Volume 1 — Cowen's New York Reports

Writ op right, in this form: “ The People of the State of New-York, To the Sheriff of the city and county of New-York: Greeting.

Writ of right, in the same form as that in the preceding cause,(a) for lands in the 1 Oth ward of the city of New-York. Return in the same form,(b) except that the proclamations were returned as being made at a church in the 1th ■ward of the city of New-York, being the nearest church to the premises within mentioned.

Blunt, moved for a mandamus to the Judges of the Court ©f Common Pleas of the City and County of New-York, commanding them to vacate a rule, granted at the \ast February term of that Court, setting aside a fieri facias, upon a judgment of the January term preceding, in favour of Blunt Against Greenwood. It appeared, by the affidavits, that the judgment, upon which the fieri facias issued, was perfected the 11 th of January last, which was Saturday.

Pleas, at the City-Hall of the city of New-York) before the Justices of the People of the state of New-York, of the Supreme Court of Judicature of the same People, of the term of May, in the year of our Lord, one thousand eight hundred and twenty.

<p>. Two elizors exectieaa attachment, on motion,expar-</p>

H. B. DavIs, for the defendant, moved to set aside the execution, which was tested the 11 th of August last. The plaintiff died the 14th of the same month, of which the defendant was Informed, for the first time, on the 1 st day of Feh- , , , ruary last.

<p>It is irregular for an infant to declare by attorney; and, that the defendant does not know the infancy to be-material, is aa excuse for delay in moving: to set the declaration aside».</p>

<p>Russell, moved to set aside the judgment, &c. which . . , - , , , , was entered, by confession, on bond and warrant. .</p>

<p>Judgment for penalty of ble by’ instómeals, Exe- and is return-an TxcepUast instalment, before it falls due. More than a year afexecution goes out thsci.W>" polden well; execution may fee continued down on the KpU.</p>

Davis, moved to set aside the declaration, for irregular!-717-7 ty. The capias ad resp. was at the suit of George B. Willard against John Theodore De Missani, who put in special bail the 23d January last, at the suit of George B. Willard, The declaration commenced thus : “ Charles Willard, at whose suit, by the name of George B. Willard, John Theodore De Missani was arrested in this suit,7 &c.

<p>Writ of cereT^wheretfy mistake, a term intervened between the test and return—tho’ this may not be done in foer”rrestCCin personal actlons'</p>

Application was made to make an agreement, to submit to the award of arbitrators, a rule of this Court; and that an attachment issue against Carey Carey, or one of ^ a y . . them, for disobedience thereto.

E. Barnes, moved to set aside the attachment in the first cause, with the recognizance taken therein, and on which the last suit had been commenced, with all subsequent proceedings, for irregularity. The attachment was originally returnable in October term last, at the Academy in the town of Utica.

Isr Assumpsit.—Silliman, moved to set aside a ca, sa. upon which the defendant was arrested on the 30 th of April last.

Oakley, moved to enter satisfaction upon the record i'a this cause. In May term, 1819, the plaintiff obtained a judgment for $546,99, upon which a fi. fa. was issued and delivered to a Deputy Sheriff in ■ June following, who receiTe¿ $310 thereon in cash. In November, 1822, he took the defendant’s negotiable promissory note for the balance, gave h*m a receipt in full of the fi. fa. and returned the execution satisfied.

<p>Where, at* ter a cause is aiftim defendant obtains an order to stay proceedings with a tochangHh! venue, and the</p> <p>motion is refused, he must pay the costs of preparing for trial, up to the time of the erder.</p>

C. P. -Kirkland,- for the defendant, moved to quash a certiorari, to Justice’s Court, because it was founded on the affidavit of the attorney, and not of the party in the Court below.

Application, on behalf of the defendant, for . a re-taxation of costs. They were noticed for taxation and taxed, July 30th, 1822. The notice, with a copy of the bill of costs, was served on the agent of the defendant’s attorney, but did not . , J come to the hands of the attorney in season for him to oppos/i, owing to the distance of his residence. Judgment was signed at the last August term.

P. A. Jay, moved to discharge the defendants on com-1X1011 They were both discharged, under the “ act for giving relief in cases of insolvency(Sess. 36, c. 98,1 R. L. & f , T J v , TT ’ T ’ 460,) on the 25th January, 1819, by the Hon. tl. Garnson, Judge of Putnam County ; and they were now arrested and held to bail on a capias ad. resp. for a debt which was due llef°re the assignment.

C. P. Kirkland, shewed cause, why a mandamus should, n0^ issuei requiring the Judges, &c. of Onondaga County to orc*er an exonereiur entered upon a hail piece, wherein Works had become special bail for Rust, at the suit of Froth^nS^am & Fort, in the Common Pleas of Onondaga, and to set aside the proceedings in a suit against the bail, The bail piece was filed March 1st, 1822 ; an exception endorsed thereon the 9th day of the same month, against the bail, and notice thereof…

CooPer had judgment against Bigalow Searls, for $124,68, whereon the defendants were in prison upon a ca. s(li Bigalow had a verdict for six cents against Cooper-&■ ” ° i Henry, for an assault and battery, on which the plaintiff was to full costs, the cause having been brought here by Habeas Corpus. Both causes were in this Court. Cooper had assigned one half of his judgment to Henry.

Blunt, for the defendant, moved to set aside the default . . and all subsequent proceedings for irregularity. Phis cause was commenced in the Orange Common Pleas, and brought here by Habeas Corpus, returnable the first Monday of AuSusit 1822 ; shortly after which the defendant put in special bail.

On certiorari to a Justice’s Court. It was moved that the Justice amend his return, and answer whether B. W. ... z, , . . , - _ . or either oí them, did or did noty on the trial of the cause in the Court below, before him, testify that one Veeder, on being asked what the horse, in question there, was worth, replied, “ he had nothing to do with it, it was the business of IF,” or in words to that effect; and whether, at the time he rendered judgment in said cause, he did, or…

Phcenix, moved to set aside default, &c. for irregularity. The declaration was filed and served de bene esse, a rule to P^ea<^ entered, and notice thereof given, November 26th, 1822. The 24th December following, special bail, (one real and one nominal) was put in, and notice thereof, with a copy of the plea, served on the plaintiff’s attorney.

Hopkins, for the defendant, moved that all the proceedings on the part of the plaintiff he staid, until security for costs should be given. The plaintiff was a convict in the state . . , , r , r pnson, lor grand larceny, for a term oí years,

<p>Talcott, (Attorney General,) moved for a mandamus to the Sheriff of Albany, requiring him to convey to Sanders Van Rensselaer, certain premises sold by him on a fi.fa. to Abraham A. Lansing, of which sale he had given a certificate, agreeably to the act of the 12i/i of April, 1820. (Sess* 43, ch. 184.)</p>

S. Jones, for the defendant, moved for a rule to enter continuances, by cúr. adv. vult. upon the roll on file, from January term, 1817, to January term, 1818. Also, to enter thereon the bill of exceptions, taken on the trial of the cause, at the ./Vtízti- York sittings, in 1816. The cause was argued' upon this bill, and a case made, at October term, 1817, and judgment rendered for the plaintiffs in January term, 1818. [Vid. 15 John.

<p>Burr, for the defendants, moved to set aside the writs of scire facias and alias scire facias, issued in this cause, with a^ subsequent proceedings, for irregularity, The sci. fa. recited a judgment against Eden ¿y Pelatreau i that Eden is since dead ; and directed the Sheriff to make known to Rachel, the widow of Eden ; Sally Ann, Elizabeth and Rebecca, daughters of the said Rachel, and J0JM Pelatreau, devisees of Eden ; and also to the tertenants of all the lands, &c. in his bailiwick, of which Eden, &c- was seized, &c. This writ was tested May 18th, 1822, returnable the 1st Monday oí August thereafter, and returned thus : “ The within named defendants have nothing in my bailiwick, whereby I can cause them to know, as within I ’ J ’ am commanded, nor are they or either of them found in the game M. M. Noah, Sh’ff.” The writ was filed 5th Au-y gust, 1822. An alias sci. fa. then issued, in the same form, tested August 5th, 1822, returnable the 9 th of the same month, on which the same return was indorsed. The same day a rule to appear and plead was entered, and a default for not appearing taken oh the 14th, upon which a judgment was afterwards perfectéd, in January last, and execution issued, &c. The Under Sheriff swore that he returned the writs nihil, by direction of the plaintiff’s attorney.</p> <p>Burr, objected, 1. That the alias sci.fa. had not lain four clear days in the Sheriff’s office. That this is necessary, he referred to Tidd, 1040, and Forty v. Hermer, (4 T. R. 583.)</p> <p>2. The writ does not command the Sheriff to warn the heirs, but only the devisees and tertenants. In support of this objection, he referred to Bac. Mr. scire facias, C. 5 ; Tidd, 1033 ; 2 Wms. Saund. 8 n. and id. p. 72.(a)</p> <p>3. A return of nihil is not good against tertenants or devisees, but the Sheriff ought to return, either that there are none, or that they have been personally summoned. {Tidd, 1038. 2 Wms. Saund. 72 r.)</p>

<p>e assessment, for enlarging a city^of W y*5 has been made and deposited, published, an affidavit against its connoUatd before the commisreceived^if \t appears that objecting had expired, before the party opposing was, in fact, appriceeding; ^and the matter will be referred back to the ' commissioners.</p>

<p>Motion to prove a will takes preference to other non-enumerated business.</p>

Assumpsit, by Miller against Delamater; for that the former had exchanged his horse with one Schermerhom for his (S’s) watch, which was in Delamater’s possession at his (D’s) house ; and which he, being present at the contract, agreed to keep and deliver to Miller, who said he should call for it on the Saturday following.

Debt, (under Stat. sess. 24, ch. 164, s. 7, 1 R. L. 178, and Sess. 43, ch. 37, s. 1,) for selling whiskey in a quantity less than five gallons, without license, brought by Baker fy Walling against Richardson, a distiller; who on being applied to at his distillery, by three persons severally, at different times, to purchase whiskey, replied, that as he had no license, he could not sell less than five gallons; which he agreed to sell to them, informing them that they might…

Case, by Brainard against Bush, who made maple sugar . , . ° 1 ° in an unenclosed piece of woodland, 60 or 70 rods from one residence, who kept Brainard?s cow, which, with 0. B's cattle, ran at large in the woods, and Bush knew that 0. S’s cattle so ran at large.

Case, in the Court below, by Cutler against Carpenter, for fraud in the sale of a horse. At the sale, the defendant represented the horse good to work, as far as he knew ; whereas he was fickle, and the defendant had said, that the horse had troubled him once, in drawing hay.

Trespass, in the Court below, by Van De Veer against Sianion.

Assumpsit, in the Court below, by Crany against Bayless. Issue was joined July 15th) 1822, and the cause was adjourned, on the plaintiff’s request, to 3 P. M. of the same day, when the defendant requested a further adjournment to the 18th (then) instant, and that the cause should be tried by jury. The Justice granted the adjournment, but refused a veñire. Judgment for the plaintiff. The question was, whether it was too late to demand a venire after the first adjournment.

Washington County, ss. Sarah Sutliff, widow, who was the wife of Richard Sutliff, deceased, by John Crary aforesaid action thereof, against him, &c. (Imparlance to the 1st Monday of January, 1822.) And the said Sarah Sutliff says, that she ought not, by any thing in the plea of the said Philip Forgey, above alleged, to be barred from having her aforesaid dower in this behalf; because she says, that, although she, the said Sarah, was an alien, born in Ireland, within the…

Assumpsit, by Kies against N. S. Tifft, upon the fol-. lowing written instrument: “tor value received, we prom*se Pa7 JUpheus Kies, or bearer, fifty-five dollars and sixty-six cents, by the first day of February next, with interest, “ The condition of the above obligation is such, that if the assignment of a certain bond and mortgage, this day assigned over, by Alpheus Kies, against Edmund Lewis, to Nat^ian Tifft, shall be collected, by the time set forth in said mortgage,…

<p>A writing, jnstiee’sfocket> ■on „the re~ turn of a warrant issued upon oaih, and on the defendant’s request to adjourn, whereby one acknowledges bail for an adjournment, adjournment be for more than 12 Cays, is a valid seen</p> <p>... .. ... . . . . rity, within the 4th section of the 25 dollar act. The statute prescribes no particular form for such a security. An adjournment is a sufficient consideration for a promise. And that appearing upon the face of the contract, takes it out of the statute of frauds. Assumpsit is the proper action upon such an agreement. It is not a reco¡rnizance. Charging the principal, in execution, does not, in such a case, discharge the surety. Otherwise, had it been under the 5th section of the 25 dollar act: or upon a recognizance of bail in a court of record. But eren there, the charging one of two bail, in execution. T'iH not discharge the other. In an action against the surety for an adjournment, under the 4tk section of the 25 dollar act, the original judgment is the measure of damages. The adjournment must be on oath, to bring the security within the 5th section of that act.</p>

Debt upon a bond, from Hopkins to the plaintiff’s intestate, dated April 12th, 1806, alledged in the declaration to have been executed at Canaan, viz. at Ithica, in the county of Tompkins, where the venue was laid.

<p>in whose hands íet^ is60™’as favourable a footing as a bailee for hire, forneííigence, unskiifui "Iniseond^-; b™ving which ^®rs on th® ^ A court, as ^ght^to^deplde ac.cordin= to evidence; and neither ¡?0aT® ¿¡gregtrd the testimony of a witness,</p> <p>upon the sole ground of being satisfied that he is biased in favour Of the party calling him.</p>

Certiorari from a Justice's Court. Assumpsit, by Collins against Dennison. The process was for $25 damages, under the “ act for the recovery of debts to the value of twenty-five dollars.” The declaration claimed damages to $27,10.

Certiorari from a Justice's Court. this case, one objection to the proceedings, in the Court below, was, that the trial was had at a place different from that at which the summons was returnable ; though the process was returned, and the parties appeared at the time and place of return, and accompanied the Justice to the-P^ace °f : and Case v. Van Ness,(a) and Stewart v.. Meigs,(b) were relied upon, in support of the objection,

Certiorari from a Justice's Court» AsSumpsit, by Groat against Gaul, upon a promissory note. The defendant appeared, in person, and pleaded that he was an infant, at the time of giving the note, and the cause was adjourned. At the adjourned day, the defendant’s father offered to appear for . him. His authority being demanded, he admitted that he had no written authority, but said that his son had requested him to attend for him.

Certiorari from a Justice’s Court. In assumpsit, by Cady against Page, for $10 lent. The i ury found a verdict for the plaintiff, for ten dollars, with J 7 T . ■interest, from the 140 day of January, 1817. 1 he Justice computed the interest, amounting to $1,34, and added it to the principal sum, making $11,34, for which he gave judgment; and now this was objected here, as one cause why the judgment should be reversed.

Certiorari from a Justice’s Court. , Assumpsit, by Chase against Townsend. The suit was , , J 7 . , , „ . commenced by summons. 1 ownsend pleaded a former suit in bar, which was then pending. To support this plea, he produced a certificate of the Justice, before whom the first suit was commenced, from which it appeared that the pendency of this suit was pleaded in that and overruled, but upon what evidence did not appear.

<p>Declaration, in debt, for $500, the penalty of an arbitration bond, reciting that differences existed between the defendant and the plaintiffs, respecting the line subdividing lot No. 16, in Saratoga Patent: that the establishment of that line had been referred, by them, to arbitrators, whose * v * ' decision should be final and conclusive, in respect to the ti-tie of the parties : that a certain cedar post, standing on the bank of Hudson’s river, nearly opposite Smith’s tavern, ira Stillwater, should be the point or place from whence the arbitrators should commence their survey : that the original leases, given by Gen. Schuyler, in which the courses and-distances are laid down, should be submitted to them, as evidence / and that parol evidence be excluded: and furbher, that if the award should be, that the defendant had any land of the plaintiffs’ in his possession, he should surrender it, and pay the taxable costs of a suit in ejectment, brought by the plaintiffs, against the defendant. The declaration then sets forth the condition of the bond, which was to abide the award, &c. of and upon the premises. It then sets forth an award, that the line, subdividing lot No. 16, begins at a stake, in the margin of Hudson’s river, 28 chains southerly, dozen along said river, from the division line of lots 16 and 17/ and runs thence westerly, along stakes recently set up, to the land of Isaiah Dean: that the defendant, being in possession of the land belonging to the plaintiffs, the defendant should pay to the plaintiffs the taxable costs referred to in the bond, and surrender the land according -to the stakes. The declaration averred, that the taxable costs amounted to $42,20, which the defendant had refused to pay, although often requested, fyc. whereby, &c. (concluding, as in debt, for.the penalty.)</p>

Ejectment, tried before his honour Mr. Justice Wood- ’ worth, at the Warren Circuit, June 11th, 1821. Verdict f°r the plaintiff, subject to the opinion of the Court tin the following case : A mortgage, for the premises in question, was executed by James £,. Thurman to Nicholas Rosevelt, dated Dec. 29th, . 1812, with a bond of the same date, as collateral security, m the penal sum of $7400, conditioned for the payment of $3700, in 10 years from the date, with interest.

Assumpsit, on a promissory note, made by the defendant, payable to the plaintiff. The consideration was a negro man, purchased by the defendant of the plaintiff, February 1815. In 1800, the plaintiff and Peter Smith owned the negro. He asked permission to work for his freedom; for which they agreed to take £80, payable in 3 years; and that he might earn the money by his labour, and pay it over to one ° J J Harden.

At the Circuit, this cause being regularly called in its place upon the calendar, and the defendant being called to confess lease, &c. made default, whereupon the plaintiff was nonsuited. After the Circuit, the plaintiff’s attorney discovering that the place in the nisi prius record where the de- ° . 1 fendant’s name is usually inserted, before the allegation of entry and ouster, was left blank, Randall, on affidavit that this was a clerical mistake, now moved to amend.

H. Hamilton, made a similar motion in this cause. It was founded on his own affidavit, that the tenant was in possession, under P. fr B. Livingston and others, his landlords, as w^ose agent, duly authorized, he (Mr. H.) demised to Burton, by virtue whereof he is in possession of the locus in quo.

<p>The land-b°edpermitted' to defend ament/untiHhe tenant first neglect or refuse to appear, ■which should the ^affidavit for the motion,</p>

Writ op right. On the first day of this term, Gerard, f°r &e tenant, appeared and pleaded in abatement of the count, a non-joinder of certain persons on the part of the de- . f J r 1 manü£ut-

<p>In a writ of right, on an alias summons returned served, the demandant appears on the first day of term. His appearance being entered, the tenant hag till the quarto die port to appear. He then appears ; the demandant counts ; and the tenant has a special imparlance to the next term.</p>

Ejectment, for lot No. 23, in L. and Zds Patent, Scho-Jiarie. 1820, Edwards, the defendant, brought ejectment, on his own demise, for the same lot, against Chris-Ban ‘Brown, recovered judgment, with $129,86 costs, which remain unpaid, and had a writ of possession executed, by virtue whereof he is in possession.

Ejectment. The lessor claimed title to one fifth of certain premises, as one of the heirs of his father, John Clark, on the ground that certain conveyances and devises from his father to the defendant were void. A. 8/ W. Clark, two of the lessors, brothers, had before brought ejectment, as heirs of their father, against the defendant, for two fifths of the same premises, in which suit the same ground was taken, but a verdict was found for the defendant.

Sacia, moved to set aside a writ of capias ad respondendum, because it was returnable the first day of the pres- ’ _ J J . . entterm, at the Capitol in the city of Albany. He insisted that the writ was void, and could not be amended. (a)

J. Porter, moved for a mandamus to the Judges of the Court of Common Pleas of Cayuga County, requiring them to proceed and give judgment for the plaintiff, in a cause brought there by Bostwick against Young.

<p>Proceedings by habeas corpus, under the statute, (sess. 36, ch. 51, 1 R. L. 354.) Affidavit up-</p> <p>on which to procure allowance of tire writ.</p> <p>Mittimus or execution on conviction, or judgment, by special session, in a case of petit larceny.</p> <p>Whether ^ Stated" ex' pressly, that committed withm the der to give the ™®dmttfrapS^uQuet-e. And vid-. The People- v. Miller, 14 John. 371, that this is necessary in the record of conviction.</p> <p>Writ of h-i-teas corpus ad subpaendum, returnable be-ant the 5th sth1 article of *®n constitu-</p> <p>Indorsement and al owancQ thereon,</p> <p>the sheriff by his deputy,</p> <p>. remitted to the supreme court.</p> <p>■ And the mat- ° uedthere ar"</p> <p>Where a special session found s guilty °yPe^,Va^I fenced him to f^'po^ays, and ™posed a fine of 15 dollars; and also should be paid, Imprisoned for tlie term of 4 months; held, that the sen^ce ^asfd but void for ^ThatTspecial session, under the act, (ses. 36, c. 104, impt'ison move than 30 days, f°r non-payment°f afine,</p> <p>they may sentence to a term ment’mTexmonths' and then to 30 mmt^hedde" for non-payQuere.</p> <p>Their power to imprison, for not paying up“n’thePstaU ute, (sm. 36, ¿j 24s.j 1</p>

The declaration was in debt on judgment. The plea». jo r nul tiel record and payment* To the plea of nul tiel record? plaintiff replied, “ there is such a record&rc. but omitted the usual conclusion, et hoc paratus est verificare per recordam, fyc. To the plea of payment, there was a replica*lon taking issue on the payment.

In this case, an inquest was taken, and the demurrer to ^ie replication was served, under the same circumstances as in the last. The only difference was in the nature of the pleadings. The declaration was in assumpsit, including the usual money counts. Plea : 1. Non assumpsit ; 2. Non assumpsit infra sex annos ; 3. Non accrevit infra sex annos.

<p>Ejectment, for lot Jio. 50, in Meniz, in Cayuga county. This lot was patented to Callaghan, a soldier, who died previous to March 27th, 1783. The cause had been once noticed for trial. The lessors claim title under the soldier’s sister and heir at law. In their chain of title, there is a deed from the Sheriff of Cayuga, to S. Dill, who purchased the lot at Sheriff’s sale, as the agent of Harris, one of the lessors, and a deed from Dill to Harris. When this latter deed was executed, some, or one of the defendants, were in possession, claiming title to the lot; though such title has never been placed on record. The defendants were bona fide possessors, at the time of suit brought, claiming under purchases, or contracts for purchase. DilPs name was not. inserted as one of the lessors. And</p>

<p>Trespass quare clausum fregit, and for catting down an<$ destroying the trees, underwood, &c. of the plaintiff. The declaration contained two counts : the first under the statute. (1 R. L. 525, s. 29.) The second was general. The cause was commenced in the Common Fleas, and removed into this Court by hab. corp. On trial at the Circuit, the Verdict was general for the plaintiff, with 11 dollars damages. The Circuit Judge certified that the trespass was wilful and malicious, and that the evidence applied to the first count.</p> <p>Hastings, moved for treble damages and treble costs ; or, if the Court should think these" not allowable, then he asked for single costs under the certificate.</p>

T. J. Oakley, for the defendant, moved for a rule staying the plaintiff perpetually from issuing a ca. sa. in this cause. A verdict in assumpsit had been given for the plaintiff, in 1819. The rule for judgment was not entered till May term, 1833, when the judgment was perfected, and a Jifa. issued thereon.

Ejectment. Mr. Theodore Spencer, the attorney for the tenant, stated, in his affidavit, that the notice subjoined to the declaration in this cause, required De Hart to appear at the Capitol, in the city of Albany, on the first Monday ofi January, last past; and, by rule of this Court, to cause himself to be made defendant, in the place of John Stiles.

On certiorari from a Justice’s Court. The writ was served on Mr. Spencer, late a Justice of Monroe county, whe died after the return day, without having made, any return. J

Assumpsit, and judgment for the plaintiff. The damages' being less than $250, Mr. Breese, the Clerk, refused to tax the following items in the plaintiff^ bill of costs : These were taxed gross, at §2j25,(c) K This was taxed at 25 cents in gross.(d) 1. Dr. N. P. record, fol. 4, and dr. continuances on the same, fol. 11, at 125 cents,(a) 2. Engrossing same, with pleadings, fol. 24, at 6 cents,(b) '3. Dr. judgment record, fol. 4, at 125 cents, 4.

Assumpsit : 1. On judgments in the Court of Common Pleas in Crawford county, Pennsylvania ; 2. The money counts. A demurrer to the counts upon the judgments had been determined in favour of the defendants, in- January . . _ - . mi _ . __ 7. « term, 1831. 1 he venue was laid in Marnson, and issue oí non assumJs^rim^ joined on the money counts, in October term, 1820. These were shown to he mere form, however, and whole cause of action had been disposed of by the demurrer.

Trespass quart clausum fregit, and for cutting the plaintiff’s trees, contrary to the form of the statute, &c. On the trial the plaintiff claimed, and the Judge charged the jury to find the value of the wood cut. According to the minutes of the Circuit Clerk, the jury found for the plaintiff 75 dollars damages, and 6 cents costs, without saying single damages or single value. The postea was produced, which was drawn up by the attorney for the single value, fyc.

Trespass quart clausum fregit, and for cutting the plain-tiff’s wood. The declaration did not say contra formam staticti, fyc. A verdict having been found for the plaintiff,

J. Platt, for JVakeman, moved for judgment as in case of Sion-suit, for not going to trial pursuant to a stipulation, &c. Wakeman and two other defendants had appeared separately and pleaded separately.

N. P. Talmadge, moved to enter satisfaction on the judgment record in this Court, on the ground that the plaintiff had sued, and recovered, and perfected a judgment thereon, in the Seneca Common Pleas.

<p>The defendant, North, had obtained the discharge of his person, under the act to abolish imprisonment for debt in certain cases, (sess. 42, ch. 101.) The discharge was dated Sept. 17, 1819. He was afterwards arrested upon a bailable capias, for a debt due before the assignment. He suggested to the Sheriff that he had been discharged, notwitstanding which a bail bond was exacted and taken ; and for want of special bail, a suit had been commenced thereon, the capias wherein was returnable the present term. Both the plaintiff and his attorney were, in fact, ignorant of the discharge, and so continued till notice of the motion. On these facts,</p>

Declaration, in dower, unde nihil habet, for “ one-third part of 7 messuages, 7 barns, 7 stables, 7 gardens, 7 orchards, 100 acres of land, 100 acres of arable land, 100 acres of meadow land, 100 acres of pasture land, 100 acres of wood land, and 100 acres of land covered with water, with the appurtenances, in the town of Gates, in the county of Monroe.” General imparlance from January to May term last, when the following pleas were interposed : “ the said Silas Smith, by…

These were separate actions of debt, on the same administration bond. The bond was given.by Ml Donald f Dobbs, ■as sureties of Sarah Haviland, administratrix, &c. of John Haviland, deceased, pursuant to the act.

Capias ad resp. with ac etiam, “ for $500 upon promises,” against Carrell Peck, and Potter D. Peck, the two last being administrator and administratrix of W. Lovell, deceased. The appearance■ of Carrell, Potter, and D. Peck, was endorsed upon the capias, and the plaintiff’s dex A Glared against Carrell alone.

Assault and battery. T. E. Clark, on the usual affi- • davit, moved to change the venue from Schenectady to Onei- ¿ where the defendant swore that the cause of action ’ arose, and he had 20 witnesses residing,

A motion to set aside proceedings having been taken by ■default, the first day of this term, it was moved at a subsequent day to open it; and the counsel who took the default * being in Court, this was allowed of course, and the motion was heard without any excuse for not opposing.

<p>Judgment and ca. sa. on bond and warrant of attorney, upon which the defendant was imprisoned. The plaintiff, holding a note of $1372,78, against the defendant, indorsed by one Ash, on the 5th June, 1820, took of the defendant the bond and warrant, with a penalty, conditioned to pay that sum. At the same time, supposing the defendant and the indorser to be insolvent, the defendant representing this to be the fact, and expressing an intention to get himself discharged under the insolvent act, the following agreement was executed by the parties:</p> <p>“ Agreement, made this 5th day of June, 1820, between William Inman aiid Daniel S. Griswold, witnesseth :—■ Whereas the said William Inman holds a note, drawn by the said Daniel S. Griswold, payable to and endorsed by Thomas Ash, dated October 10th, 1818, at 9 months after date, for the sum of $1372,78, upon which and for which the said Daniel S. Griswold has given to the said William Inman a bond and warrant of attorney, to confess a judgment, on the 1st day of July, 1821 ; and whereas the said William Inman and Daniel S. Griswold, have agreed to accommodate the payment of the said sum, it is, therefore, agreed, that if the said Daniel S. Griswold shall, on or before the said 1st day of July, 1821, pay to the said William Inman the sum of $250, then the said bond and judgment to be void, and the said Daniel S. Griswold to be discharged from all liability on the said note and bond. As witness our hands and seals the day and year above written.</p> <p>Daniel S. Griswold, (l. s.)</p> <p>Wm. Inman, (l. s.)</p> <p>Signed, sealed and delivered, in) the presence of .5</p> <p> Thomas Addis Emmet, Jr.” </p> <p>"The defendant having failed to pay the sum originally due, the plaintiff entered up his judgment for the penalty; and the defendant having, by the death of a relative, inherited sufficient to pay his debts, the ca. sa. was issued, with a direction to the Sheriff, thereon, to receive the whole amount of the condition, with interest. After the defendant was committed, he tendered to Messrs. Blaichford Clizbe, the attorneys for the plaintiff, the sum of $250, mentioned in the agreement, with interest upon the same, with all costs. This sum they refused to accept. The ca. sa. was made returnab le, by mistake, the first day of this term, at the Capitol in the city of Albany, instead of the Academy at the town of Utica, fyc. for which irregularity the Sheriff had discharged the defendant from imprisonment; and debt had been brought for the escape.</p>

S. Beardsley, moved to amend the capias ad responden- - . 1 1 dum, issued in this cause. The test was the last day of January term, 1823; but, by mistake, it was in the name of John Savage, Ch. Justice, who was not appointed till after that term. The motion was to substitute the name of Ambrose Spencer, Ch. Justice, who was then in office.

A rule had been granted, at the last term, requiring the Supervisors of the county of Erie, to shew cause, by the ^rst day of the present term, why a mandamus should not issue, commanding them to audit and allow the account of Mr. Bennnet, as a county charge, for services rendered by him, as a Justice, under the first section of the act, (sess. . x 44, clu 220, s. 1) m and about the examination and removal of paupers, from the town of Buffalo to another town in this state,…

S. Beardsley, moved for a mandamus to the Supervisors of Erie, commanding them to audit and allow Mr. Dozo’s account and disbursements, for medical attendance; upon Ellis and Davis, two paupers, haying no residence in this -it , c state. 1 hese expenses were incurred under an order ot a single Justice, made pursuant to the 25th section of the act for the relief and settlement of the poor, (1 R. L. 287-8.) And the objection was, that no previous adjudication by two justices…

<p>H. R. Storrs, moved the set off in this cause, which was considered at the last term, (ante, 56, S. C. which see.)</p> <p>Bigalow and Searls had since been discharged from prison under the insolvent act.</p> <p>The judgment in favour of Bigalow was for costs only, and on the 24th June last (the day of serving notice of this mo-_ \ j s tion) he assigned the same to his attorney, to secure to him ^le costs> which are yet due. Notice of this assignment, under the hand of the attorney, and that they should not settle with Bigalow, or make any payment to him of the cos*s’ was the same day served on Cooper and Henry.</p>

In August term, 1821, there was a judgment for the plaintiff in this cause, on which a balance of $217,91 remained due, on the llth oí July, 1823: and Jewell was arrested upon , f . . . ■ a ca. sa. thereon, and still remains in gaol. An action oí assumPsit? in favour of the defendants, against the plaintiff, was tried the said llth of July, wherein the said balance was set off, and passed to the jury, who found a verdict for the defendants in this cause.

Motion, for a commission, in behalf of the defendant, who made affidavit, “ that R. B. is a material witness for this deponent, in the above entitled cause, as he is advised hy counsel, and verily believes to be true : and that he cannotsafely proceed to the trial tkreof, without the testimony of the said R. £.” and that the witness resided out of the state, and where.

<p>The defendant endorsed his appearance on the capias ad resp. in this cause, on Sunday, and this service was admitted to be void, within the case of Taylor v. Phillips, (3 Past, 155) and Field v. Park, (20 John. 140.) It was, therefore, moved to set aside the return, and subsequent proceedings'» p>u(. Qjjs was opposed, because the defendant had retained am attorney, who had given a general notice of retainer in the cause- It was insisted, that this was an appearance,- and, therefore, a waiver of the irregularity. Rob & Neilsoruv* Moffat t, (3 John. Rep. 257) and Van Vechten v. Paddock,-(12 John. 178) were cited for the defendant. motion was founded, without shewing any excuse why the party, himself, had not made it¿ and this was objected</p>

The Justice had made a return, but had affixed no seal to it. The defendant’s attorney entered the usual rule to assign errors, and proceeded to take a default for not complying with it; and, upon this ground, it was now moved to set aside the default as irregular,

In assumpsit, the plea was the general issue, which con-eluded thus : “ And of this he puts himself upon the conntry, &c.” omitting to add, “ and the said plaintiff likewise.” And the plaintiff, without adding a similiter, proceeded and took an inquest by default ¡ which, for that cause, it was now moved to set aside,

Attachment. The original suit (Stocking v. M’Crumy was for less than 250 dollars in assumpsit; and, in taxing the costs upon the attachment, for not bringing in the defendant’s , j *3oaJrJ Powers, first Judge of Cayuga, allowed only common pleas costs.

Feigned issue, ordered by the Chancellor to try the question of adultery, pursuant to the 2d section of the act Concerning divorces, (2 R. L. 197.) A verdict, at the last Herkimer Circuit, having been found for the defendant,, a case had been made for a new trial, and the cause placed on the calendar of the present term. And now,

Dickenson, being the owner of both the judgments- is these causes, the first by assignment to him, from the plaintiff, in his life time, he, in August, 1821, and under executions then lately issued, caused to be sold, and himself became the purchaser, at Sheriff’s sale, of a lot in Seneca county, at $1000.

<p>Motion to set aside the verdict, for irregularity in the -conduct of the jury.</p> <p>After they bad retired, and remained from 6 P. M. to 3 A. M. without being able to agree on their verdict, two of the jurors eluded the care of the constable, left the jury room, and one of them remained at a neighboring tavern during the night: the other went to his own house, which was near by, ate his supper there, and staid all night. Both jurors returned. however, and the whole were together, and went into ■Court the next morning. They informed the Court that they had not agreed, stated the point to the Court wherein they differed, took their advice, retired and found a verdict for the plaintiff. No improper communication with the jury appeared ; and no probability that their absence had produced any effect upon their minds in making up their verdict.</p>

Ejectment. Motion to set aside the declaration, default and all subsequent proceedings, on the ground of irregularity in serving the declaration and notice from the casual ejector, upon the tenant. The declaration and notice were printed: and when they were delivered to the tenant, he was informed, merely, that they were a declaration in ejectment, and they were not farther read or explained.

The plaintiffs having declared, do bene esse, and special bail being due, one of the defendants had omitted to file bail. A plea was offered to the plaintiffs’ attorney, which he refused to receive for that reason; but, a few days after, he filed common bail, and entered the defendants’ default. On motion to set aside the default for this reason, and on an affidavit of merits,

In assumpsit, the defendant had been arrested without action, under the “ act to abolish imprisonment for debt in . an7 previous order, and had given bail to the Sheriff; and m°ti°n was to discharge him on common hail, because he. had obtained bis discharge from the debt claimed in this certain cases,” passed April 7,1819.

<p>Fees for serving scire fa cias on several defendants: 50 cents for serving writ, on each defendant, beside mileage allowed for each ; also, return, 12 l-2cents,and2 summoners for each tenant, at 50 cents each summoner.</p> <p>Summons in writing, disaflowed.</p>

Fash sued Speidell by summons, returnable March 10th, 1823. The cause was ad-^0urne<^’ 011 ^le defendant’s request, to the 13th March; on which day the plaintiff’s agent making oath that a material witness was sick, the Justice adjourned to the 17th of March, being 7 days exclusive of the 1st, after the return of the process. This was on the ground that the 16th was Sunday \ and holden well.

After issue joined in mssunvpsit on account, by Barnes against Gale, the defendant r \ , ,, t , , -j said he would go on and try the cause, and the J ustice told the plaintiff to go on with his account. The plaintiff then asked the defendant if he would admit any of his account ? and the defendant did admit one or two of the charges, and objected to the others.

Babcock sued Lamí- and Doty in trespass qüare clausum freserunt. The defend- , . _ . . 69 _ ants pleaded the general issue, which was tried by jury. The P^aintifF proved that the defendants broke and entered his fields, threw down his fences^ and passed over his crops with >vaggons. The defendants offered to prove that the locus in quo was a publick highway.

The, suit below was between Failis, plaintiff, and Roberts, defendant. The jury,*n ma^ng UP their verdict, each put down a sum for which they would find for the plaintiff, added thésé together, divided the aggregate by six, the number of jurors, and rendered the' quotient as their verdict, on which judgment was given, The plaintiffs here assigned this matter as error in fact ; and the defendant answered in nutto est erratums

In trover, by Ingalls against Lord, in the Court below, it appeared that Lord, as constable, and under an execution against Ingalls, levied up- . ° ° 1 on and sold a promissory note against one Brown, on which was due to Ingalls about $57. The note was received from Ingalls by the defendant, in exchange for IngalPs watch and some clothes, which the defendant had before levied on under qle same execution. Verdict for the plaintiff, for $5-., x 3 v

In debt, by Reynolds against Cornell, in the Court below, it appeared that Reynolds had sued one Henry Locy, by warrant, before Joseph Stewart, a Justice, in 1820 ; that Cornell became bail for Locy, for an adjournment, pursuant to the 4th section of the “ act for the recovery of debts to the value of 25 dollars.” (Vid. 1 R. L. 389.) On the ádjourned day, the parties appearéd, and judgment was given for the plaintiff for $23,08, on a verdict.

Trespass, by Miller against Ferguson, for cutting a bee tree, standing on the land c 7 • mi i ° of one Jenkins. The plaintiff had discovered the tree, and marked it with the initials of his name ; and a witness swore that Jenkins gave him liberty to cut the tree, though Jenkins remembered nothing of this on the trial.

On certiorari to a Justice’s Court. In trespass de bonis asportatis, in the Court below, by Holmes against Stoddard <£• Geege, the defendants severed in their pleas; G. pleading the general issue, and S. the general issue and a justification under an execution, which he had issued as a Justice against the goods and chattels of the plaintiff.

On certiorari to a Justice’s Court. In assumpsit, by Pu^ver against Row, in the Court below, it appeared that Puher, as a non-resident plaintiff, within the 25 dollar act, section .4, (1 R. L. 388-9,) had sued one Louks, who obtained an adjournment upon the defendant, Roto, signing the fol- . f r lowing instrument as secunty : “ DUTCHESS COUNTY, SS. Philip Louks ) f a5°* ( John W. Puher. ) Action by warrant, under $25 act,. The defendant applies for an adjournment.

In assumpsit, by Tuttíé against Eastman, in the Court below, for depasturing and keeping on hay thé defendant’s cattle, on land in possession the plaintiff, at the request of the defendant. Thé depasturing, keeping and request were proved as laid ; and the defendant then offered to prove that the title of the land, on w hich the plaintiff lived and performed the services, was, at the time, *n *he defendant.

<p>A note, payable in specific articles, and absolute on the face of if, cannot be defeated by brat evidence, shewing that it was given to be void upon the happening of a contingency : e.g On its appearing that the debt for which if be^/inTaWo* tied by one of his Applying for his dlV charge under</p> <p>the insolvent act. Though, it seem, that an agreement between the parties, made, subsequent to its ex», ecution, that it should be void on such a contingency, would be valid, as a waiver of the performance, on the happening of the contingency.</p> <p>Written agreements, of any kind, cannot be contradicted, varied or materially affected? by oral testimony;</p> <p>Yet simple contracts, in writing, may be avoided by parol evidence of fraud, or the want or failure of consideration, or by the waiver of performance ; and they may be varied by a parol enlargement of the time of performance.</p> <p>A debt discharged under the insolvent act, is a good consideration for a new promise?</p>

On certiorari to a Justice’s Court. Debt, in the Court below, by Baker against Trowbridge, as collector at Gate No. 1 of Croton Turnpike, in Westchester county, for the penaltjr oí: 20 dollars, for taking toll of the plaintiff after the gate had been ordered open, in pursuance of the 3d section of the act. concerning turnpike roads, (2 R. L. 224.) Issue was joined, and the cause tried by a jury.

Osr certiorari to a Justice’s Court. Hyatt &r Lambert sued Sarles, in the Court below. The plaintiffs declared in assumpsit—the defendant pleaded the general issue, and gave notice of the set off, which he afterwards proved upon the trial, at which the plaintiffs did not attempt to prove any demand.

On certiorari to a Justice’s Court. Brown sued Richard- . , ^ , , , . . , ,, , son in the Court below, by warrant, issued against the tiefendand, a non-resident of the county where the suit was 7 J brought.

Oil certiorari to a Justice’s Court. Debt, in the Couix below, on a Justice’s judgment, for $26,06, by Cunningham against Tullock.

0:j certiorari to the Marine Court of the city of New York. The defendant in error, on the 3 lsi Oct. 1820, hired of the plaintiff in error, a house in the city of New-York, for <3 months, from the lsi day of Nov. following, for which he agreed to pay $150 ; $50 in advance—the residue to be secured by a bill of sale of his furniture, in nature of a mortgage. He mentioned at the time, that he did not want possession under a fortnight.

On certiorari to a Justice’s Court. In the Court below, Winnegar and Cook declared against Roe, in debt for $12,50, for that he, being elected to the office of Overseer of highways, in 1822, had not, agreeably to the statute, filed his acceptance in the Town Clerk’s office. Plea, not guilty.

On certiorari to a Justice’s Court. One of the errors relied upon was, that in the Court below, after the jury had retired, the Justice, at their request, went into the room with them, without the consent of the parties ; that the jurors put certain questions to him, which he did not answer, but retired. Soon after, the jurors sent the Constable for a certain paper, which the Justice sent to them. But his retura did not state what paper it was.

<p>The office of overseers oi the poor of a certain p'urposes, a corpora-And the ea- and be suecUs* yf necessity, ’ that1'office* in order to exeticidar ° trust theai^ in Accordingly, tliey are subtion for debts their aCpredecessors,as over-Where p, th^ooT'ohhe town of C, in crd»Ua7m“ seer, on B, in favor of G, for tive poor of1the town of C, ■which was accepted and IS! that Bt and M, over-poor of the same town, in 1822, were hable, as a eorposumpsh m for the debt thus contiacted by</p>

Assumpsit, upon a policy of insurance. The ship Hercides, owned by the plaintiffs, was insured by the defendants, on a voyage from .New-York to Liverpool, and at and from thence to New-York, to the amount of $10,000, by policy in the usual form, dated Octoher 19th, 1820. In coming down the river, after leaving the dock át Liverpool, on her return voyage, she got aground, and was obliged to put back, unload her cargo, and repair.

<p>fn ejectment, the defence of 20 years possession, in order to countervail a legal title, must be supported by 20 years actual occupancy, or a substantial enclosure of the premises by the defendant, or by him and those h^dmives16™ tie.</p> <p>tiot ofCpart of the premises, oTtitle1 to1'the whole for that constitute a yond the portion actually imAnd'ed"even w!>ere such</p> <p>possession is Jape,-title) a ^ large (e. g. 783 a-is improved, ^t|' f ).iaim of title to the will not constltute an adverse possession, beyond Drovement.lm* "Where Á owned a patent, and B Adjoin* ing; and, in the location</p> <p>under their respective patents, A, by a mistake in locating, curtailed his patent, on the side of B, in consequence of which B, though he located, at first, on the true line, afterwards ’claimed up to A’s location, and deeded a supposed .gore between the patents ; held, that A was not concluded in an action of ejectment, but might recover against one claiming a part of the supposed gore under the title of B.</p> <p>And, though A actually give conveyances of his land, according to such mistaken location, he will not be concluded in relation to any persons other than those to whom he has thus conveyed.</p> <p>And where one takes a deed, purporting to describe a tract of land ; but which, by a mistake in the description, covers nothing; and the grantee, by occupation, takes possession. of a part, and plairns title to the whole of the supposed tract, under the deed, this is an adverse possession only as to the part actually improved.</p> <p>And, accordingly, in Jackson v. Loyd, (M.8. Oct. Term, 1820) where the defendant had a deed for lot 4, but topk possession of lot 5, adjoining, believing it to be lot 4, and claiming it as such, and improving a part; held, that his adverse possession did not extend beyond his actual improvements.</p> <p>The doctrine of the constructive adverse possession of lands, by the cultivation of part, accompanied by a claim of the whole, under a deed, does not apply to large tracts of land,not purchased for the purpose of actual cultivation.</p> <p>This doctrine is, in general, applicable to a single farm or lot of land, only, purchased for the purpose of actual cultivation.</p> <p>The reason and propriety of this distinction, very fully considered.</p> <p>A rightful title is not necessary to constitute an adverse possession.</p> <p>A constructive adverse possession, must be founded on a deed, or paper title) though such title need not be a rightful one.-</p>

<p>M and B sold StOT6S fop ship, to F and S, the ship’s husbands, (on a credit of 4 with W^ndT were owners an^B,ink'lleir original entry charged these the'owners! 6,y name. A few sale, they rendered two bills to F and S, charging them only, and about 2 months after the sale, took the sole note of F and S, at an extended credit of 8 months, giving a receipt for the note, as in full fop the stores. This note not being paid, and F and S becoming insolvent; held, that the other owners were not thereby discharged, but were liable, in assumpsit, for the original consideration.</p> <p>Being originally liable, the subsequent delivery of. the bills charging the ship’s husbands-alone, did not exonerate the other owners ;</p> <p>Nor were they discharged by taking the note ;</p> <p>Which, being for a precedent debt, is not a satisfaction, until actually paid; unless expressly. agreed to be received as payment.</p> <p>The receipt of the note, in full, &c. was not evidence of such an agreement.</p> <p>It makes no difference, in such a case, whether the plaintiffs knew that there were other owners, at the time of the sale, or not.</p> <p>But if, in consequence of such receipt being given, the other owners had allowed the note, in account with the ship’s husbands, or wei e otherwise injured in their dealings with them, upon the credit of the receipt, this would have worked their discharge.</p> <p>El semble, that such prejudice should he shewn affirmatively by the defendant, and will</p> <p>not be intended.</p> <p>The general duty of the ship’s husband considered.</p>

Debt against the defendant, Sheriff of Westchester, for ^ . » the escape of Richard R. Voris. The declaration set forth a judgment in favour of the plaintiff, against Voris, of January Term, 1820 ; that a testatum ca. sa. was, on the 28th October, 1820, sued out, directed, &c. commanding the defend ant to take and safely keep the said Voris, &e. Indorsed to “ Levy $131,03, besides Sheriff’s fees,” fyc.

<p>The plea of discharge, uncAer of 1813,(Sess. 36, 46Ó)8murt ‘ex-pressiy aver, dantat the time the^schar^e was an inhabicounty in6 which his apmade.ÍOn WSS This is essential, m order to give the judge jurisdicThe want of proper averments to give jurisdiction, cannot be supplied by the recital in the discharge;</p> <p>For the presumption, that the judge did his duty, and required those things to be done which should be done, does not arise, till after jurisdiction is sufficiently alleged.</p> <p>In an action on a judgment, rendered in this court, the plaintiff is not estopped to shew, that the judgment here was rendered on another judgment, in a neighbouring state, which latter judgment was rendered on a contract made, and to be performed there, before the passage of our insolvent law ; and thus to avoid the operation of a discharge under that law which is pleaded here to an action on the last judgment.</p> <p>A replication, setting out these facts, is not a departure; though the judgment, as declared on, purports to have been upon promises :</p> <p>Nor is the plaintiff, for that reason, estopped to deny, that it is, in fact, upon a judgment.</p> <p>A replication, which supports and fortifies the declaration, is not a departure.</p> <p>A contract made before the act of April 12th, 1813, is not affected by a discharge under . that act :</p> <p>Nor is a contract made, and to be performed in another state ; though made subsequent to the act.</p> <p>A j udgment is in no sense a contract or agreement between the parties:</p> <p>It is merely evidence of a pre-existing debt or duty, obligation or agreement.</p> <p>On demurrer, the one who commits the first fault in pleading, shall have judgment against him.</p>

Trover, for certain articles of household furniture, farm-utensils, and books. Plea, the general issue. The-cause was tried at the Orange Circuit, November 12th, 1821, before the Hon. A. Spencer, late Chief Justice. The plaintiff, to support his action, produced Abijah 0.

Debt. The 1st count was in the usual form, on a bond for the payment of money, dated July 15th, 1822, in the penal sum of $5000, and set forth no condition.

Error from the Court of Common Pleas of Franklin . . County. The action in the Court below, was assumpsit, by Utly against Healy, upon a special agreement by Healy, to purchase certain ash oars of Utly. Plea, the general issue.

Ehror from the Court of Common Pleas, of the county Schenecladlh to reverse a judgment of that Court, rendercd on appeal from a Justice’s- Court. The action was as~ SWWD upon a promissory note by De Graaf, the payee, against Sacia, the maker. The note was dated the 2d March, 1311, and given for $42,50, payable one year after date’ with interesL The suit in the Justice’s Court was not commenced till March, 1819. The plea was the genera^ *ssue ani* the statute of limitations.

Assumpsit, to recover $6500, being the difference on ex- , _ T .• change of vessels, tried before his honour, thelf.te Mr. Justice Platt, at the New- iork sittings, on the 2d of May, 1821.

Assumpsit, to recover the amount of two promissoiy notes hereinafter recited. The declaration contained two counts upon the notes themselves, that is to say; one count upon each of the notes against the defendant, as maker, in favour of the plaintiff, as endorsee of Jenkins & Havens, the payees, in the usual form. It also contained the common money counts, and a count upon an insimul computassent. The defendant pleaded the general issue, with notice of set off.

<p>A promissory note, payable on demand, is due presently; and in order to charge the endorser of such a note, payment must be demanded of the maker, and. notice of nonpayment given to the endorser, within a reasonable time after -the date.</p> <p>What is a reasonable time, when the facts are ascertained, is a question of law, to be determined by the court.</p> <p>Five months is an unreasonable delay, where all the parties resident the same city.</p> <p>That the note is given for money lent, and payable on demand, with interest, does not take it out, of the general rule.</p> <p>Nor will an agreement, at the time of executing the note, between the indorsee and the maker, that the money shall not be deman-</p> <p>dedal the time purports, on tÍTbí'payabíe excuse a delay in order to charge the in aorser, beyond the ordinary 2ym^he^eecz¿g indorser is not agreement.1 6</p> <p>Indeed, parol evidence of an agreement different ^ime than that imports, is inwWntiie rule, that the r6 written^onf tract . cannot parol^vi- by ^An offer by an indorser to nóte, in satis“ faction of the indorsed note, is not a wai- and notice1™less such offer timhoMer! by</p> <p>To make a promise of payment opeve^oTdemand and notice, the shew affirma-</p> <p>tively and clearly, thae the much ser promised with that^h^hli! not been char-er by a regular, demand and notice,</p>

The judgment was upon a bond and warrant of attorney; and, in issuing the fi.fa. the attorney for the plaintiff had, by mistake, omitted the name of Addison Porter, and it was, by a like mistake, tested at the city of XJlica, instead of the Academy in TJlica. The fi.fa. had been levied, and trespass brought by the defendant, on the ground that such levy was under an execution irregular and void.

Action for a libel, printed in a publick newspaper, and a verdict for the plaintiff of 7 dollars ; and the judgment was entered for full costs.

<p>Assumpsit, in the Common Pleas of Onondaga, by Taft against D. E. Nelson, upon a joint note. B. Nelson pleaded the general issue. E. Nelson pleaded infancy, Replication—that E. Nelson was of full age. On the trial, E. Nelson proved his infancy, and on motion, the Court below allowed the plaintiff to enter a nolle prosequi as to him without costs,</p>

Trespass quart cláúsum fregit, brought originally before a Justice of the Peace. A plea of title was there interposed, to a certain close, called the Millwright close, in R. in the eounty of S. in consequence of which, the cause was after-wards brought in the Court of Common Pleas, and removed by Hah. Corp. into this Court, where the plaintiff had recovered a general verdict for $50.

The original judgment against Thorp was obtained before the 8th November, 1821. Thorp was discharged, under the ic act to abolish imprisonment for debt in certain cases, ” On the 6th of February, 1822.

Judgment, for the plaintiff, in the first cause, was for $1339,08, and was docketed on the 28th Jan. 1822—in- the second, for $247,37, docketed on the 6th June, 1823— jn the last, for $291,70, docketed on the 14 th May, 1823. ■ „ - ' rr , ■ Under a fi. fa. on the first judgment, Jtlughson’s lands were sold to Roseicrans, the plaintiff, in that judgment, on the 24í7¿ of June, 1822, by the Sheriff of Orange.

The plaintiff'had noticed this cause for trial, and six days before the Circuit, he countermanded the notice, and the defendant’s attorney then told him that no subpoenas had been issued, because his client told him he had no witnesses to subpoena. After the Circuit, and before notice of a motion for judgment, as in case of nonsuit, the plaintiff’s attorney tendered to the defendant’s a stipulation to try at the next Circuit, hut did not offer to pay any costs.

On the 22c? of April, 1808, a judgment in partition was perfected and docketed in this cause, against Vischer and two others, by which a part of certain lands were adjudged in severalty to Vischer the defendant and two others, and their shares of the costs were adjudged to the plaintiffs, to be levied and made of their shares of the lands respectively.

This cause was noticed for trial at the last Otsego Circuit and on the 18th day of September last, was called in its place on the calendar and was moved for trial on the morning of the 19th. The plaintiff challenged the first juror drawn, to the favour, on the ground that he had expressed an opinion in the cause against the plaintiff, after he had been summoned as a juror.

On certiorari to a Justice’s Court. Ostrander had obíained a judgment against Clark, in the Court below, on the u u ° 26Z/t August, 1822, for 3 dollars and the costs, in trespass. In Sept, thereafter, he employed Mr. Jenkins to bring a wrj(; 0f certiorari. Shortly'after this, Clark obtained a judgment before another Justice, against Ostrander, for $21,30. And on the 8th Oct. 1822, the parties settled their accounts, and set off the small against the large judgment.

In January, 1817, a íudgment for $260, was docketed • 77 7 L, J ° , . , coil in the Onondaga Common Pleas, m favour oi Schuyler Van Rensselaer, asainst Lester Dady.

ESSEX COUNTY, Surrogate's Office, ss. To Thomes Slower and George Throop, of the town cf Willsboro', and Ransom JV'oble, of the town of Essex, in the county of Es~ sex Whereas JWa'ria Coates, widow of John Coates, late of' Boston, in the state of Massachusetts, deceased, has, by her petition filed in this office, set forth, that she was lawfully married to the said J. C. in his life time, and that he, the said J. C. her said husband, died on the 15th day of July, A. D. 1819,…

On the Í6th of August, 1798, Thomas Bay and Harmon Bay, administrators of John Bay, deceased, recovered a judgment in this Court againát William Gilliland, which was docketed on that day. Under &fi.fa. upon that judgment, John D. Dickenson, on the 3d July, 1821, purchased at sheriff’s sale the lands hereinafter mentioned as sold upon the execution in this cause. The sale under the Say judgment was at a bid of $1746.

At the last May term, a rule was granted against Van Antwerp, Sheriff of Albany county, to shew cause at the last August term, why a mandamus should not issue, commanding him to convey- certain lands of Peter S. Van Rensselaer to Sanders Van Rensselaer, The facts noticed, on shewing cause, were as follows: Edward Watrous had a judgment in this Court against Peter S, Van Rensselaer for $180, docketed March Ulih, 1817. Robert.

Assumpsit, tried before his honour, Mr. Justice WooniVORTH, at the New- York Sitting's, April 15,1822. The following is an abstract of the declaration, so far as it Is material to the questions in the cause: 1st Count.

On certiorari to the Marine Court of the city of jsfewYork. Dalton declared against Johnson in the Court be- ° . low, for an assault and battery, committed on the high seas, dn board the British ship Dominica, whereof Johnson was master.

jj. R. Tiffany, Esq. one of the Justices of the Peace of the county of Wayne, rendered judgment, in June last, in favour 0f the relator against one Souls, for 15 dollars 64 cents.

Starkweather, at the last term, moved for a mandamus, commanding the Judges of the Otsego Common Pleas to give judgment in favour bf the plaintiff, for his costs in an action of trespass, quare clausum fregit, tried there between Coburn, plaintiff, and Thurston, defendant. One of the pleas was leave and license; to which the plaintiff replied, taking issue.

On certiorari to a Justice’s Court. It was moved in this cause, that the Justice amend his return, a sworn copy whereof was produced; but neither the affidavit on which the certiorari was granted, nor a sworn copy thereof, made a part of the papers on which the application was founded.

A declaration, containing the general counts in assumpsit, having, on the 30¿/i May last, been served upon the agent of the defendant’s attorney, he, on affidavit of this fact, obtained the following order for a bill of particulars: “ Let the plaintiff in the above entitled cause furnish to the defendant, or his attorney, without delay, a bill of particulars of the demand upon which the above suit is founded; and in the mean time let all proceedings be stayed on the part of…

Sudam, moved that Maria C. Gouverneur be admitted to defend in the place of Tucker, the tenant, who held by lease from her, he having refused to appear and defend.

<p>from a juscourt tfUcom mon pleas</p> <p>CRUIlOt 1*6“ strain ths apPellant from the cause, uncosts^gíveni onthe ground that he is a non-resident. the^orraerthat until security j^en,C°the appellee sbajK aa affirmance ot bis ludf” ment, ex parte* The security thTstatute, (scss- 4b is all that can be re1mi"eái</p>

<p>An attachment against the sheriff", for not returning an execution, should be accompanied with instructions in what amount to take a recognizance for the defendant’s appearance ;</p> <p>And if these instructions are not given, the coroner is not in fault, though the penalty of the recognizance be less than the execution.</p> <p>In such a case, however, the plaintiffs may, on motion, proceed by an alias attachment, if the sheriff do not appear upon his recognizance.</p> <p>But the court will not, at the same time, allow the recognizance to be prosecuted.</p>

On eerliorari to a Justice’s Court. The writ recited that Bird impleaded Silsbie before the Justice, &c. in the usual f°rmian A motion was now made to amend this certiorari and return, and for such further rule, &c. ; and notice of the motion, with copies of the papers for the motion, detailing the above facts, had been served on the Justice and the defendant’s attorney.

E. Cowen, moved for treble damages and treble costs, in this cause. The action was trespass quare clausum fregitj and for cutting and carrying away the timber and wood of the plaintiff upon the premises. The declaration contained four counts. The first was in trespass, &c. and for cutting the timber and wood generally. The last was the same. The 2d and 3d were for entering the plaintiff’s close, and cutting and carrying away his timber and wood.

Onondaga County, ss. J. ,M. Hooker, of the town of T. in the county of Cortland, the defendant, in the above entitled suit, being duly sworn, denoseth and saith, that the 7 ° ^ ¡ said cause affects the title of lot No. 94, in the township °f Fabius, now town of Truxion, in the county of Corlland; and that this deponent is the defendant in the said suit, and interested in the said lands; and that Elizabeth Qoston, of the town of Winfield, in the county of Herkimer, in this…

J. Koon, moved to change the venue, but the affidavit for .... . me motion was detective, m not stating where the venue was laid.

Several years ago, the Commissioners of Highways of the above town had laid out a road, on the application of twelve freeholders, pursuant to the 16th section of the act to regulate highways, (2 R. L. 275,) hut had omitted to record it in the town clerk’s office, as required by the 1st section of the act, (id. 270) nor had the road been opened.

Ín ejectment, and verdict for the plaintiff, the costs in this cause and ten others, on the same demise, had been taxed up-tin notice. At the last term, Z). S. Jones, for the defendant, moved lor a relaxation, and made the following objections, among others : . 1. That witnesses’ fees were taxed, without proof of their attendance on the trial. 2. That the fees for the attendance of surveyors, as witnesses, were taxed at $ 1,25 per day, though there had hot been a view. 3.

In the first cause, there was a judgment for the plaintiff, for $472,18 ; in the second, for $144,02; in the third, for $278,07 ; and in the 4th, for $645,80 ; all docketed in the Clerk’s office of this Court, at Albany, the 9th of August, *822—the 1st, 2d and 3d, eleven minutes before 9 A. M» and the last 15 minutes before 9 A. M. On the 2d October, 1823, certain premises, being all the pioperty of the defendants, were sold on afi.fa. upon each of the judgfflents,and bid…

In proceeding to enlarge and improve Maiden Lane, in the city of New-York, the Commissioners of Estimate and Assessment had reported a certain piece of land as belonging to unknown owners, whose damages had been assessed at $3515, and paid to the Clerk of this Court in that city, for the use of such unknown owners, pursuant to the 181th section of the act to reduce the several laws relating particularly to the city of New-York, into one act.

August 9th, 1823. This Court ordered, that all the proceedings on the part of the plaintiff stay till the lessors of the plaintiff should pay the costs in a suit in this Court, theretofore brought by.James Jackson against one Christian Brown, for the same premises. Before obtaining this rule, the present cause was noticed for trial.

<p>An attorney of this court, though sued by bill of privilege, in term time, is not subject to costs, unless the recovery against him exceed 50 dollars.</p> <p>But, on the contrary, he shall recover costs ;</p> <p>Which, on motion, shall, be set off gainst the plaintiff’s damages.</p> <p>Resolved in ..a action of asumpsit.</p> <p>The defendant was sued by bill of privilege, (which was served in term time of this Court, and while it was sitting) in assumpsit, and gave a cognovit for $42,11 ; and now</p>

Assumpsit, by payee against executors of the maker, on a promissory note for 500 dollars, dated Sept. 15th, 1821. Plea, the general issue. This cause was tried at the last Franklin Circuit, Aug. 21, 1823, before the Hon. R. * ° _ H. Walworth, Circuit Judge. The defendants attempted io shew a want of consideration for the note, but wholly failed in their proof, and a verdict was found for the plaintiff, tipon proving the hand writing of the testator.

Case, for a malicious prosecution, before a Justice of the Peace of the county of Greene ; but the venue was laid in the county of Albany. Foot moved to change the venue, from Albany to Greene..

The cap. ad. resp. was returnable at August term, 1822, and the defendant holdcu to bail for the amount of the ac etiam, which was $674,44, and special bail was put in accoi1-dingly. A declaration was filed, a rule to plead entered, and & copy, with notice of the rule, served on the defendant’s attorney, the 24¿A day of April, 1823, The declaration contained one count m debt, for $774,44, on a judgment of this Court; and another count, in debt, for $100, for work and labour.

<p>Ejectment, for part oflot number 63, in the 20th township, in Sangerfeld, in the county of Oneida; tried before his Honor (the late)Mr. Justice Platt, at the Oneida Circuit. November 19th, 1821.</p> <p>- . It was admitted on the trial, that the lessors of the plaintiff owned a part c-f lot number 63, and that the defendant owned a part of lot number 62, in the 20th township. The lands of the respective parties adjoined each other upon a line running east and west, separating lot 63 from 62.</p> <p>The lessors of the plaintiff contended on the trial, that the. defendant had wrongfully extended his possession over this. line upon the land of the lessors in lot 63, The defendant, 1st, denied this ; and insisted, 2d, that if he had sq encroached, his possession having been adverse for more than 20 years, barred the plaintiff’s action.</p> <p>A verdict was taken for the plaintiff, subject to the opinion pf the Court upon a case.</p> <p>For the purpose of enabling the Court to determine the extent and nature of the adverse possession, and to settle the location, a map was'made a part of the case. The principal boundaries of the premises immediately in question, were-denoted by letters placed upon this map, and lots 54, 55, 62 and 63, adjoining each other, were laid down and subdivided, so as to exhibit the position of the premises in relation to other parts of the tract. This map was referred to in the argument, and (as will be seen) in the opinion of the Court. But though the map be material in reference to the interests of the parties immediately concerned in the cause, and tho’ the details of fact may not be readily comprehended without it; yet it is conceived that the principles of law, as laid down and applied by the Court, will be sufficiently understood by the profession, without seeing the lines upon which the questions of fact depended. -The evidence contained in the case was voluminous, and need not be stated at length; and the correct abstract given by the Judge, who delivered the opinion of the Court, renders a summary unnecessary in this place.</p> <p>The cause was argued at- the last May term, by H. R. Storrs, for the plaintiff, and Talcolt, (Attorney Genera)) for the defendant,</p>

<p>Ejectment, for premises situate in the town of Bern, in the county oí Albany, tried at the Albany circuit, in October, 1821, before his Honor, Mr. Justice Woodworth, whenaverdiet was found for the plaintiff, subject to the opinion of the Court on a case, of which the following is a brief abstract:</p> <p>On the 3d of March, 1787, Stephen Van Rensselaer conveyed to Jacob Weidman, a farm of 261 acres, including the premises in question. Jacob Weidman had a son, Petrus, who was introduced as a witness for the plaintiff, and testified, that on the 1th of November, 1803, he (Petrus) was in possession of the whole farm, claiming it as his own. On that day, his father being still living, (and he lived several years afterwards) Petrus conveyed 100 acres, being the eastern part of this farm, by deed of quit claim to his son J. P. Weidman, the lessor of the plaintiff. This 100 acres iucluded the premises in question, which are a strip of 23 acres, lying along the western line of the 100 acres. The lessor of the plaintiff took actual possession of the land included in ‘ * * e his deed, except the 23 acres. Jacob Weidman died in 1806 ; and on the 13</t oí February, 1810, Petrus Weidman conveyed to Paul Weidman and the defendant, all the land conveyed by Van Rensselaer to Jacob Weidman, excepting 100 acres, stated in the deed to have before been conveyed by Petrus Weidman to Jacob P. Weidman. directly on the east end of the before described premises. The lessor of the plaintiff never had actual possession of the 23 acres. Petrus Weidman swore that the deed of 1803 was executed the day it bore date ; and that he inherited the 261 acres from his father, Jacob Weidman.</p> <p>The defendant’s counsel then read in evidence a deed, with warranty and covenants of seisin, &c. from Petrus Weidman to the lessor of the plaintiff, dated May 13th, 1810, purporting to convey 100 acres of land, the description of which included the lessor’s actual possession only under his first deed, excluding the 23 acres, and to make up the 100 acres, extended south of Foxen creek, which intersected the original farm; and this last deed covered a few acres before conveyed to the defendant. This deed was given pursuant to a survey of one Barber, made at the joint request of Petrus Weidman and the lessor of the plaintiff.</p> <p>Jacob Weidman, junior, bought the land on the east, and Johannes Vischer on the north of the original farm ; and as long ago as 29 or 30 years, the eastern and northern boundary of the 100 acres had been agreed upon, designated by a line of marked trees, and surveyed by one Ilunn, in behalf of Petrus Weidman and Jacob Weidman, junior, the latter of whom, with Vischer, had respectively taken conveyances and held according to the survey, which also corresponded with the actual possession of the lessor of the plaintiff. Jacob I. Weidman succeeded to the possession of Jacob Weidman, junior. The adjoining lands had been held according to this survey, up to the time of the trial, though the description in the deed from Van Rensselaer extended as to part of the divis- . ion line agreed upon, farther east than this line. The premises in question had again been surveyed in December,' 1815, by one Rosekrance, according to the old line of marked trees. This map was produced on the trial, and also made a part of the case. It gave the plaintiff 23 acres, as included in the deed of 1803, which were in the defen* dant’s possession.</p> <p>When Petrus Weidman was offered as a witness, he was objected to, as interested, having entered into a covenant of warranty in the deed of 1810; but the plaintiff’s counsel disavowing an intention to go for any part of the land covered by this deed, which were not included in the deed of 1803, and to admit the plaintiff to be in possession of all the land which it contained, except certain land lying on the south side of the creek, and east of the-line of marked trees, the Judge overruled the objection.</p> <p>The case, of which conveyances were agreed to be made a part, was drawn up by the attorneys at great length. Several maps were also made a part of the case; but the above facts, connected with those stated in the opinion of the Court, are all which are deemed material to present the points of law raised by the counsels and decided by the Court.</p>

Ejectment, for 6 acres, being part of lot No. 16, in the tract of land set apart by the state to the heirs of Peter 06-¿equette, situate in the county of Oneida.

<p>Assumpsit ; tried before his Honor (the late) Ch. Justice Spencer, at the New-Yorh sittings, in June, 1821.</p> <p>The action was to recover the amount of two several bills of exchange, each drawn by the house of Rea and Butler, in Savannah, upon Thomas C. Butler, of New-York, at 60 days sight; the first dated the 20th January 1819, for $743,28, the other dated the 5th February, in the same year, for $1384, 78, both payable to the plaintiff. They were remitted to the plaintiff by the defendants, on account of the proceeds of goods consigned to the defendants by the plaintiff, for sale on his account; and which they sold at a credit, hs his factors, under a commission to guaranty the sales.</p> <p>At the trial, proof of the nature of the contract and the liability of the defendants, depended, in part, upon various letters which passed between the parties, under dates from the Vlih Dec, 1818, to March 1, 1819, and which were given in evidence. Under dates of the 12th and 24th, Dec. 1818, and the 2d Jan. 1819, the defendants acknowledged the receip t and sale of goods; and in the letter of the 24th, they added, “ P. S. The paper received for butter and gin is undoubted ; and we are willing, in all cases, to add our guaranty to out sales for the usual commission for so doing.” Under date of January 2d, they wrote, “ Bills on your place are very scarce, and none at less than 60 days sight, which are now selling for cash, at 1 1-2 ct. discount.” Under date of Jan. 20th, 1819, they sent an account of sales on credit, and wrote thus : “Enclosed is jRea & Butler"1 s draft on Thomas C. Butler, jun. tif your place, for $743,28, to your debit at par, having been received for your account, in exchange for paper received for gin and butter sold for your account. We have concluded to guarantee our sales for you at 1J per cent, and have this day debited you with, our guarantee on amount sold F. &c.” Under date of the 5th Feb. 1819, they stated a balance to the amount of the bill, of $1384,74, which they mentioned as being enclosed, and added, “ which is remitted on your account and risk.”</p> <p>It was admitted by the defendants, that the two bills were regularly protested for non-payment, and sent to them at Savannah, to be there put in suit against the drawers, which was done in the. name of the plaintiff, without prejudice to the rights of the respective parties to this suit.</p> <p>The plaintiff, under date of Jan. 2th, 1819, had written thus : “ I should wish you to guarantee the sales of my different shipments, which are made at a credit, at the usual commission. The charge for guaranteeing of Messrs. II. W. is 14 per cent, which is the customary charge. • I will thank you to negocíate the paper received for gin and butter, in such a way that I may receive the funds here, either in bills you have mentioned, or a draft at short sight, on some good house, in time to meet my note given for those ar•tides at -90 days.” Under date of the 27th Jan. 1819, he acknowledged the receipt of the defendant’s letters of the %dJan., stated a corrected balance at $756,17, and added, “ for which I will thank you to procure a good draft on this place at as short sight as possible. If no better can be done, send a 60 day hill, which I suppose can he had at a discount.” Under date of the 30th Jan. 1819, the plaintiff acknowledged the receipt of the bill of $743,28, and added, “ the draft is duly honored, but I am sorry to say it, cannot be discounted unless paying more than bank dis* count. Mr. S’s paper will not go in hank. They are rather shy of him : his business appears to be pretty well extended. I think the draft will be paid when due. The above in confidence.” Under date of Feb. 3d, 1819, the plaintiff corrected the balance of other sales by the defendants, and added, “ which please remit as I before requested.” Under several subsequent dates the plaintiff wrote in relation to the measures on foot to secure or obtain payment of the bills from the drawers and acceptor, which had failed, they having finally proved insolvent.</p> <p>It appeared that T. C. Butler, the acceptor, failed in February, 1819 ; that the firm of Rea & Butler, at Savannah, consisted of James Rea, of Savannah, and Thomas C. Butler, of Mezo-York ; that the former had, for several years before, carried on trade at Savannah under this firm, and the latter at a separate house in Mezo-York.</p> <p>Several witnesses were examined both for the plaintiff and defendant, as to the credit of Rea &r Butler, before and at the time of the purchase and remittance of the bills by the defendants. It is unnecessary to state their testimony particularly, as it is, so far as it can be material, noticed id the opinions of the Judges. The result was, that the house of Rea fy Butler were in good credit at Savannah whereas, Thomas C. Butler was, for some time before the bills were drawn, in bad credit at Kezo-York, and his failure immediately produced that of Rea #• Butler at Savannah The facts which relate to the negligence of the defendants are also sufficiently stated in the opinions of the Judges.</p> <p>A verdict was taken for the plaintiff for $2500, subject to the opinion of the Court upon a case, with liberty to either party to turn it into a special verdict.</p> <p>The cause was argued at the last May term, by (the late) Mr. J. Wells, for the plaintiff, and R. T. A. Em-met, for the defendants.</p>

<p>In debt on between^bond and oyer cannot be objected on the W;</p> <p>bu(. th<¡ dant should ^Tos declaration in debt on a bond setting out the £°eaeh°n¿Zdebet is not a ffpfeaded’ and ”ot demurred to, it puts m issue every material fact in the declaration. In debt on a town collector’s bond, the plaintiff in assigning breaches, set out the tax Warrant, and averred that the collector was thereby required to pay “ a large sum, to Wit, $5935,59, to the county treasurer; but the warrant produced, required the payment ef $4530,15 ; held, no material variance.</p> <p>When an averment is material, adding videlicet does not make it immaterial, but the want of a videlicet will sometimes make an averment material, which would not otherwise be so.</p> <p>This rule applied to the particular case.</p> <p>The court will not allow a formal objection to defeat an action, but will suffer the parly to amend at any stage of the cause.</p> <p>It seems, amendments of clerical errors may be allowed by a judge who tries the cause at the circuit.</p> <p>Payment to the state, by a county treasurer, of the amount due to him from a collector, will not enure to the benefit of the latter, but an action may be still maintained on his bond.</p> <p>A supervisor of a town, in discharging his duties as such, acts not in his natural, but in bis official capacity ; and is, pro tanto, a corporation.</p> <p>He has the capacity of suing and being sued, so far as his trust is concerned.</p> <p>The right to sue is incident to his office, and passes to his successor.</p> <p>Within this rule, the successor of a supervisor, who has taken a collector’s bond under the statute, (2 j?Z. L. 126,) may sue upon it in his own name.</p> <p>If, in a suit brought by or against a supervisor, as such, he fail in his action, execution goes against him personally ; and his remedy is against the town.</p> <p>Remedies by and against corporations sub modo considered.</p> <p>Il seems, that their rights and liabilities pass to the successor, whether they arise from torts or from contracts, and whether the latter be simple, or by specialty.</p> <p>Distinction between one who has a corporate capacity for his own benefit; and when he acts in trust for others.</p> <p>It seems, that a penalty, incurred under the 12th section of the act relative to the duties and privileges of towns, (1 R. L. 131,) while one is supervisor, but not sued for by him, may be collected in the name of his successor.</p>

<p>On a bill of interpleader, a decree that it is properly filed, is the only decree which the complainant is interested in obtaining.</p> <p>It is a final decree, within the meaning of the statute (1 R. L. 134, s. 9,) and the party may appeal after 15 days.</p> <p>Where it goes on to order a reference to a master, by consent of the parties, upon principles calculated to adjust the rights of those called upon to interplead, it will be considered a substitute for the ordinary proceeding by actual interpleader.</p> <p>An appeal from the final decree, necessarily opens for consideration all prior orders or decrees, any way connected with the final decree.</p> <p>Thus, an appeal from a decree upon exceptions to a master’s report, relative to the rights of the parties called upon to interplead, which report was made under an order of reference by consent; or an appeal from a decree allowing costs to the complainant, involves an inquiry into the decree that the bill of interpleader was properly filed ;</p> <p>And, consequently, admitting the decree that the bill was properly filed to be an interlocutory decree, an appeal from the decree, relating either to the exceptions or costs, brings up the decree that the bill Was properly filed.</p> <p>If a cause in chancery is set down for a hearing on bill and answer,“the. answer denying all the material facts alleged in the bill, it should be dismissed:</p> <p>So it should be dismissed, if the answer set up sufficient matter of defence, consisting of distinct facts by way of avoidance to the bill.</p> <p>To avoid this consequence, the complainant should reply, and give the defendant an opportunity to prove his answer.</p> <p>A bill of interpleader is not an exception to this rule.</p> <p>The nature and object of a bill of interpleader considered.</p> <p>It lies where two or more persons claim the same debt or duty of the complainant, by separate interests.</p> <p>The complainant should have no beneficial interest in the thing claimed ;</p> <p>.And it must appear that he cannot determine the right without hazard to himself.</p> <p>The complainant must make affidavit that he does not collude with either 1 claimant ;</p> <p>And bring the money or thing claimed into court.</p> <p>The amount or origin of the fund claimed, &c. is not the object of inquiry as against the complainant, except in reference to fraud or collusion on his part.</p> <p>These rules applied to the particular case.</p> <p>But the amount and origin of the fund may be material, as between those called upoh to interplead.</p> <p>Where one, having funds,' accepts a bill of exchange drawn by A, in favour of B, and C claims the same funds, a bill of interpleader will not lie against B and C ; because the acceptor is bound to pay at all events.</p> <p>But an order drawn by A in favour of B, upon another, for' A’s goods or theproceeds of his goods, in the hands of the drawee, is not a bill of exchange, nor equivalent to a bill of exchange.</p> <p>And if accepted by the drawee for a stated sum, he having no goods or proceeds of the goods of the drawee in his hands, he is not bound by his acceptance ;</p> <p>For it is without consideration.</p> <p>So if he accept for a sum beyond the goods or proceeds thereof, there is a want of consideration for the excess.</p> <p>And if A afterwards draw another order in favour of C, for all A’s funds in the hands of the drawee, and both B and C claim certain funds in the drawee’s hands, under their respective orders, as belonging to A, and covered by their respective orders, the drawee may maintain a bill of interpleader against the payees ;</p> <p>And this, though he may have accepted the first order for a certain amount.</p> <p>To consitute a bill of exchange, it should be for the absolute payment of money only.</p> <p>If an order be payable in goods, or out of a particular fund, as the proceeds of goods, or be in the alternative, it is not a bill of exchange.</p> <p>But an acceptance would be evidence of an agreement to pay, which, if without consideration, would be void, even as between the payee and acceptor ;</p> <p>For the consideration between the drawer and payee would not bind the acceptor.</p> <p>In an action upon the acceptance of an order drawn for the proceeds of goods, it lies with the payee to shew the amount of the proceeds received by the acceptor.</p> <p>For a general acceptance of such an order would merely be evidence thitt the proceeds of the goods, received after the date of the acceptance,</p> <p>were received to the use of the payee.</p> <p>An order or decree in chancery, entered by consent, is not the subject of an appeal, or rehearing.</p> <p>So of an order of reference upon which the party appealing has acted, by prosecuting the reference upon the principles prescribed by the order.</p> <p>If an order or decree appealed from, purport on its face to have been taken by consent of the party appealing, it will be deemed by the court above, on appeal, to have been so taken ;</p> <p>And they will not hear evidence upon the question whether it was so taken.</p> <p>If it was, in fact, not taken by consent, the party should have applied to the court below, to have the mistake in the entry corrected.</p> <p>If a bill of interpleader be properly filed, the complainant is entitled to have his costs allowed him out of the fund in court.</p> <p>And under special circumstances, it is right to allow the defendants to have their costs respectively, to be deducted from the same fund.</p> <p>Decree that bill is properly-filed, all that the complainant seeks.</p> <p>Reference, by consent, a substitute for interpleader.</p> <p>"Whether the hill was properly filed.</p> <p>Nature and object of bill of interpleader.</p> <p>rÍ!Jhe a™e^° tions therein,</p> <p>Amount of fund not the subject of inguiry ;</p> <p>Except to shew fraud.</p> <p>Whether material allegations denied.</p> <p>Answer examined.</p> <p>The origin of the fund not material.</p> <p>That was a question between parties claiming the iqntL</p> <p>Whether order was accepted.</p> <p>If a bill of exchange, and accepted, bill 'A''mid have Be in dismissed.</p> <p>But was not a bill of exp change,</p> <p>,. Acceptance binds only to extent or-pa“ase‘ shew extent,</p> <p>Acceptor liable on his ^ent*1 aoniy' whereof the waa proof.</p> <p>If sb order, toaMl'oftxchange, is flrawn upon another, ■ and lAvithoutToZ ?ideration, it is ^nuduw pacation betireen the drawer & pD^bind^0^ ¿peeptor.</p> <p>appeal °* reheamg by consent, and^arty acted under it?</p> <p>Whether the funds were the proceeds of Booth’s goods,</p>

The respondent# October, 1819, filed his bill, in the Court below, against the appellant, for the specific performance of articles of agreetnent, dated the 30Ih day of November, 1815, by which the appellant, for the consideration of $560, secured to be paid, Covenanted to release and quit claim to PhiúehUs Bennet$ Phinehas Bennet,jun. and the respondent, on or before the Is# December, 1816, the right, title and interest tifthe appellant; to three undivided fourth parts of a…