Volume 1 — Denio's New York Reports

De Bow was indicted in the court below for passing, and for having in his possession with intent to pass, certain forged and counterfeited bank notes. In some of the counts, the charge was, that he intended to defraud the Bank of Warsaw. The defendant pleaded not guilty.

The defendant was convicted of rape committed upon the person of one Mary Marshall. On the trial it appeared that she was an inmate of the poor house of that county, about thirty years of age, and of imbecile understanding.

P. Carman sued Newell before a justice and recovered §25 damages, and costs ; which judgment the common pleas reversed upon certiorari, and the plaintiff brought error to this court. ' The suit before the justice was for fraud, and upon a fraudulent warranty respecting the qualities of a horse purchased by the plaintiff of the defendant; and the defendant plead the general issue. The cause was tried by a jury consisting oí four jurors.

Ejectment for land in the county of Greene, tried before Parker, C. Judge, at the Greene circuit, in September, 1844. It was admitted on the trial that Ilykert Van Den Burgh died seized of the premises in question, in September, 1807, leaving seven children, of whom Hannah Havens, one of the plaintiffs, and who is the wife of the other plaintiff, was one.

Ejectment for lands in St. Lawrence county, tried before Willard, C. Judge, at the circuit for that county, in February, 1844. Richard Rutherford died seized of the premises in question in January, 1843. The plaintiff was one of his children and heirs, and he was also the grantee of two other of his heirs, and he claimed to recover an undivided interest in the premises upon the assumption that the deceased died intestate.

Assumpsit for the use and occupation of a dwelling house in the city of Albany for two quarters, from May 1, 1842, to November 1, 1842.

The defendant was indicted in the oyer and terminer of that county for libel, and the indictment was sent to the sessions, where the defendant demurred; and the court gave judgment for the people.

The casks were marked with the name of the plaintiff, and the additional words, “ care of H. S. Field, New-York,” and arrived at that city November 21, 1842. The defendant’s agent in New-York swore, that on the arrival of the butter, he made diligent inquiry for H. S. Field, but could not find any such person. His name was not in the city directory, and he could not hear of him upon inquiry at the stores of several individuals of the name of Field, at which he called.

<p>Where, upon a sale of personal property, consisting of heavy articles, as lumber lying upon a dock, which had been previously measured, the vendor and vendee, being at the place where the property is, agree upon a sale by words in presentí, and there is nothing to be done to ascertain the quantity, quality or value of the articles, and then payment is postponed till another time, or till the happening of some other event, the property is deemed to be delivered and the sale is com. píete.</p> <p>Plaintiff and defendant bargained respecting the sale, by the former to the latter, of a quantity of lumber, piled apart from other lumber, on a dock and in the view of the parties at the time of the bargain, and which had been before that time measured and inspected. The defendant offered a certain price per foot, which being satisfactory to the plaintiff, he said, “ the lumber is yours.” The defen. dant then told the plaintiff to get the inspector’s bill of the lumber and take it to one House, who was the defendant’s agent, and. who he said would pay the amount. This was soon after done, but payment was refused. The price being over fifty dollars, and the statute of frauds being relied on, it was held in an action for the price of the lumber, upon a declaration for lumber sold and delivered, that the court below was right in refusing to charge that the furnishing of the inspector’s bill was a condition precedent, or that the property did not pass at the time of the bargain; and that the facts were properly submitted to the jury with instructions that they might find an absolute delivery and acceptance of the lumber at the time of the bargain, and that the payment was postponed and credit given therefor until the inspector’s bill should be presented to House.</p>

<p>In scire facias to revive an ejectment suit in favor of the devisees of the original plaintiff, who had died pending- the suit and before trial, brought pursuant to 2 R. S. 308, § 32, it was held that, the object of the proceeding being to prevent an abatement, by substituting as plaintiffs the persons who had succeeded to the title of the former plaintiff, it was not nesessary for the persons proposed to be - substituted to show that the testator had title to the premises.</p> <p>In such a proceeding, it is however necessary for the persons asking to be made plaintiffs, to show that they have succeeded to such title as the former plaintiff had ; and when they claim as devisees, they must establish a valid devise to themselves.</p> <p>Where an express trust is created by will to sell or mortgage lands, pursuant to the 1st or 2d subdivisions of § 55 of the revised statutes concerning uses and trusts, end the trustees are not also empowered to receive the rents and profits, no estate vests in the trustees.</p> <p>A devise of lands in trust to receive the rents and profits and apply them to the. use of the testator's family, is a valid devise, and passes the title to. the trastees; but a trust to accumulate rents and profits for the benefit of the testator’s wife and minor children is void, such trusts being allowed for the benefit of minors only.</p> <p>Where a testator devised his estate to trustees to receive and apply the rents and profits, which as to its object was a valid bust under the 3d subdivision of § 55, but which trust was to continue until the testator’s youngest child would, if living, attain the age of twenty years, held that the devise was void, for suspending the power of alienation for a period not limited by the continuance of two lives in being at the creation of the estate.</p> <p>The utmost limit for the continuance of the estate must be bounded by life, and no certain term for its continuance, however short, can be supported.</p>

<p>Motion in arrest of judgment. The plaintiff counted in covenant upon a sealed agreement between the parties, dated March 20, 1837, by which the defendant covenanted to pay the plaintiff $250 with the interest thereon annually, in five years from the date; and also covenanted to pay all taxes assessed upon the land which the plaintiff was to convey. And the plaintiff covenanted that "after the said party of the second part [the defendant] shall have paid the above sums of principal and interest at the time and in the manner above specified, and shall have performed the agreement above mentioned,” the plaintiff would sell and convey to the defendant by a good and sufficient warranty deed a certain lot of land described in the contract. Breach .that the defendant had not paid'the principal sum of $250 nor the interest thereon. There was no averment of a readiness, or an offer to convey by the plaintiff. Verdict for the plaintiff for principal and interest.</p>

<p>« The Medical Institution of Geneva College” is not a corporation, and therefore has not the capacity to maintain a suit in a court of justice.</p> <p>Neither Columbia College, nor any of the colleges of this state, incorporated by the regents of the university, have the power to create any other body politifi or corporate.</p>

<p>Error to the recorder’s court of the city of Buffalo. Bovet sued Masson in the court below in replevin, in the detinet, for a promissory note, which he claimed to be his property. Plea, non detinet. The defendant was summoned, but the property was not delivered on the writ of replevin. It was proved that in December, 1842, the defendant having a judgment in his favor against one Hyre, and an execution thereon in the hands of the sheriff of Erie county, procured a sale to be made of the right and title of Hyre to one hundred acres of land in Amherst, in that county; that the plaintiff, being the highest bidder, became the purchaser at $285 ; that immediately after the sale, the plaintiff, as purchaser, and the defendant as plaintiff in the execution, adjusted the amount bid for the land, the latter receiving from the former the promissory note, for the detention of which this action was brought, and giving back his own note for $15, being the difference between the note first mentioned and the sum bid for the land. The note in controversy was made 'by one John Dingens, and was for the payment of $300 to the plaintiff’s order in six months from date with interest, and had not become payable when it was transferred to the defendant as above mentioned. It was proved to have been given for money loaned by the plaintiff to Dingens; and. when the plaintiff delivered it to the defendant, he endorsed it in blank. The adjustment of the amount bid was immediately explained to the sheriff, who made out and executed the duplicate certificates of sale required by the statute, one of which he delivered to the plaintiff, and the other was filed in the county clerk’s office; and the defendant paid the sheriff’s fees.</p> <p>The plaintiff proved that, at the time of the sale, the land was encumbered by a mortgage for $425, given by Hyre for purchase money, and by a judgment against Hyre for $800, both being prior liens to the'judgment upon which the sale took place, and together amounting to more than the value of the land. The plaintiff is a native of Switzerland, and speaks the' French language, but cannot speak English, and had been in this country only a few months at the time of the sale. It was proved that five or six weeks prior to the sale of the land, the defendant, knowing of the prior mortgage and judgment, told-the plaintiff that the land was free and clear of all encumbrances, and urged him to attend the sheriff’s sale and become the purchaser of the premises, assuring him that he could make a great bargain; and that, on the day of sale, he sent a person to give the plaintiff’ notice that the sale was then to take place. The plaintiff also proved that on the day of sale, and after the land had been struck off to him, but before he had delivered the note and received the sheriff’s certificate, the defendant again assured him, in answer to an inquiry made by the plaintiff, that the premises were entirely free from encumbrances. This last piece of evidence was admitted against an objection by the defendant’s counsel, who insisted that declarations by the defen- ■ dant after the sale were not competent, and the decision was excepted to. The plaintiff also proved that after the sale the defendant had a conversation with a person who dealt in groceries, in which the latter inquired of him, why he had represented to the plaintiff that the land was unencumbered, and why he had-not informed him of the prior mortgage and judgment, and that the defendant replied, “ If you put water in your wine, do you go and tell of it?” This evidence was also given after an objection to its competency had been made and overruled ; and the defendant excepted to the decision.</p> <p>The plaintiff then proved that, on the day after that on. which the sale took place, he offered to deliver up to the defendant the note for fifteen dollars, and to assign to him the sheriff’s certificate of sale, and demanded of him the note of Dingens, which the defendant refused to give up.</p> <p>The defendant’s counsel moved for a nonsuit, insisting that under the circumstances of the case this action could not be maintained, even though the defendant’s representations were fraudulent; but the court denied the motion, and the defendant excepted.</p> <p>The defendant, after proving the regularity of the proceedings under which the sheriff’s sale took place, and that the sheriff assumed to sell only the right and title of Hyre, gave some evidence tending to show that the plaintiff had been informed of the existence of the prior liens before he purchased, and that the existence of these liens had been spoken of in English at the time of the sale, and also that he, the defendant, had, before the sale, been advised that the prior judgment for $800 was fraudulent and invalid.</p> <p>The evidence being closed, the defendant insisted, and desired the court to charge that the prior liens being matters of record, the plaintiff was chargeable with notice of them, and that the sale having been made pursuant to law, and with such notice as the law required, the plaintiff could not set up any want of knowledge of material facts. He also desired specific instructions to be given respecting the effect of particular portions of the defendant’s evidence ; but the court refused to charge as requested, and in its charge instructed the jury that if the plaintiff had been induced to make the purchase at the sheriff’s sale, by means of fraudulent representations made to him by the defendant, the law permitted him, upon discovery of the fraud, to rescind the sale, and bring replevin for the note which he had transferred to the defendant on account of his purchase. He submitted' to the jury, as a question of fact, whether the defendant had, as alleged, fraudulently misrepresented the condition of the land in respect to encumbrances, to the plaintiff, and stated that if he had done so, the plaintiff was entitled to recover, unless the plaintiff, when he purchased, knew of the encumbrances referred to, and that if he had such knowledge,' the defendant was entitled to a verdict. The defendant excepted to the charge, and the jury found a verdict for the plaintiff for $314,25, being the amount of the note and interest. A bill of exceptions was signed by the recorder.</p>

.Declaration in assumpsit, common counts. Pleas, 1, nonassumpsit; and 2, a discharge as a Voluntary bankrupt by the district court of the U. S. for the southern district of New-York. The petition was presented on the 14th of February, 1842, and the discharge granted on the 16th of - September following.

The complaint against her was for stealing one white woollen flannel sheet and one white linen sheet. There was no sufficient evidence to charge her with stealing the last named article ; but there was satisfactory proof that she had feloniously taken a blanket, part woollen and part cotton—the warp being cotton and the filling woollen—belonging to the person named for that purpose in the complaint.

P. On the 6th of December, 1843, a justice of the peace of the city of Utica, on the application of one Weaver, issued a summons for Crary, requiring him to appear before the justice at his office in Utica, on the 15th of December, to answer Lester in a plea of trespass on the case. The summons was served by copy.

<p>The defendant, Catharine Costello, was indicted, together with Napoleon Loreau and Catharine Guetal, in the New-York general sessions, under 2 R. S. 694, § 21, which provides, that “ every person who shall wilfully administer, to any preg nant woman, any medicine, drug, substance, or thing whatever, or shall use or employ any instrument, or other means whatever, with intent thereby to procure the miscarriage of any such woman,” unless, &c. shall, upon conviction, be punished, &c.</p> <p>The indictment contained four counts, the intent charged in each being to procure the miscarriage of one Zulma Marache, she being then pregnant, &c. The two first charged the attempt to have been made by administering drugs, and the others that it was by means of an instrument. The defendants severally pleaded not guilty, and were tried together, in the general sessions.</p> <p>On the .trial, the prosecution offered Zulma Marache as a witness, who was objected to by the counsel for the defendant, on the ground that she was an accomplice in the commission of the offence, and for that reason incompetent to give evidence for the prosecution. The court overruled the objection, and the witness was sworn and examined. Her testimony implicated the defendants Loreau and "Guetal, in the act of administering drugs to her, to procure the miscarriage, but in this the defendant Costello did not appear to have had any concern or even knowledge. The drugs not having produced the effect intended, she was afterwards induced, by Loreau and Guetal, to re sort to Costello, who, according to her testimony, employed an instrument to effect the object. _ ■</p> <p>In the course of the direct examination of the witness, sho stated that she had seen three anonymous letters, two of which were addressed to her mother, and the other to a Madam Pousot; and on her cross-examination, she stated the time and manner of receiving the letters, and what had become of them, but their contents were not then disclosed. After this, the district attorney offered the letters in evidence, and the counsel for Costello objected to their admission, on the ground that the defendant was not shown to have had any connexion with them. The court excluded those written to the mother of the witness, but admitted the one addressed to Madam Pousot, for the reason, as stated, that it had been inquired about on the cross-examination ; and the defendants’ counsel excepted. The letter was read, and purported to be “ from a neighbor,” and the writer requested Madam Pousot to inform the mother of Zulma that her daughter was pregnant. After the prosecution had rested, the defendants’ counsel applied to the court to require the district attorney to elect as to which of the offences he would ask a conviction, insisting that inasmuch as the defendant Costello was not shown to have been concerned in the alleged unlawful use of drugs, the cause- could not legally be proceeded in without such election; but the court declined to require such election to be made, and the defendants’ counsel excepted.</p> <p>After the defendants had given their evidence, and the testimony had closed, the defendants requested' instructions upon several points to be given to the jury, and, among others, that they could not convict a part of the defendants of the oifence relating to the unlawful use of drugs, and also convict others, or the whole of them, of employing an instrument for the unlawful purpose, at another time. The court declined to give such instruction, and the defendants’ counsel' excepted. The defendants’ counsel also desired the jury to be instructed that they could not convict upon the uncorroborated testimony of Zulma Marache, insisting that she was an accomplice in the alleged offence.</p> <p>In the charge, the court instructed the jury, among other matters, that Marache was not an accomplice, within the legal idea of that term, though she stood in a situation to affect her credibility, and that her testimony ought to be carefully weighed ; but that if, upon the whole, they credited the account she had given, they could convict the defendants, even though she was not corroborated ; and that they might convict a part of the defendants upon the counts respecting drugs, and convict others of them whom they should acquit upon that branch of the indictment, upon the counts charging the unlawful use of an instrument, according as the evidence implicated them respectively. . The defendants excepted to the charge. The jury found the defendants Loreau and Guetal guilty on all the counts, and the defendant Costello guilty on the third and fourth counts, and not guilty on the first and second. The court signed a bill of exceptions, and Ihe proceedings were removed into this court by a certiorari prosecuted by the defendant Costello.</p>

. Action on the case, tried at the Washington circuit, October 4,1843, before Willard, C. Judge. The defendants were a corporation under the laws of the state of Vermont.

<p>In an action upon contract against a surety, where the defendant’s character as such surety appears upon the face of the instrument, the plaintiff cannot, in general, recover upon the common counts, but must declare specially.</p> <p>The case of a promissory note is not an exception to this rule; and where a note with the word “ surety" added to the signature of one of the makers, was offered in evidence under the money counts, in an action against such maker, it was held inadmissible.</p> <p>Where a note has been properly given in evidence under the money counts, proof that it was not given for money, but' for property, will not defeat the action.</p> <p>The statute relating to the form of declaring upon bills and notes, (Stat. 1837, p. 72, § 1,) only applies to cases where different parties, as maker and endorser, draw er and acceptor, are joined in the same action.</p>

Gunn sued Bay and Livingston in the court' below, and declared upon the money counts, annexing a copy of a promissory note to the declaration.

<p>Where a tenant under a demise for a year or more holds over after the end of the term without any new agreement with the landlord, he may at the election of the landlord be treated either as a trespasser or a tenant holding upon the terms of the original lease. • Distraining for rent payable after the expiration of the original term, is an election by the landlord to consider him a tenant.</p> <p>The tenant has no such election, and after holding over, is not at liberty to deny that he is in as tenant, if the landlord chooses to hold him to that relation.</p> <p>Where the tenant, before the expiration of his term, communicated to the landlord his determination not to keep the premises another year, but nevertheless remained in possession a fortnight after the expiration of the term, held that such continuance in possession, notwithstanding what had taken place, enabled the landlofd to treat him as a tenant.</p> <p>Rent payable in advance, at the commencement of each quarter, may be distrained for after the same, by the terms of the demise, has become payable.</p>

Assumpsit, tried at the Orleans circuit on the 14th day of October, 1843, before Dayton, C. Judge. The declaration contained the general money counts, with a copy of the promissory note hereinafter mentioned, annexed. The defendant pleaded non-assumpsit, and another defence not necessary to be here noticed.

The prisoner was convicted, in the general sessions, in June, 1844, of grand larceny, in stealing a promissory note. The note was for the payment of $315,44 and interest, and ivas made by the prisoner, who was the principal debtor, and three other persons as his sureties, promising jointly and severally, and was payable to the complainant Corns, on demand, and dated the 25th of March, 1842.

Demurrer to declaration. The action is assumpsit, and the declaration contains four counts.

Danks sued Quackenbush in replevin in the court below for taking a horse and a harness; and the case was this: In January, 1837, one Fitch recovered a judgment against Danks in the supreme court, in an action upon contract, for $83,85.

<p>The maker of two promissory notes which were past due, in order to obtain a renewal for three months, agreed with the holder to give him a new note for the aggregate amount of principal, and pay the discount upon it and the back interest, and, in addition, to transfer to the holder at par, drafts on New-York and Albany worth three-fourths of one per cent, premium, to an amount equal to the debt; held, that the new note given pursuant to the arrangement was void for usury.</p>

Error from the Montgomery common pleas. Lipe sued Babcock before a justice of the peace, and declared upon an account for a quantity of plank sold, and the defendant pleaded the general issue. The cause was then adjourned, by consent, to a future day, and a venire was issued at the instance of the defendant.

Error from the Chenango common pleas. Bennett and Hall, as trustees of school district No. 16, in New Berlin, on the 6t.h day of April, 1843, sued Burch before a justice of the peace, and declared against him as one of the commissioners of common schools of that town, for $73.79 of debt, being the amount of public school money set off and apportioned according to law to that district, on the first Tuesday of April, 1843, and which had been received by the defendant, who, it…

<p>' The provision prescribing the time during which a licence to sell liquors shall remain in force, (1 R. S. 679, § 5,) does not refer to the calendar year, but to the licence year ; and therefore a licence granted after the first Monday of May expires at the same time with those granted on that day.</p>

<p>In an action against an executor or administrator, a plea of the statute of limitations should not notice the eighteen months which, by 3 B. S. 448, § 8, is, in effect, added to the six years limitation ; that provision not being, intended to alter the form of pleading.</p> <p>Where the debtor resides out of this state at the time the cause of action accrued, and never returns to this state, but dies abroad, the statute commences to run only from the time of the granting of letters testamentary or of administration in this state.</p> <p>In a replication to a plea of the statute in such a case, it is sufficient, after stating the facts to bring the case within the rule, to aver that on a day named, and not before, letters testamentary or of administration were granted to the defendant, and that the suit was commenced within six years thereafter, without stating that no other or prior letters testamentary, &c. had been granted to any one.</p> <p>To a plea of the statute of limitations by an executor or administrator, where the declaration counts upon promises by the testator, the plaintiff cannot reply a new promise made by the defendant.</p> <p>Where, in an action against an executor, the plaintiff replied to a plea of the statute of limitations, that within the period of limitation he presented his claim, with the vouchers, to the defendant, as executrix, pursuant to the statute, and that thereupon- he and the defendant entered into an agreement to refer the same to referees to be selected by the surrogate from names to be furnished by each of the parties and to be approved of by him, and that the defendant subsequently revoked the agreement to refer, and that the suit was brought within six months thereafter; held, that the replication was bad, in substance, for not furnishing any sufficient answer to the plea, and for setting up the short bar of six months, which the defendant had not pleaded ; and in form (if relied on as a replication of a new promise,) for stating the evidence of facts, instead of the facts themselves, upon which the plaintiff relied.</p>

Demurrer to plea. Ford declared against Babcock in an action of trover for books, wearing apparel, &c. The defendant Babcock pleaded, 1. Not - guilty.; 2.

<p>Assumpsit, tried at the Livingston circuit in October, 1844, before Whiting, C. Judge.</p> <p>The action was on a promissory note, made by the defendant’s testator, and the defence relied on was the short statute of limitations provided by 2 R. S. 89, § 38, of which notice had been given under a plea of non assumpsit. The note, which was for $70,90, was made on the 23d February, 1838, payable June 1st, 1839. The defendant took out letters testamentary on the 15th April, 1843, and on the 11th December, 1843, she as executrix, pursuant to § 34, (2 R. S. 88,) published a notice lequiring persons having claims against the estate to present the same with the vouchers, &c. at the late dwelling house of the deceased on or before the 12th June then next.</p> <p>The defendant proved that the note was presented to her for payment early in December, 1843, before the publication of the notice and more than six months before the commencement of the suit, and that it was disputed and rejected by her, and was not referred. The plaintiff proved that he again presented the note on the 7th June, 1844, just before the commencement of the suit, to Scott Lord, Esq. who was the attorney for the defendant for settling claims against the estate of her testator, and requested him to pay or refer the same, who said he was willing to refer, but wished to see the defendant before he made up his mind, as she thought there was something which ought to be seen by a jury; but he promised to see her and let the attorney for the plaintiff know what she would do.</p> <p>The defendant’s counsel insisted that the presentment and rejection of the demand in December, and the neglect to sue in six months thereafter, was a bar to the action; but the circuit judge held the contrary, and stated, that notwithstanding such demand and rejection, the plaintiff could, after the publication of the notice, again present the note within the time therein mentioned, and that the presentment to the attorney and legal advi-' ser of the defendant was sufficient. The defendant’s counsel excepted, and the jury found a verdict for the plaintiff. The defendant moved for a new trial on a bill of exceptions.</p>

<p>Error from the Chenango common pleas. Fitch brought trespass de bonis, &c. against Humphrey before a justice of the peace, and recovered $61,65. The defendant appealed to the common pleas, where the plaintiff was nonsuited on the trial. The writ of error is brought to reverse that judgment.</p> <p>By the pleadings returned by the justice, it appeared that the plaintiff declared for the taking of certain cows and a heifer belonging to the plaintiff. The defendant pleaded the general issue, and gave notice of the special matter subsequently proved on the trial.</p> <p>On the trial, it appeared that the property had belonged to one Harvey McLean. The plaintiff claimed title under a chattel mortgage executed by McLean to him, which was produced and proved. It was dated February 13, 1843, and purported to be given to secure the payment of a note made by McLean to the defendant for $75,93. It embraced the property for the taking of which the suit was brought, and other property, and was to be void if the note, with interest, was paid by the first day of February then next. The original mortgage was filed in the proper town clerk’s office, the 14th February, 1843, an when produced, it had these words endorsed on the back: “ Refiled and renewed the 6th day of February, 1844. S. B. Atwater, town clerk.” It appeared that, on the day on which this endorsement was made, the town clerk was sick, and that the endorsement, except the signature, was written by the plaintiff, and that the wife of the town clerk signed his name at her husband’s request.</p> <p>The talcing of the property mentioned in the declaration by one Locke, a constable, by the direction of the defendant, was proved, and witnesses were examined as to its value, .and the plaintiff rested.</p> <p>The defendant then proved a judgment rendered by another justice and an execution in favor of the Butternuts and Oxford Turnpike Company against- McLean, and that the property was levied on on the 11th March, 1844, and afterwards sold by the constable by virtue of the execution, at. the instance of the defendant, who was president of, and attorney for the company. The property had been in the possession of McLean ever since the mortgage was executed, and was in his possession when seized on the execution.</p> <p>The court, on the motion of the defendant’s counsel, nonsuited the plaintiff on the single ground that the plaintiff'had omitted to file in the town clerk’s office the statement exhibiting 'his interest in the property, required by the statute to be filed within thirty days next preceding the. expiration of one year from the first filing thereof, for which reason they held that the mortgage had ceased to be valid as against the creditors of the mortgagor.</p> <p>The defendant excepted, and a bill of exceptions was duly signed and sealed by the judges.</p>

<p>Where a testator, whose will took effect in 1822, after making sundry bequests and devises, and, among others, to his son J. B. H., devised the residue of his rea! estate, without Words of perpetuity, to his son J. H., on condition that he should pay his debts, and a legacy to his daughter; and added, that if J. H. should die without issue at Ms decease, the real estate should be equally divided amongst' the heirs of his said son J. B. H.; it'was held, (1) That the devisee, J. H., took a fee by implication, on account of the charge upon him of the debts and legacy ; (2) That the.devise over, was not upon an indefinite failure of issue, but a failure at the death of the first taker, and was therefore good as an executory devise ; " (3) That the words, heirs of J. B. H., he having children living at the time of making the will, sufficiently designated these children as the executory devisees, though J. B. H..was himself then living, he being referred to in the will as a living person.</p> <p>A general devise to the heirs of a person who is then living, but is not referred to as living, is void ; but a devise to the heirs of one who is stated in the nil! to be living is a valid disposition in favor of those who would he his heirs if he should then die.</p>

<p>Error from the superior court of the city of New-York. Gibbons sued Gouverneur in the court below in assumpsit, upon an, agreement relating to a horse race, to be run on the Union course in Queens county. The agreement was contained or referred to, in an entry made in a book kept by the proprietors of the course, called the “ Sweepstake book of the Union Course,” in the following words:</p> <p>« Spring meeting, 1839. We the subscribers agree to run a sweepstake, mile heats, spring 1839, with, colts and fillies dropt in 1836. Entrance $1000; forfeit $250. The second in the race to receive back stakes; four or more to make a race, and to close 1st January, 1837. (1) S. L. Gouverneur, [the defendant] names produce of Geraneum, by Barefoot; (2) Robert L. Stevens, names produce of Black Maria, by Gohanna; (3) John C. Stevens, names produce of Celeste.and Shark; (4) William Gibbons, [plaintiff] names Mariner, by Shark, out of Bonnets of Blue.”</p> <p>Tire import of the agreement was proved to be, that each subscriber who should compete in the race, should contribute $1000; and that such, of the subscribers as should not ultimately compete should pay $250 as a forfeiture for not running, and that the winning party should receive the aggregate amount of the contributions and forfeitures, except that the one whose horse was second in the race, was to. receive back his stakes; that unless four at least became parties to the agreement, it was void ; and that the period within which individuals could become parties ended the 1st of January, 1837.</p> <p>The race was run in the spring of 1839, two horses only starting, that of the'plaintiff and the one belonging to Mr. R. L. Stevens. The plaintiff won.</p> <p>Considerable evidence ivas given. to show that the defendant actually became a party to the agreement by authorizing his name to be put to it, and had so admitted; and that every thing was done according to the usage in such cases." The plaintiff claimed to recover the $250 forfeit. When the plaintiff rested, the defendant objected tp a recovery on the grounds, among others, that the contract was void as being contrary "to the statute against horse racing, and the statute against betting and gaming.</p> <p>The court declared its opinion to be, that the contract was within the provisions of the last named statute and was void, and with that opinion left the case to the jury, who "found a verdict for the defendant.</p> <p>The plaintiff’s counsel excepted, and a bill of exceptions vas signed and sealed.</p>

common pleas. Thompson & Boynton, on the 31st July, 1844, made an application in writing to a justice for an attachment against-the goods, The plaintiffs then proved that they had attended the defen dant’s family as 'physicians, produced their account book, and after giving the proof required to make it evidence, had the defendant’s account read therefrom to the justice, and also proved that the charges were reasonable.

<p>Error to Onondaga C. P. Howe sued Willson before a justice, and declared for that the defendant on, &.c., with force and arms broke and entered the plaintiff’s close situate at Y. in the comity of O., and then and there took and carried away the plaintiff’s horse, &c. Plea, not guilty. The plaintiff recovered before the justice $55 damages, besides costs; and the defendant appealed. On the trial in the C. P. the plaintiff gave no evidence of a breaking of his close ; but proved that the defendant entered the close of another man near by the plaintiff’s and took and carried away the plaintiff’s horse. The defendant then moved for a nonsuit, which was granted on the ground that the proof did not sustain the declaration.» The plaintiff now brings error.</p>

Error, to the Dutchess common pleas. Brinckerhoff sued Homan &. Homan, before a justice, and declared in debt on bond in the penal sum of $36,14.

<p>Error to the Chemung common pleas. Higbe sued Leonard before a justice of the peace in assumpsit, and the defendant pleaded non-assumpsit. After a trial before the justice, he rendered a judgment for the plaintiff for $18 damages, and costs. Leonard brought a certiorari to the common pleas, and assigned for error in fact, that a brother of the justice had intermarried with a sister of the plaintiff, and that another brother of the justice had intermarried with another sister of the plaintiff, it being alleged' that such marriages had taken place before the commencement of the suit before the justice, and that the persons so connected were still living. The plaintiff put in a joinder, in millo est erratum. The common pleas reversed the justice’s judgment for such alleged error.</p>

The.cause originated in a justice’s court, where Hinman as plaintiff recovered fifteen dollars and costs for five days services as an arbitrator against Hapgood, who was a party to the submission. The judgment was reversed in the common pleas upon certiorari prosecuted by Hapgood. The plaintiff brought error to this court.

Error from the New-York common pleas. Smith, Hastings and Hoyt, brought replevin in the court below against Belknap and Gomperts, for a quantity of carpeting. The defendants pleaded non cep., and gave notice of the defence afterwards set up on the trial. On the trial in December,' 1843, the defendants admitted the taking of the goods in the loft of the store, No. 49, Stone street, and undertook to justify such taking as for a distress for rent.

<p>Error to the Dutchess .common pleas. Jackson sued Morris and Case before a justice of the peace in trover for three hogs. The defendants pleaded the general issue, and gave notice of special matter. The cause was tried by jury and the defendants had a verdict and judgment, which was affirmed by the common pleas on certiorari. . .</p> <p>On the trial before the justice the plaintiff proved that he owned-the hogs, and that they were confined in the pound in Poughkeepsie in the charge of Morris, who was pound' master of the village, and of Case his deputy, from the 17th to the 28th of May,.1842, and that on the latter day they were sold by the defendants for non-payment of the fine, fees, &c. The plaintiff demanded the same while they were in the pound, but Case, who then had charge, refused to give them up except on payment of the fine, &c. •</p> <p>The town clerk of the town of Poughkeepsie proved that at the town, meeting in April, 1842, Morris was appointed pound master of the town; and that it was there resolved that swine should “ not be commoners.”</p> <p>The following ordinances, among others; were proved to have been passed by the trustees of the village of Poughkeepsie, on the 10th of May, 1842:</p> <p>“ Be it ordained by the trustees of the village of Poughkeepsie, that no swine shall hereafter be permitted to' run, lie or be at large in any street in this village.”</p> <p>“ And be it further ordained, that the owner or owners of any swine shall forfeit for the use of the village, for every time any such animal shall run, lie or be at large in any street in this village, the sum of twenty-five cents; provided that no forfeiture shall be incurred twice on the same animal in the same day.”</p> <p>“ And be it further ordained, that it shall be the duty of the street inspector to prosecute, under the directions of the trustees, for all violations of this law, and to drive or carry all such animals so found at large to the village pound hereinafter provided, and to deliver them to the pound master; and to hire as -much assistance, at the expense of the village, as he shall deem necessary to drive or carry such animals to the said pound.”</p> <p>The other ordinances passed at the same time established a public pound for the village, and directed the pound master to receive all animals so brought there, and provided for the sale of animals impounded, for payment of the fine, fees and expenses. Morris was at the same time appointed village pound master.</p> <p>The street inspector testified that he did not drive the'swine to pound, or employ any one to do-it. He had, however, given general notice of the existence of the pound, and that whoever would drive to it hogs which were found running at large would get pay for so doing, and he had often told boys and men to drive hogs found in the street to the pound. •</p> <p>The defendant Morris, as pound master, had posted a public notice to the same effect with that given by the street inspector. The hogs in question were found in the street by some boys who drove them to the pound, where they were received by the defendants and finally sold as. above mentioned.</p>

Error.from the Tioga common pleas. Legg sued Olney and Ashley before., a justice of the peace, who, after a trial before him, rendered judgment for .the defendants, which judgment was affirmed by the common pleas, on certiorari.

Trover for a wagon and cutter, tried at the Madison circuit, before Gridley, ,C. Judge, in September 1843, The case, as stated by the plaintiff’s counsel in his opening to the jury, was this : the plaintiff is a seventh day baptist, whose religious faith and practice is, to keep the seventh, as a day set apart by divine command as the sabbath of rest from labor, and dedicatéd to the worship of God: the defendant held a note against the plaintiff, upon which he commenced a…

Action on the case, tried at the Schoharie circuit, before Cushman, C. Judge, in October, 1843, when the jury found a verdict for the' defendant. The plaintiff moves for a new trial on a case. The facts are sufficiently stated in the opinion of the.court.

<p>Where a declaration in slander stated a complaint before the grand jury, and that the plaintiff was sworn and gave evidence upon such complaint, and contained a colloquium concerning the evidence so given, and charged the defendant with having spoken words in themselves imputing perjury to the plaintiff in giving such testimony; held, that the action could not be sustained without proof of such proceedings before the grand jury.</p> <p>The case of Jacobs v. Fyler, (3 Hill, 574,) commented on and explained.</p> <p>Where it was proved that the defendant had said of the plaintiff that he had stolen “ the Spaniard’s money',” such words being laid without any averment or colloquium respecting the loss or stealing of such money; held, that the plaintiff was not entitled to prove a report in the neighborhood that a Spaniard’s money had been stolen.</p>

P. Mathews sued Lawrence before a justice, and declared on a justice’s judgment against the defendant for #7,10 damages and costs. On the trial the judgment was proved.

<p>Error to the Oneida common pleas. The plaintiff in error sued the 'defendants in error before a justice of the peace and de dared in trespass for taking a wagon. The defendants pleaded the general issue, and the plaintiff recovered judgment for fifty dollars. The defendants appealed to the common pleas, where the cause was tried in March,. 1843.</p> <p>The plaintiff’s wagon was taken by the collector of school district No. 6 in the town of Paris, by virtue of a tax list and warrant originally issued on the 15th of March, 1839, by the then.trustees of the district, which were in due form, except that the trustees did not affix:.their seals to the warrant. The warrant had been renewed by writing under the hands of the trustees, without seals being used, five several times prior to the 25th of October, 1839, and-on that day it was again renewed by_the .defendants as trustees of the district, by writing under their hands and seals, setting forth that it was done by order of the superintendent of common schools; and the evidence .tended to shew that the wagon was taken and sold within thirty days after said last mentioned renewal. The defendants personally directed the execution of the warrant against the plaintiff’s property. The tax list was made out February 20, 1839, and was expressed to be for the erection of a new school house in the district. The plaintiff was a taxable inhabitant of the district, and was assessed in the list for property to the. amount of $2,200, and was taxed $28,70. The aggregate amount of taxes in the list was $399,81. It was proved that the district, at a meeting held on the 5th day of February, 1839, voted to raise a tax of four hundred dollars for the erection of a new school house in the district.</p> <p>‘ The plaintiff proved that at the annual district meeting held on the 1st day of October, 1839, the defendants Tanner and S. Randall and one D. H. Burnham were chosen trustees, and that the meeting then adjourned to the 9th day of the same month, when the defendant Smith was chosen a trustee in the place of Burnham, who, the resolution states, had declined to serve. • He also proved that at an annual district meeting held on the 2d day of October, 1838, the district voted a tax of $400 for the purpose of erecting a new school house, which vote had never been, in terms, reconsidered, but it appeared that no steps had ever been taken under it to levy the tax. The order of the trustees to the district clerk for calling the meeting of the 5th February, 1839, at which the tax in controversy was voted, was given in evidence, and by it,-the purpose of the meeting was expressed tobe “ to choose a collector in--the place of S. S. resigned, and for considering the propriety of building a new school house and for hiring a house in which the school may be taught the present winter, and for transacting such other business as the méeting may deem necessary.” There was conflicting evidence ■touching the manner in which the clerk notified the inhabitants of this meeting, he testifying that he warned all the taxable inhabitants by reading to them the order, or a notice to the same effect, or by stating the contents of it, or leaving a copy of it; but this was contradicted by several witnesses for the plaintiff, whose testimony tended to shew that the clerk had omitted to notify some and had misled others by misrepresenting to them the object of the meeting, on account of which they did not attend. The plaintiff also proved ■ that the .trustees, in making their assessment contained in the tax list, varied to some.extent from the last assessment roll of the town of Paris; that in some instances they inserted a larger and in some a less amount of property against.the name of an individual than that appearing in the town assessment roll, and that in ope instance they assessed and taxed an individual who owned and occupied real estate in the district but whose name was omitted on the town roll, though he had lived in the- district and on the premises two years; and that they completed their assessment roll and tax list without giving any notice to any person of their having changed the amount in any instance from that appearing upon the town assessment roll, and without giving the general notice to the inhabitants of the district which town assessors are required to give prior to their meeting to review and correct their roll; but it appeared'that they made out the assessment according to their best judgment, following the town assessment except as'above stated."</p> <p>The judges of the common pleas charged the jury, (1) that the omission of the trustees who made out the assessment roll and tax list to give the notice required to'be given by town assessors, before they completed the valuation and assessed the taxes, did not render the assessment and subsequent proceedings void and did not make, the defendants ■ trespassers; (2) that if the district clerk, in giving notice of the meeting at which the tax was laid, did misrepresent the object of that meeting in the manner stated by the plaintiff’s witnesses, the defendants were not on that account trespassers, unless they were parties to the fraud; (3) that the defendant Smith, upon the facts shewn, was a lawful trustee of the district; (4) that the vote of the district at their meeting of the 2d October, 1838, to raise a tax of $400, was not under the circumstances of the case any obstacle to the subsequent vote of the 5th of February, 1839, of the tax of $400, the question in the cause; and (6) that the sealed instrument of the 25th October, 1839, renewing the warrant, rendered it of the like force and effect as an original warrant duly signed and sealed'by the trustees.</p> <p>The plaintiff’s counsel excepted to the several propositions in the charge, and the jury found a verdict for the defendant. A bill of exceptions was duly signed and the court gave judgment upon the verdict. ° ■ ’</p>

P. Peck sued Cowing before a justice in assumpsit, and declaied upon a warranty of the qualities of a pump which the defendant sold to the plaintiff. -The defendant demurred to the declarationthe plaintiff joined, and the justice overruled the demurrer.

Assumpsit, tried at the Delaware circuit in June, 1844, before Ruggles, 0. Judge. The declaration, besides the common money counts, contained a count for goods sold and delivered, and the defendants pleaded non assump.

<p>A writing signed by the defendant in these words: “ Mr. Henry Peters; I hereby agree to pay you the rent of the part of the house hired of you by Mr. John Ward in case he fails ; the rent to be paid quarterly at the rate of thirty-seven dollars for the year,” is a promise to answer for the debt, default or miscarriage of another person, and is void for failing to express the consideration of the promise.</p> <p>The use of the term “ agree,” in a contract, does not in itself import a consideration. Per Jewett, J.</p> <p>An action upon an express contract must, except in the case of negotiable paper, be brought in the name of the party to whom it was made; and it is not competent to shew by parol that the promisee was the agent of another person, for the purpose of enabling such person to maintain an action in his name on the agreement</p> <p>Where a plaintiff is nonsuited and brings error, any fact appearing upon the case made by him, constituting an unanswerable obstacle to his recovery, may be relied upon to sustain" the judgment, though it was not mentioned at the trial.</p>

<p>The provision in 1 R. S. 486, § 100, imposing a penalty upon trustees of school districts for failing to render an account, or to pay over the public money in their hands, on the expiration of their offices, provides for a several penalty upon each trustee who shall omit to perform his duty, and does not authorize a joint suit or recovery against several; and where a recovery was had against three, for a single penalty, the judgment was held to be- erroneous.</p> <p>Where a penalty is prescribed for an omission to perform a particular duty, enjoined upon a class of public officers, the offence is in its nature several, and each offender must be prosecuted separately. Per Beardsley, X</p> <p>But where the penalty is given for an act which several may join in committing, a joint action may he sustained, and in such case but one recovery can be had foz the commission of that act. Per Beardsley, X</p> <p>So where the words of the statute provide that “ the person or persons ” offending shall forfeit a certain sum, a joint recovery may be had. Per Beardsley, X</p>

<p>. n an action against a town collector and his sureties, on the official bond executed to the supervisor, brought for the default of the collector in not paying to the county treasurer the money required to be collected by the annual tax list and warrant issued by the board of supervisors, it is no defence that the collector had collected the money, and that the same had been stolen from his dwelling house “ without any fault, want of care or omission of duty,” on his part.</p> <p>The provisions of the revised statutes impose a definite liability on the collector and his sureties, for the omission to collect and pay over the taxes, and they are responsible whether the omission is the result of misfeasance, unavoidable accident, dr a felony committed by another. Per Jewett, J.</p> <p>In a plea setting up a loss of the money by theft, where such loss would furnish a defence to the officer, ,the collection of the money should be positively averred, and it should be shewn that the same identical money had been stolen. Per Jewett, J.</p> <p>In debt on bond a'single plea containing the substance of non est factum and nil debet is bad.</p>

<p>An alteration in an assignment of a certificate given by the sheriff to the purchaser, .upon a sale of real estate, made after its execution, where the alteration is of a character not to change its legal effect, will not avoid the assignment.</p> <p>Where a sheriff’s certificate of the sale on execution of land actually situated in the town.of Westfield, accurately described the premises by specifying the lot, tract, original township and the village where situated, and an assignment annexed thereto, in terms conveyed all the right, title and interest of the purchaser in and to the certificate, but added “being for land, &c. situate in the town of Portland; held, that the purchaser’s interest passed by the assignment, notwithstanding the mistake, and that the legal effect of the instrument was not.changed by erasing the word Portland and inserting Westfield.</p> <p>Where a judgment creditor, seeking to acquire the right of the original purchaser of lands sold on execution upon a prior judgment, is also the assignee of the sheriff’s certificate of sale, he is not bound to pay the money which the purchaser paid on the sale.</p> <p>Where an assignment of the certificate of Sale is presented to the officer by a junior judgment creditor, only to dispense with the payment by him of the amount paid on the sale, such assignment need not be filed with the county clerk.</p> <p>Whether an assignee of the certificate of sale forfeits his right to a deed, where the premises have not been redeemed, by omitting to file such assignment with the county clerk within fifteen months, after the sale, quere. Per Jewett, J.</p>

<p>Debt on bond, tried at the Rensselaer circuit, before Cushman, C. Judge, in November, 1843. After the bond had been read in evidence, the defendant offered to prove fraud on the part of the plaintiff, and to make out the same case, in substance, which was offered to be proved on the former trial. (5 Hill, 63.) The evidence was offered in bar of the action, as a defence to it, in mitigation of damages, and for the purpose of diminishing the amount of the recovery. The notice of special matter under the plea of non est factum commenced by saying, that the evidence would be given “ in defence and in bar of the action.” The plaintiff objected that the form of the notice would not-authorize the admission of the evidence offered : that if the defendant intended to insist upon the evidence in mitigation of damages, or by way of recoupment, the notice should have been so expressed. The judge sustained the objection, and rejected the evidence: and, a verdict having been found for the plaintiff, the defendant moves for a new trial on a bill of exceptions.</p>

<p>Error from the New-York common pleas. Brown sued Tompkins & Gardner in the common pleas in January, 1844, and declared .in assumpsit upon the money counts, and for goods sold. Tompkins pleaded non-assumpsit, and actio non accrevit infra sex annos, upon which the plaintiff took issue. Gardner suffered a default. At the trial in April, 1844, the plaintiff proved the sale of goods to the defendants in January and February, 1837, to the amount of about $120; and he then offered to show that within six years before the commencement of the suit, the defendant Gardner promised to pay the debt. The counsel for the defendant Tompkins objected that such proof was not admissible upon the issue joined upon the second plea, but the objection was overruled. The plaintiff then proved that about four years before the trial, Gardner had said he had not then means to pay the debt, hut would pay it as soon as he could. At another time about the same period he said he would pay it as soon as he was able, or as soon as he got able. The defendant’s counsel objected that as Gardner’s promise was a conditional one, to pay when he became able, his ability must be proved. The court overruled the objection and the. defendant’s counsel excepted. The defendant’s counsel then "offered to prove affirmatively that Gardner had no pecuniary means; but the/evidence was excluded on an objection by the plaintiff, and the' defendant excepted. The court charged the jury that if they believed that the defendant Gardner had within six years promised- to pay the debt, the plaintiff was entitled to the verdict; and. they refused to charge pursuant to a request of the defendant’s counsel, that a promise to pay when he was able, would not sustain the action. The defendant’s counsel again excepted. The jury found a verdict for the plaintiff, upon which the court rendered judgment. A bill of exceptions was duly signed.</p>

<p>Where words are actionable only on account of the official or professional character of the plaintiff, it is not enough that they tend to injure him in his office or calling, but they must relate to his official or business character, and impute misconduct to him in that character.</p> <p>The declaration charged the speaking of the following words of the plaintiff in his character of a justice of the peace: “ There is a combined company here to cheat strangers, and ’Squire Van Tassel has a hand in it. K, A., J. G. and ’Squire Van Tassel are a set of damned black-legs but it did not shew that the imputation was connected with the plaintiff’s official conduct; .held, not actionable.</p> <p>Words charging the plaintiff, a justice of the peace, with omitting to inform a party who had recovered a judgment before him, of the fact that the constable, who had - the execution, had rendered himself liable for not returning the same in time, do not impute official misconduct.</p>

<p>In assumpsit by husband and wife, the declaration must state the interest of the wife in the contract; and for the want of such statement in this Case, the judgment was arrested.</p> <p>In general,the wife cannot be joined as plaintiff with her husband in an action on a contract made during coverture; but where she is the meritorious cause of action, and there was an express promise made to her, she may be joined. Per Beardsley, J.</p> <p>In such case the declaration must state the facts necessary to bring it within the exception.</p> <p>Where, in an action by husband and wife, the plaintiff’s case was, that while the wife was sole, money had been paid by a third person to the defendant’s testator, to be enjoyed by him during life, and then to be paid to her; held, that the plaintifís could not recover on a count for money nad and received, but should have declared specially.</p>

<p>Case, tried at the Greene circuit in September, 1844, before Parker, C. Judge. The suit was commenced July 1, 1844. The declaration stated that the plaintiff was possessed of a dwelling house, farm and premises in Catskill, and was entitled to the benefit of a stream or water course running upon such premises for the use of himself and family to drink and use in cooking and for the watering of his cattle and horses, yet that the defendant, contriving, &c. on, &c., wrongfully and injuriously put, or caused to be put into the stream of water aforesaid, upon the premises aforesaid, the carcasses of one or more dead dogs, which remained .in said water for a long space of time, to wit, three months, whereby the water became unhealthy and unfit for use, &c.</p> <p>The defendant pleaded not guilty, and gave a notice of special matter to be proved on the trial.</p> <p>On the trial the plaintiff proved that in April, 1844, the defendant caused a dog to be shot and left in one of the branches of the stream above the plaintiff’s house, and that there was another dead dog lying in the same place which he admitted he had killed and left there; that towards the close of April the water where the plaintiff was accustomed to use it became unwholesome and bad, and that his cattle refused to drink it.</p> <p>The defendant introduced a receipt signed by the plaintiff, dated June 1, 1844, in which he acknowledged that he had received from the" defendant one dollar “ in full of" all demands to date.” A witness who was present when the receipt was given, testified that at the interview which was then had between the parties the defendant claimed damages of the plaintiff for trespass done by the cattle of the latter upon the defendant’s 'land, and that nothing was said as to any claim of the plaintiff; that the plaintiff paid the defendant eight dollars for damages done by his cattle, and took from him a receipt; but before the defendant would consent to adjust the claim in that way, he insisted that the plaintiff should give him a receipt in full; that the plaintiff was reluctant to give such receipt, but filially consented, and signed the receipt produced.</p> <p>The defendant moved for a nonsuit. The plaintiff’s counsel insisted that the question of fact, whether the receipt produced was intended to embrace the damages claimed in this suit, should be submitted to the jux'y; and they also contended that the plaintiff was at all events, entitled to recover the damages occasioned by the continuance of the nuisance from the date of the receipt to the time of the commencement of the suit. The judge, expressing himself against the plaintiff upon both points, directed a nonsuit to be entered.</p>

<p>A citizen of another state, sued in a bailable action in this court by a citizen of this state, upon presenting his petition to remove the cause to the circuit court of the United States, pursuant to the act of congress, need not put in special bail in this court.</p> <p>Where in such suit one only of several defendants is arrested, all the defendants must enter an appearance in this court, at the time of presenting their petition.</p> <p>Upon the presenting of such petition, and upon the defendant's giving the security required by the act ’of congress, the court may legally order the cause to be removed to the circuit court in either of the two judicial districts of the United States in this state, as it may deem most proper.</p> <p>Where the cause of action arose in Ohio, and the capias was served on the defendant in the northern district of this state', and the defendant asked to have the cause removed to the circuit court of that district, it was so ordered, though the plaintiff had several witnesses on his part residing in the city of New-York.</p>

The defendant, an' attorney of this court, was held to bail by an order of a supreme court commissioner, in an action of assumpsit, for money collected and received by him for the plaintiff as such attorney. On a subsequent day the order was vacated by the commissioner, and the defendant was directed to be discharged on filing common bail;. from which order an appeal was taken to this court.

This action was commenced in December, 1839, the elder Dorr then being living. It was debt on a bond executed by the defendants, conditioned that the elder Dorr should faithfully discharge the duties of his office as treasurer of Albany county, and account, &c. The other defendants were his sureties. The declaration was served upon all the defendants. Dorr senior pleaded specially, in April, 1840, and there was a demurrer to his plea and joinder.

<p>The statute, (2 R. S. 389, § 8,) which requires a party prosecuting a writ of certio . rari to remove a cause in which an issue of fact has been joined, from a court of common pleas, to' cause the same to be filed eight days before the first day of the term at which the issue might be tried, refers to the first term at which it would be regular to notice the cause for trial, and not the first term, when according to the state of business in the court it can be reached on the calendar.</p>

<p>Redemption of lands. On the 15th day of August, 1843, the sheriff of Rensselaer county sold a lot of land on Third-street, in the city of Troy, upon a fi.fa. issued upon a judgment against John Wheeler, docketed May 6, 1839: Moffatt became the purchaser at $237,50, and duplicate certificates were signed according to the statute.</p> <p>On the 15th November, 1844, the last day for other judgment creditors to acquire the title of the purchaser, there existed, three other judgments which were a lien upon the premises; (1) One in favor of Lucy Adams and others against Wheeler and others, docketed 19th February, 1842, on which there was due, on said 15th November, 1844, $849,73; (2) One in favor of the relator, Raymond, against Wheeler, docketed May 3d, 1843, on which was due on the day aforesaid $81,05; and (3) One in favor of George R. Davis against Wheeler, docketed November 11th, 1844, upon which there was due on said day $221,87. The judgment in favor of Lucy Adams and others was assigned to the relator by an absolute assignment under the hand and seal of the plaintiffs, executed the 15th day of November, 1844. It appeared that Raymond, upon the purchase of this judgment, paid down only five dollars, but made a contingent arrangement to pay more thereafter. The judgment in favor of Davis was duly assigned to John E. Wool. About eleven or twelve o’clock at night of the 15th November, 1844, Wool, as assignee of the judgment in favor of Davis, presented to the sheriff the necessary papers respecting that judgment, and paid to him the sum of §258,28, being the amount paid on the sale with interest, to enable him to acquire the title of the purchaser. Shortly afterwards Raymond, the relator, presented to the sheriff the requisite papers respecting the two judgments which he claimed to own, and paid the like sum of §258,28 to the sheriff. Wool then proposed to pay the amount required to entitle him to became the purchaser from Raymond, and inquired of the sheriff what sum he was to pay, and was informed that it was §672,28, in addition to the sum already paid by him, making in all §930,78, which payment he accordingly made, intending to pay the whole sum required to entitle him to become such purchaser ; but the amount was in fact only sufficient to pay the aggregate due on the two prior judgments, leaving a deficiency equal to the prior bid and interest. Both parties were at this time at the sheriff’s office, accompanied by their respective counsel. Some of the affidavits on the part of Wool state that he and the sheriff both inquired of the counsel of Raymond if Wool had paid a sufficient sum, and that he replied that he did not see but he had; but the affidavits of the counsel, and of several others, state that when thus inquired of, the counsel answered that he was counsel for Raymond and could not advise the other party; that both parties stood on their rights ; that Wool had his counsel present, and he must act on his responsibility, and that the party who in the result would be entitled would have the deed. A few days after this transaction, Wool, on discovering the mistake, paid to the sheriff an amount sufficient to cover the deficiency and interest, for the relator. Immediately after the 15th November, 1844, the relator demanded a deed of the sheriff, claiming that he had duly acquired the purchaser’s right; but the sheriff refused to convey to him, and subsequently conveyed to Wool.</p> <p>J. D. Willard moved for a mandamus to compel the sheriff to convey to Raymond.</p>

<p>The omission of an executor or administrator to publish a notice requiring the creditors of the deceased to exhibit their claims, pursuant to 2 R. S. 88, § 3.4, does not subject them or the estate to the costs of a suit subsequently brought.</p> <p>The case of Harvey v. Skillman, (22 Wend. 571,) so far as it holds a contrary doctrine, overruled.</p> <p>There are only two grounds for awarding costs against an executor or administrator: (1) Where the claim has been presented and payment has been unreasonably resisted or neglected; (2) Where there has been a refusal to refer, the claim being disputed. Per Beardsley, J.</p> <p>If the executor or administrator has no assets, costs cannot be given for refusing or neglecting to pay.</p> <p>Where the justice of the demand is admitted, costs cannot be given for a refusal to refer.</p> <p>Costs cannot be given against an executor or administrator, where a notice to creditors has been duly given and the claim has not been presented within the period required by law thereafter. Per Beardsley, J.</p> <p>Where $225 was claimed, and $39,25 only recovered, in a case where accounts to over $400 were proved on the trial, held that costs could not be given for unreasonable resistance or neglect, the reduction of the amount shewing that the litigation was justifiable. See note (a).</p>

<p>In actions by and against the agents of the state prisons, as authorized by 2 R. S. 763, § 25, the individual name of the incumbent must be used, with tha addition of his name of office.</p> <p>Where such a suit was brought by the agent of one of the prisons in his name of office alone, the plaintiff was permitted to amend by prefixing his proper name to his official designation wherever it occurred, upon payment of costs.</p>

<p>Upon a challenge to a juror for favor, any fact or circumstance from which bias or prejudice may justly be inferred, although weak in degree, is admissible evidence before the triers.</p> <p>Upon the trial of such a challenge, it is erroneous to reject all evidence except such as goes to establish a fixed and absolute opinion touching the guilt or innocence of the prisoner.</p> <p>A fixed opinion of the guilt or innocence of the prisoner, though it may be necessary to sustain a challenge for principal cause, need not be proved where the challenge is for favor. A less decided opinion may be shown and exhibited to the triers, who must determine upon its effect.</p> <p>A juror challenged for favor who is examined before the triers, may be asked whether he ever thought the prisoner guilty ; or what impressions statements which he had heard or read respecting the evidence had made upon his mind.</p> <p>So it seems, an opinion imperfectly formed, or one based upon the supposition that facts are as they have been represented, may be proved before the triers upon such a challenge. Per Beardsley, J.</p> <p>Where the matter alleged against one who is drawn as a juror is in judgment of law a disqualification, the challenge is for principal cause and is entered on the record: where the objection is not per se a disqualification, the challenge is for favor, and is made ore lenus. In the former case, where the facts are ascertained it is to be determined by the court; in the latter the question is one of fact for the decision of the triers. Per Beardsley, J.</p> <p>The causes of challenge for favor are very various, and not subject to precise definition. The question is to be submitted as a question of fact upon all the evidence to the conscience and discretion of the triers, whether the juror is indifferent or not.</p> <p>Where upon a challenge for favor the court err in admitting or rejecting evidence, or instructing the triers upon matters of law, a bill of exceptions lies.</p> <p>The remedy would be the same if the court should overrule such a challenge when properly made or refuse to appoint triers. Per Beardsley, J.</p> <p>The fact that a prisoner did not avail himself, as he might, of a peremptory challenge to exclude a juror who was found indifferent upon a challenge for cause, does not prevent him from taking advantage of an error committed on the trial of the challenge for cause, though it appears that his peremptory challenges were not exhausted when the empannelling of the juiy was completed. He is entitled to have his challenges-for cause determined according to law, and to make or withhold his peremptory challenges according to his pleasure.</p> <p>A party is not entitled to ask the opinion of a professional witness upon any question except one of skill or science.</p> <p>Where upon the trial of an indictment for murder, a witness for the prosecution who resided in the same house with the prisoner was examined as to her declarations and conduct for several successive days subsequent to the murder, and in the course of such examination, related his Own occupation and conduct during that time, which had no apparent bearing upon the questions in issue, and the prisoner’s counsel objected to all evidence of the independent conduct of the witness during that time, which objection was overruled, and the witness continued to give an account of his own conduct in connection with the prisoner’s acts and declarations—but the hill of exceptions, instead of detailing the whole of the witness’ testimony, was confined to what he said respecting himself: Held, that the objection was' too broad, and could not be sustained—that it should have specified the particular acts of the witness which were objected to by the prisoner and insisted upon by the prosecution—or the whole of the witness’ testimony should have been given to enable the court to judge what particular parts were objectionable.</p> <p>Although a witness who has given testimony, is privileged from answering whether ire has not on a former occasion sworn differently, neither the court nor a party can object where the witness does not; and whére upon such a question being put, the court without any objection by the witness excluded it, it was held erroneous.</p> <p>Where on the trial of an indictment for murder the evidence was circumstantial, and the judge instructed the jury that fair character was important to the prisoner, and that they were to inquire “ why it was that she had given no evidence of her general character : Held, that such instruction suggested the inference that her character was bad, and was erroneous.</p> <p>Where no evidence of general character has been given, the subject of character is not one for the consideration of the jury. -Per Beardsley, J.</p> <p>Where on a trial for murder there was evidence that a murder had been committed, and that the house in which the dead body was, had been subsequently set on five under such circumstances as to raise a suspicion that the same was done by the perpetrator of the murder to conceal that offence, and the evidence left it doubtful whether the prisoner was in the vicinity of the house when tire fire was set, and the court charged the jury that if the prisoner might have been at the scene of the fire “ the onus was cast upon her to get rid of the suspicion which thus attached to her,” and that she was bound to show where she was at the time of the fire: Held erroneous.</p>

<p>Error from the New-York common pleas. Marsiglia sued Clark in the court below in assumpsit, for work, labor and'materials, in cleaning, repairing and improving sundry paintings belonging to the defendant. The defendant pfeaded non assumpsit.</p> <p>The plaintiff proved that a number of paintings were delivered to him by the defendant to clean and repair, at certain prices for each. They were delivered upon two occasions. As to the first parcel, for the repairing of which the price was seventy-five dollars, no defence was offered. In respect to the other, for which the plaintiff charged one hundred and fifty-six dollars, the defendant gave evidence tending to shew that after the plaintiff had commenced work upon them, he desired him-l not to go on, as he had concluded not to have the work done. 1 The plaintiff, notwithstanding, finished the • cleaning and repairing of the pictures, and claimed to recover for doing the whole, and for the materials furnished, insisting that the defendant had no right to countermand the order which he had given. The defendant’s counsel requested the court to charge that he had the right to countermand his instructions for the work, and that the plaintiff could not recover for any work done after such countermand.</p> <p>The court declined' to charge as requested, but, on the contrary, instructed the jury that inasmuch as the plaintiff had commenced the work before the order was revoked, he had a right to finish it, and to recover the whole value of his labor and for the materials furnished. The jury found their verdict accordingly, and the defendant’s counsel excepted. Judgment was rendered upon the verdict.</p>

Assumpsit, tried at the Cayuga circuit in February, 1844, before Moseley, C. Judge. Plea, non-assumpsit. The plaintiffs gave in evidence a promissory note for $50, made by the defendant, payable to Paul Rhinehart or bearer one year after date, with interest, dated the 28th March, 1837, and rested.

Ejectment for lands in Eagle, in the county of Allegany, tried at the circuit court for that county in October, 1843, before Mónell, late C. Judge. Both parties claimed under Leverett Whitcomb, who was in possession until the spring of 1839, when he removed to the state of Michigan, leaving a tenant upon the premises.

Replevin, in the detinet; plea non detinet. The cause was tried at the St. Lawrence circuit, before Willard, C. Judge.

Ejectment for dower in a lot of land in the city of Troy, tried at the Rensselaer circuit in November, 1843, before Willard, C. Judge. The plaintiff proved her intermarriage with Edward A. Sherman, her late husband, in October, 1831, and a conveyance to him of the lot in question, executed in February, 1832, and his death in 1839 ; and that the defendant was in possession at the commencement of the suit--and rested.

Demurrer to plea. Debt oil a judgment rendered in Vermont. Plea, 1. Nil debet. 2.

Demurrer to replication. The declaration was in assumpsit. Plea, Actio non, because, &c., the defendant, on, &c., at, &c., he, the said defendant, (then and there residing, &c.,) “ was owing debts to a large amount, which debts he was then and there utterly unable to meet, pay, or discharge, and which said debts had not, nor had any of them or any part thereof been created by or in consequence of any defalcation of a public officer, or as executor, administrator, guardian or…

Barker sued Mathews in a justice’s court, and declared, in case, for that the defendant had taken, carried away and secreted certain property of the defendant, which had been levied upon, by virtue of an execution in favor of the plaintiff. The defendant pleaded not guilty, and the plaintiff recovered before the justice. The defendant appealed to the common pleas.

Assumpsit, tried before Kent, C. Judge, at the New-York circuit in January, 1843. The action was on a written agreement made the 2d day of March, 1841, between the plaintiff of Oswego of the one part, and Messrs. James Gibb James Gibh & Co. were partners in business at Quebec, L. C., and the firm was composed of James Gibb, Thomas Gibb, and Elisha Lane. They were made defendants with Eckart.

<p>Proof by comparison of hands, i. e., the juxtaposition of two writings in order to ascertain whether both were written by the same person, is inadmissible.</p> <p>A witness who was a clerk in chancery, and who testified that he had been accustomed to examine signatures, as to their being genuine, is not entitled to give an opinion as a person skilled in detecting forgeries, whether a signature is genuine or imitated.</p> <p>It seems, that the rule sometimes allowed to prevail, admitting experts to give an opinion whether a signature is genuine or imitated, is not well established upon authority, and that such testimony is incompetent. Per Bronson, Cli. J.</p>

Demurrer to pleas, in an action for libel. The declaration, after the. usual- introductory matter, alleged, in the first count, the publication by the defendants in the New-York Tribune, of a certain false and malicious libel of and concerning the plaintiff, containing (infer al.) the following matter, which is set out with inuendoes, applying it to the plaintiff. • “ At all events, having published the letter excepted to as a matter of intelligence, without any sort of…

Assumpsit, tried at the circuit court for the city and county of New-York in October, 1843, before Kent, late C. Judge. The .suit was commenced by declaration containing the money counts in September, 1842. The plaintiffs offered in evidence four several bills of exchange, all dated New-York, December 23d, 1841, drawn (per procuration) by the defendant, by E. Brue, addressed to Messrs. Johnston & Co. at Paris, France, and payable to the order of Messrs.

<p>The seal of another state affixed to a copy of an act of its legislature, for the purpose of authenticating the same pursuant to the act of congress prescribing the mode of authenticating the public acts of the several states, proves itself and imports absolute verity, and is presumed, until the contrary appears, to have been affixed by the proper officer. Per Bronson, C. J.</p> <p>Such seal, however, to be recognized in the courts of this state, must be a common law seal, z. e., an impression upon wax or other tenacious substance: an impression upon paper alone will not answer. • o</p>

The plaintiffs in error sued the defendants in error in the court below, and declared in assumpsit upon- a warranty on the sale of 194 barrels of mess beef, that the same was good, sound, merchantable and wholesome mess beef; whereas the same was unsound, sour, tainted, &c. On the trial the jury found a special verdict as follows: On the 9th of August, 1843, the plaintiffs, being merchants and dealers in provisions in the city of New-York, bought of the defendants, who were…

Information in the nature of a quo warranto. Held: the number of persons assembled entitled to vote for trustees as original members or admitted electors, qualified as before stated, and whose names were registered by the clerk as such electors as aforesaid, were one hundred and seven, and no more, that all these persons voted at such election by written ballots; and that the votes…

Assumpsit on a promissory note given by the defendant to the plaintiff for $82.59, dated April 10, 1841, and payable six months after date. On the hearing before a sole referee, it appeared that there had been mutual accounts between the parties, and that the note was given for the balance found due to the plaintiff on a settlement of those accounts.

Assumpsit, tried before Dayton, C. Judge, at the Montoe circuit, in February, 1844. The plaintiffs sought to recover the amount of four bills of exchange, dated on different days in the months of October and November, 1842, which were drawn at Rochester by John Allen, payable to his own order, ar.d endorsed by him; and which were drawn upon William Montealh, of Albany.

Trover for a number of horses, cattle and hogs, and a quantity of farming utensils and growing crops, tried at the Columbia circuit in September, 1843, before Cushman, late C. Judge. The plaintiffs gave in evidence a chattel mortgage executed to them by one Abraham B. Yanderpoel, dated April 19th, 1842, which had been duly filed in the proper town . clerk’s office.

Demurrers. The declaration is in debt upon the act incorporating the Rossie Galena Company, passed May 12, 1837, (Laws of 1837, p. 445,) and contains six counts. ■ The first count sets forth the passage of the act, and the provisions of the 9th section declaring that the stockholders of the corporation shall be jointly and severally personally liable for the payment of all debts and demands contracted by the corporation or their authorized agents; and that any person having…

Groom sued Ladow and Chadsey in a justice’s court, and declared in substance that the defendant Chadsey had theretofore sued the plaintiff before the defendant Ladow as a justice of-the peace, and that an issue of fact having been joined, the plaintiff recovered on the trial above $25 damages, besides costs; that within ten days thereafter the defendant in that judgment, the plaintiff in this suit, presented to a supreme court commissioner an affidavit for the allowance of…

Groff, in July, 1844, sued Griswold Corning before a justice of the peace, and on the return of the summons declared on a former judgment in his favor, rendered before the same justice against the defendants, for $42,04 of debt, 34 cents damages and $1,06 costs. The defendants did not appear.

Writ of nuisance. The plaintiff declared that he was seized of certain lands in Lancaster, Erie county, describing them, through, which ran the waters of the Cayuga creek, and that the defendants, on &c. wrongfully and unjustly built, raised and put up in and across the creek on and against and near the plaintiff’s land divers, to wit, three dams, three flumes, and three obstructions of great height and width, to wit, of the height of five feet and of the width of four rods…

Action for verbal slander, tried before Monell, C. Judge, at the Chenango circuit in August, 1843. The case was this. A controversy existed between the defendant and one Monroe, in September, 1842, which by an instrument in writing they submitted to the decision of three arbitrators. The arbitrators met and heard the proofs and allegations of the parties, and made an award in writing, that the defendant pay a sum of money.to Monroe. The arbitrators were not sworn.

Demurrer to rejoinder. The suit was commenced by attachment against the defendants, described as a foreign corporation created under and. by virtue of the laws of the state of New-Jersey, the plaintiff being a resident of the state of New-York. The 'declaration is in assumpsit, containing the common counts for money, services and goods, and on an account stated. The defendants pleaded actio non accrevit infra sex annos.

Demurrer to replication. The declaration was in assumpsit, to which the defendants pleaded the statute of limitations, in both forms. Replication, “ that Henry Delafield, one of the defendants, departed from and resided and was absent out of the state of New-York before the expiration of six years from the time the cause of action in this cause accrued, to wit,” <fcc. “ and continued so absent until the time of the commencement of this suit.” Demurrer and joinder.

Ejectment, tried at the Saratoga circuit in December, 1844. The plaintiff sought to recover one undivided thirty-fifth part of fifteen acres of land in the possession of the defendant, and which was part of a larger parcel, of which it was admitted Eyer Schermerhorn died seized in the year 1793.

<p>Demurrer to replication. The declaration is in assumpsit, the plaintiffs named therein, being “ The Methodist Episcopal Church in the village of Little Falls.” Plea in bar, nul tiel corporation. Replication, setting forth, in detail, the incorporation of a religious society, pursuant to the general act of April 5th, 1813, by the name of “ The Trustees of the Society of the Methodist Episcopal Church in the village of Little Falls,” and containing an averment that the plaintiffs and the body corporate thus created "are one and the same identical body corporate, and not other or different,” concluding with a verification. Demurrer and joinder.</p>

Debt on recognizance for $500. The declaration alleged that the defendants on the 24th July, 1843, came before R. J. H., one of the judges of the Albany county courts, counsellor, &c. and acknowledged themselves held and firmly bound to the people in the sum, &c. if default should be made in the condition, which was, that if Everson should personally appear at the then next court of general sessions to be holden in and for the county of Albany, and then and there answer to a…

<p>The officers before whom oaths and affidavits may by law be taken, by 2 R. S. 284, § 49, arc bound to administer the same when requested, the word may in that section being equivalent to shall; and a refusal to do so subjects them to indictment for a misdemeanor.</p> <p>To render a neglect Of duty by a public officer milful, within the statute making such neglect a misdemeanor, (2 R. S. 696, § 38,) it is only necessary that it should appear to be intentional; and it is no defence that the officer believed he was not bound to do the act, and was not guilty of bad faith in refusing.</p> <p>A justice of the peace before whom a cause is pending, is bound on the defendant’s request, to swear him to an affidavit prepared for the purpose of procuring the cause to be discontinued, on the ground of the justice being a material witness for the defendant; and his refusal to do so is a misdemeanor, whether the affidavit, as drawn, is sufficient for the purpose or not.</p>

Assumpsit, tried before Monell, 0. Judge, in August, 1843. The case was this: The plaintiff and defendant were partners in business in the sale of goods. In August, 1841, the partnership was dissolved: the defendant purchased the plaintiff’s interest in the concern for $1500, and gave his notes to the plaintiff for the amount, payable at future periods. On one of those notes, for $75, this action was brought.

Error from the Seneca common pleas. Ellis sued Willson before a justice of the peace and declared in trespass, for taking a clock, to which the defendant pleaded the general issue. The cause was tried by a jury. The defendant was a constable and took the clock cn an execution against the plaintiff. The plaintiff was a householder, and had a family—his whole property being worth about $60.

P., where Smith sued Spear and declared in debt for $100 on a written submission to arbitration. By the submission, the defendant agreed to give up to the plaintiff the possession of certain property concerning which there was a contract between the parties, and the arbitrators were to decide what damages either party should have in consequence of the non-fulfilment of the contract; and on account of certain other matters of small importance.

<p>■ Case, tried at the Rensselaer circuit in January, 1843, before Willard, C. Judge. The declaration stated that the plaintiff was the owner of several lots lying on the east side of Hill-street in the city of Troy, and that the defendant was the owner of a hill or part of a hill called Mount Ida, lying east of said lots; that the defendant caused the hill, or the part thereof owned by him, to be undermined, and the same was so carelessly, negligently and improvidently done, and the dirt was so carelessly and negligently removed, &c. as to cause said hill to slide down upon the plaintiff’s lots, &c. and thereby greatly injured the same, &c. The defendant pleaded not guilty.</p> <p>On the trial the plaintiff "proved that three building lots, 50 feet by 120, on the east side of Hill-street, were conveyed to him in 1825; that the defendant was the owner of the hill; that one avalanche or slide occurred in 1837, and another (the one complained of) in the winter of 1843, and that by the latter occurrence the plaintiff’s lots were covered with earth, &c. and greatly injured ; that in February, 1842, a person claiming an interest in one of the lots under the plaintiff gave notice to the defendant not to dig into the hill as it endangered his property, and that the defendant said he would dig as much as he pleased-Evidence was then given tending to shew that the slide was caused by digging into the hill, and that the same was done under the direction of a company called the meadow company, of which the defendant was a member. It appeared that for some time prior to and up to the time of the slide of 1843, the hands of the company had been taking dirt from the hill to fill up certain lots south of Washington square.</p> <p>The defendant gave in evidence a contract, dated September 25th, 1834, between the plaintiff and defendant and three other persons; by the provisions of which certain meadow lands in Troy, lying south of Washington square, were to be purchased for the benefit of the five parties, and upon such purchase being made, the defendant was to allow earth to be taken from the hill to fill up the meadow lots so purchased, which enterprise was to be conducted by and for the benefit of the five individuals who were parties to the contract; and it appeared that the excavation which caused the injury complained of was done in the course of the execution of the contract. After this evidence had been given, the judge intimated that the plaintiff could not recover as the evidence stood. The plaintiff then offered in evidence a deed from himself and his wife to the defendant, dated February 6th, 1836, for one undivided fifth part of the meadow land referred to in the contract of September 25,1834. It contained a covenant on the part of the plaintiff that he had done no act to affect the title to the premises conveyed, except by his covenants and agreements with the four other proprietors parties to the contract before mentioned, and it stated that the deed was subject to that contract. He also offered to shew that the sale of his interest to th© defendant was made with the assent of the other parties to. the aforesaid contract, and that at the time of giving said deed there was no danger of the sliding of the earth on account of their operations, and that no slide would have occurred after that of 1837, but for the undermining of the hill, and that the injury complained of was occasioned by what was done subsequently to the plaintiff’s conveying his interest by said deed. The defendant’s counsel objected to the evidence so offered, and the objection was sustained by the judge, who thereupon directed a nonsuit to be entered. The do* fendant’s counsel excepted.</p>

<p>A party signing a written instrument with his initials, intending thereby to bind himself, is as effectually bound as he would be by writing his name in full.</p> <p>It is competent, however, where the suit is between the original parties, for one whose initials, or full name, appear to a note or obligation, to shew that he placed them there to attest the execution of the instrument, or for any other lawful purpose, and not as maker of the instrument. Per Beardsley, J.</p> <p>Where a promissory note purporting, from the words “we promise” &c., to be the note of more than one person, was signed in the first place with the name of a single individual, under which name were w itten the initial letters of the defendant’s name, which were proved to be in his hand-writing; held, that the defendant was presumptively a joint maker; and also- that such presumption was not overcome or impaired by proof that the first signature was likewise in the defendant’s hand-writing.</p> <p>Where one executes an instrument in the name of another, assuming to be his agent, but having in fact no authority for that purpose, he is himself bound as a principal.</p> <p>Whether this rule would apply in a case where the name of the assumed agent did not appear on the paper, quere. Per Beardsley, J.</p> <p>To exempt the party assuming to be agent from the operation of this rule, it must appear that he was such when he signed the instrument. A subsequent ratification by the party named as principal would not affect the question.</p> <p>The partners of a firm, by adopting and using in their business the name of a single individual for that of their firm, will subsequently be bound by the use of such name, to the same extent as though they had used the ordinary name of their firm.</p> <p>Where the partners of a firm have a copartnership name which they ordinarily use, they will not be bound by the use of a new name, unless it be shewn that all the partners have assented to the use of such new name, or that the partner who was entrusted with the control and management of the business of the firm had so assented.</p> <p>The defendant, a clerk of a mercantile firm, consisting of Gideon Stephens and three of his sons, who ordinarily transacted their business under the name of G. Stephens & Sons, having authority to make notes in behalf of the firm, but not in behalf of Gideon Stephens individually, made a note to the plaintiff upon a copartnership transaction and signed the same G. Stephens, adding his own initials; held, that the defendant was himself liable on the note, unless it were shewn that the firm was bound in consequence of having adopted the name of G. Stephens as a proper name to designate such firm in the transaction of its business.</p>

Thomas Mottram & Sons were plaintiffs in the court below, and brought replevin against E. P. & H. Heyer for a bask of hardware. The defendants were merchants in the city of New-York, and ordered the goods from the plaintiffs, who owned a factory in England, on a credit of four and six months. The goods were shipped at Liverpool on board the Cambridge, and consigned to the defendants, they paying freight.

<p>Slander for words imputing forgery, tried before Kent, late C. Judge, at the New-York circuit, in January, 1844.</p> <p>On the trial it appeared that a forged check had been passed to the defendant and his copartner in. business, in payment for goods sold by them to a person who called himself Captain Wait, they. advancing in money the difference between the amount of the goods and the check. This action was brought for charging the plaintiff with being guilty of the crime of forgery in passing the check. One Leonard, a witness for the plaintiff, testified that he was a connection of the plaintiff by marriage; that having heard that the defendant had charged this crime upon the plaintiff, he called upon the defendant at his store and told him he had been so informed by the plaintiff, and that he had called for the purpose of having the matter settled ; that the-defendant said it could easily be settled by payment of the amount of the check; to which the witness replied that the defendant had quite mistaken him, that payment was out of the question ; that his object was to investigate the matter and satisfy the defendant and his partner that they were wrong in imputing the crime to the plaintiff; to which the defendant said there was no mistake about it—there was no question the plaintiff was the man who committed the fraud. To this the witness replied there was a great mistake about it, and he denied that the plaintiff was guilty and warned the defendant not to repeat the charge—and said that the plaintiff must be aware that the defendant could not submit to it; that the defendant after-wards repeated that there was no doubt but that he was the guilty man—the one who passed the check, and that they could prove it, and said that the amount had better be paid, and the matter hushed up on account of the respectability of the plaintiff’s connections. That he, the witness, answered that he had not come there to compound a felony. The witness stated that it was finally arranged that the plaintiff and defendant should meet at a lawyer’s office the next morning, and that a person who had seen the individual calling himself Captain Wait should see the plaintiff and say whether he was the man. The meeting accordingly took place, but nothing material to the case occurred.</p> <p>At the close of the direct examination of this witness the defendant’s counsel moved to strike out his testimony, on the ground that it appeared that the conversation was elicited by the witness as the friend of the plaintiff and on his behalf, and was held with a view to the settlement of a supposed slander, and therefore could not be used as the foundation of an action. The motion was overruled, and the defendant’s counsel excepted. He afterwards cross-examined the witness, who stated among other things that he did not go to the defendant’s store or hold the conversation with him at the plaintiff’s request, and that he did not so state while at the store. He also stated that he had not mentioned to the plaintiff that he was going to the defendant’s store.</p> <p>The defendant’s counsel in his opening placed the defence solely on the ground “ that the defendant had probable cause and acted without malice,” but he subsequently insisted that the words were used in the course of a privileged communication, and for that reason were not actionable. The defendant called several witnesses, who testified that the plaintiff resembled the person who passed the check to the defendant and his partner, and they thought he was the same person; but in the course of the trial the defendant’s counsel disclaimed defending on that ground, and admitted without qualification that the plaintiff was not the person and was not guilty. These witnesses testified that Leonard, when he came to the defendant’s store and held the conversation testified to by him, 'stated that he came at the plaintiff’s request to see about the charge brought against him.</p> <p>After the defendant had rested, Mr. Davison, who was attorney for the plaintiff, was examined as a witness on his behalf, and testified that he accompanied Leonard, at his request, to the defendant’s store on the occasion referred to, but that he did not go at the plaintiff’s request, and had not then seen the plaintiff on the subject, and that he had not stated to any one that he ■went at the plaintiff’s request; but that on their return to the witness’ office,-he found the plaintiff there and informed him of what had passed at the defendant’s store, to which he made no objection.</p> <p>The judge charged the jury, that if Leonard was authorized by the plaintiff to investigate the matter, what was said by the defendant to Leonard in the course of conversation for that purpose was a privileged communication : but if Leonard was not so authorized by the plaintiff, although he declared he was, the words were not privileged. The defendant’s counsel excepted to the last clause of the charge; and he also insisted that the words were privileged, and were not actionable unless express malice was shewn, and requested the judge so to charge, which he declined; and the defendant again excepted.</p> <p>The jury found a verdict for the plaintiff for $200 damages, and the defendant now moved for a new trial on a case.</p>

Ham sued Auchmuty in November, 1843, before a justice of the peace in an action on the case for knowingly keeping a dog accustomed to bite sheep, whicli dog bit one nundred of the plaintiff’s sheep, fifty of which died, and the residue were greatly injured.

<p>Trover, tried at the St. Lawrence circuit in May, 1843, before-Willard, C. Judge.</p> <p>The plaintiff claimed to recover for the conversion of a quan tity of pine saw-logs, which had been seized arid sold by the sheriff of St. Lawrence county upon an execution issued upon a judgment in this court in favor of the defendants against Beardsley & Lyon. The logs had been cut upon the plaintiff’s land by Beardsley & Lyon, pursuant to a contract entered into between the plaintiff and one Shepard; by the terms of which, the property in the timber was to remain in the plaintiff until the performance of certain conditions on the part of Shepard. Beardsley & Lyon got out the logs under a contract between them and Shepard. Much of the testimony related to the alleged performance of the conditions; but no question of general interest arising upon that part of the case, this testimony is not necessary to be stated. It appeared that one of the defendants in this suit resided at Utica- and the other at Albany, and that neither of them was present at the sale. The logs were bid off by one S. S. Lyon, for the plaintiffs in the execution, the defendants in this suit. When the plaintiff rested, an objection to the recovery was made on behalf of the defendants, and disposed of as stated in the opinion of the court.</p> <p>At the close of the testimony, the defendants’ counsel insisted and requested the judge to charge that there was no conversion of the property by the defendants, or either of them, proved. The judge declined so to charge, but on the contrary instructed the jury that the selling of the logs on the execution of the defendants against Beardsley & Lyon was sufficient evidence of a conversion by them, inasmuch as they as plaintiffs in the execution were responsible for what was done under it; and that it was to be presumed that they had directed the sale. The defendants’ counsel excepted. The defendants moved for a new trial on a hill of exceptions.</p>

P. Beardsley On the trial in the C. P. the plaintiffs offered to establish their cause of action, and to prove all their allegations in the pleadings: but the court refused to hear any evidence, and decided that the defendant was entitled to judgment upon the pleadings, and directed the jury to find a verdict for the defendant. The plaintiffs excepted. Verdict and judgment for the defendant.. The plaintiffs bring error.

P. In August, 1844, Bryan sued Cain in “ the justices’ court in the city of Iludson” by summons, requiring the defendant to appear and answer the plaintiff in a plea of trespass to his damage of one hundred dollars.- The summons was personally served. The defendant did not appear. The plaintiff declared claiming damages to $100, and the court gave judgment in his favor for $49 damages, besides costs. On certiorari by the defendant the C. P. reversed the judgment.

<p>An agreement to pay what an individual (who was a taxing officer of the court of chancery) should say was a just and reasonable compensation for the services rendered, by the complainant’s solicitor, in a suit commenced in that court, and settled before decree, obliges the party so agreeing to pay the bill of costs regularly taxed by the individual named in the agreement.</p>

Motion to set aside the report of referees. The action Was assumpsit to recover certain moneys expended by the plaintiffs in prosecuting a suit against “The Butternutts and Oxford Turnpike Company,” and for the costs recovered against and paid by them to the defendants in that suit, and for time and services of the plaintiffs in attending upon that litigation.

Scire facias in the court below by Jones and others, executors of John Mason, against Redmond and Clark. The suggestion of the writ was, that in October term, 1842, the'plaintiffs, as executors of Mason, recovered a judgment in the superior court against Redmond and Clark for $3300 of debt, besides costs.

<p>Assumpsit tried before Willard, C. Judge, at the St. Lawrence circuit, in February, 1844. The plaintiff gave in evidence the defendant’s promissory note, as follows -.</p> <p>" $140. October, 15, 1841.</p> <p>I promise to pay the St. Lawrence Bank or order, one hundred and forty dollars, three months after date with interest, {interest on my mortgage to said bank for stock from 15th October, 1840, to this, date.) James Campbell.”</p> <p>The defendant had given such a mortgage to the bank. For the purpose of proving that there was no consideration for the note, the defendant proved that the bank had assigned this with other bonds and mortgages to the Canal Bank of Albany, before the note was made, to wit, on the 31st of March, 184.1. The assignment was executed by the president and cashier of the bank, which was an association' under the general banking law. The plaintiff objected to receiving the assignment in evidence, on the ground that no authority to the president and cashier to make the assignment was shown, either by the by-laws of the company or a resolution of the board of directors. It was admitted that there were no by-laws of the company in relation to the assignment of such assets. The judge overruled the objection, and received- the evidence. The plaintiff was thereupon nonsuited, on the ground that there was no consideration for the note. He now moves for a new trial on a bill of exceptions.</p>

<p>The defendants being proprietors of a distillery in the city of Brooklyn, were in the habit of delivering their grains remaining after distillation, called slops, to those who came for them by passing them through pipes to the public street opposite their distillery, where they were received into casks standing in wagons and carts; and the teams and carriages of the purchasers Were accustomed to collect there in great numbers to receive and take away the article; and in consequence of their remaining there to await their turns, and of the strife among the drivers for priority, and of their disorderly conduct, the street was obstructed and rendered inconvenient to those passing thereon; held that the defendants were guilty of nuisance.</p> <p>The consideration that the teams and carriages were not owned by the defendants, or under their control, does not excuse them, they having in effect, by the manner of conducting their business, invited these assemblages at the point where the article was delivered.</p> <p>Proof of strife and collision among the drivers, while awaiting their turns, is competent evidence towards establishing the fact of obstruction.</p> <p>A temporary occupation of part of a street or highway by persons engaged in building, or in receiving or delivering goods from stores or warehouses or the like, is allowed from the necessity of the case; .but a systematic and continued encroachment upon a street, though for the purpose of carrying on a lawful business, is unjustifiable.</p> <p>Where an indictment for.nuisance charged the defendants with causing an obstruction in a public highway, and also with occasioning the atmosphere in the same locality to be infected with offensive smells, by means of their business, and in the progress of the trial the court excluded competent evidence offered by the defendants to repel the charge relating to the alleged smells, and the defendants excepted, but before the cause was submitted to the jury the public prosecutor abandoned every thing charged in the indictment except the alleged obstruction to the highway; held, that the defendants were not entitled to a new trial on account of the erroneous ruling of the court, as, under the circumstances they could not have been injured thereby.</p> <p>It is not the duty of a court in conducting a trial to determine abstract propositions submitted by counsel (e. g. whether certain testimony which had" been given bore upon the issue or only upon the credit of witnesses:) it is enough if the court respond to all objections to testimony taken by either party and give the proper instructions to the jury.</p> <p>That a witness for the prosecution in a criminal case has contributed funds to carry it on, goes only to his credibility.</p> <p>A party cannot defend an indictment for nuisance by shewing its continued existence for such a length of time as would establish a prescription against individuals.</p>

P. Brotherson sued Harman and Harman in the court below, and declared for trespass azid false imprisonment, and the case was this : The plaintiff was arrested and held to bail in the sum of $100 on a capias ad respondendum issued out of this court at the suit of one Dexter. The ac etiam clause in the writ was in case for negligence in using the personal property of the plaintiff. The defendant Thomas W. Harman Arms the attorney Avho issued the capias.

The overseers of the poor of the town of Norwich sued Frederick W. & Thomas II.

West sued Foote before a justice of the peace and declared in assumpsit, upon the common counts, and also for the breach of an agreement in the following words: “ For and in consideration of one hundred dollars, the receipt whereof is hereby acknowledged, I hereby sell unto Samuel C. West one body pew, being number thirty-three in the Presbyterian church at Saratoga Springs, and hereby agree to execute unto the said Samuel C. a good and sufficient deed for the same within…

Action on the case against the sheriff for not collecting and returning a writ of fieri fiadas in favor of the plaintiff against one Whitney, for $213,22. The cause was tried before Kent, C. Judge, at the New-York circuit in November, 1843. The fi.fa. was issued April, 8,1842. It was delivered to the under sheriff at. the sheriff’s office, with a letter of instructions from the plaintiff’s attorney wafered to the writ.

Green sued Armstrong before a justice of the peace in February, 1844, and declared for the breach of a verbal contract made in January, 1838, by which the defendant sold to the plaintiff twenty-two basswood trees standing on the defendant’s land, at the rate of one shilling and six pence per saw-log, said trees to be paid for when cut and carried away, the plaintiff being at liberty to cut and take them away at any time within twenty years after the time of making the…

The cause originated in a justice’s court, where Van Surdam, in March, 1844, sued Fowler for money held by the latter as a stakeholder, which the plaintiff, who had staked it, sought to recover back.

<p>Where the defendants covenanted to pay the plaintiffs $3000, per month during the time the fare upon certain steamboats running on the Hudson river in a particular season should be three dollars; $2500 per month during the time it should be two dollars and fifty cents, and so on specifying five different rates of payment as different prices should be obtained for fare, the last being $500 per month when the .fare should be below one dollar, and the declaration, after setting out the covenant, assigned as a-, breach that at the close of the season a large sum, to wit, $5000, became due and payable to the plaintiffs according to the covenant, and was not paid, without any averment shewing what the fare had at any time been upon such boats; held bad for the want of such averment.</p>

Assumpsit, tried at the Seneca circuit in May, 1844, before Whiting, C. Judge. The plaintiff gave in evidence a promissory note made by the defendant to the plaintiff without words of negotiability, for five hundred dollars, payable one year from date, and dated at Waterloo, December 17th, 1838, and rested.

Debt on an appeal bond. The declaration sets forth the Bond, which was dated March 24,1841, and was in the penalty of $150, and recited that Lipe had recovered a judgment against Saltsman before a justice of the peace for $75, and that the latter had appealed to the common pleas of Montgomery county; and it was conditioned as provided by the statute, (2 R. S. 259, § 189.) The declaration then averred a recovery by the plaintiff in the common pleas on the appeal, for $155,05…

Plea, non detinet. On the trial, the plaintiffs proved that on the 18th day of January, 1845, the defendant, who kept a store in Brooklyn, called at their store in the same city and agreed to purchase of them a bill of boots and shoes, which he selected, amounting to $184,25, to be paid for in cash on the delivery at the defendant’s store.

The defendants were indicted for assaulting and beating Peter Lascells, a constable of the town of Salisbury, Herkimer county, and resisting him in the execution of his duty as such constable. The indictment contained two counts, one charging an offence on the 14th, and the other on the 25th of November, 1843. The defendants demurred to the first count, and the district attorney proceeded to trial on the remaining count.

Smith sued Jenks in trespass, before a justice of the peace for taking a quantity of hay. The defendant pleaded the general, issue and gave notice of special matter.

Assumpsit, on. a promissory note, by endorsees against endorser, tried at the Steuben circuit in October, 1843, before Monell, late C. Judge. The plaintiffs gave in evidence a note made by one Hulburt, dated July 16th, 1841, for $1000 and interest, payable to the defendant’s order at the Bank of Geneva, one year from date, endorsed by the defendant and by one Austin. The plaintiffs having proved the note and given evidence to charge the defendant as endorser, rested.

Demurrer to declaration. The plaintiff declared in case against the defendant for a false return to an appeal made by him as a justice of the peace of one of the towns in Otsego county to the common pleas of that county.

Demurrer to picas. The declaration was in trespass for assault and battery and false imprisonment.

The plaintiff in error sued the corporation of the city of New-York in the court below and 'declared in case, alleging that she owned and was possessed of a house and four lots of ground at the northwest corner of Fortieth-street and the 7th avenue in the city of New-York, and that the defendants had so carelessly &c. raised, graded and made the said avenue and street, as to' obstruct the flowing of the water from her premises, and that the raising of the street and avenue…

<p>Error to the New-York C. P. Martin sued Wilson in the court below in assumpsit upon a special contract, and the case, as proved by the plaintiff’s daughter, was this: the plaintiff keeps a boarding house in the city of New-York, and on the 17th or 18th day of April, 1839, the defendant agreed to take rooms and board for himself and family in the plaintiff's house from the first day of May then next until the first day of May," 1840. The defendant ivas to pay $17 per week for the rooms, and $22 per week for the board. When the defendant was absent $7,5Q per week was to be deducted from the price of board, and a like sum when the defendant’s wife should be absent; and when the nurse and children were gone $7 per week was to be deducted from the price of board.- In negotiating for the bargain the defendant offered $30 per week for the rooms and board ; but the plaintiff asked $39, which the defendant finally agreed to pay. The payments were to be made weekly. The witness said the charges for rooms and board were separate and distinct. After the agreement was concluded, a further arrangement was made, by which the defendant was at liberty to cóme in immediately, without waiting for the first of May; and he did so. The defendant remained there with his family until the 17th June, 1839, when, being dissatisfied with the board, he quit the house and took lodgings elsewhere. The plaintiff afterwards brought a suit, against the defendant in the G. P., and recovered the amount of one week’s board, which remained unpaid at the time the defendant quit the house; and also recovered for the use of the rooms up to the 13th of September, 1839, at $17 per week. In the present action the plaintiff claimed to recover the stipulated price for the use of the' rooms from the 13lh September, 1839, to the first day of May, 1840—the end of the year for which the parties had contracted. The defendant gave evidence tending to show that he was justified in .quitting the house, for the reasoq that the board was not such as he had a right to expect. The court below decided that the former suit was no bar to the present one; that the contract was not void within the statute of frauds for not being in writing; that a hiring for a year by parol was good; and they left it to the jury to determine whether there were not two separate contracts—• one for the rent of the rooms, and the other for board. The jury was further instructed, in' substance, that if there was but one agreement for rent and board, and the defendant left because suitable board was not provided, then the plaintiff could not recover for the subsequently accruing rent of the rooms: but if the hiring of the rooms was totally disconnected from board, and the defendant was at liberty to board or not as he pleased, then the plaintiff might recover for the rent after the defendant quit the house. The court refused .to charge that there was but one contract; and gave as the rule of damages the stipulated price for the use of the rooms, with interest, amounting to $629,03. The jury found a verdict for that sum, and the defendant brings error on a bill of exceptions.</p>

Assumpsit, for $200, claimed to be due the plaintiff on a contract for board,, for the quarter ending 1st May, 1843. In March, 1842, the defendant agreed for board for himself and his wife, with the plaintiff, they to occupy certain rooms in her house, for one year from the first of May then next, at $800 a year. No deduction was to be made for absence.

Motion by the plaintiff to set aside the report of referees. The action was upon a promissory note made by the defendant, dated the 18th day of January, 1840, for $2500, payable to the order of William J. Worth at the Watervliet Bank, sixty-five days after date. Tt was endorsed in blank by Worth and by E. Olcott, and had upon it a special endorsement in these words, “ Pay to E. Olcott, cashier, or order.

The prisoner was tried at the Rensselaer oyer and terminer, in July, 1845, before Parker, C. Judge, and others, for the murder of his wife by poisoning with arsenic. On the trial the district attorney, after laying a proper foundation, offered to give in evidence the dying declarations of the deceased as to. the cause of death.

Motion by the defendant to set aside an alternative mandamus.

<p>Where the defendant, after judgment recovered, instituted proceedings in bankruptcy and obtained his discharge, after which the plaintiff issued execution, which was levied on the persona] property of the defendant, who moved to set it aside on the ground of his discharge, and the plaintiff in opposing shewed facts tending to prove that it was fraudulently obtained; the court ordered that the execution be set aside, unless the plaintiff in a given time would bring an action on the judgment to enable the defendant to set up the discharge; and on his doing so, the execution and levy to stand as, security, but proceedings On them, in the mean time, to be stayed.</p>

N. F. Waring presented the report of the commissioners of estimate and assessment in relation to the laying out and opening of Pacific-street, from Hicks-street to the East river, in the city of Brooklyn, with proof of the publication of notice of the application, and moved the confirmation of the report.

Motion on behalf of the defendant for leave to enter up judgment against the plaintiff personally for costs, and that they be doubled, the defendant being sued as a public officer. The suit was in assumpsit against the defendant, who was described as late surrogate of the county of Albany, upon promises to the plaintiff as executor, for money had and received by the defendant, for the use of the plaintiff as such executor.

Motion that the plaintiff file security for costs. The suit was commenced in December, 1844, the plaintiff then being a non-resident. On the 25th of July, 1845, an order was made that the plaintiff file security for costs in twenty days or shew cause at this .term why he should not file such security; and that in the mean time the plaintiff’s proceedings should be stayed.

The defendant’s counsel appeared before the sole referee to whom this cause ivas referred, and before whom it was noticed for trial, and moved for an adjournment for cause shewn, which the referee granted upon the condition of payment of costs, whereupon the defendant’s attorney stipulated that the defendant should pay the costs within thirty days after they should be taxed, and the hearing was accordingly postponed.

Debt, on a recognizance to appear at the general sessions of the county of Schenectady, to answer to a criminal charge. The defendants all live in Schenectady. A motion was now made on behalf of the defendants to set aside the proceedings, on the ground that the action should have been brought in the court of common pleas of that county. s

Redemption of lands. The following judgments had been docketed against David Diefendorff, viz.: (1) one in favor of the Schenectady Bank, 1st October, 1837; (2) one in favor of the Otsego County Bank, 20th February, 1838; (3) two in favor of Adams, 28th April, 1838; and lastly, another in favor of the Schenectady Bank, May 7th, 1838.

Motion on behalf of the defendants to stay proceedings on payment of the amount due. The suit was commenced at the instance of the overseers of the poor of the town of Schoharie, on the 21st July, 1845, and was in debt, on a bastardy bond, executed by the defendants to the people the 14th February, 1844, in the penalty of $500, conditioned amongst other things for the performance of an order of two justices, which had been affirmed on appeal.

Motion by the defendant in error to quash a writ of error. The cause originated in a justice’s court, but was removed to the common pleas of Franklin county by appeal, where Smith had judgment in his favor. Smith was first judge of that county. A certificate was granted by one of the associate judges, who was present at the trial, under the act of 1836, (p. 794,) stating that in his opinion it was a proper case to be carried to the supreme court.

<p>In an action of trespass on lands brought pursuant to the statute giving treble damages, the plaintiff is entitled to full costs, though the damages when trebled are less than fifty dollars, and the title was not in issue and did not come in question.</p>

<p>An application by the plaintiff for an order to compel a sheriff to pay over money levied on execution will be denied, and the plaintiff left to his action, wiicrc the sheriff sets up a defence, the evidence respecting which is contradictory.</p> <p>Where the goods of M. were taken in execution, and a notice given by a landlord to the sheriff, with a view to obtain payment of rent, stated, among other things, that a certain sum was due from M. as rent for the use and occupation of certain premises which were described, then occupied by M ; held, that the notice was defective, for not shewing that the rent was due from M. as tenant. See note (a.)</p>

<p>Motion for a mandamus to compel the judges of the court of common pleas of the county of Rensselaer to vacate a rule. A suit was pending in the C. P. in favor of Koon against Hutchinson, upon appeal by the defendant from a judgment recovered by the plaintiff before a justice of the peace. The cause was heard before referees, who reported for the plaintiff, but for a sum less by more than ten dollars than the amount recovered before the justice. The referees offered the report to the plaintiff’s attorney, who declined to receive it, and about thirteen months afterwards the plaintiff died. The court of common pleas, on the application of the defendant, granted a rule to the effect that the representatives of the deceased plaintiff might file a record and perfect judgment on the report, and upon their default therein that the defendant might within two terms after the plaintiff’s death perfect such judgment, nunc pro tunc. This was granted in June, 1845, the plaintiff having died in September, 1843. The motion is made on behalf of the executors of ICoon, the deceased plaintiff, for a mandamus to compel the C. P. to discharge the rule.</p>

<p>An alternative mandamus had been served on the defendants commanding them to allow the relator, one of the school commissioners of the city of New-York, to act as a member of the board of education, and to participate in their proceedings/ or to shew cause, &c.</p> <p>The defendants now filed a return, alleging that the relatoi had vacated his seat as a member of the board, by removing from the 14th ward of the city, for which ward it is admitted he was chosen a school commissioner, at the election in June, 1844. It states that he was a resident of that ward when he was so chosen, but that on the 1st day of May, 1845, he removed therefrom, and that on the ground of such removal the board excluded him from membership, and refused to permit him to act with them, in Juno, 1845.</p> <p>The relator demurred, orally, to the return. Joinder.</p>

<p>Although a writ in the nature of a writ of error cpram nobis is not dcmandable of right and can only be granted upon cause shewn, yet if error in fact is shewn to exist, it will always be awarded.</p> <p>On an application for such writ, the court cannot look into the cause of action for which the judgment was-rendered; and where it was shewn that the contract on which it was recovered was made by the defendant while an infant by fraudulently concealing his infancy, and he now seeks to reverse it because he had appeared in the suit by attorney while yet an infant; held nevertheless that he was entitled to the writ.</p> <p>If, on such application being made the plaintiff elect to vacate the judgment, he will he permitted to do so and the application will then be denied.</p> <p>An application to plead several pleas to the assignment of errors will not be entertained on allowing the writ of error, but must be made after error is assigned.</p>

<p>The rule that an entire judgment against several when erroneous as to one must on error be reversed as to all, applies to judgments upon several liabilities under the statutes authorizing suits against different parties to commercial paper.</p> <p>So held where the judgment was against maker and endorser, and the alleged error was that the maker, when an infant, appeared in the suit in which the judgment was rendered by attorney.</p>

Motion on behalf of the defendant that C. Dewitt, who was alleged to he the person beneficially interested in the recovery of the demand for which this suit is brought, and who is the plaintiffs’ attorney thereon, pay the defendant’s costs, judgment having passed against the plaintiffs. The action was assumpsit, commenced by declaration.

Motion, on behalf of William Wyles, for a mandamus to the board of supervisors of Oswego county, to compel them to audit and allow an account presented by him at the last annual meeting of the board for his services as a constable of the town of Scriba, and rejected.

<p>Motion on behalf of the defendants for security for costs. The action is in assumpsit, and Alanson Allen, who resides in the state of Vermont, claims to be the owner of the demand to recover which the suit is brought and is the party in interest therein, and the suit is prosecuted by him for his own benefit. The plaintiffs on the record reside in this state, but are insolvent.</p>

<p>A motion to change the venue must, if the intervention of a special term will allow be made in such season that, if it be denied, the plaintiff will not lose a trial in the county where the venue is laid: if made at a later term, it will be denied for that cause.</p> <p>■ Ignorance of the practice on the part of the defendant’s attorney will not excuse the delay.</p>

Motion to compel the plaintiff to insert in the record a judg- • ment for the costs taxed on behalf of the defendant Newcomb. The action was replevin. The defendants appeared by the same attorney and pleaded jointly. Verdict for the plaintiff against Harris, and in favor of Newcomb, who has had his costs taxed; but the plaintiff refuses to have them inserted in the record.

Redemption of lands. Aldrich, on the 6th day of April, 1844, became the purchaser of a lot of land sold by the sheriff of Warren, on execution issued upon a judgment against Jenks Coman, and received a certificaté.

Application on behalf of the defendant for a new trial, the action being ejectment, pursuant to 2 R. S. 309, § 37. The suit was commenced in the common pleas of Herkimer county, where the plaintiff had twice recovered verdicts and entered judgments, and upon each occasion the defendant had obtained a new trial under the statute. He then removed the cause here by certiorari, where the plaintiff obtained a third verdict, and entered judgment.

Motion to set aside an order made by a supreme court commissioner, by which he vacated a former order made by him to hold to bail. The defendant was arrested by the sheriff of Columbia county and committed to jail on the 20th June, 1845, on the capias in this cause, upon which a supreme court commissioner had endorsed an order to hold to bail.

Motion to set aside a nonsuit, a writ of inquiry and subsequent proceedings, for irregularity. The action was replevin, and the property had been delivered to the plaintiff upon executing the writ. The defendants noticed the cause for trial, and the plaintiff failing to appear when it was called, was nonsuited.

Motion to set aside a default for irregularity. The defendant, within the time allowed for that purpose, put in a plea in abatement, commencing as follows: “ And the said Basil Watson, against whom the said plaintiffs have exhibited their said declaration by the name of Baswell Watson, in his own proper person comes and says,” &c. setting up the misnomer in abatement. The plea was duly verified by affidavit.

The plaintiff recovered a verdict at the last Livingston circuit for $579,20. The declaration was for work, labor and services performed for the intestate in his lifetime, and also upon a special contract by which the intestate, in consideration that the plaintiff would enter into his service and continue with him until his death, promised to pay her one thousand dollars; averring performance on her part. Plea, non-assumpsit.

<p>Motion for costs against an executor. The suit was commenced April 12, 1845, the declaration counting on a memorandum in writing dated 19th September,. 1840, .signed by the defendants’ testator in his lifetime, by which he admitted the sum of three hundred dollars to be due to the plaintiff, “ subject, however, to any future and more complete settlement that may hereafter be made between usand contained also the common counts in indebitatus assumpsit and promises by the testator. Non-assumpsit was pleaded with notice of the statute of limitations, and the cause being referred to a sole referee. The plaintiff, relying upon the written memorandum alone and claiming nothing but the amount thereof with interest, obtained a report for $390,50.</p> <p>The defendants’ testator died in February, 1843, and letters testamentary were issued to the defendants, who reside in Cayuga county, the 5th of May following. The plaintiff resides -in New-Jersey. On the fust of June, 1843, the plaintiff wrote o the defendants describing the written memorandum, and intimating that on a strict adjustment he was entitled to something beyond the $300 therein mentioned. The defendants answered on the 17th June, to the effect that they were not aware of any such demand as that which- the plaintiff had mentioned and should allow him nothing,.and that if he had any demand he must prove it. In July following the memorandum itself was presented by an agent of the plaintiff to one of the defendants, who requested that it might be again presented after the executors should have advertised for claims, and said he presumed it would then be allowed. In May, 1844, the same agent presented the memorandum to the other defendant, who refused to allow it. Another agent called on the defendant King for payment in June following, and it was refused. In January, 1845, the plaintiff caused a written proposition addressed to the executors to be presented to and left with the defendant King agreeing to submit the demand, which was stated to be a claim arising upon the memorandum,, a copy of 'which was annexed, to referees to be appointed by the surrogate according to the statute, and offered to enter into a written stipulation to submit the claim to such referees. King refused to submit to the reference.</p> <p>On the trial of the cause the defendants attempted to defend under short limitation provided by the statute, (2 R. S. 89, § 38,) they having in December, 1843, given notice to the creditors to exhibit their claims on a day named six months after the first publication; but the notice was defective in not stating the place where the demands should Be exhibited.</p>

<p>The 'defendant in error pleading to the assignment of errors in nullo est erratum, and the statute of limitations, he will be compelled on motion to elect by which of the pleas he will abide.</p> <p>The statute of limitations, when relied on by a defendant in error, must be pleaded, though the judgment appears on the face of the record to be of more than two years standing. Per Jewett, J.</p>

<p>It is unnecessary in an appeal bond to recite the day on which the judgment before the justice was rendered. Per Jewett, J.</p> <p>If incorrectly stated, the common pleas can allow the bond to be amended. P(r Jewett, X.</p> <p>If the affidavit and allowance of appeal are made after the ten days prescribed by the statute, the common pleas has no power to relieve the appellant. Per Jewett, J.</p> <p>A motion to dismiss an appeal must be made at the first term for which there is time to give notice, and the common pleas cannot, by rule granted at such first term, give leave to move at the succeeding term.</p> <p>A mandamus will not lie to compel the'common pleas to vacate a rule dismissing an appeal, though it was granted when the court had no authority to entertain the motion.</p> <p>This court has not jurisdiction to award a mandamus to an inferior judicial tribunal in every case where the party injured has no other remedy.</p>

<p>Where a motion for judgment as in case of nonsuit was made in several causes in which the plaintiff was the same, but the defendants were different in each, vpon one set of papers, the attorneys being the same in each, and the facts on which the motion depended identical, and leave was given to stipulate on payment of the costs of the motion; held, that the defendants were entitled to but one sum of $10 in all the causes.</p> <p>The rule would have been the same if different papers had been served for each cause. Per Jewett, J.</p>