained in the mortgage, *“ was not recorded as deeds † usually are,” before the execution of the conveyanee to the purchaser. 2d, Because the notice of the sale was uncertain, and that the directions of the statute were not complied with in the publication of it. 3d, Because the conduct of the appellant Teunis Bergen, touching the sale, and the proceedings preparatory thereto, were actually fraudulent. 4th, Because the power to sell, contained in the mortgage, ex-s pired with the life of the donor. 5th, That the mortgagee was a trustee for the mortgagor, and as such, could not be a purchaser of the property, which he himself sold in that capacity.</p> <p>Chancellor. Mr. President, The complainant has filed his bill for a redemption ; to which the defendant answered, and a number of depositions have been taken, disclosing the circumstances stated in the case. On these, several questions have arisen, which have been very fully discussed by the counsel for the parties ; but all of which, the first excepted, relating to the manner in which the power has been executed, must necessarily depend upon its validity at the time of such execution. The first of these questions, then, in the natural order in which they present, is, whether the power contained in the mortgage, expires with the life of the mortgagor ? In the English code, no principles are to be discovered, which have been applied in their courts to bar an equity of redemption, by the mere act ofthe mortgagee, without the aid of judicial intervention. This c-cv*ce appeai-s of native growth, originating from the circmnstances of this country, and probably, principally from the disparity between the actual product, and estimated value of real estates. This may have rendered necessary a more summary and less expensive mode of barring the equity of redemption, than that which obtained through the medium of Chancery, a desirable object. It seems that previous to the year 1775, it had been a practice" to introduce into mortgages, clauses authorizing a sale by mortgagees, and that many estates were then held under such sales. A statute was passed, reciting this circumstance, and declaring that na good and bona fide sales of mortgages, lands, tenements, or hereditaments, made or to' be made by mortgagees or others, authorized thereunto by special power for that purpose in due form of law, from him or them who had the equity of redemption, shall be defeated to the prejudice of the bona fide purchasers thereof, in favour of, or for the advantage of any person or persons claiming a right of redemption in equity. To this was added a proviso, that this should not prejudice prior liens by mortgages executed before such sale, judgments, or decrees in equity. This statute saved the interest of mortgagees deriving title under mortgages executed before such sale, and all creditors, “ to whom the mort* “ gaged premises, or any part thereof, was before bound by “ any judgment at law or decree in equity.” It appears to have been intended as a declaratory act, and if so, the proviso seems to contain a legislative declaration, that the power to sell did not irrevocably rest, as a right, in the mortgagee ; for, if it did, the after acts of the mortgagor, or the judgments and decrees rendered against him, subsequent to the execution of the power, could not detract from the right of the mortgagee, empowered to sell; that it was intended they should, is to be collected from the consideration that the word' before, in the latter clause, must clearly relate to the sale, and not to a period anterior to the execution of the power. But it may be taken in that sense, or as intended for greater caution, and as leaving the power to be construed as respects the cases excepted, without being affected by the statute. In either case, it cannot be considered as affecting the question in aid of the power. The powers treated of by Powell, in his admirable treatise on that subject, were, as he states, originally mere modifications of uses, whatever was equitable in which, the statute of 27 H. 8. transferred to law : thus he distinguishes powers in relation to donees, and collateral powers, as simply relating to uses and trusts, and the enabling and restraining powers, as mere branches from the same generic trunk. I take it therefore that the doctrine deduced from Powell, as directly applying to the present subject, cannot be considered as correct, and that the principles by which it is to be tested, are to be sought for elsewhere. If the power in question was a naked authority, substituting the mortgagee or his representatives to represent the person of the mortgagor, it is conceded it must expire with the life of the person creating it. But it is insisted, an inseparable connexion exists between the power and its object, the estate ; that the duration of the former, must of necessity be commensurate with that of the interest in the latter, and that it can only be exhausted by its actual execution ; or that the power is in the nature "of a covenant, running with the mortgaged premises. These positions I shall consider separately. As to the first: If a second mortgage was executed, intermediate the execution of the power, and the sale under it; the second mortgagee is supposed to acquire an equitable lien, for the satisfaction of his security, on the mortgaged premises, if the fund mortgaged is more than adequate to the discharge of the first. An equity of redemption is considered as a subject to which a lien arising from a judgment, or decree, may attach. In neither case, can the subsequent incumbrances be considered as united in interest with the first. On the contrary, their relative situations show there must always be a collision, and frequently a direct opposition of interest. On the footing of a revocation of an authority, their situations are compatible with the practice which has prevailed on the subject; but if the power is considered as an absolute vested right, the subsequent mortgages, judgments, and decrees, must be effectually over-reached by the sale, which must undoubtedly, on that ground, relate to the period when the right was acquired. The situation of the mortgagor and mortgagee at law, if the authority is to be tested by strict legalprinciples, operates against considering the power as an interest combined with the estate granted ; for, to all legal purposes, the fee, upon the execution of the mortgage, vested in the mortgagee, subject to the usual defeasance. At law, therefore, the title acquired by the purchase under the power, could only be cumulative; and if so, the revesting the estate, depending upon the contingency of payment in compliance with the condition, the interest of the mortgagee would be destroyed by such payment, and in either case the power must be rendered inoperative. If such is the situation of the parties at law, what reason can there be for an equitable interposition? The principles that this court pursues and cherishes will prevent it from relaxing the rules of law, unless it be for the purpose of promoting substantial justice. The intent of the parties has always- been permitted to have a powerful effect in the construction of deeds ; but though the intent in this case to delegate to the mortgagee, his executors, administrators, and assigns, a power to make a sale, is clearly to be inferred, it does not afford as satisfactory an inference that the representatives of the mortgagor were intended to be equally bound with himself, to continue that power ; and if not, there is no equitable principle on which the power can be extended beyond its mere legal operation, I have not been able to discover, that the doctrine contended for, that the power is to have equal duration with the estate, has been recognized in any instance of this kind. Nor do I know a case, analagous to. this, in the books ; and from the industry and ability of the counsel who argued this cause, as well as my own fruitless researches, I think I may venture to say that none exists. Wherever it rests in the discretion of the court, to give a more liberal or restrained construction to the acts of parties, it is consistent, with the principles which regulate the conduct of this court, to examine the tendency of the several constructions which they will admit, and to mingle the inconveniences of. adopting one :or the other of those presented, as an .ingredient to preponderate the scale, otherwise equally poised. By giving these powers a duration beyond the life of the mortgagor, they may in many instances disinherit his heirs ; for here the parol cannot be permitted to demur; here is no saving of the rights of an infant, till his full age. The sale, if admissible at all, must be absolutely conclusive. By considering the right of sale as blended with, and co-extensive in its duration with the estate, subsequent incumbrances, by judgments, decrees, and mortgage, must be completely at the mercy of the first mortgagee. For if this right is a vested right, assimilating to that of proper- ■ every sale under it must have a retrospective . effect, and completely destroy all incumbrances, intermediate to its acquisition, and the sale under it. These are consequences of great importance, which 1 think this court cannot countenance; but on the contrary, ought to resist, especially as the primary object of the mortgage, the enabling the mortgagee to hold the land mortgaged,\ as a pledge for the payment of the debt-, is thus defeated to the prejudice of the mortgagor’s representatives, and as devices calculated to bar the equity of redemption, which, as susceptible of being wrested to oppressive purposes, ought to be leaned against as inconsistent with the original intent. Though this, I believe, is unexplored ground, I have very little hesitation in saying, that from my view of the subject, the doctrine of irrevocability cannot be sanctioned. As to the second position, that this power is to be taken as a covenant running with the mortgaged premises, there are no words of covenant. It imports to be a new grant of a power; it is a device intended to foreclose the mortgagor, without the intervention of judicial examination; and, if a covenant, it must become a subject of such examination, before it can have complete effect. If, as this clause is contained in an indenture, it is to be considered as the words of both parties, it might perhaps be construed a covenant at law, but that would not better the situation of the defendant; for the mortgage vests the estate in the mortgagee, and his heirs ; the power is to him, his executors, administrators, and assigns. This, if a covenant, could not run with the land; for to effect this, there ought to be a privity of estate, between the representatives on whom the power and the estate would devolve, upon the death of the original parties ; here the 'heirs of the mortgagee, by the limitation of the estate would take it, but the right derived from the power, would pass to the executor; and thus the instant the mortgagee died, the connexion between the estate and the persons authorized to execute the power, would dissolve. A stronger reason, for not suffering it to conclude the heirs, is, that the defendant’s title originated in a mere personal charge, and the same reasons which have already been given against a liberal extension of a power, would operate as forcibly not to extend the covenant by implication. If however it was to be considered as a covenant, binding on the heir at law, I should not be disposed to exert the powers of this court, to aid in concluding the mortgagor’s representatives, as the estate is still in the hands of the representative of the mortgagee, by givtilg' efficacy to the covenant here. It would be contrary to what I conceive to be the established principles in this court, which are to endeavour as much as possible to compel the parties to adhere to the true spirit and meaning of their original contract in cases of mortgages, the security of the sum advanced to the mortgagor. Some other points, involving considerations of great interest and extent, as to the doctrine of mortgages, were subjects of discussion on the arguments of this cause, but .thinking, as I do, that the power contained in the mortgage would not warrant the sale, it would be useless to travel through these points, which merely relate to the mode of its execution. Upon the whole, I am of opinion that the complainant ought to be permitted to redeem; that it ought to be referred to a master to state an account between the parties, of the amount of the principal and interest due .on the mortgage, the clear annual value of the mortgaged premises, and the nature of the improvements made by the defendant.</p>

This caufe had been once deferred for want of teftimony, to acquire which a commiffion had iffiied. The defendants afterwards, but previous to the laft circuit, gave notice to the plaintiff that he fhould, on affidavits, (the copies of which he annexed) move for a commiffion to examine witneffes, and fpecified the names — ' . . . . of the commiffioners. At the time of lervmg this notice, the defendants offered to ftipulate not to delay the caufe.

<p>Motion for a commission to examine.'</p> <p>This cause had been once deferred, for want of testi[*5] many, to acquire which a ^commission had issued.</p> <p>The defendants, afterwards, but previous to the last circuit, gave notice to the plaintiff that they should, on affidavits, (the copies of which were.annexed,) move for a commission to examine witnesses, and specified the names of the commissioners. At the time of serving this notice, the defendants offered to stipulate not to delay the cause. The plaintiff did not assent to join in the commission, and, in a few days, gave the regular notice for trial. At the circuit an application was made to postpone the cause, on the usual affidavit of the want of that testimony, to obtain which, the commission noticed was to be sued out. The plaintiff’s counsel objecting, he had till the next day to produce an affidavit of a former delay. Not doing this, -the cause stood over of course.</p>

<p>in covenant of feifin, the venue may be changed to where the lands lie-</p>

<p>Hopkins moved for a rule to bring on a trial by record.</p>

This cause had been put off on the usual affidavit of absence of a witness, in expectation of whose return the plain tiff had stipulated to try peremptorily. On his not doing so, the defendant had, on a former day, moved for judgment as in case of nonsuit, for not proceeding to trial; but not succeeding, and the cause not having been brought on according to the second stipulation, the motion was now repeated.

ASSUMPSIT on a promiffory note. The plaintiffs had proceeded under the ait of the Legiilature, and had entered the demand of a plea in the clerk’s office, without fervmg it on the defendant, who lives in the city of New-York.

<p>Assumpsit on a promissory note. The plaintiffs had proceeded under the statute, by filing common bail for the defendant, and had affixed the declaration with the demand oí a plea in the clerk’s office, without service ón the defendant, who lives in the city of New York.</p> <p>Judgment by default having been obtained,</p>

<p>Notice to refer a cause must contain, the referees’ names. See the act, 1 Rev. Laws of N. Y., 347, 348.</p>

The plaintiff had obtained, in last January term; an order of court for the verdict recovered in this cause to stand, and judgment to be given accordingly, unless the defendant should, fourteen days before the next “ sittings in Hew York, give notice to the plaintiff that a commission issued in the suit had been returned, in which case there should be a new trial, and the plaintiff at liberty to amend, &c.

<p>In partition, rule to appear and plead are not of course, but must be moved for.</p>

<p>Peremptory "Í o™mo-unfairly</p>

A motion had been made last term, on the part of the defendant’s bail, to vacate the judgment and all subsequent proceedings. The facts of the case were these: In April term, 1800, final judgment had been regularly entered, and a copias ad satisfaciendum against the body had issued.

This cause was tried at the sittings after January term last, when the jury found a verdict for the plaintiff for 86(3 dollars and 20 cents. The defendant obtained an order for a stay of further proceedings until the next term, for the purpose of then moving for a new trial.

<p>A question was made in this cause whether the sheriff is entitled to fees on levying a fine ?</p>

Trover to recover the value of two logs of mahogany, part of a cargo consigned to one Isaac Roget. The cause was tried at the New-York sittings, in June, 1802, before Mr. Justice Radcliff, when a verdict was found for the defendant.

<p>Liberty to turn a case into a special verdict stays execution.</p>

<p>A mate of a •veffel having a tafnquantityout of a cargo, by way of privilege cannot, after a caí^°ftbyWthee consignee, pick out any Reciñe parts, and fell them. Aright cai^o^does^ot give fuch an inablestimpuíchafer of it to main-the confignee has not affented of thoffe6 parts'1 h^fatisfaiSion”for, in trover’ property and pofleilion mult bcihewn. Are-t^a witnelWfter his having not“make ^Idm competent.</p>

This was an action of ejectment, in which the defendants severed in their appearances, entered into separate consent rules, and pleaded separately. The plaintiff had, in a former term, obtained leave to amend, by altering the name of the lessor of the [*20] plaintiff from John to * William Jauncey; but the notices on which the motibn was founded, were entitled as above, against both defendants.

On an affidavit- stating the death of one of the les» [*21] sors of *the plaintiff, from belief, information, diligent search, and inquiry, on the behalf of the defendant, moved, to strike out of the declaration one count wholly, (a) and in all others the name of Drake, with costs.

<p>A mistake by an attorney, of a rule of practice may prevent judgment as in case of nonsuit for not going to trial, but will not excuse costs.</p>

<p>On a non-enumerated motion for irregularity, merits cannot be entered ictq but on merits irregularity may be shown.</p>

<p>On producing certified copy of original writ, declaration amended.</p>

<p>Cases for argument must be noticed.</p>

Golden, for the plaintiffs, moved for leave to amend the-case made by the defendant.

<p>Court will not grant a new trial, where the evidence has been on both sides ■ In applications for new trials, on account of a subsequent discovery of material testimony, what that testimony is, must be stated, that the court may judge of its materiality.</p>

ASSUMPSIT for money lent and advanced, for money had and received ; plea, non affiimpfit and payment, with notice of fet-off. The plaintiff proved, and,gave in evidence 1 1 the following prommory note : “ Sixty days after date, I promife to pay. Dr., D.avid Hqfack, or- order, three hundred and feventy-ove dollars, value vec’d. N._ York, 6th- February, 1800..

1 THIS case also camp before the court on a bill of exceptions. The points relied on were, 1st, That the seal of a foreign vice admiralty court was not in itself any evidence; but, to make it so, required testimony on oath authenticating both the seal and the signature of the judge. 2d, That, of the certificate of registry, parol testimony could not be received,'it being, under the act of congress, a record.

<p>This was an action upon an adjustment at sixty per cent, on a policy of insurance, upon the schooner Industry, from Hew-York to Edenton, in Horth Carolina, valued at five hundred pounds.</p> <p>The policy was dated the 4th of April, 1795 ; on the 16th of the same month was made.</p> <p>At the trial of the cause before Mr. Justice Lewis, on the 3d of July, 1801, the plaintiff produced the adjustment, and there rested his cause.</p> <p>The defence set up was fraud. To prove it, the deposi tian of one Jonathan Stratton was adduced, stating, that in March, 1795, he sailed from the port of Hew-York, in the Industry; that there were no other persons but Joseph Dow, the master, and himself on board; that Dow said, the schooner was going to South Bay, on Long-Island, for which place the deponent was shipped; that the schooner had no cargo or ballast on board, but had provisions usual to go from Hew York to South Bay; that the schooner got aground on the beach, on the Jersey shore; that in a day or two after the accident, the captain left the schooner and went to Hew York, and returned to this deponent about a week after, and informed the deponent he had been to Hew York; that the schooner, to go to Horth Carolina, ought to have had four hands, including the master; thinks the scnooner was about forty tons burden; that he never was at Horth Carolina, and does not particularly know the navi gation, but has an idea of the necessity of four hands.</p> <p>To rebut this, the plaintiff showed the deposition of Joseph Dow, which stated, that about the 25th of March, 1795, he sailed from the port of New York, in the Industry, as master, on a voyage from thence to Edenton, *in North Carolina; that Jonathan Stratton was [*33] the only mariner on board, together with this deponent ; that another hand was engaged to go, but that he fell sick, and left the vessel before she sailed; that he was not in New York until he came with Stratton, after the said vessel had grounded, nor did he ever inform Stratton that he had been in New York while he was so absent from the vessel as aforesaidthat there was no cargo on board, but the witness had between five and six hundred dollars, some in specie and some in bank notes, for the purpose of purchasing naval stores; that the money was not insured; that the schooner was about thirty-five tons.</p> <p>To discredit Stratton, the plaintiff read a protest(a) made before John Keese, Esq., a notary public, in which the said Stratton had joined, which was as follows:</p> <p>Before me personally came and appeared Joseph Dow, late master, and Jonathan Stratton, late mariner, of the pettiauger Industry, who, being duly sworn, depose as follows : That they sailed in and with the said pettiauger from. Coney Island the twenty-sixth day of March last, in ballast, bound to Edenton, in North Carolina, with a light breeze from the westward; that about one o’clock in the afternoon of the same day, the wind haled round to the north, and from that to the northeast, and then to the east, and then began to blow so hard that they were forced to take single reefs in the sails, and take in the jib, and soon after to double reef the sails: at four o’clock the wind blew so violent that it split the foresail so much that they could not set it: they then set the jib, and made the best of their way for Sandy Hook, and on the twenty-seventh got round the Hook, and then the sails were so much frozen that they could not handle them; that they were obliged to let go their largest anchor, but a very heavy sea running, and the vessel pitching bowsprit under, she parted; that they ' then endeavored to claw off shore, but the gale continuing very severe, and the mainmast sprung, and the vessel very leaky, they were under the necessity of running the vessel on shore on a sandy beach, in order to save her, and for the preservation of their lives; that they used every exertion in their power to get the vessel off, but without any effect.</p> <p>*Upon this testimony, the jury found for the plaintiff.</p>

THE defendant had been convicted of grand larceny, before the court of General Sefiions, at Albany in February laft, and was brought up to receive fentence of imprifonment for life under the act of 21ft March 1801, c. 58, f. 4, as being his fepond offence.

The defendant had been convicted of grand larceny, before the court of general sessions, at Albany, in February last, and was brought up to receive sentence of imprisonment for life under the act of 21st March, 1801, c. 58, s. 4, -as being his second offence.

IN error, on the judgment of the Supreme Court in Ebenezer Jenks and others, against Richard S. Hallett and Wal__ • ° . J . ter ±5owne, reported in 1 Caine’s New York Reports, 60. The case was exactly as it is stated there, and the arguments of counsel only a repetition of the points before insisted on in the court below.

This was an action against the owners of a ship, to recover the value of goods shipped on deck, and ejected.

Error on a certiorari from the ten pound court. ■ It appeared, from the justice’s return, that the plaintiff had agreed with the defendant to attend at a certain place, to receive a. conveyance of some land from the defendant And his wife, to one Bhoam. The proceedings below were by the present defendant, to recover damages for the now plaintiff’s non-attendance, according to his engagement.

<p>tf a person bind himself under hand and seal to do a certain act for a certain consideration, and he fail, asswmpsit will lie to recover back the consideration paid.</p>

THIS was an adtion of affumpfit to recover back the confideration paid on an agreement under feal in the following words—“ November the 26th, 1796.

<p>THIS was an appeal from a decree of his Honour'the chanccllor. The complainants filed their bill, as well in behalf °f themselves as others the heirs and devisees of Sarah Wisner, deceased, who might come in and contribute, &c. he. The bill set forth an indenture of three parts, dated the 8th 1769, between Henry Wisner, since deceased, of the one part, Sarah Waters, since deceased, of the second part, and the complainant, Richard Thome, of the third part; which indenture was admitted by the defendant; and among other things, as far as it is material, substantially contained as follows :—That in consideration of a marriage about to take place between the said Henry Wisner and Sarah Waters, she had conveyed to him all her estate, real and personal, authorizing him to sell and dispose of the same; the monies thence arising to be enjoyed by the said Henry Wisner, during the joint lives of him and the said Sarah, he maintaining and educating three children of her’s by a former husband, namely, Elizabeth, Hannah, and Thomas Waters, till they should come of age or marry, if the said Henry should so long live. But in case the said Sarah should survive the said Henry, the money arising from her estate as aforesaid, should be paid to her ; and in case he survived her, it was to be paid to her children before named ; and that in such case she should have and enjoy during her widowhood, a dwelling-house and *"arm situate in Goshen, containing about seventy acres, xvhich -were the premises in question. It was admittec* that the marriage between Henry Wisner and Sarah Waters took place ; that he took and disposed of the property sPé conveyed to him, to the amount of £425. That Henry Wisner died in the life time of Sarah, insolvent, but did not secure to her the money arising from her estate as he covenanted to do ; consequently, that a considerable sum was due to her after his death, and to her representatives after her death, from Wisner’s estate, which can never be obtained,' unless the premises in question are made liable. That Sarah, the widow of the said He-nry Wisner, enjoyed the said house and farm in Goshen, during her widowhood, under and by virtue of the said marriage contract, and until her death, which happened in or about the month of July, 1801. It" was also admitted, that Henry Wisner, deceased, in his life time, to wit, on the 14th day of February, 1786, mortgaged the said house and farm to William Beekman, to secure payment, on or before the 14th day of February, 1787, of £387. 13s. with lawful interest, bona fide due. That William Beekman on the 13th of October, 1792, for the consideration of £300, (200 whereof was then paid, and a bond given for the remaining £100, payable on the death of the said Sarah Wisner) sold and assigned the said mortgage and a bond which accompanied the same to the respondent, John Stew■art, with all the money due and to grow due thereon. That a judgment at law was obtained against the said Henry Wisner, deceased, and thereupon a fieri facias and venditioni ex-ponas were issued to the sheriff of the county of Orange, who by virtue thereof, in the life time of the said Sarah, the widow of the said Henry Wisner, among other things, sold the equity of redemption of the said mortgaged premises, subject to the said widow’s estate therein, to Henry Wisner, junior. That Henry Wisner, junior, on the 19th day of April, 1791,, conveyed among other things, the right and interest he had, -purchased in the said premises, to Polydore B. Wisner, as a trustee, to enable him to sell and convey the same ; and Po•lydore B. Wisner, on the 11th of January, 1793, conveyed the said equity of redemption in the said mortgaged premises to the defendant, John Stewart, in satisfaction of a book debt he had against Henry Wisner, the elder, then deceased. Thus the defendant, as assignee of the mortgage and the purchaser of the equity of redemption, under a sale on an execution at law, claimed to be the legal - and absolute owner of the house and farm in question-. It was admitted that Henry Wisner, deceased, by will duly executed, devised the said house and farm to his two daughters Elizabeth and Sarah, in fee. That, since the death of the said Henry Wisner, and before the bill was filed, the said Elizabeth and Sarah, in due form of law, conveyed all their right and interest as such devisees in the said house and farm, to the complainant Thomas Waters, in fee. The bill was to redeem the house and farm, by paying to the respondent, Stewart, what he was entitled to receive as the assignee of the mortgage ; that is to say, the sum he paid with interest ; or, if he should be entitled to it, the whole amount of the mortgage-money and interest. This right of redemption was contended for before the Chancellor on two grounds ; First, That the complainant, Waters, and the other children and heirs of Sarah, the wife of Henry Wisner, were creditors under the marriage contract; and that, in equity, that contract bound the premises in question to pay those demands, after paying the mortgage given to Beckman. Secondly, That an equity of redemption could not be seized and sold by virtue of an execution at law, and that consequently, Thomas Waters, having purchased and taken a conveyance- from the devisees of the estate, had a right to redeem the mortgaged premises upon equitable principles, by paying the assignee of the mortgage what he was entitled to.</p> <p>The Chancellor being of opinion against the complainants on both grounds, decreed thatthe bill shouldbe dismissed with costs, and thus assigned the reasons on which he had pronounced.</p> <p>Mr. President—This cause came before-the court on a motion for the dissolution of an injunction, issued to restrain the defendant from obtaining possession at law of the premises in question. On that motion the whole ground of controversy was explored, and. the counsel for the parties, discovering that a determination on it would involve a decision on the merits generally, argued it a second time, as on a final hearing. In doing this, they united in presenting, as a determining point between the parties, simply, 'whether an equity of redemption in lands mortgaged in fee, is subject to a sale as a fieri facias ? To determine this question, the nature of the subject, and the course of the arguments of the counsel, lead me cursorily to trace the progress of the English jurisprudence (as far as it has any bearing on this point) from its departure from the common law, until the act of the 5th Geo. 2d, and the subsequent modifications it has received here. It is certainly a sound moral principle, that every description of property held by a debtor, should be subject to the payment of his debts'. The policy deduced from the feudal system, was, however, far from being in strict unison with this principle; and had so far blended itself with the English institutions, as generally to resist the infusion of those dictated by more just and liberal views. This detracted from the security and preservation of lands in the hands of those who held them, and their heirs ; for, at common law, only goods and chattels, and the growing profits of land were, on a levari facias, or a fieri facias, liable for the satisfaction of debts. This strictness was somewhat retained by the statutes of elegit; for it appears to have been a reluctant departure from the more ancient doctrine—certainly not reconcileable to its general scope and object, and equally remote from the principle the framers of the statute appear to have been disposed to approach : for, instead of carrying the remedy the length which complete and effectual justice required, it subjected only half of the debtor’s real estate to an extent, with a reversionary interest to him or his heirs, after the debt was satisfied from the profits of the lands. The inroad made on the common law principles, by giving the elegit, has, however, been protected by several successive statutes: thus Blackstone, in his Commentaries, enumerates, among the evils arising from the doctrines of uses, the defrauding the creditor of his extent for debts. He adds, to remedy these inconveniences, abundance of statutes were provided, which, among other things, made the land liable to be extended by the creditors of cestui que use. Among these, the statutes of uses, and of frauds and perjuries, were most effective ; and, after the passing of the latter statute, a trust estate, whether declared or resulting, was considered, in the language of Blackstone, “ as equivalent to the legal owner- “ ship, governed by the same rules of property, and liable to “ every charge in equity, which the other is subject to in law.” “ The trust may descend; be alienated; is liable to debts; ci to executions on judgments, statutes, and recognizances “ (by the express provision of the statute of frauds) to for-u feitures, to leases, and other incumbrances, nay, even to “ the curtesy of the husband, as if it was an estate at law’’ Thus, in the case of Casborne v. Scarfe and Inglis, lord Hardwicke lays it down, that an equity of redemption cannot be considered as a mere right: but such an estate whereof there may be a seisin, and that the person entitled to it is considered as the owner of the land;. that an actual possession, clothed with the receipt of rents and profits, is the highest instance of an equitable seisin ; and that the mortgagee, as to the legal estate and inheritance, is merely a trustee for the mortgagor, until the equity of redemption is released or foreclosed. In the case of Amhurst v. Dawling, an advowson, appendant to a mortgaged manor, had, before that, been held in the nature of a trust for the benefit of the mortgagor: so, in the case of the Attorney-General v. Hasketh et al’, in w'hich the same doctrine had before been laid down; and it is in that case expressly declared by the lord Keeper, that the court which supports trusts, will prevent trusts from doing mischief The spirit of these cases has been recognized and enforced in the British courts of common law. In the case of the King v. the Inhabitants of St. Michaels, decided after our revolution, lord Mansfield emphatically declares it to be “ an affront to “ common sense to say, that the mortgagor is not the real “ owner.” And whatever might have been the construction at an earlier day in those courts, in equity, the intent of the parties has been permitted to give a complexion to this kind of transaction, and to constitute it a naked security for the payment of money, without any of the substantial rights ownership. It is merely a lien until it is foreclosed, or the possession acquired by the mortgagee: thus the mortgagor, until either of these events occur, is the beneficial owner; he takes the rents and profits without any account; he is a freeholder, qualified to vote as such, and he is deemed the owner of a landed estate within the English settlement laws. The provision for admitting him to vote, is, indeed, by statute; but it appears to me merely a declaration of the law, previous to the passing of the act, and introduced for greater caution, "hhe case of Lyster v. Dolland, reported in 2d Brown’s Ch. Rep. 478, and 1 Vesey, J. 431, does not impugn the general doctrine; for in the report of that case in 1 Vesey, the lord chance^or admits, “ that an equity is extendable, and the mort- “ gagor is expressly let in to redeem, on the ground that the “ mortgagee had so mixed his own interest with that of the “ mortgagor, that they could not be distinguished.” I take it, then, that an equity of redemption in England is an extendable interest, and that so is the property of cestui que trust in the hands of trustees. Bunb. 346. The solicitude of the holders of landed estates, to perpetuate them within families, combined with the genius of the English government, contributed to maintain the distinction between real and personal property, which obtained after the passing of the statute of elegit: but the collision between the landed and commercial interest being merely local,, as confined to Great Britain, and not so extending to its colonies as to re-act by influencing its parliament, in which the landed interest of those colonies had neither a direct nor virtual representation, the same impediments did not present to the passing of the stat. of 5 Geo. 2 chap. 7, for the more easy recovery of debts in the colonies. This subjected real estate to a disposition, in like manner as personal, on execution, and a remedy was thereby given, co-extensive with the property of the debtor, regardless of the distinction which had been so sedulously preserved in Great-Britain. This statute so far extended in practice in this state, while a colony, as to affect lands by sales on executions, issued on judgments obtained against the executors of debtors, on the principle, that the statute of 5 Geo. 2, had, in its operation, so far as respected the interest of creditors, completely converted real into personal estate. It is certain, that sales of equities of redemption have been uninterruptedly made, from the time Pas«ng that statute, until the legislature passed the statute of 19 March, 1787; and the same practice, as to such sales, lias continued to prevail under the latter statute. This statute subjected every species of estate, comprehended in the very extensive description of “ lands, tenements, and real estatetb r' . . be sold on execution, and is strictly compatible, m its most comprehensive construction, with the general provision, that both real and personal estate, in the hands of the heir or executor, (and whether the debt was contracted by specialty in which the heir was named, or otherwise), shall be applied to the satisfaction of the debts of the ancestor, or testator. There is one objection which was strongly urged against giving effect to those sales here, and that is, that the purchaser could not take the effect of it at law. If this position was correct, I do not think it is so forcible as the counsel who urged it. A sale on execution is not enforced peculiarly by the court under whose process it is made ; the evidence of the sale is furnished by the sheriff, and the purchaser elects the forum, to which he intends to resort, to give him the benefit of it. If any of the fora of the state are competent to give him the effect of his purchase, every intent of the sale is fully accomplished ; and I know no legal or equitable principle that can repel this result. But if the mortgagor ivas possessed, at the time of the sale, the controversy must strictly be between the mortgagor and purchaser: no inconvenience can arise from compelling the former to yield his possession to the latter. Thus, in a recent case, it has been held in the K. B. in the case of Bristow v. Pegg, 1 D. & E. 758, 25 Geo. 3 *, if there is an existing title .paramount the person who holds, he fnay avail himself of it by showing it, and it does not lie in the mouth of the mortgagor to allege its existence; for, notwithstanding a title might exist, by virtue of which the person actually seized might be ousted, it would seem strange that his right of seisin should pass by the sale, and the latent equitable interest which he had in the lands, should be retained by him. From these considerations ; from the number of estates which depend on supporting sales of this nature ; from the long practice which has obtained respecting them; and from the great inconvenience which would result from the doctrine, that however great the disproportion between the sum secured, and the value of the estate charged with it, the latter might be protected from being; applied to the satisfaction of judgment creditors on executions, I think sales of this kind ought to be sustained; and that, whether the mortgagor is considered as the real ozvner, or the mortgagee is considered as his trustee, an equity of redemption is within the purview of our statute, and subject to sales on execution. The complainants’ bill must, therefore, be dismissed with costs.</p>

This was an action of assumpsit on a policy of insurance, effected in the name of Archibald Gracie, on the cargo of the ship Dauphin, valued at eighty-seven thousand one hundred and sixty dollars, on a voyage from Surinam to London. The cause was tried before Mr. Justice Badcliff, at the June sittings, in Uew-York, 1802, when a verdict was taken for the plaintiffs, subject to the opinion of the court on a case to be made.

Soon after this suit was commenced, the attorneys for both parties entered into an agreement, in the nature of a rule to stay proceedings on the hail bond, on the usual terms. The defendant in the original suit accordingly filed special bail, and gave regular notice, but had not paid the costs of this suit, as by the terms of the agreement he was bound to do.

THIS was a motion in an aftion on a bail bond to- fet afide the proceedings and execution fued out. It appeared, that foon after the bail bond was profecuted, the attornies for ... . - both parties had entered into an agreement, in the nature of a rule, to ftay proceedings in the bail bond fuit on the ufual terms.

This was an application to the court for an order on the heretofore sheriff, Lansing, to amend a return according to the real truth of the case. • The facts were, that the defendant had been arrested and duly committed to gaol, but was one of many others who had broken out of prison, in the year 1798.

<p>This was a motion for judgment as in case of nonsuit for not proceeding to trial according to stipulation.</p>

<p>After a lapfe of five years the court will not order a former iheriff to amend his return, ac« cording to the truth of the cafe$ by ftating that the defendant had efcaped from prifon, if it was at a time when many others forcibly broke out» »</p>

The last proclamation of a fine had been omitted; it ought regularly to have been made last term; the application now was to have .it' made nunc pro tune, and endorsed as of the last term.

THIS was a motion for judgment as in cafe of nonfuifc for not proceeding to trial according to ftipulation. Riker, diftriit attorney, oppofed the motion on an affidavit ftating that he was employed for the plaintiff, and had been prevented in confequence of his official duty as public profecutor, from attending the court when the caufe was called on, and had not afterwards been able to bring it to trial. Boyd for the defendant.

<p>This was an application on petition to be allowed the expenses of a criminal prosecution.</p>

<p>A vessel driven by distress into a French port, where a part of her cargo is taken by the officers of the government, and she prevented from taking away her original lading, may, without incurring the penalties of the acts forbidding all intercourse with the dependencies of France, purchase and load with the produce of the country. A passport granted by any particular government to protect against its own cruisers, is not a sailing under the protection of the flag of that government, so as to stamp a national character on the vessel. On a special verdict the court cannot intend any thing which is not found.</p>

This was a question of practice submitted to the decision of the court on the following statement: The above suits were brought on notes exceeding two hundred and fifty dollars each; afterwards a sum of money was paid, and security given by Loveland, the endorser, by which the amount was reduced below 250 dollars: cognovits were then' given for the residue, by each defendant.

This and three other suits, were commenced against the above defendants and several others, on a policy of insurance on the brig Defiance, and a consolidation rule' signed and entered. About a year afterwards, the defendants in. the above suit compromised with the plaintiffs, who can-celled the policy as to them; of this the defendants’ attorney had no information, nor was there any rule to discontinue, or other rule entered, and the other suits proceeded.

Henry moved for judgment of nonsuit against the plaintiff for not proceeding to trial. Notice of the motion had been sent to thé adverse attorney, by the mail; this was relied on as good service.

This was an application for a supersedeas, for not being charged in execution in due time, according to the act for the relief of debtors, with respect to the imprisonment of their persons. The counsel for the plaintiff relied on Brantingham's Case, Cole. Cas. 42. The *Court, without hearing any argument for [*68] t he defendant, said, the authority cited was conclusive.(a)

<p>Notice of mo-tion for judgment us in cafe of nonfuit, fent by che mail good notice; though filch a notice might fave a default. :¡ See Cole : 1 d ano. ads. Stafford. Cole. Cc. Prac. 107' Bet ~ be ads. Faddtxk ibid. 135,</p>

On demurrer. The memorandum was: “ Be it remembered, that heretofore, to wit, on the third Tuesday of July, in July term, in the year of our Lord one thousand eight hundred and one, &c., came William Lowry, and brought into the said court, then there, his certain bill,” &c. The declaration was on a bill of exchange made in 1797’, presented for acceptance on the first of October, 1801, and refused, of which notice was given to the defendant, who, on the 11th of October,…

The original suit was trespass guare clausum fregit, in which Steele and his wife had been held to bail under the statute.(a) On the return of the writ the plaintiff obtained an assignment of the bail bond, upon which he issued process, filed his declaration on the first of October, 1802, and entered a default the eleventh of November; on the 17th the partner of the plaintiff’s attorney received, when in his office, notice of the retainer of an attorney on behalf of the…

ON demurrer. The memorandum was of another term. Be it remembered, that heretofore, to wit, on the third Tuefday of July in July term, in the year of our Lord one thoufand, eight hundred and one, &c. came William Lowry, and brought into the faid court then there, his certain bill, & c. The declaration was on a Bill of Exchange made in 1797, prefented for acceptance on the firlt of Oélober 1801, and refufed, of which notice to the defendant, who, on the 1 ith of Oélober,…

<p>The court will not pronounce judgment on a pnloner conviéted at oyer & com^íracyfiñhe record of his notbeforethem, will udmit</p>

<p>Commiffion to examine may be before iíTue j oined. A rule fox* commiffion fui™ pends the trial till the rule be vacated: but if the defendant appear at the trial, and examine witneffes, it will be a waiver of the rule to vacate.</p>

. . .£10,241 10s. Of this ,£2000 only being paid in cash) the residue was secured by a bond and mortgage from the purchasers, dated on the 24th of February, 1796, payable in four instalments ; three of ¿2000, and the fourth of £2241 10s. the first on the 1st of June, 1798, without interest; the rest on the first days of June, ’99, 1800, and 1801, with interest.

In this cause it was necessary to examine a witness in the Havannah; and, as that port was open only to certain privileged vessels, in April, 1802, a rule for a commission was granted before issue joined, to prevent losing an opportunity of transmission which then presented itself.

<p>Service of notices on agents for non-enumerated motions.</p>

<p>Service of notice;.</p>

<p>service of nojlces on aSents for non-enume* rated motion*.</p>

The plaintiffs, in the sittings of June, 1802, at Hew York as owners of a ship of which the defendant was captain,' had, in an action against him for deviating from his orders, obtained a verdict, subject to the opinion of the court, on a case to be made; and he in a cross suit, had recovered against them a larger sum, subject to deductions, in case the opinion of the court should be against him as to certain items, charged and allowed by the jury.

<p>THE plaintiffs, in the fittings of June 1802 at New-York, as owners of a ihip of which the defendant was captain, had, ;n a£tion againit him for deviating from his orders, obtained a , . . r , r verdict, lubject to the opinion of the court on a cale to be mage . an¿ he in a crofs fuit, had recovered againit them . ' . a larger fum, fubject to deductions, m cafe the opinion of the court should be againit him as to certain items, charged and allowed by the jury.</p> <p>A ca^e was made on the part of the defendant to which the plaintiff propofed amendments, which were adopted ; the caufe was then noticed for argument for the next O&ober term, and alfo for January term following, in Albany. But it was then recollected, that fome material fails had been omitted, without which the cafe could not prefent the only . . r . , important queltion in the caufe. This was mentioned to the p]alntiff’s attorney, who would not fay whether he would confent to the amendments or not. The papers from whence they were to be drawn, and the cafe perfected, were in the hands of the plaintiff’s attorney in New-York ; fo that the cafe could not be completed in Albany. No application was made to a judge to correit the amendments. Nor had cafes been delivered.</p> <p>Hopkins now moved to fet afide the original order to ftay proceedings that a cafe might be made, and for leave to enter up judgment.</p> <p>Riker refilled the application, becaufe the cafe was imperfect, and the papers from whence only it could be completed, were in the hands of the plaintiff.</p> <p>Per curiam. 'We mult deny the motion ; becaufe, in the Sr it place, there were crofs verdidts to nearly the fame amounts. Secondly, the cafes were never perfected, and it did not appear to be exclufively the fault of either. Thirdly, the plaintiff’s attorney not having denied the omiflion of certain material faéts, the court would prefume they had appeared on the trial, and ought to be a part of the cafe. Let the cafe be perfected within 30 days.</p> <p>Hopkins prayed cofts, infifting he had been regular.</p>

This was an action on an o}«n policy, 7,500 dollars, on the ship Helen, “ at and from Point Petre, Gruadaloupe, to St. Thomas’s, beginning the adventure at, and from Gruadaloupe, and to continue till her arrival at St. Thomas’s and there safely moored,” at a premium of 17 1-2 per cent. The policy was dated 3d September, 1800.

Ejectment to recover lot Ho. 49, in Tully, in the county of Onondaga. Held: though subsequent in date to that by which the lessors of the plaintiff claimed, but first deposited with the clerk in Albany, should be preferred to that of the lessors, which had, before the passing of the act, been recorded in the Secretary’s office, but was not deposited with the clerk in Albany' till after the deposition with…

This was an action of trespass guare clausum fregit, for entering and cutting wood in five several lots, in De Bruyn’s patent, in the county of Columbia. The plea was, not guilty, with notice that the defendants were tenants in common of the loci in quibus, and were seised in fee of a ninth part thereof. The cause had been first tried before Lewis, Ch. J., at a circuit court in Columbia county, on the 25th June, 1800.

THIS was an aftion of trefpafs quare claufum fregit, for entering and cutting wood in five feveral lots in De Bruyn’s patent in the county of Columbia. The plea was, not guilty, with notice that the defendants were tenants in common of the loci in quibus, and were feized in fee of a ninth part thereof. The caufe had been firft tried before his honour the Chief Juftice, at a Circuit Court in Columbia County, on the 25th June 1800.

ERROR, on the judgment of the supreme court in a suit between zthe same parties, in which the now plaintiff was defendant below, and the now defendants, plaintiffs. The case was,as reported in 1 Caines’s New-York Reports, 381.

Trespass for breaking and entering the plaintiff’s close, called the Hew Theatre, and taking and carrying away three hundred and twenty-five pieces- of silver coin, of the value of one dollar each. Plea not guilty, with an agreement that any of the facts, which now appeared in the case reserved for the opinion of the court, might be given in evidence with the same advantage as if they had been specially pleaded.

Robert Coe, the grandfather of the respondents, by his will empowered his executors, Wil**am Furman and William Howard, to sell and dispose of all his real and personal estate, at such time as should be judged m0Sf advantageous for his children.

This was an action brought by the plaintiffs, who were pilots of the port of Hew-York, to recover five hundred dollars agreed to be paid to them by the defendants for bringing from Barnegat the brig Heptune, which had been there driven on shore.

<p>Venue changed in an action on a promissory note.</p>

<p>If a cause has been duly set down upon the day calendar, and on being call ed, the defendant does not appear, nor his counsel who is then in court, the plaintiff may take an inquest, which the court will not set aside though merits be sworn to, if the absence of the defendant's counsel be not accounted for.</p>

SPENCER moved, on the common affidavit, for judgment as in case of nonsuit for not proceeding to trial. Hoffman resisted the application, because the notice was titled William Hillyer against John P. Ryers, instead of-William Hillyer, ad. setm.

JAMES BISSETT, being seised in fee, of 4 lots in the • city of New-York, on the 10th of May, 1800, mortgaged to ^’eter Onderdonk in fee, three of them, for Si 125. On the 10th of the same month, this mortgage was duly registered, and shortly after fairly assigned to the President, Directors, and Company of the Bank of the United States, for a full consideration. On the 12th of June, 1800, Bissett mortgaged all the four lots to John Taylor, in consideration of @2500.

THE issue in this cause had been joined in January 1801, and notice of trial given in the June following: it however did not come on, in consequence of the defendants’ applying for a commission to obtain testimony from Virginia. On the arrival of the commission in that state, it was found the witness had removed into Kentucky, whither he was followed, and his evidence to the interrogatories taken on a deposition, m.ade before two justices of the peace.

<p>If there be a neglect in not proceeding to trial, defendant must avail himself of it the first opportunity; if he do not, it will be a waiver, and subject him to costs, if he afterwards move for judgment as in case of nonsuit</p>

The plaintiff had, for himself and several other persona with whom he was variously interested, effected eleven policies on distinct parts of the cargo of the same vessel. The -name of the plaintiff was in each insurance, but associated with different parties, according as he was connected. The point in dispute was the same in all. .

D. L. Ogden moved for a rule to vacate the rule for a commission which had issued in this cause in the spring of 1802.

<p>THE plaintiff had, for himself and several other persons with whom he was variously interested, effeñed eleven policíes on distinct parts of the cargo of the same vessel. The r ,1 i • -n- • , . , name ot tile plaintiff wasm each insurance, but associated wbL different parties, according as he was conneéted. The P°*nt dispute was the same in all".</p> <p>Hoffman moved to consolidate .the aélions, orto stay pro- , , . , ceedmgs in ten of the suits till the eleventh was determined; the defendants being willing to pay on the residue, if that should bp determined against them. The objeét of his en- . deavor was, as he said, to save the enormous costs which would otherwise accrue.</p>

<p>A younger iffue tried, no proof that an older might have been heard-</p>

The defendant was attending a reference, under a rule c. f the court of common pleas for Cayuga, in a suit wherein *he was plaintiff, and the present plain- [*116] tiff, defendant, when he (Green) was arrested by Grover, on a writ out of this court.

<p>A younger issue tried, no proof that an older might have been heard.</p>

<p>If the defendant hasjoined in a c.ommiffi- - on, the court will not on the-plaintiff’s application vacate the rule by which it was granted, but will grant one to proceed to trial notwithttanding the commiffion.</p>

<p>The plaintiffs, in July, 1802, had stipulated to try this cause at the next circuit court, and did not do so.</p>

<p>These causes were noticed for trial at the circuit held for Ontario, in June, 1802. The defendants attended with their witnesses, hut the plaintiff not bringing on the causes, the defendants agreed to waive taking advantage of it, provided the plaintiff would consent that the two above suits should abide the decision of a ease made in one by the same plaintiff against George Brown, which turned on the same point, and had, together with another of the same sort, been tried. The plaintiff acceded to the proposition, but at the last term applied to the court to be released from Ms engagement. This the court was pleased to order.</p>

THE fa£ts, as-they.-appeared- by; affidavit, were as follows,: The defendant was: served with-a scire facias driTuesday.'the 3d of May last,, which was returned?scire- feci- on the 10th. ©n the same day the-plaintiff enterada, rule for the defendant, to appear, in four days- and plead in twenty after notice,.

Van Vechten moved to change the venue from New* York to Albany, in an action on the following promissory note: “ On or before the 18th day of February next, foi value received, I promise to pay at the Bank of Albany, to Maus B. Van Banlcen or order, seven hundred and twenty-five dollars.

THIS was an application on a point of praétice in partition. The defendants had not appeared, and as the aét does not specify any mode of compelling them to come in, Woods, on behalf of Riggs, moved that the following rule be made absolute, which the court, after perusal, was pleased to order.

THIS was an appeal from Chancery, in which the facts appeared to be these: James Goslin, jun. John Goslin, and Peter De Groot, made their joint promissory note for £133 is- 2d. payable to the appellants four months after date. Peter De Groot died intestate.

VAN VECTEN moved to change the venue from New-York to Albany, in an aCtion on the following promissory note: “ On or before the 18th day of February next, for value “ Teceived, I promise to pay at the Bank of Albany, to Maus “ R. Van Ranken or order, seven hundred and twenty-five “ dollars. Witness my hand this 9th day of August 1802. “ DERICK TEN BROECK.” .

Woodworth moved for judgment as in case of nonsuit, for not proceeding to trial according to notice, on an affidavit stating that the cause being duly noticed, the defendant issued and served subpoenas on his witnesses, after which the notice was countermanded.

Debt against the administrators of the sheriff of Onondaga for an escape in the lifetime of their'intestate. 'General demurrer to the declaration.

<p>The defendant was indicted in the court below for a forcible entry and detainer, and convicted.</p> <p>A writ of restitution having issued, the proceedings were brought up by certiorari.</p>

ON certiorari to a convitiion for forcible entry and detainer before the justices in Renselaer County.

This was a motion for judgment as in case of nonsuit for not proceeding to trial. The affidavit, on which, it was grounded, stated, that issue was joined in January term, 1802; that the cause was duly noticed for the circuit in the same year; that it was not then tried, and was noticed again for the circuit in May last, when it was not brought on, though it was one of the oldest issues on the calendar, and no countermand of trial had been given.

The defendant had been convicted at the general sessions in Montgomery of extortion in his office, as an attorney of the Court of Common Pleas in that county, and sentenced to pay a fine of 100 dollars. *The cause was brought up on a writ of error.

THIS was an indictment against the defendant, for ex- . ... — „ , , tortion in his office, as an attorney of the court of common pleas in Montgomery county. - A trial had taken place before the justices of the peace at the general sessions, the defendant found- guilty, and sentenced to a fine of onehundred dollars. , ,

<p>This was an action for damages in not delivering a boat alleged to have been purchased by the plaintiff.</p>

The defendant had been convicted at the last circuit, for the county of Columbia, before Lewis, Ch. J. on an indictment for a libel on the President of the United States. The proceedings were originally commenced before the justices in the general sessions, from whence they were removed into this court, and went down to the circuit in the usual manner.

<p>Van Vechten. This is a motion for a rule to refer. The affidavit states that there are long accounts to adjust.</p>

Woods applied to vacate the judgment entered against the casual ejector, and to admit Henry Masterton to be made defendant, on such terms as the court might be pleased to order.

<p>Nine days’ notice is enough to produce in Cayuga papers in Albany, 180 miles distant.</p>

<p>A motion cannot be extended, to objects not specified in the notice,</p>

<p>The sudden indisposition of counsel and attorney, is an excuse for not proceeding to trial, but will not exempt from costs.</p>

<p>All irregularities are waived by a defendant if he appear on trial. On judgment for non-suit nisi, the defendant should make a demand of his costs, with a copy of his rule annexed; and if not paid in 20 days, he may enter his judgment; if he do not so, the plaintiff will be regular in noticing for trial.</p>

THE affidavit that was read stated, that in Qdlober, 180% a motion was made on the part of the defendant for judgment, as in a case of nonsuit; which, no one appearing to oppose, was granted a^of course. The judgment, thus taken, was, in the same term, set aside by the plaintiff, on the usual terms of stipulating to try the next circuit, and paying the costs of not proceeding to trial.

Woodworth, on the part of the defendant, moved to set aside the default, and all subsequent proceedings on two affidavits, made by the defendant and another person, stating that a copias ad respondendum, in this suit, was duly issued and served in the month of November last; that ii February following, the defendant called on the [*156] plaintiff, and ^offered to pay part of the debt if ho could have time for the residue; that this being agreed to, the defendant paid 300…

THIS was an action by the second indorsee, against the maker of a promissory note, dated the eleventh June, 1795, payable one year after date. The facts were briefly these; the note was originally payable to one Thomas Cooper, who indorsed it to Nicholas Hoffman. When it fell due, Smith being unable to take it up, gave Nicholas Hoffman a bill of exchange on William W. Burrows, of Philadelphia, for the amount, which, when paid, was to be in satisfaction.

Van Vechten moved for a rule against the referees in this suit, to show cause why an attachment should not issue against them for not making up their report, or that they be ordered so to do.

<p>VAN VECTEN moved for a rule, against the referees in this suit, to shew cause, why an attachment should not issue against them for not making, up their report, or that they be ordered so to do. The affidavit on which the application was founded set forth that at the meeting of the referees,</p> <p>after the counsel of the¿ plaintiffs’ had opened their case, and stated the nature of their demand, the counsel for the defendant presented a plea to the referees on receipt of which they refused to hear any testimony on the part of the plaintiffs, and neither reported any thing due to them, nor did they make any report in favor of the defendant.</p> <p>Spencer contra, resisted the application and submitted to the court a special statement of the matter in the nature of a report. The fa£ts as there stated were, that after the due assembling of the referees, See. they called on the counsel of the plaintiffs to specify his client’s demand, which, excepting the question of interest, was originally admitted by the defendant’s counsel to amount to about 1400 dollars, but that there was a defence, which would supersede the necessity of proving the exa£t sum claimed, though it might be ascertained by the books and bills before the referees •, that the defence was payment of 1469 dollars in full satisfaction, for proof of which a receipt was offered in evidence and an acknowledgment, under the hand of the defendant’s attorney, admitting certain things which the subscribing witness would have sworn to, if present. That the plaintiffs objected to the admission of tliis testimony, but before the question of admissibility could be argued, the defendant produced the following plea. “ And now at this day, that is to say on the 19th day of “July 1803, before George Hale, Samuel Edmonds and “ Roswell Hotchkis referees herein appointed, it being the “ first day and time of their meeting hereon and upon “ the matters referred to them in the above cause, comes “ the said John, by Erastus Root his counsel, and says that “ the said Joseph, Sec. ought not further to maintain their “ said 'afifcion against him the said John, because, he says, “ that after the 14th day of May last past, from which day, “ day was given to the said referees to make their report “ until the first Monday in August next before the justices “ of the supreme court, &c. at the city-hall of the city of “ Albany aforesaid, the aforesaid afition was continued, to “ wit, on the 28th day of May in the year aforesaid at the “ city of Albany in the county of Albany aforesaid, the “ said John did pay to the said Joseph, Sec. the sum of one</p> <p>« thousand four hundred and sixty nine dollars in full sate tisfaftion, anddischarge of all aridsingularthe matters and « things and the sums of money due to the said plaintiffs and « for the recovery whereof this aforesaid aftion hath been « brought and prosecuted, and which said sum of one thou- « sand four hundred and sixty nine dollars was then and « there accepted, taken and received by the above plaintiffs,</p> <p>« in full satisfaction and discharge of all and singular mat- « ters and things, and of the sums of money dup to them “ and for the recovery whereof this aforesaid adtion hath « been brought and prosecuted, and this, &c. wherefore,</p> <p>« &c. That thereon the referees adjourned the further ** hearing and returned the said plea.</p> <p>This was a report, it was all the referees could do as they could not undertake to decide, whether the plea was good or not, that being matter of law.</p>

This was an action of ejectment, brought for the recovery of lands situated in Scoharie, in a patent [163] granted *to Myndert Schuyler and others,' tried at the Scoharie circuit, on the 30th of May, 1802, before Mr. Justice Thompson.

This was an action of trespass quetre clausum fregit, tried at the May circuit for the county of Saratoga, in the year 1803, before Mr. Justice Kent. The only questions raised for the determination of the court were, 1.

THIS was an action of trespass quare clausum fregit tried at the May circuit for the county of Saratoga in the year 1803, before his honor Mr. Justice Kent. The only . . . .

THIS was an adtion of debt, under the statute of usury, brought in the common pleas for the county of Oneida, to recover the excess of interest paid over and above the legal rate allowed. The fadts were that one Joseph Loomis, borrowed a sum of money from the defendant, and by way of security assigned to him a lease as a pledge, accompanied by a promissory note (intended to operate as a bill of sale,} for a horse and a cow.

<p>In a qui tam notion under the statute of usury brought after lapse of a year, to recover the excess of interest paid, the borrower is, after having discharged the principal, a good witness.</p>

Issue had been joined in this cause, in 1800, and two commissions had been sued out; one had been returned, but a long time having elapsed, the defendant gave notice, for the last term, that he would then move for judgment as in case of nonsuit.

Bhssel moved for judgment as in case of nonsuit, for not proceeding to trial. The affidavit stated, that issue was joined previous to June, 1802.

This was an action of assumpsit, grounded on the following circumstances. The plaintiff was, in 1796, a creditor of the defendant’s brother, John Wardell, as holder of a promissory note of his, for 727 dollars, payable at ninety days after date.

THIS was an action of assumpsit, grounded on the following circumstances. The plaintiff was, in 1796, a creditor of the defendant’s brother, John Wardell, on a promissory note of his, for 727 dollars, payable at ninety days after date.

The defendant has been tried, and found guilty, at the last court of oyer and terminer for Columbia county, on an indictment for obstructing, in the city of Hudson, a public road or highway, leading from Poughkeepsie to Kinder-hook.

The defendant had been tried, and found guilty, at the last court of oyer and terminer for Columbia count/, on an indiftment for obstructing, in the city of Hudson, a public road or highway, leading from Poughkeepsie to Kinder-hook.

On certiorari. The plaintiff was a toll gatherer at one of the gates erected under the act passed the 15th March, 1799, entitled By a clause m the 10th section of the law, it is provided that no gates or turnpikes (except a turnpike on a bridge before mentioned) shall be erected at a distance less than ten miles from the other.

The Attorney-General moved for a rule on James Dole, late sheriff of Rensselaer, to show cause why an information, should not be filed against him for false swearing The motion was founded on two affidavits, and certain records on file in this court, from which it appeared- that Dole, while sheriff of Rensselaer, had in his custody one Isaac Bull, charged in execution at the suit of one Edward Raw-son.

JNerror on certiorari. The plaintiff was a toll gatherer at one of the gates erected under the adt passed the 15th of March, 1799, intitled, r e « An adt to establish a turnpike corporation, for improving “ the state road from the house of John Weaver, in Water “ Vliet to Cherry Valley,” incorporating the first company of the great western turnpike road.

This case was submitted without argument. The facts and question are stated in the opinion of the court, which was delivered by

<p>THIS case was submitted without argument; tbe fails and points are so well, and closely stated in tbe decision, that it would be tautology to do more than give the opinion of the court, which was delivered by Kent, Justice.</p> <p>This is a suit against the defendants as co-partners ift trade, under the firm of Elwyn and Co. on a note to the plantiffs, subscribed by the said Elwyn, by the name of jEhuyn & Co. and dated the 11th December, 1800.</p> <p>On the trial hi's signature to the note was proved, and it was admitted that Samuel Wittaker was a partner in the business with him, and the question that arose was, whether Peter Wittaker, the other defendant, was also a partner.</p> <p>To prove this, the plaintiffs gave in evidence that all the defendants, about the fall of the year 1800, were together in a sloop in the Hudson River, having goods on hoard, and the said Peter being asked whether he was going to keep Store, Replied, yes, we are going to try it. That Peter Wittaker was frequently seen in the store with the other defendants, and was there generally as much as the other defendants, and he was once seen by a witness to draw spirits. That the store was sometimes called Wittaker’s store, sometimes Elwyn’s store, and sometimes Elwyn’s and Wittaker’s. That the said Peter is father to the defendant Samuel, and a very old man, unable to write. That after six months Elwyn became insolvent and the partnership was dissolved, as it was understood from general report. That the said Peter told a witness who owed the co-partnership, that he must pay to him and to no one else. That it was generally understood that Peter was a partner, and that the son Samuel was only a clerk. That the said Peter spoke to a witness of the dissolution of the partnership, as if he had been a partner, and mentioned that he was in. pos sesión of the stock, and that the debts were to be paid to him.</p> <p>• There was no evidence that the defendants carried on trade under the firm of Elwyn & Co.</p> <p>Upon this evidence the defendants moved for a nonsuit.</p> <p>1st. Because the plaintiffs had not proved a partnership between the three defendants.</p> <p>2d. Because the plaintiffs had not proved the existence of such a firm as John Elwyn 8c Co. or that the defendants were partners under that firm.</p> <p>The court over-ruled the motion, and the question now submitted without argument is, whether the judge properly over-ruled that motion.</p>

Dower for lands and tenements in the town of Canaan, in the county of Columbia, claimed by the demandants, in right of the wife, and as the widow of Daniel Hawes. [*186] *The parties agreed to the following statement of facts.

<p>This was a cause in which the only question raised was submitted to the court without argument.</p>

<p>An endorsement in the name of a firm, by a partner, is good, and may be declared on as the endorsement of the firm.</p>

<p>The juftice’s court has no jurifdidUon in a fuit by an adniiniltrator.</p>

' THIS case was submitted without argument. Radcliff justice, now delivered the opinion of the court. , This is an a£tion by the plaintiffs, as indorsees of a promissory note made by Brown, Talbot, and Co. to the defendants for 488 dolls. 17 cts. and indorsed by them to the plaintiffs.

This was an action by the late sheriff of tne county of Montgomery, for fees due on a testatum fieri facias, at the suit of the defendant against one Calvin Young. *In July vacation, 1793, a testatum fieri facias [*193] issued in favor of the defendant against Calvin Young, directed and delivered to the plaintiff, as then sheriff of the county of Montgomery, and endorsed as follows:^ “Levy 7,500 dollars, with interest from the 24th of January, 1796, and 22 dollars and 59…

This was an action on a policy of insurance, in which, on a special verdict, the following facts were found. “ That Le Boy, Bayard and M’Evers, of Hew York, as agents for the plaintiffs, who were merchants in Madeira, by a policy of assurance, dated the 10th of September, 1798, insured 5,414 bushels of Indian corn, 4,000 pipe stoves, 4,000 hogshead stoves, and 2,500 quarter cask stoves, from blew York to Madeira, on board the snow Ann and Mary, Peter Murphy, commander.

THIS was an action on a policy of insurance, in which, on a special verdidt, the following facts were found. u That Le Roy, Bayard and MfEvers, of New-York, as agents for the plaintiffs, who were merchants in Madeira, by a policy of assurance, datéd' the I Oth of September, 1798, insured 5414 bushels of Indian corn, 4000 pipe staves, 4000 hogshead staves, and 2500 quarter cask staves, from New-York to Madeira, on board the snow Ann and Mary, Peter Murphy, commander.

This was an action for a total loss, by perils, of the sea, under a policy of insurance on the ship Hope, valued at 8,000 dollars and dated… Held: condemned asfenot seaworthy. From two protests of the captain, which were read in evidence by consent, it appeared that the vessel soon after xshe left Honduras, experienced some heavy [*218] gales, but not such as to oblige him to strike top-gallant-masts, and hand his top-gallant-sails, though she, at this very time, sprung the…

<p>Practice on removing suits against aliens, into the circuit court of the United States.</p>

A title to the premises in question had been awarded by the commissioners appointed to settle disputes to land, in the county of Onondaga, to the lessor of the plaintiff, who had served declarations on the tenants, with the usual notices annexed.

A TITLE to the premises in question had been awarded to the lessor of the plaintiff by the commissioners appointed to settle disputes to land, in the county of Onondago, and he had served declarations on the tenants, with the usual notices annexed.

<p>A -writ of inquiry, in the possession of the plaintiff not returned, and on ■which no inquisition has been taken, wifi not be set aside; as the plaintiff may sue out a new one.</p>

VAN YECTEN, on behalf of the ■ plaintiff, moved that the writ of inquiry, and proceedings stated in the affidavit on which he applied, should be set aside, and a writ of inquiry issue de novo.

In error. Judgment having been entered in the court of common pleas for the county of Ulster, on a verdict for the now defendants, the present plaintiff brought his writ of error returnable in this court. To this the clerk of the common pleas made his return in the manner said to have been usually practised in that county, by annexing a transcript of the record, and delivered it to the now plaintiff’s attorney, who sent it back with directions to annex the original record.

DECLARATIONS had been served in these causes nearly six years ago. Van Vecten moved to amend by inserting several e mises from different lessors; Metcalf opposed it on the ground that it might vary the * t r , fennnt s dcience»

<p>The defendant error cannot non pross the plaintiff's writ turned,</p>

<p>„ , „ If a defendant move ment of non-suit contrary to court f\viuthe thfcosk'of opposing.</p>

<p>Limits are allowable to persons in execution undo: an attachment fe costs.</p>

<p>Service on an agent of an attorney plaintiff is good. Accidents do not excuse from costs.</p>

<p>.Omits areal. sonata e° ecu-ti”n ynder ,an attachment for costs.</p>

THIS was an action of trespass for false imprisonment. The defendant pleaded not guilty. The cause was tried -on the twenty-fifth of May, one thousand eight hundred and three, before Mr. Justice Kent, at the Rensselaer circuit. The plaintiff called Samuel Hawley, a constable, and proved, by him, that he arrested and imprisoned the plaintiff by order of the defendant.

Assumpsit on a promissory note, by the endorsee against the makers. This cause was tried before Mr. Justice Thompson, at the Albany circuit, in September, Í802. The plaintiffs proved by the testimony of their attorney in the suit, the handwriting of the makers, and, by another witness, that of the endorser, who was also the original payee. Having done this, they there rested their case.

This was an action on a policy of insurance, dated the 28th of April, 1797, on the cargo of the schooner Hymph, on a voyage to L’ Anceveau, in St. Domingo. The declaration was for a total loss by capture, with an averment that the assured had labored for the recovery of the cargo, and expended 4,000 dollars,- of which the defendants’ proportion was 250 dollars, a sum equal to that of their subscription, which was for 250 dollars only.

This was an action on a policy of insurance, in which a motion was now made for a new trial, and the only questions were on the materiality and construction of the following representation: “ Mr. Coulon is a naturalized citizen, of the United States “ since the year 1794.”

This was an action of assumpsit on a policy of insu- , *. 1 ranee upon one-eighth of the ship Mary, valued at 2,875 dollars, on a voyage from Batavia to New-Yo'rk, tried be-f°re his Honor the Chief Justice, at the circuit held in New-York> in November 1800.

This was an action for a conspiracy in burning the plaintiff’s barn, and the various articles it contained. The declaration contained seven counts. The first stated the plaintiff possessed of a barn and close, containing hay, &c. The defendants, knowing the premises, and contriving to injure, &c. the plaintiff, by a certain conspiracy, confederacy, and agreement, did cause the barn, &c. to be set on fire, destroyed and consumed.

This was an action for a conspiracy, in burning the plaintiff’s barn, and the various articles it contained. The declaration contained seven counts. The first stated the plaintiff possessed of a barn and . • i o mi i close, containing hay, &c» The defendants, knowing the . - .. 0 , premises,. and contriving to injure, &c. the plaintiff, by a certajn conspiracy, confederacy, and agreement, did cause the barn, &c. to be set on fire, destroyed and consumed.

THESE were cross suits, brought under the following circumstances: On the first of September, 1793, Robert Lyle engaged with Clason to go to Europe as his agent, and transact his business at a salary of £150 per annum, New-York currency, besides his expences. In consequence of this arrangement, Robert Lyle embarked on board a vessel of Clason’s, called the Hare, destined to Hamburgh, with a of sugar and coffee.

The service of a notice in this cause, was stated in the affidavit to have been on a person in the office of the attorney.

The plaintiffs had, in the last term, recovered a verdict against the defendant, who, on making a case, had obtained the usual certificate to stay proceedings; to set aside which, the plaintiffs gave notice of a motion, but not attending to argue it,

<p>When the notice and all the papers are titled versus instead of ad secfam, it is fatal.</p>

The plaintiff had recovered a verdict against the defendant, on whose part a case had been made, and a copy served on the attorney of the plaintiff. Many inaccuracies being observed in it, a full statement was drawn up on the part of the plaintiff, and served on the defendant’s attorney, who, on receipt of it, objected to the informality of thus making a new case.

<p>When the notice and all the papers are titled versus instead of adsectam, it is fatal.</p>

Emott moved for a second commission in this cause, to re-examine the same witnesses to a particular fact disclosed, and from which, as the answers then stood, it might be supposed a deviation had been made, to which point the former investigation was not directed,

Emmot moved for a second commission in this cause, to re-examine the same witnesses to a particular fact disclosed, and from which, as the answers then stood, it might be supposed, a deviation had been made, to which point the former investigation was not directed.

<p>No interest allowed to run on a judgment against a prisoner in. execution, to impede his discharge under the insolvent law.</p>

This was an action for words spoken of the plaintiff in the discharge of his duty as an overseer of highways in the county of Cayuga.

THIS was an action of assumpsit brought by the plaintiff, as the factor of the defendant, for the amount of his . . ... -oil commissions on selling a quantity ot leather. The cause was tried before his Honor Justice Kent, at the New-York Circuit in March 1801, when the following facts were given in evidence. That in January 1795, the plaintiff sailed, in the char , o, , . o racier ot master and supercargo ot the ship.

Ejectment for lands situated in Johnstown, in the county of Montgomery, tried there at the last circuit, before Mr. Justice Thompson. The lessors of the plaintiff, and the defendant also, derived their titles under the will of Victor Putnam, their grandfather. He had devised in severalty, 100 acres of undivided land to each of his children, and the overplus to he divided among his four sons.

■ These were actions on two policies of insurance, one on the body, the other on the cargo, of the sloop Buby, *on a voyage from Charleston to the Mantanzas, in [*364] Cuba, “ warranted the property of an American citizen.” On the voyage, the vessel was taken and carried into New Providence, where she, on the 9th of December, 1801, was acquitted, but her cargo condemned as lawful prize The abandonments were made the 7th of January, 1802.

By an act of the 3d of April, 1801, (c. 118,) certain persons were incorporated, for the purpose of improving the road-from New Lebannon to Hudson, under the name of “ The President, Directors and Company of the Union Turnpike Road.” By the second section of the act, it is ordered “ that Robert Jenkins and Elisha Williams be, and they are hereby appointed commissioners, to do and perform the several duties hereafter mentioned, that is to say, they shall, on or before the…

Ejectment for lands in West Chester, tried in June, 1801, before the Chief Justice. The case stated that the plaintiff produced and proved: *lst. A paper signed Joseph Marshall, the father of the defendant, dated 6 th September, 1758, by which he acknowledged that he had, about six years before that period, taken possession of the land in question, under Thomas Fitch and John Raymond, and that he then held the same under them as his landlords. 2dly.

<p>EJECTMENT for lands in West-Chester, tried in J e ... 1801, before his honor the Chief-Justice. The case that the plaintiff produced and proved :</p> <p>1st. A paper signed Joseph Marshall, the father of the defendant, dated 6th September, 1758, by which he ac-> hnowledged that he had, about six years before that-penod, taken possession of the land in question, under Thomas Fitch, and John Raymond, and that he then held the same under them as his landlords.</p> <p>2ndly. The counterpart of a lease executed by the said Joseph Marshall, by which the said Thomas Fitch and John Raymond, demised to him the premises, for three years, then next ensuing, at a reserved annual rent of one shilling, of any payments of which, no testimony was given : but it was given in evidence, that some time subsequent to the lease, two suits for forcible entry and detainer, were brought against the said Joseph Marshall, relative to the land in question, and that, on these occasions, Joseph Marshall applied to Thomas Fitch, who defended him therein : that he was turned out of possession in one of those suits, but afterwards restored: that Joseph Marshall died intestate, in 1774, and letters of administration were granted to his son Joseph : that Joseph Marshall, the father, died in a house on the premises, in which he resided with several of his sons, who were of age, and had, for some years past, worked the farm, but whether on their own account or that of their father, did not appear. It was further proved by two witnesses, that they were present at a sale by auction, of the effects of the intestate, when they were told by the administrator and auctioneer, that the defendant had purchased the possession of the land in question. One of the witnesses, who was a neighbour* of the defendant, deposed, that according to his supposition, the defendant held the lands ever since by virtue of the purchase ; and another proved that he was the youngest son of the intestate, and not his heir at law. It was also in evidence, that the defendant had in his possession the lease granted to his father : that Thomas Fitch died 1775, and some of the lessors of the plaintiff are his heirs. On the part of the defendant it was established that he had been in the actual and peaceable possession of the premises from the death of his father to the present time, holding and claiming them as his own, and that no rent had ever been paid by, or demanded from, him.</p> <p>The judge on this evidence, charged the jury, that if they believed the defendant held the land under his father’s title, they ought to find for the plaintiff; on which direction the jury brought in their verdict accordingly.</p> <p>On these facts a motion was made for a new trial.</p>

<p>Onforeignctmtracts, our statute of limitadplea.15 a g00d</p>

THIS was an information filed at the direction of the legislature, by the late attorney-general, against the defondants, for an intrusion on certain lands lying in the ’ J a county of Otsego. ■ . „ I he defendants claimed under letters patent, ot the 6th • September,-1770, for 9200 acres, granted by his Majesty, George the third, of Great Britain, France .and Ireland, King, &c. at a quit rent of two shillings and six pence sterling, for every hundred acres.

This was an action of covenant, and came before the .court on demurrer. • The declaration stated a bond, from one Jonathan Bennington to the defendants, in the penal sum of eight thousand dollars, conditioned for the payment, of four thousand dollars, by instalments of one thousand dollars each, with interest, on the first days of May, 1798, 1799, 1800, and 1801; an assignment of this bond for “ value received,” by an endorsement under the hands and seals .of the defendants,…

THIS was an action of covenant, and came before the , court on demurer.

THIS was an action of ejeUment to recover part of lot No. 37, in Romulus, in the county of Cayuga. On the trial, the plaintiffs deduced a regular title from the original patentee. He alfo gave in evidence, acknowledgments of the defendant’s, confeffing that he had entered without title,, and that he had agreed to purchafe of the leffor of the plaintiff the premifes in queftion, fo foon as the Onondaga commiffioners ihould award the lot in which they were contained, to Low.

• This Was an action on a policy of insurance, dated the 21st May, 1800, to recover the amount of a trunk of merchandise valued at 800 dollars, and the expenses incurred in claiming the property in a foreign court of vice-admiralty. *The cause was tried before Mr. Justice RadclifE at the sittings in November, 1802.

This was an action of ejectment to recover part of lot No. 87, in Rotnolous, in the county of Cayuga. On the trial, the plaintiff deduced a regular title from the original patentee. He also gave in evidence, acknowledgments of the defendant’s confessing that he had entered without title, and that he had agreed to purchase of the lessor of the plaintiff, the premises in question, so soon as the Onondaga commissioners should award the lot in which they were contained, to Low.

<p>Neither an acquittal, nor a reltilution of goods, prejudice an abandonment once duly made. In tution of goods the port into ^^an-ied^eis j¡¿db them' on to their port of Though an'adly^the auSt of underwriters (Mr.Ferrers) does not con-elude the infuin^errmrs^nTt", d°h”°t are bound.</p>

■ THIS was an a&ion by the Sheriff of Albany, on a bond of indemnity, dated 22d April 1798. Held: having lately obtained his difcharge under the infolvent act; that at the fame time, there was fome converfation about giving a bond to try the validity of the arreft, and fecure the Sheriff, in cafe the faid George Driggs ihould ultimately be liable to the above executions that, direétions were given to one Frazer, the attorney in…

This was an action of debt upon a judgment obtained in the supreme court held at Middlebury, in the state of Vermont ; plea, nil debet. A verdict was taken for the plaintiffs for the sum of-dollars, subject to the opinion of the court on the following case: The plaintiffs commenced their suit against the defendant, being a citizen of this state, in the county of Mid-[*461] dlebury, *in the state of Vermont, by attachment.

This was an application for costs for not proceeding to trial. The plaintiff relied on the prevalence of the yellow fever, which after noticing for the circuit, prevented him from obtaining a paper necessary on the trial.

<p>Pradtice on certificate to Itay proceed"</p>

<p>On certiorari from a justice’s court. The declaration, as appeared from the return, stated, that the defendant “ privily, wilfully and maliciously, by certain conduct, damaged the plaintiff to the amount cf twenty-five dollars.” General errors were assigned; and it was principally relied on, that no cause of action was stated in the count so as to show the justice had cognizance of the suit.</p>

<p>A Bule was granted last term, for the defendant to show cause, on the first day of this, why án attachment should not issue against him for a contempt in publishing some paragraphs in the Ulster Gazette, respecting the trial of Harry Croswell, for a libel on the president, then sub judias.</p>

ON certiorari from a juftice’s court. The declaration, as aPPeared from the return, ftated, that the defendant «privh C‘ whfully and maliciouily, by certain condudt, damaged “ the plaintiff to the amount of twenty-five dollars.” Gene- . — , , . ral errors were aifigned ; and it was principally relied on, no caufe adtion was ftated in the count, fo as to fhew the juftice had cognizance of the fuit.

Error on certiorari. The affidavit on which the certiorari was granted, set forth the action to be debt, the [*487] certiorari *itself stated it to be trespass on the case. The defendant had served the plaintiff with a rule to assign errors, before the expiration of which, an application was made to Mr.

<p>On production of a certificate, under the bankrupt law of the United States, granted in a sister state, the court will discharge.</p>

<p>Practice as to entering causes for argument.</p>

<p>Feigned issue. Inquest.</p>

<p>The court will not change the venue on an affidavit saying there is a party spirit in a county against the person applying.</p>

These were two actions on a policy of assurance on the cargo of the schooner Polly, in which verdicts were taken for the plaintiff, subject to the opinion of the court on a case made, with liberty to turn the same into a special verdict.

On error from the mayor’s court, upon a judgment ren dered against the now plaintiffs. *By the special verdict, it appeared the insurance [*493] was effected on the commissions of the defendant on “ lawful goods” consigned to him, shipped in the same vessel, and for the same voyage, as were mentioned in the preceding cases against Shaw, and against ISTeilson and Bunker.

This was an ejectment to recover lands in the county of Herkimer.

<p>New nisi prius record allowed to be filed, and a postea endorsed thereon, according to a judgment of six years antecedent, and execution thereon, . upon affidavits showing the probable loss of the originals.</p>

This was an action brought against the defendant for saying that the plaintiff had been guilty of perjury. To this the defendant had pleaded the general issue, and a justification, setting forth a particular perjury committed in an examination before Thomas Cooper, Esq. one of the masters in chancery.

<p>’Hew nifi prius dorfed thereon", judgment of 6 years antececation there-6 daidts^shewing the probable _ lou of the on¡¡muís.</p>

THIS was an.action brought' againit the defendant, for-. faying, that the plaintiff had been guilty of perjury. To this the defendant had pleaded the general iffiie, and ajuítification, fetting forth a particular perjury committed in an ex-animation before Thomas Cooper, Efquire, .one of the mat- . . ters m chancery.

This was an application, on the part of the plaintiff, for a struck jury, in an action on the case for a libel. The affidavit on which it was founded stated, that the words spoken of the plaintiff, were concerning him in his official character as attorney-general, were false, and that the cause was at issue.

This cause had been noticed by the plaintiffs for argument, at the last term, on a general demurrer filed by the defendants to the declaration; the court had, on the statement of the plaintiffs’ counsel that the demurrer was merely for delay, overruled it, and granted a rule for judgment, the *counsel pledging himself to open [*499] the rule any day on an affidavit of good cause of demurrer,-or of merits.

<p>Where an attorney has been from peculiar circuml! anees, induced to authorife the sheriff to difeharge a prifoncr,on a tingle bail, who afterwards turns out infolvcnt, the court will, if no opposition be made, and the attorney's conduót appear bona tide, allow him, after filing common bail under the ftarutc, to put in fpecial bail, for the. purpofc of obtaining a furrender of JiimiMf from liability. ihe defendant’s l)ody,tofave ".......</p>

THIS was an application for a writ of reftitution. The fa£ts are ftated in the opinion of the court, which was delivered by,

In this and several other actions, under demises from the same lessor, the tenants moved to set aside the rules which had been entered to appear and enter into consent rules, or that judgment go against the casual ejector.

<p>THIS was an application for a rule or certiorari, to be direfced to the juitice of the peace, before whom the caufe was tried, requiring him to certify, whether Ichabod Bracket, the plaintiff before him, was not by him, permitted to be fworn as a witnefs, and teftify in his own caufe.</p>

This was an action of ejectment, brought to recover lands to which the tehant derived title under the state. The declaration, &c. had been duly served on the tenant, and by him delivered to the Attorney-General on the 14th of April last.

'The defendant had, after due notice, obtained a rule in the last term for a commission, in which the plaintiff did not join, to examine a person in Port Republican, and since then had not given any notice of further proceedings under the commission. On these facts,

This was an action on a promissory note by the endorsee against the maker. It appeared on the trial, which took place during the last Albany circuit, that the plaintiff was one of a firm, and had endorsed the note, in [*506] the name of the house, *to himself, and now sued in his individual capacity.

This was an application to make, absolute a rule nisi, obtained last term, to confirm the report of William Pop-ham, Abijah Hammond, and Eichard Hatfield, three persons who, under the fifth section of the act incorporating the Manhattan Company, had been nominated and appointed by his honor Mr. Justice Kent, to estimate the damage done to the pavements of the streets of New York by the Manhattan Company, in laying down the pipes which convey water through the city.

THIS was an application to make abfolute a rule nifi, obtained laft term, to confirm the report of William Popharn, Abijah Hammond and Richard Hatfield, three perfons who, under the fifth fection of the a¿t incorporating the Manhattan Company, had been nominated and appointed by his Honor, Mr. Juftice Kent, to eftimate the damage done to the pavements of the ilreets of New-York by the Manhattan Company, in laying down the pipes which convey water through the city.

Eussel moved for a peremptory mandamus(a) to be directed to the judges of the common pleas for the county of Washington, ordering them to sign a bill of exceptions.

RUSSEL moved for a peremptory mandamus to be direfled to the Judges of the Common Pleas, for the county ° J of Waihington, ordering them to fign a bill of exceptions.

The defendant in this suit being in custody on mesne process, executed a warrant of attorney to confess judgment for the amount of the debt, but it' was not witnessed by any person as his attorney, acting in that capacity for him.

This was a motion to sot aside the default entered in the cause, and all subsequent proceedings, with costs. ■ The affidavits contained a variety of unimportant facts, but the only question worth noticing, which was relied on, was one of practice, whether it was regular to a writ, which was in trespass only, and returned(b) with the names of the defendants endorsed, to enter their appearance in the clerk’s office, after judgment was signed.

<p>If the trustees of an absent debtor’s estate admit there will be a surplus after payment of all demands, the court will, on petition, order a part to be paid to the debtor, or his agent.</p>

<p>Where a fuit has been confolidated, and a commiffion filed out in the confolidated caufr, in which the defendant has joined, the court will allow the evidence taken under it, to he read in th-’ trial of the prin« cipal fuit„</p>

This was an application for leave to file the copias, and enter the defendant’s appearance nunc pro tune, as of the last August term.

<p>debtor's cítate admit there will be a payment of ali cowt’wiil^ori j^dcr Paid t0 the,. debtor, or Ins agent.</p>

The defendant had been surrendered in exoneration of his bail, final judgment obtained against him, and aftei three months, he was, on regular notice to the plaintiff, superseded, for want of being charged in execution in due time. Notwithstanding this, the plaintiff’s attorney sued out an execution against the body of the defendant, upon the judgment on which he had been in custody, and took him upon the ca. sa. thus issued.

A verdict had been obtained, in this cause, against the defendant, on which a case had been made, and a judge’s certificate of probable cause duly granted.

Boyd moved for judgment, as in case of nonsuit, for not going to trial, on an affidavit, that the cause was at issue in September, 1802, noticed for trial in November following, and had not since been noticed. An affidavit contra was read on the part of the plaintiff, stating, that on the 9th of last March a commission issued to London to examine witnesses on his behalf, which had not been returned, but was daily expected.

<p>If judgment be signed for the whole penalty of a bond not due, but forfeited for non-payment of interest, execution will be stayed on bringing in interest and costs, the judgment standing as security.</p>

■The defendant being brought into court, Kent, J., thus delivered their opinion. Held: and to intimidate and influence this court in deciding on the motion pending before it, for a new trial in the cause. A rule was accordingly granted, that the defendant show cause, by the ensuing term, why an attachment should not issue against him for a contempt.

A VERDICT had been obtained, in this caufe, againft the defendant, on which a cafe had been made, and a judge’s certificate of probable caufe duly granted.

<p>A VERDICT had been obtained, in this caufe, againft the defendant, on which a cafe had been made, and a judge’s certificate of probable caufe duly granted.</p>

This was an action on a policy of assurance on the cargo of the Sloop Mary, consisting of flour and corn, valued at 6,720 dollars, of which 3,220 dollars were underwritten by the defendant, at a… Held: when the same surveyors, after investigating her quarters, immediately pronounced her unfit for sea, observing that her starboard quarter alone was sufficient to condemn her.

THIS was an a ¿Hon, brought after March, 1802, on a policy of infurance for four calendar months, commencing the 28th day cf November, 1800, and expiring the 28th of March, 1801, upon the body of tire fchonner Almira. The declaration averred the Iofs to be, by perils of the fea, previous to the termination of the limited period.

This was an action on the case lor disobediencé of orders. *The plaintiffs were owners of a ship called the [*527] Young Eagle, of which they had given the command to the defendant, on a voyage from Hew York to Martinique, from thence to Hew Orleans, and in case nc freight should offer at the latter place for Hew York, then to proceed to the Havanna, and from that port home.

<p>This was an action commenced in the justices’ court of the city of New York, to recover 18 dollars and 50 cents, for wharfage. The suit being removed into the supreme court, a verdict was, by consent, entered for the plaintiffs, subject to the opinion of the court, on a case, which was shortly this:</p> <p>The lands which the corporation of New Yoi’k, under their charter, hold on Manhattan Island, and within the city, extend to low-water mark, and four hundred feet beyond that, in the Bast Eiver. To these are annexed, “ the right, benefit, and advantage of all docks, wharves, cranes, and slips, or small docks within the city, with the wharfage, craneage, and dockage, and all issues, rents, profits and advantages arising, or to arise, or accrue, by, or from, all or any of them.” By an act of the legislature, passed on the 7th of March, 1793, it is declared, that “all the right, title, interest, claim and demand, of the people of this state, of, in, and to all lands, at any time heretofore left for streets or highways, in the city of New York, by any person or persons whomsoever, shall be, and hereby is, vested in the Mayor, Aldermen and Commonalty of the city of New York, and their successors, for the use of streets and highways.”</p> <p>In the various grants by the corporation, of their watei lots on the north-easterly side of the coffee-house slip, they had given in fee, the right of wharfage in front, and in consideration of erecting certain piers, given to their granees for 20 years, the wharfage, &c. of the south-westerly tides of such piers, provided they should not grant away the water-lots on that side, which they reserved to themselves a right to do, in which case the wharfage on the south-westerly side was to cease.</p> <p>The corporation having granted away the whole of the . land to which they were entitled, under their char- . ter, applied, *in April, 1798, to the legislature, [*544] for an act to authorize them to run streets or wharves, of 70 feet width, in front of the water-lots already granted. This, by a law of that month and year, (re-enacted on the 3d of April, 1801,) the legislature was pleased to grant; and by the same act, the proprietors of lots on the front of which the streets or wharves might run, were to fill them up, and make piers, according to the directions of the corporation. On non-compliance, the corporation were to be at liberty so to do, and receive the wharfage to their own use. It was also further provided, that the cor poration might grant to such proprietors, in fee, a common •nterest in such piers, in proportion to the breadth of their •espective lots, under such restrictions, and within such knits, as the mayor, &c. might deem jpst and proper.</p> <p>In pursuance of the authority conferred by this act, the corporation laid out a street, called South-street, in front of the lots they had granted, joining the Bast Biver, and on the 1st day of June, 1801, made a by-law, or ordinance, by which they ordered the respective owners of lots, fronting and bounded on South-street, from the Wall-street slip to the Fly-market slip, to make a pier on the northeast side of Wall-street, and complete it, according to the directions therein given, before the 1st day of November, 1802; on doing which, the corporation would grant the piers to the owners of the said lots, “ reserving in the said grants the exclusive right, in the corporation of this city, of wharfage . and slipage, on the..side of each pier, adjoining a public ■slip, and that the said piers be, in all respects, considered „as public streets or highways, and maintained and kept in .repair by the grantees, their heirs and assigns.”</p> <p>Previous to the passing the act of April, 1798, the corporation had laid out the plan of South»-street, and had granted to the proprietors of lots; bounded by the East River, the vacant water-lots between them and South-street.</p> <p>Among the grants thus made, there was one the 10th of May, 1797, to John Murray, under whom the defendant claimed.</p> <p>By .this grant, Murray, was to make a wharf, or street, of 70 feet in width, along the yvkole front of the lot [*545] granted *to him, (which w,as to be South-street,) and another of at least 25 feet, along the whole west side of the same lot, and of the street, of 70 feet. The same to be and remain public streets; in consideration of upholding, maintaining, and keeping of which in good and sufficient repair, he was to have all wharfage, &c. accruing or arising, by or from the same fronting the East River, or by or from any part thereof.</p> <p>Murray accordingly built the wharves and streets, specified in the grant, and also, under the direction of the corporation, a pier running in front of South-street, into the East River, the south-west sides of which, and of the wharves and streets ho had erected, are bounded by, and in a line with, Wall-street slip, which runs in front df Wall-street, and the wharf of 25 feet, built along the south-west sides of South-street, and the lot granted by the deed of IQth May, 1797, to John Murray. This pier, so erected, was not only opposite to the water-lots mentioned in the indenture of 1797, but ran about five feet more to the south-west, upon lands within the bounds of the city, as expressed in its charter, and opposite to the wharf, covenanted in the grant to be built by Murray, which land, however, was not granted to the corporation by their charter.</p> <p>The pier, from the time of its being made, had been uphcld .by Murray, and no grant of a common interest in it had been made by the mayor, aldermen, and commonalty, agreeable to the act of the legislature already recited.</p> <p>The sole question was whether the defendant, to whom, by mesne assignments, the rights of Murray had been conveyed, was entitled to the wharfage on the southwest side of the pier, which ran in front of the five feet of the city lands. If he was, then a .nonsuit .to be entered.</p>

This was an action on an open policy of assurance, dated the 18th of May, 1799, at a premium of 10 per cent, for the sum of 20,000 dollars, on the cargo of the ship Flora, James Lovett, master, at and from Carthagena, or any other port on the Spanish Main, to Hew York.

THIS was an afición on an open policy of afiurance, datA e * edthe 18fch of May, 1799, at a premium of 10 per cent, for the fum of 20,000 dollars, on the cargo of tire ihip Flora, James Lovett, matter, at and from Carthagena, or any other port on the Spaniih main to New-York.

This cause came before the court on demurrer. It was an action of trespass against the defendant, collector of the customs at the port of New York, for seizing and taking, in April, 1799, the plaintiff’s brig and her cargo, under the act of the 13th June, 1798, (United States Laws,'V. 4, p. 129,) suspending the commercial intercourse between the United States and France, and the dependencies thereof.

<p>THIS caufe came before the court on demurrer. It was an aétion of treflpafs againft the defendant, collector of the cuftoms at the port of New-York, for feizing, and taking in April 1799 the plaintiff’s brig and her cargo, under the a£fc of the 13th June 1798* fufpending the commercial intercourfe between the United States, and France, and the dependencies thereof.</p> <p>The declaration .was in the common form, to which the defendant pleaded, firft the general ifíue, and fecondly actio non “ Becaufe that at the time when the treflpafs a- “ forefaid in the declaration aforefaid mentioned is above “ fuppofed to be committed and long before and afterwards “the faid Joihua Sands was collector of the cuftoms of the “ diftrict of the city of New-York, to wit at the city and “ ward and in the county aforefaid, and the faid Joihua “ further faith that after the firft day of July in the year “ of our Lord one thoufand feven hundred and ninety- “ eight, and before the end of the feflion of congrefs “ next after the tenth day of June in the fame year, “ to wit, on the eleventh day of March in the year of “ our Lord one thoufand feven hundred and ninety-nine “ upon waters navigable from the fea by veflels of ten or “ more tons burthen in the diftrifit of New-York to wit at “ the city and ward and in the county aforefaid John Laiher “ Efquire furveyor of the cuftoms for the diftrict for the “ city of New-York by the command of the faid Joihua (he “ the faid Joihua being then and there colledtor of the cuf- “ toms for the diftrift of the city of New-York as aforefaid) “ did feize to the ufe of the faid United States as forfeited “ the faid brig and the coffee and fugar in the faid declara- “ tion mentioned, the fame coffee and fugar being then and “ there the cargo of the faid brig, for that the faid brig after “ the faid firft day of July and before the end of the feflion “ of congrefs next after the thirteenth day of June in the fame “ year of our Lord one thoufand feven hundred andninety- “ to' eight, wit on the firft day of Septemberone thoufandfevea</p> <p>t£ hundred and ninety-eight, at the city and ward and in the £c county aforefaid being then owned by a perfon refident « within the United States of America, to wit, by one John <( Vaneman a perfon reiiding at Philadelphia, that is to fay, ££ at the city and ward and in the county aforefaid, departed t£ on a voyage from the United States, to wit, from Wil- ££ mington in ' the ftate of North-Carolina that is to fay ££ from the city ward and county aforefaid for the ifland of ££ Saint Thomas in the Weft-Indies and before her return t£ within the United States, to wit on the firft day of Janu- £< ary in the year of our Lord one thoufand feven hundred ££ and ninety-nine, was allowed to proceed from thence, to a ££ port in the Weft-indies under the acknowledged govern- ££ ment of France, to wit, to port Liberty in the ifland of ££ Hifpaniola contrary to the form of the a£t of congrefs of <£ the United States of America entitled an act to fufpend the te commercial intercourfe between the United States and France £t and the dependencies thereof. And the faid Joihua Sands fur- <£ ther faith that afterwards, to wit, on the ninth day of A££pril in the faid year of our Lord one thoufand fe- ££ ven hundred and ninety-nine a libel was filed for and on ££ the behalf of the faid United States in the diftriii court of ££ the faid United States for the New-York diftrict held at ££ the faid city againft the faid brig and her £ud cargo ££ by the attorney of the faid United States for the faid <£ diftrict praying that the faid brig and her cargo might. <£ for the caufe aforefaid and others appearing, be con- ££ demned as forfeited to the ufe of the faid United States, ££ and fuch proceedings were thereupon had in the faid £C court that the faid brig and her faid cargo afterwards, to ££ wit, on the eleventh day of July in the fame year, were ££ by the fentence and decree of the fame court at the city t£ and ward and in the county aforefaid condemned and ad- « judged to be forfeited to die ufe of the faid States, which ££ fentence and decree remained in full force and virtue, un- “ til the fame was afterwards, to wit, on the firft day of £i September in the faid year of our Lord one thoufand fe- <£ ven hundred and ninety-nine, reverfed bv the judgment</p> <p>« and decree of the circuit court of the United States for “ the diftridt of New-York in the eaftern circuit, to wit, at « city and ward aforefaid, and the faid Joihua further « faith that the feizing of the brig aforefaid and her faid <■ cargo for the caufe aforefaid is the fame taking away of « the faid brig coffee and fugar in the declaration above 6< mentioned, and this he is ready” &c.</p> <p>To this plea was fubjoined a notice of giving all the feveral fadts it contains in evidence, and alfo that the judge of the diftridt court did on, &c. “ at a diftridt court of the faid “ States held in and for the faid diftridt at the city and ward and in the county aforefaid certify that the defendec ant had probable caufe for the faid feizure.”</p> <p>The plaintiff joined iffue on the firft plea, and to the fecond put in a general demurrer, in which the defendant joined.</p>

These were two actions on policies of assurance [*574] from *Hew York to Havre de Grace. The first on the freight valued at 2,000 dollars; the other on the ship valued at 7,000 dollars.

This was an action on the case for writing and publishing a libel.

This cause came before the court on three several motions, which the counsel upon the argument agreed [*584] should *be taken, and considered together. The 1st was a motion by the defendant in arrest of judgment. The 2d one by the defendant also, for a new trial on the ground of a discovery of evidence. The 3d by the plaintiff, for leave to amend his declaration, by increasing the damages laid, so as to cover the extent of his demand.

Motion to set aside a fi. fa. issued in this cause under the following circumstances: In July term, 1801, judgment was entered against Murray, for whom the defendant was special bail. In the same term a copáis ad satisfaciendum was returned non est against Murray, and thereupon a copias in debt on the recognizance of bail was issued against Blackford, which was also served and returned on the 8d of July, being the last day of the term.

THESE were two caufes, the one a policy on -the cargo of the {hip Indiana, the other on a fimilar policy on that of the barque Bekkeíkow ; verdicts having been rendered for the plaintiffs. Two queitions were fubmitted without argument'; I ft. Whether the verdifts for the plaintiffs were agreeable to evidence. 2d. Whether they were agreeable to law. The material fails in both cafes were the fame.

These were two causes, the one a policy on the cargo of the ship Indiana, the other on a similar policy on that of the barque Bekkeslcow; verdicts having been rendered for the plaintiffs, two questions were submitted without argument. 1st. Whether the verdicts for the plaintiffs were agreeable to evidence. 2nd. Whether they were agreeable to law. The material facts in both cases were the same.

In error, on a certiorari, from a justice’s court. The declaration was for ten dollars deposited in the hands of the defendant below as a stake on a wager. The evidence at the trial was of 25 dollars due on a note, upon which five had been paid, and the judgment was for fifteen dollars.

Ordered, that in future, the days for non-enumerated motions be Monday and Thursday, in the first week of term, and Friday, in the second week. N. B. This alteration was occasioned by the late act of the legislature fixing the terms of this court, in consequence of which, Thursday is become the quarto die post.[1] The rules of October, 1801, and July, 1802, are therefore, annulled.