Volume 1 — Duer's New York Superior Court Reports

This was an appeal from a judgment entered upon the direction of a single judge of this court, after a new trial had been had, in pursuance of the decision of the Court of Appeals. The case will be found reported in its various stages, and in the different courts, in 2 JSandford’s Swp. Court Mepoo'ts, 7; 4 Com-stock, 514; and 10 JY. Y. Legal Observer, 79.

<p>This was au action to recover the value of seventy-four iron-bound ale-barrels, as unjustly obtained by the defendant, and was tried before the Chief Justice and a Jury in October term, 1851.</p> <p>The facts proved on the trial were that the plaintiff, who is a brewer in Hew York, in March, 1850, sold a large quantity of ale in iron-bound barrels to Sherburne & Son, of Boston, who shortly thereafter sold one hundred barrels of the ale so purchased to the defendants under a similar understanding as to the return of the barrels. In the same month of March, the plaintiff, through an agent, demanded from Sherburne & Son, who had then become insolvent, a return of the empty barrels, and received from them the following order on the defendant : —■</p> <p>“ Hoston, March 18, 1850.</p> <p>“ 74 Ale Barrels. Mr. Alfred E. Tilton.—Please deliver Samuel Wescott, or order, Seventy-four empty Ale Barrels, said barrels being the property of said Wescott.</p> <p>(Signed) “ Sherburne & Son.”</p> <p>The defendant, when some time thereafter the order was presented to him by the plaintiff’s agent, refused to deliver the barrels, alleging that Sherburne & Son were indebted to him, and that he meant to retain the barrels, and apply their value or price in part satisfaction of his claim.</p> <p>Upon this evidence, the counsel for the defendants, upon the trial, moved for nonsuit, upon the ground that the sale to Sherburne & Son was an entire contract, and in its legal construction embraced the barrels as well as the ale, but with a privilege to th,e purchasers of returning the barrels within a reasonable time. That the action, therefore, in its present form, could not have been maintained even against Sherburne & Son. A fortiori, could it not be maintained against the defendant, between whom and the plaintiff there was no privity whatever. The Chief Justice denied the motion, and the counsel excepted to the decision.</p> <p>It was then proved, on the part of the defendant, by the assignee in bankruptcy of Sherburne & Son, who was appointed in May or June, 1850, that-late in the December following he made a settlement for the barrels with the defendant, by the latter allowing the price, as a part payment on a protested note which he then held against Sherburne & Son.</p> <p>. The value of the barrels, at $2 per barrel, with interest to the 15th October, 1851, was estimated to be SlGl^g, and the Chief Justice directed the jury to find a verdict for the plaintiff for that amount, subject to the opinion of the court at a General Term, upon a case to be made by the plaintiff, with liberty to either party to turn the same into a bill of exceptions.</p> <p>April 14.—The cause was now argued upon the case so made, by G. Bowman, for the plaintiff; and J. R. Jessup, for the defendant.</p>

<p>The firm of S. D. & Co. being insolvent, executed an assignment of their partnership effects to the defendants in trust for the payment of their debts. Subsequent to the execution of the assignment, they executed to S., one of the firm, an agreement in the words and figures following:</p> <p>“ Whereas several suits are now pending in one or more courts of law and equity, in the State of Hew York, and in other States in the United States of America, for the purpose of recovering certain claims or demands belonging</p> <p>, to, or in which the Trustees of the estate of the late firm of Stainer, Dutilh & Co. are now interested, and in which several suits so depending, Edward Stainer, one of the members of the said firm, is made a party plaintiff or defendant, and such suits being for the benefit of the Trustees of said estate:</p> <p>“How for_and in consideration of the premises and other good and sufficient considerations, we, Holford, Brancker & Co., and Peter C. Pfeffel, the Trustees of the said estate, do hereby agree to pay and discharge all costs, damages, and charges out of the proceeds of said estate, which may arise in consequence of any or either of said suits; and agree and promise to save harmless the said Edward Stainer from any liability or claim by reason thereof.”</p> <p>In an action 'by the assignee of S. to enforce payment of damage and costs incurred by him in actions concerning property held by him individually, ‘</p> <p>Held, 1. That the agreement was single and entire, and the indemnity which it promised, was an exclusive charge upon the property assigned.</p> <p>2. That the agreement embraced only those suits in which the Trustees were interested ; that it did not therefore embrace such as concerned property, which did not pass to them by the trust deed; that if it had been intended to embrace</p> <p>. such suits, it would have been invalid, and would not be enforced by a Court of Equity.</p> <p>3. That by the assignment of the defendants for the benefit of their creditors the rights of the partnership creditors were fixed, and could not be varied by any subsequent act of the partner or trustees. That, by the terms of the assignment, the property was to be devoted to the payment of partnership debts. Hence no subsequent agreement to apply a portion of it for any other purpose, could be upheld.</p> <p>Parol evidence is admissible in many cases to determine and define the subject matter of a contract, when such evidence is explanatory; never when contradictory.</p> <p>It was competent therefore in an action on the agreement in question, to prove what suits were pending, and how the trustees were interested, but not to prove that the agreement meant to embrace suits in which they were not interested.</p> <p>It is not competent for an appellate court to alter a judgment given in the court below, when the party by his omission to appeal has precluded himself from denying its justice or propriety. An appellate court may in some cases modify or reverse in part a judgment or decree, but only when such modification or reversal is necessary to render the decree as finally pronounced entirely consistent.</p>

The complaint alleged that the defendants were the owners and master of the ship Hero, one of a line of packet ships sailing at stated periods between Hew York and Hew Orleans, called “ Stanton’s Line,” for the transportation of freight and merchandise for hire, and that the defendant, Stanton, was the agent of the line, and engaged in receiving and sending freight and merchandise for hire from Hew York to Hew Orleans, and forwarding it to St. Lords and other places above…

<p>Before the Revised Statutes it was settled that the auctioneer, in public sales of property, was the agent of the buyer and seller, and the Revised Statutes (2 R. S. 135, § 8, 9), which require the note or memorandum of a contract of sale, to be subscribed by the party making it, or his authorized agent, is sufficiently complied with, when the entry by the auctioneer of the sale, in which the name of the principal appears, is signed by the auctioneer with his own name, without any reference to his character as agent. The intention to bind him, and not the auctioneer, is plain, and makes it the contract of the principal.</p> <p>The rule of law, which requires an agent to sign the name of his "principal, in the execution of instruments, is confined to writings under seal.</p> <p>An auctioneer, upon the sale of real estate, made an entry in his book of sales of the name of the seller of the property, and in connexion therewith a description of the property,which consisted of five lots, which were sold at the sale to different purchasers, and the entries of which were made thereunder, in the following manner: “ 1 lot, corner of Avenue A, to W. J. $2,010,” underneath which were entries of the sales of three lots immediately adjoining, and then the following: “ 1 lot, next adjoining, J. L. P., $1,350.” Held, that the entry, in the position and connexion which it occupied in the sales book, signified that J. L. P. had become the purchaser of that lot, and sufficiently indicated that he was the highest bidder, and that the same was struck off to him.</p> <p>Held also, that, taken in connexion with the description of the property contained in the entry of sales, it was a sufficient identification of the lot sold.</p> <p>A mis-deseription in the first name of the seller does not invalidate the contract of sale.</p> <p>The powers of an auctioneer are limited and special. But where the terms of sale provided that ten per cent, of the purchase money should be paid on the day of sale,</p> <p>Held, that the auctioneer’s authority was not limited to receiving it on that day, ' unless previously prohibited by the seller.</p> <p>As a general rule, time is not so essential in executory contracts for the sale of land as to work a forfeiture on the omission to pay at the day stipulated. And until the seller does some act to make it essential, the buyer is at liberty to pay after that day.</p>

<p>This was an action to compel the delivery of forty-nine bales of cotton and woollen cloths of the value of $3706 52. The sheriff had delivered possession to the plaintiff upon the usual affidavit and undertaking.</p> <p>The cause was tried on the 24th March, 1852, before Mr. Justice Bosworth, who, upon the motion of the defendants, dismissed the complaint, and ordered judgment against the plaintiffs for the value of the goods in question.</p> <p>The plaintiffs appealed from this judgment, and the cause was now before the court upon the record and a bill of exceptions.</p> <p>The pleadings were in the usual form: the plaintiffs averring that they were entitled to the immediate possession of the goods in question, which they had demanded from the defendants, who had refused to deliver them, and claiming judgment for such delivery with damages; and the defendants denying the right of the plaintiffs, averring ownership in themselves, and claiming judgment for a return of the goods, or their value, with costs.</p> <p>The bill of exceptions sets forth that the plaintiffs, upon the trial, in order to maintain and prove the issues upon their part, called as a witness,</p> <p>Henry G-. Thompson, who, being duly sworn, testified as' follows: I was one of the firm of Thompson & Company, of this city, and remember the sheriff’s taking the goods in question in this action, under the process in the same; the goods were what are commonly called Georgia Plains, and there were forty-nine bales of them. The assignees of Thompson & Co. then had the store, the defendants. I was in the store as their agent, and had charge of these goods as such: Thompson & Co. had previously stopped payment; they stopped the twentieth of September last; the goods in question had been in the store, some since Hay last, some since June last, some since July . last, some since August last, and some had been brought in the same month in which they were taken by the sheriff.</p> <p>The plaintiffs had sold under the arrangement between them and its, and we had delivered, pursuant to their order, a large amount of similar goods; we had delivered all they had sold; what goods they sold were retained by us, until we were order- ■ ed by them to deliver the same; they gave us their own notes for the goods they sold; they had sold about twenty-five thousand dollars’ worth of plains before we had any paper from them; they then gave us their own notes to a certain amount on account. They sold the goods on commission, and gave us their own notes on account, as we asked for them; I think the thirteenth of September was the first time they were in advance to us.</p> <p>Hy father, Orrin Thompson, transacted the business with the plaintiffs for us; ■ he was not a member of our firm, but was authorized to do so.</p> <p>The goods in question in this suit were in our store, Ho. 8 and 10 Spruce street, at the time they were taken by the sheriff; we had been in that store since about 1849; the store passed to the assignees on the twentieth or twenty-second of September last; no change was made in the exterior of the store up to the time the goods were taken; our name continued upon the door, and the assignees’ name was not up.</p> <p>The plaintiffs’ counsel next called as a witness on their part,</p> <p>Oebot Thompson, who, being duly sworn, testified as follows: I was formerly a member of the firm of Thompson and Company, but ceased to be such several years since; after I left the firm, I still exercised a supervision over its business.</p> <p>In the year 1850, the plaintiffs spoke to us about selling this kind of goods, the Georgia Plains; the year before that, we had sold all we made to a house in Boston, and had declined making for any other party, except upon orders; about November or December, 1850, I told the plaintiffs that if they could sell about eight hundred bales of the goods in this market, we would supply them; they said it was too early then to be able to tell how many they could sell. In January or February of the next year, Mr. McCurdy told me he had seen the jobbers, and they had engaged about 400 bales; soon after this, the failure of Austens & Spicer put a damper on the market, and he told me he could not engage to sell more that season; we were to deliver about one third of that quantity in the first half of each of the months of July, August, and September.; these goods were made at Tariffville, and are of three or four kinds, called copperas, black and white, and sheep’s grey of two shades; we made and were ready to deliver our quota for July and August, in all about $35,000 worth, and in August the plaintiffs advanced us $25,000 in their own notes; they were to sell at six months, and to guarantee, and were to have a commission of either 5 or 6 per cent., without any further charge; in September they advanced $25,000 more, which brought us in debt to them.</p> <p>I requested plaintiffs to furnish us with a memorandum of the kinds and quantities wanted, that we might deliver them; we could not .deliver them without such a memorandum, because they had been hypothecated, with liberty to substitute others for any we.wished to dispose of; my anxiety to deliver arose from a fear that the jobbers would back out from their engagements, as the goods were dull.</p> <p>It was our understanding with the plaintiffs that we should not ourselves sell any of this kind of goods in this market until after October, and this quantity was all that was to be' offered here; we never told them the goods were hypothecated.</p> <p>Being cross-examined on the part of the defendants, this witness further testified: The goods were not charged to the plaintiffs, until sent for by them, and delivered; they were not liable to Thompson & Co., except for such as they sold, and then only under their guarantee; in settling up sales they gave their own notes, and not the notes of the purchasers, because they guaranteed the sales; if plaintiffs had sent for their goods, as we requested them to do, they would have been delivered; we were anxious they should send and take them, because the jobbers were getting sick of the goods at the prices.</p> <p>In settling for sales, plaintiffs gave their own notes; that is the usual way.</p> <p>At the time' they made the second advance, nothing was done except to ask for and receive it; no further security was asked for by them.</p> <p>The advance was all in their own notes. (It was agreed by counsel that these notes had been paid.)</p> <p>If the goods had not been sold, and called for by them, they would have been on our hands; there was no understanding that plaintiffs should pay for any not sold.</p> <p>Thompson & Co. stopped on a Saturday, September twentieth ; their stopping was entirely sudden and unexpected; I was here the day before, and knowing the amount they had to pay, had spoken to some of my friends, who said they could have the necessary amount, and I left the city Saturday morning, at eight o’clock, and when I left, had no idea but that the house would go on; we had no expectation, when the second advance was made, of stopping; om* arrangements had been made up to January; a call was made on us that we did not anticipate, and that occasioned our stopping.</p> <p>Being again directly examined, this witness further testified: When the second advance was made, plaintiffs had not sold that amount of the goods, and that fact might have been adverted to; it was mentioned that what the jobbers had engaged from plaintiffs, with what the latter had sold, would cover the $50,000; and I requested plaintiffs to send for the goods; I do not know that they never did send for them.</p> <p>The counsel for plaintiffs next recalled on their part,</p> <p>Henry G. Thompson, who further testified: There is about $7,500 still due the plaintiffs out of their second advance; the goods in suit were worth about $3,700; we made about 800 bales of the plains, the last season; we had some on hand over from the year before; we sold none of the last year’s through any other house than the plaintiffs.</p> <p>It was admitted and agreed, by and between the counsel for the respective parties, that the value of the goods in question was $3,706 52.</p> <p>The plaintiffs here rested their case, and the defendants’ counsel moved for a nonsuit, on the ground that the plaintiffs had shown no title to, or right to the possession of, the goods in question.</p> <p>The court so held and decided, as also that the matters so given in evidence on the plaintiffs’ part were not sufficient to entitle them to a verdict.</p> <p>To which ruling and decision of the said court the plaintiffs’ counsel excepted.</p>

<p>This action was brought to recover for the conversion, by the defendant, of a steam-engine and boilers. The plaintiff claimed under a mortgage execute'd to him by Sheldon & Duncan, on the 3d of Hay, 1849', to secure the payment of three promissory notes made by them, each dated April 1, 1849, and payable to the plaintiff, or order, one year after its date, two of them being for the sum of $535 each, and the other for the sum of $636. The mortgage was duly filed on the 4th of Hay, 1849, and was given for a good consideration, and was given and taken in good faith, and without any intent to defraud the creditors of Sheldon & Duncan.</p> <p>The defendant justified as sheriff, under a pretended levy under and by virtue of an execution directed and issued to him on a judgment in favor of Thompson & Hason against Sheldon & Duncan, which execution was received in the sheriff’s office on -the 1st of February, 1849, and was returnable within sixty days after the receipt of the same by the sheriff, or on the 2d of April, 1849.</p> <p>The engine and boilers in question were made at Springfield, Hassachusetts, for Sheldon & Duncan, under an agreement between them and the maker, that they were not to become the property of Sheldon & Duncan, until put up for them in this city and put in complete running order by the maker, and had been accepted by and paid for by them. The boilers arrived and were oh the premises of Sheldon & Duncan c in Eighth street, in this city before, and the engine not until after the 2d of April, 1849. They were put in working order about the 11th of April, 1849, and were accepted about that time and before the third of May thereafter. It does not appear how or when they were paid for.</p> <p>The sheriff levied the execution under which he justifies upon an old steam-engine and boilers, on or about the 16th of March, 1849, then on the premises of Sheldon & Duncan, and placed a person in charge of the property. After that and before the arrival of the engine and boilers in question, and in anticipation of their arrival, it was verbally agreed between the deputy sheriff holding the execution and Sheldon,, one of the defendants in the execution, and at the request of the latter, that if the deputy would permit Sheldon & Duncan to remove the old engine and boilers so as to make room for the new ones, Sheldon would consent to substitute the new ones on their arrival, as the subjects of the levy instead of the old. The plaintiff had no knowledge or notice of this arrangement. The deputy assented to this arrangement. The old engine and boilers were accordingly remoVed, and on the arrival of the new boilers and engine, the deputy, in pursuance of this arrangement, levied on them, so far as they could be levied on under such an arrangement, and placed a person in charge of them, in whose custody they remained until the time of the sale, which was the 2d of April, 1850. The substitution of the new for the old engine took place before the execution of the mortgage, but not until after the return day of the execution. The substitution of the new boilers for the old ones took place before the return day of the execution. The jury, under the direction of the court, rendered a general verdict for the plaintiff, and in answer to specific questions of fact submitted to them, found—</p> <p>1. That the new boilers were levied upon before the second of April, 1849, but that the engine was not.</p> <p>2. That the boilers were worth $600 at the time of the sale of them by the sheriff.</p> <p>3. That the engine and boilers at that time were worth the sum of $2,000.</p> <p>The judge at the time directed a judgment for the plaintiff for $1,833 37, the amount of the principal and interest of the notes secured by the mortgage, reserving for the consideration of the court at General Term, the question of the validity of the agreement between the deputy and the defendants in the execution, for the substitution of the new engine and boilers for the old ones, and also reserving for the judgment of the court the other questions arising upon the case.</p>

<p>The facts of this case are fully stated in the opinion of the court.</p>

<p>This was an appeal from a judgment rendered at special term upon a report of the referee in favor of the defendant.</p> <p>The action was brought to recover the difference between the price for which a pair of horses belonging to the plaintiff, it was alleged, had been sold at auction to the defendant, and the price for which they were resold on his account in consequence of his refusal to accept them. The defence rested mainly on the statute of frauds.</p> <p>That the points raised by the counsel and the decision of the court may he properly understood, it is deemed necessary to give the pleadings and the material parts of the evidence before the referee.</p> <p>The complaint and answer are as follow—•</p> <p>The complaint of the plaintiff, Robert Goelet, shows to this court, that on or about the 26th day of April, 1851, he sold, by his agent, Henry H. Leeds, to the defendant at public auction, a pair of horses, and that then and there the defendant purchased the same, and agreed to pay for the same the sum of two hundred and seven dollars and fifty cents. That the said sale was for cash, and that the plaintiff, on the day of sale and subsequently, offered to deliver the said horses to the defendant wherever and whenever he should direct the same to he delivered, and requested the defendant to accept the same, and pay for the same as aforesaid. That the defendant neglected and refused to accept or pay for the same ; that on the fifth day of May, 1851, the plaintiff gave the defendant notice that unless the defendant paid for the said horses before twelve o’clock on Wednesday then next ensuing, May 7th, they would be sold on his account at the auction store o Mr. Leeds, at the said hour, and in the meantime would be advertised for sale ; that the defendant would be credited the amount they would bring, and would be charged the amount he originally bid for them and the expenses of the delay and resale. That the defendant still persisted in his refusal to pay for the said horses, and that on the said 7th day of May, at 12 o’clock, in pursuance of such notice, they were sold at public auction for the sum of one hundred and five dollars, that being the highest sum bid for the same. That there was a deficiency on such resale of one hundred and two dollars and fifty cents, over and above the expenses of such resale, which amounted to ten dollars and fifty cents. That the plaintiff has since such resale requested defendant to pay such deficiency and expenses, but the defendant has refused so to do. Wherefore the plaintiff demands judgment against the defendant for the sum of one hundred and thirteen dollars, with interest from May 7th, 1851, and the costs of this action.</p> <p>The defendant, Edward M. Cowdrey, for answer to the complaint of the above-named plaintiff, says, that the plaintiff ought not to have his action against him, because he says that there never was any note or memorandum in writing of any such contract of sale as in the said complaint stated, made at the time of such sale, specifying the terms of the said sale, the name of the purchaser, and the name of the person on whose account such sale was made.</p> <p>And this defendant further saith, that the said plaintiff ought not to maintain his said action against this defendant, because, he saith, that on the day when the said supposed sale is alleged to have been made, and very shortly thereafter, this defendant called at the office of the auctioneer, in the said complaint stated, and .inquired of the clerk charged with the business of the said sale for the said horses, and informed him that he was then ready to pay for the same, and when and where this defendant was ready to receive and pay for the said horses the sum of two hundred atid seven dollars and fifty cents, and the said defendant then and there demanded the delivery of the said horses to him; and this defendant could not then and there obtain the said horses, and was informed by the said clerk that he did not know where the said horses were, nor to whom they belonged, and that if this defendant would pay for the said horses, they would be sent according to the directions of this defendant, after four o’clock of that afternoon; and thereupon, this defendant informed the said clerk, that he, this defendant, wanted the horses then, and as he could not obtain them, he should decline to have anything more to do with them. And this defendant saith, that the said horses were not ready for delivery to him when he called to pay for the same, as aforesaid, and have not at any time since been ready for delivery at the place of said pretended sale. And he further saith, that the said horses have not at any time been tendered to this defendant.</p> <p>And this defendant further, saith, that he has not sufficient knowledge to form a belief as to the matters in the complaint stated, relating to the resale of the said horses.</p> <p>Wherefore, this defendant demands judgment against the said plaintiff for his costs and charges in this suit.</p> <p>The reply took issue upon the same matter in the answer.</p> <p>By the consent of the parties, Michael Ulshoeffer, Esq., was appointed the referee, to hear and determine the issues made by the pleadings.</p> <p>On the hearing before him, M. R. Fmm, a witness for the plaintiff, testified:</p> <p>That the books he then produced, were the sales books of Henry H. Leeds & Co. That there was a memorandum entered in one of the sales books, April 26th, 1851, in the words and figures following:</p> <p>Goelet, 2 horses, Cowdrey, 207 50.</p> <p>-That the memorandum was in his handwriting, that he made it when the horses were sold. That there was written across the memorandum these words: “ Sold for H. H. Leeds & Co. by ' W. Irving.” That this was in Hr. Irving’s handwriting, and that Mr. Irving is salesman in Mr. Leeds’s office.</p> <p>That in the second book there was a memorandum under the date of May the 6th and 7th, 1851, as follows:</p> <p>Goelet, 1 pair horses. . J. Eoosevelt, 105.</p> <p>That there was no stable or place for horses to stand at the auction room. That lie could not remember whether Cowdrey gave his first name, but always enters the name of the purchaser as given. That the horses were at the first sale sold from a memorandum.</p> <p>Being cross-examined for the defendant, he further testified:</p> <p>That he is entry and delivery clerk; did not know the defendant at that time; that the word Goelet in the first memorandum is not in his handwriting, but in that of F. W. Leeds.</p> <p>The sale was made at about 12 or 12J o’clock in the front of the auction room; that he stood by the door when he took down the memorandum. A carriage was sold at about the same time; previous and subsequent sales were made inside the door; cannot recollect that Irving made the other sales. Before the sale of the carriage and horses, they were selling goods inside the store by catalogue, and stopped the sale of those to sell the carriage and horses; after they were sold, they proceeded to finish the sale inside by catalogue, during all which time the sales book was not out of my possession.</p> <p>That he had the sales book in his custody till six other sales were made after the horses. That goods are sold by a catalogue or manuscript. F. W. Leeds is a clerk in the store, who makes entries of goods sent for sale, and account sales for the owners; his usual place is in the counting-room in the back part of the store, but facing the street. That he did not know where F. W. Leeds was when the horses were being sold. That after he "had finished with the book he placed it on the desk of. the cashier, who makes out bills for the purchasers; keeps a book in which he enters the goods sent to the store; did not receive or enter the horses, and cannot say whether he knew the owner’s name when they were sold.</p> <p>F. W. Leeds, another witness for the plaintiff, testified that the first column of the columns of entry in the sales book is appropriated to the owners’ names, the next to the numbers on the catalogue or manuscript, the next to a description of the article sold, the next to the name of the purchaser as given, and the next to the price. That the name Goelet was in his handwriting, and he had a strong impression he wrote it the same day; he copied it írom a memorandum sent to him by Hr. Irving. That the second sale is in the handwriting of Hr. .French, who has left the store; that he recollected Hr. Roosevelt’s name being called at the sale, but does not remember the price he paid.</p> <p>On cross-examination he testified as follows: That he thought and had a strong impression that he entered the name Goelet, the evening of the-,sale; could not enter it sooner, as the cashier had to have the book to make out bills; that he entered it from a memorandum handed him by some one that he does not remember, but in Hr. Irving’s handwriting; that he did not enter the date of the sale, and could not state, irrespective of the book, what day of the month the entry was made.</p> <p>-- Bbegh, a witness for the defendant, testified, That he purchased the carriage that was sold at the same time, with the horses; that after the purchase he ascertained Hr. Cowdrey, the defendant, had purchased the horses, and asked him to allow his horses to take witness’s carriage up town; on his consenting, witness said to the coachman that he could drive before Trinity church, out of the way, and wait till the accounts were settled; instead of waiting he drove off; that Hr. Cowdrey and witness then went to the back office, and asked the cashier for bills, and whether the horses could be delivered at once; that his reply to us both was, they could not, for he did not know the owner’s name, nor where they were, and that owner did not wish his name known, and that they could not be delivered before four o’clock; the carriage, at that time, had been driven away; that witness and Hr. Cowdrey were informed that Hr. Miner, who was then selling in Broome street, might know the owner’s name; that the horses would be delivered wherever required, after four o’clock that evening; defendant also asked for the horses, but said he was not prepared to pay for them just then; that defendant then left to get a check, and was gone fifteen or twenty minutes; on his return witness and defendant went to Trinity church, but could not find the horses or . carriage; that then they went to Broome street, hut could not find Mr. Miner, and returned to the auction store, when witness was told Mr. Goelet’s name; that he thought defendant had left before this information was obtained; defendant said he was ready to take them at that time, and gave the parties clearly to understand he wanted the horses; the defendant expressed dissatisfaction both before and after going to Broome street, that he could not ascertain where the horses were.</p> <p>The referee made his report in favor of the defendant, upon the grounds that the contract of sale by the auctioneer was invalid, neither the terms of the sale, nor the name of the purchaser, nor that of the person upon whose account the sale was made, being sufficiently specified in the memorandum; and that under the pleadings the defendant had a right to insist upon these objections.</p>

<p>This was an action of debt on a judgment of this court, ren- ’ dered onthe 17th' day of April, 1847, for $612 93, in favor of James N. Olney against the defendant, and on the 11th day of September, 1850, assigned to the plaintiff. The complaint sets forth^the recovery of the judgment and the assignment to plaintiff. The answer sets up as a defence, that the judgment was obtained by fraud, and without any knowledge on the part of the defendant, or any opportunity to make a defence, he being a resident of the State of Connecticut, and for an alleged cause of action, utterly groundless. That on the 8th of November, 1848, 'said Olney commenced an action of debt on the same judgment, in the Superior Court of Connecticut, against Pearce. That Pearce, that action being pending, commenced a suit in chancery in the same court, against Olney, who appeared and answered, charging that said judgment was obtained by fraud, and praying an injunction against the prosecution of said action of debt. That by the finding, and final decree in said chancery suit, said judgment was found and decreed to be fraudulent, and an injunction granted. That after that decree, Olney assigned the judgment to the plaintiff, who commenced this suit.</p> <p>The reply denied every allegation in the answer. »</p> <p>The cause came on for trial before the Hon. Elijah Paine, one of the justices of this court, and a jury, on the 19th day of June, 1851. The plaintiff’s counsel offered and read in evidence, a judgment record of the Superior Court in favor of James H. Olney against the defendant, on a judgment rendered therein on the 11th April, 1846, for the sum of $612 93. By this record, it appeared that the capias by' which the suit was commenced was personally served on the defendant. The plaintiff’s counsel read in evidence an assignment of the said judgment by James H. Olney to the plaintiff, dated September 11th, 1850, and there rested his case. The defendant then offered in evidence an exemplified copy of the record of the proceedings in the chancery suit in Connecticut. The petition upon which the suit in chancery was founded, did not aver, as alleged in the answer, that the judgment upon which the present action was brought, was wrongfully and fraudulently proved to be entered up without the knowledge of the defendant, and which he was prevented from defending, by the deceitful practices of Olney; but the only allegations in the petition in which fraud was mentioned, were stated in language as follows:—“ That Olney, by mistake or contriving, or intending to harass and defraud said petitioner, commenced suit against him,” &c. “ That Olney, in further pursuance of said mistake or design to defraud, caused the capias in said suit to be served on the petitioner.” “ That Olney, in further pursuance of said mistake or design to defraud, caused said suit to be returned to said court, and there further prosecuted.” And at the end of .these allegations was this summary:—“ And so said petitioner was by mistake or design, and without any'fault on his part, deprived of all opportunity to make his defence in said suit.” The court'in Connecticut did not, as the answer alleges, find the facts to be true, as they are stated in the answer, but they found them to be true as they were set forth in the petition. And finally, the court in Connecticut did not, as is alleged in the answer, “ adjudge, order and decree that the judgment was fraudulent.” Their whole judgment was, that “ this court do now, in accordance with the advice of the Supreme Court of Errors, find the facts set forth in said petition to be true, and do therefore enjoin the said Olney, that he do for ever desist from prosecuting his said action upon said judgment, under the penalty of 1000 dollars.”</p> <p>The plaintiff’s counsel objected to the said record as inadmissible, and the court excluded it; to which ruling, the defendant’s counsel excepfed. Ho other evidence being offered on the part of the defendant, the court directed the jury to find a verdict for the plaintiff, with interest, to which the defendant excepted. The jury accordingly found a verdict for the plaintiff, for 834 dollars Y6 cents.</p>

The action was on a valued policy of insurance upon goods on board the ship Mason, on a voyage from Philadelphia to San Francisco, and that the application of the evidence, the points raised, and the opinion of the court maybe properly understood, it is deemed proper to state the complaint m extenso.

<p>Appeal from a judgment at special term in favor of the defendant. ®</p> <p>The action was brought to recover damages for an alleged breach of a covenant of warranty in a conveyance made by the defendant D. Cotheal and H. Cotheal, deceased, of lands in Hew Jersey. The plaintiff sought to recover as assignee of the covenant: the complaint upon the terms of which the decision partly turned is as follows:</p> <p>The above named plaintiff in this action respectfully shows to this court, that under the date therein stated and for the consideration therein named, the defendant David Cotheal, together with Henry Cotheal, did execute and deliver to Jeremiah W. Blydenburgh a certain deed, in the words and figures following to wit:—</p> <p>This Indenture, made the eighth day of Hovember, in the year one thousand eight hundred and thirty-six, between Henry Cotheal and Phebe B. his wife, David Cotheal and Charlotte B-his wife, all of the city of Hew York, parties of the first part, and Jeremiah W. Blydenburgh, of the same place, gentleman, of the second part, witnesseth, that the said parties of the first part, for and in consideration of the sum of twenty thousand dollars, lawful money of the United States of America, to them in hand paid, by the said party of the second part, at or before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, have granted, bargained, sold, aliened, remised, released, conveyed, and confirmed, and by these presents do grant, bargain, sell, alien, remise, release, convey, and confirm unto the said party of the second partj and to his heirs and assigns for ever, all that certain tract or parcel of land, commonly known as the Lazarus Wilmurt tract, situate, lying and being in the township of South Amboy, county of ' Middlesex, state of New Jersey. Beginning at the edge of Amboy Bay where the line of General James Morgan, late of the township of‘’South Amboy, county and state aforesaid, deceased, touches the same, thence along -the aforesaid line, south sixty-three degrees and thirty minutes, west fifty chains and fifty links to a stake, thence north twenty-seven degrees and thirty minutes, west twenty-eight chains and forty links to a_ stake, thence north sixty-five degrees, east thirty-two chains and ninety-four links to the aforesaid bay shore, thence down the same the several courses thereof, to the place of beginning (saving and excepting out of the said tract above described, the small lot, piece, or parcel of ground said now or lately to belong to Peter Johnson, being about three acres more or less, and situated upon and near the north-westerly corner of the tract of land, above described), the said tract of land, hereby conveyed or intended so to be, after saving and reserving thereout, .the small lot, aforesaid, containing one hundred and six acres be the same more or less, togéther with all and singular the tenements, hereditaments and appurtenances thereunto belonging or in anywise appertaining, and the reversion and reversions, remainder and remainders, rents, issues, and profits thereof. And also, all the estate, right, title, interest, dower and right of dower, property, possession, claim and demand whatsoever, as well in law as in equity, of the said parties of the first part, of, in, or to the above described premises, and every part and parcel thereof, with the appurtenances. To have and to hold, all and singular the above mentioned and described premises, together with the appurtenances, unto the said party of the second part, his heirs and assigns for ever. And the said Henry Cotheal and David Cotheal for themselves, their heirs, executors, and administrators, do hereby covenant, promise, and agree to and .with the said party of the secónd part, his heirs and assigns, that they have not done, committed, executed or suffered any act. or acts, thing or things whatsoever, whereby or by means whereof the above mentioned and described premises or any part or parcel thereof, now are or at any time hereafter shall or may be impeached, charged, or encumbered in any manner or way whatsoever. And the said Henry Cotheal and .¡David Cotheal and their heirs the above described and hereby granted and released premises, and every part and parcel thereof with the appurtenances unto the said party of the second part, Ms heirs and assigns, against the said parties of the first part and their heirs, and against all and every person- and persons whatsoever, lawfully claiming or to claim the same, shall and will warrant and by these presents for ever defend to the amount, sum, and extent of ten thousand dollars; but not to any greater amount, sum, or extent.</p> <p>In witness whereof the parties to these presents have hereunto interchangeably set their hands and seals, the day and year first above written.</p> <p>Henry Cotheal, [l. s.]</p> <p>Phebe B. Cotheal, [l. s.]</p> <p>David Cotheal, [l. s.]</p> <p>Charlotte B. Cotheal, [l. s.]</p> <p>Sealed and delivered in the presence of (the words “ upon and” being interlined on the 31st line, first page, after the words “ situate,” and the words “ Wilmurt,” written on an erasure in the 14th line, first page, before execution)</p> <p>Charles W. Cotheal.</p> <p>Ho. 1 Hew street, Hew York.</p> <p>And afterwards on the first day of Hay, 1838, for the consideration or sum of four thousand five hundred dollars to him paid by the plaintiff, the said Jeremiah W. Blydenburgh, then in the actual possession of said land and premises, under his hand and seal did grant, bargain, sell, alien, remise, release, convey, and confirm unto the said plaintiff, her heirs and assigns, all the above described tract of land, by the same metes and bounds as in the above described conveyance to Mm by the said Cotheals; whereby the said plaintiff became and remains the lawful assignee of the said covenant of warranty, and to the damages arising from the breach of the same, to the amount or sum of four thousand five hundred dollars, and the lawful interest thereon.</p> <p>And the said plaintiff further shows to this court, that the said defendant, David Cotheal, has not kept his said covenant, but has wholly failed to warrant and defend the plaintiff in the title • to said land, and premises and hereditaments and appurtenances thereunto belonging, thus intended to he conveyed: hut on the contrary thereof says, that the said premises were subject, and still remain subject, to injunction, restriction, and impeachment for all waste to the inheritance—in whomsoever else vested, either absolutely or contingently—committed or to be committed against them; and that the said Henry Cotheal and David Cotheal had cut and removed from the said premises large quantities of wood and clay before the date of their said conveyance ; and that said plaintiff was lawfully evicted from the title and right to said premises, by a paramount and lawful title to the same, at the date of her said conveyance, and has ever since remained evicted, and hath thereby sustained damage to the amount of four thousand five hundred dollars, and the lawful interest thereon from the date of her conveyance.</p> <p>And the plaintiff further shows to this court that Virginia W. Morehouse, Josephine B. Winchel, wife of Havila Winchel, and Elizabeth Morehouse, who are the lawful issue of Sarah Anne Morehouse, who is the daughter of Elizabeth Wilmurt, deceased, under whose will the defendant David Cotheal held possession, were at the date of the said covenants by the said David Cotheal, lawfully and solely seized, and stiff remain solely seized, in their own right, of the said lands and tenements invested, remainder in fee.</p> <p>And the plaintiff further says, that the defendant Abner Jones claims or pretends to claim some lien or interest in the said covenants of the said David Cotheal, or suspension of the plaintiff’s right of action for the damages arising from the breach thereof, or some part of the same.</p> <p>Wherefore the said plaintiff demands judgment against the defendant David Cotheal for the sum of four thousand five hundred dollars, and the lawful interest thereon, from the first day of May, 1838; and that the defendant Abner Jones be barred from all claim to. the said covenants, and the damages arising from the breach thereof.</p> <p>The answer of the defendant Cotheal admits the execution and contents of the indenture set forth in the complaint, hut denies that plaintiff was the lawful assignee of the covenant therein. It admits that Virginia W. Morehouse, Joseph B. Winchel, and Elizabeth Morehouse, are the lawful issue of Sarah Ann Morehouse, who was the daughter of Elizabeth Wilmurt, deceased, and that the defendant and H. Cotheal derived their title to the premises under the will of E. Wilmurt, as stated in the complaint, but denies that the children of Mr. Morehouse are seized of a vested remainder in fee. It also denies the commission of any waste creating a forfeiture, and sets up as a special defence in bar the foreclosure of a mortgage given for a part of the purchase-money by J. M. Blydenburgh, and subject to which the premises were conveyed to the plaintiff, but as no evidence was given in support of this defence, it is deemed unnecessary to state it with more particularity.</p> <p>The cause was tried before Mr. Justice Sandeord, in February, 1852, by the consent of the parties, without a jury.</p> <p>Upon the trial, the counsel for the plaintiff read in evidence an admitted copy of the last will and testament of E. Wilmurt, containing a devise of all her real estate to her daughter Sarah Ann in fee simple, but with a limitation over to third persons “ in case her said daughter Sarah Ann should depart this life without leaving lawful issue.” He then proved that D. & H. Cotheal derived their title to the premises from and through Sarah Ann Morehouse and her husband, by producing and reading the conveyances, which it was admitted were their only source of title. The counsel also read in evidence the record of the proceedings with the remMtitm' attached, in a suit carried from the Supreme Court of H. Jersey into the Court of Errors or Appeals in that state, in which the present defendant, D. Cotheal, was plaintiff in error, and Virginia W. Morehouse, Josephine B. Morehouse (now Winchel), and Elizabeth More-house, by their guardian J. W. Blydenburgh and Havila Winchel, were defendants in error. The counsel then read as evidence of the law of Hew Jersey, two decisions in the above suit of the Supreme Court of that state, which are reported, 1 Zabriskie, 480, and 2 Zabriskie, 434. The suit in H. Jersey, it appeared from the record, was an action of waste brought by the defendants in error, the children of Mrs. Morehouse, to recover the lands that had been conveyed to the Cotheals. The declaration stated in substance that E. Wilmurt died seized of the premises, and by her last will devised the same to her daughter Sarah Ann, in the manner above stated. It then set forth an act of the state of Hew Jersey, passed the 18th of June, 1820, which enacted among other things* that “from and after the passing of that act, when any conveyance shall he made whereby the grantee or devisee shall become seized in law or equity of such estate in any lands or tenements, as under the statute of the thirteenth of Edward the First* called the statute of entails, Would have been held an estate in fee. tail, every such conveyance or devise shall vest an estate for life only in such grantee or devisee, who shall possess and have the same power and'right in such premises* and no other, as a tenant for life thereof would have by law, and upon the death of such grantee or devisee the said lands and tenements shall go to and be vested in the children of such grantee or devisee, equally to be divided between them as tenants in common in fee; but if there be only one child, then to that only in fee; and if any child be dead, the part which would have come to him or her shall go to his or her issue in like manner. Provided, the widow of any such grantee or devisee shall have her dower in the premises in like manner as if the said grantee or devisee had died seized thereof in fee simple. And prpvided, when any person shall marry a woman being a grantee or devisee and seized of such estate* the said husband, after the death of his said wife, shall have his curtesy in the said lands and tenements, if there be issue of the marriage, in like manner as if the said wife had died seized of an estate of inheritance in fee tail of the premises.”</p> <p>The declaration then averred, that by virtue of the devise, "and of the statute aforesaid, Sarah Ann Wilmurt entered into and became seized of the tenements in her own demesne as of freéhold for the term of her own life, and that being so seized she intermarried in the month of October, 1828, with Andrew H. Morehouse, who therefore in right of his wife became jointly seized of the tenements with the appurtenances for the term of his life, if issue he should have by such marriage. It then set forth the birth of Virginia and the two other children of Mr. Morehouse, the appointment of J. W. Blydenburgh as their guardian, the title and entry of D. and H. Cotheal, and various acts of waste which it charged to have been committed by them, -to the prejudice of the children as entitled to the reversion in fee, and concluded with an allegation of damages to the extent of three thousand dollars.</p> <p>To this declaration the defendants D. and H. Cotheal pleaded the general issue, denying waste, and also the following special plea—•</p> <p>“ The said Henry and David Cotheal say, that the said plaintiffs ought not to have or maintain their said action against them, because they say that the said last will and testament in the plaintiff’s said declaration mentioned was and is a certain last will and testament of the said Elizabeth Wilmurt, made and published by the said Elizabeth Wilmurt, and duly executed and attested to pass real estate, on the 7th day of March, A.D. 1835—to wit, at the township of South Amboy in the county of Middlesex aforesaid; in and by which said last will the said Elizabeth Wilmurt, after directing her debts and funeral expenses to be in the first place paid out of her personal estate by her executors, and after giving and bequeathing to her son Thomas Wilmurt the sum of one hundred dollars, to be raised out of her personal estate, after her debts and funeral expenses should be paid, if there should so much thereof be left for that purpose, to be paid by her executors within one year after her decease, did devise as follows, to wit: ‘ I give, devise and bequeath unto my daughter Sarah Ann Wilmurt, and her heirs for ever, all the rest and residue of my estate, both real and personal, whatsoever and wheresover. But if it should so happen that my said daughter Sarah Ann should depart this life without leaving lawful issue, then and in that case I give, devise, and bequeath unto Ann Rose, daughter of William Rose, late of South • Amboy, deceased, and to Elizabeth Wilmurt Hyer, daughter of William Hyer of the city of Trenton, in the county of Hunterdon and state of Hew Jersey, and to their and each of their heirs for ever, all my real and personal estate whatsoever and wheresoever that I now possess, or may hereafter possess, to be held by the said Ann Rose and Elizabeth Wilmurt Hyer as tenants in common, and not as joint tenants. And my will further is, that if my said daughter Sarah Ann should not marry, and should depart this life before my decease, then I will that all my personal estate, after the payment of my debts and funeral expenses, and the legacy of one hundred dollars bequeathed to my son Thomas Wilmurt, be equally divided between the said Ann Eose and Elizabeth Wilmurt Hyer, share and share alike, in addition to the above devise of my real estate to them and to their heirs in the event of my daughter Sarah Ann dying without lawful issue.’ As by, &c. &c., will fully appear. And the said Henry and David Cotheal further say, that after the decease of the said Elizabeth Wilmurt as mentioned in the plaintiff’s said declaration, the said Sarah Ann* thereupon, under and by virtue of the said will, became and was seized of the said premises, with the appurtenances, according to the said will; and afterwards, to wit, at the time and place in the said declaration mentioned, intermarried with the said Andrew X. Morehouse. Whereupon, and by virtue of the said will of the said Elizabeth Wilmurt, the" said Andrew X. Morehouse, and the said Sarah Ann his wife, in right of the said Sarah Ann became and were seized of the same tenements, with the appurtenances in their demesne -as of fee, to wit, to them and to the heirs of the said Sarah Ann, of an estate therein, defeasible only upon the event of the said Sarah Ann’s dying and leaving no issue surviving her at the time of her death; with this, that the said Henry and David Cotheal aver that the said Sarah Ann is yet surviving and alive, to wit, at the county of Hamilton in the state of Hew York aforesaid. And the said Henry and David further say, that afterwards, to wit, on the 13th of July, 1830, at South Amboy, &c., the said Andrew X. Morehouse and Sarah Ann his wife, being so seized as aforesaid, by a certain indenture of bargain and sale then and there made between the said Andrew X. Morehouse and Sarah Ann his wife of the one part, and the said Henry and David Cotheal of the other part, and duly acknowledged by the said Sarah Ann so as to pass her estate and interest (one part of which said indenture,' sealed with the seals of the said Andrew and Sarah Ann his wife, the said Henry and David now bring here into court, the date whereof is the day and year last aforesaid), for the consideration therein mentioned, the said Andrew X. and Sarah Ann his wife bargained and sold and conveyed the equal undivided moiety of the said premises, with the appurtenances,- to the said Hénry and David in fee simple, as by the said indenture more fully appears. Whereupon the said defendants then and there became and were seized thereof in their demesne as of fee, to wit, of an estate therein in fee simple, defeasible only upon the event of the said Sarah Ann’s dying and leaving no issue her surviving at the time of her death $ and afterwards, to wit, on the 19th day of October, 1831, at South Amboy, aforesaid, &c. Andrew Snowhill then being sheriff of the county of Middle-sex, state of ¡New Jersey, by his certain deed of conveyance then and there duly made and delivered under and by virtue of the special authority to him for that purpose given, duly and particularly recited in the said deed, which said deed of conveyance, sealed with the seal of the said Andrew Snowhill, then being sheriff as aforesaid, the said defendants, Henry, and David, now bring here into court, the date whereof is the day and year last aforesaid, did bargain and sell and convey unto the said defendants, Henry and David, the other moiety of the said premises, with the appurtenances in fee simple, and all the estate, right, title, and interest of the said Andrew K. Morehouse and Sarah Ann his wife in and to the same, as by the said deed of conveyance more fully appears. Whereupon the said defendants, Henry and David, then and there became and were seized thereof in their demesne as of fee, to wit, of an estate therein in fee simple, defeasible only upon the event of the said Sarah Ann’s dying and leaving no issue her surviving at the time of her death—without this, that upon the death of the said Elizabeth Wilmurt the said Sarah Ann, under and by virtue of the said will, into the said tenements with the appurtenances entered and was thereof seized in her own demesne as of freehold for the term of her life, and the said Virginia W., Josephine B., and Elizabeth, also by virtue of the said will and of the statute in the said declaration mentioned and recited, then and there became and remain as yet solely seized of the same lands and tenements with the appurtenances, in vested remainder in fee and of right, in manner and form as the said plaintiffs have above alleged; and this the said Henry and David are ready to verify. Wherefore, they pray judgment if the said plaintiffs ought to have or maintain their aforesaid action thereof against them, &c.</p> <p>To this second plea the plaintiffs demurred, as follows:</p> <p>And the said plaintiffs as to the-plea of the said defendants secondly above pleaded, say, that the same and the matters therein contained in manner and form as the same are above pleaded and set forth, are not sufficient in law to bar or preclude them the said plaintiffs from having or maintaining their aforesaid action thereof against them the said defendants, and that they the said plaintiffs are not bound by law to answer the same, and this they the said plaintiffs are ready to verify. Wherefore the said plaintiffs pray judgment whether they ought to be barred or precluded from having or maintaining their aforesaid action against the said defendants by reason of anything contained in said plea.</p> <p>And the said plaintiffs according to the form of the statute in such case made and provided, state and show to the court here the following causes of demurrer to the said second plea, that is to say—</p> <p>First. For that the said plea hath not confessed, avoided, traversed, or denied the causes of action alleged in the said declaration, nor hath the said plea recited or stated anything from the' last will and testament of Elizabeth Wilmurt, inconsistent with the title alleged in said declaration, or as creating any such estate in the said defendants or their grantors, as is alleged and supposed by said plea.</p> <p>Second. For that the said plea doth not pretend to recite the whole will of Elizabeth Wilmurt, or in any manner deny but that the said will contains the very devise mentioned in said declaration, both in form and effect, as therein stated and set forth.</p> <p>Third. The said plea is inartiflcially pleaded, and in other respects uncertain.</p> <p>The demurrer was sustained by the judgment of the Supreme Court, and the plea overruled in the term of April, A. D. 1860. The cause then proceeded to trial upon the general issue, and was tried at the Middlesex June Circuit ensuing, and upon such trial the jury rendered a verdict for the plaintiffs as stated in the postea, as follows, to wit: “ That the said defendant, David Cotheal (the said Henry Cotheal having before that time died), did make waste, sale, and destruction in woods and lands ; that is to say, in taking twenty cords of wood from Spring Hollow, and five cords of wood from Sugar-loaf Hill; and oaks, chestnuts, pines and other trees from the premises adj oining Spring Hollow, and dispersely standing among the clay pits upon said premises, in quantity equal to fourteen and a half cords of wood in manner and form as the said plaintiffs have by their declaration supposed—and they together assess the damages of the said plaintiffs hy°reason thereof at the sum of $89. And as to the other waste charged in said' declaration, the jurors aforesaid upon their oaths say the said defendant, David Cotheal, made no waste, sale and. destruction, as the said plaintiffs in the said pleading have alleged.</p> <p>And thereupon judgment was afterwards, to wit, on the 19th day of July,, A. D. 1850, rendered as follows, to wit— Therefore it is considered that the said plaintiffs Virginia W. Morehouse, Josephine B. Winchel, Elizabeth Morehouse, and Havilla Winchel, in right of his wife the aforesaid Josephine, recover their seizin of the said defendant, David Cotheal, of the places wasted by the view of the jurors aforesaid; and also recover their damages assessed by the jury, $89, trebled' in pursuance of the statute, amounting to the sum of $267. And also for their costs and charges by them about their suit in this behalf expended the sum of $82 90, by the court now here adjudged to them and with their assent, and that said defendant be in mercy, &c.</p> <p>And the said plaintiffs pray a writ of the state of New Jersey, to the sheriff of the county of Middlesex, commanding him to cause them to have their full seizin of the places wasted, by the view of the jurors aforesaid, is granted to them returnaable, &c.; and also pray a writ of fieri facias to the same sheriff, commanding him to make of the goods and chattels, lands, and tenements, &c., of the defendant, David Cotheal, their treble damages with their costs and charges so recovered as aforesaid, it is also granted to them returnable, &c.</p> <p>With the plea of the general issue there was a notice of this import, that, on the trial it would be shown that the .wood cut was used for repairs to the fences and premises, and the clay dug from open and accustomed mines, &c.</p> <p>To review these judgments, a writ of error in the ordinary form was issued, and the assignment of errors is as follows, viz.:</p> <p>Afterwards, to wit, of the same term of October, eighteen hundred and fifty, before the said Court of Errors and Appeals of the State of Hew Jersey, at the State-House in the city of Trenton, comes the said David Ootheal, by William H. Leupp, his attorney, and saith—That in the record and proceedings aforesaid, and also in the giving as well the judgment hereto- , fore given, to wit: in the term of April, A. D. 1850, by which judgment the plea of the said Henry Ootheal and David Ootheal, by them secondly above pleaded, was by said Supreme Court overruled, as also in the final judgment by said court . rendered and given in said suit, there is manifest error in this. That by the terms of the will of Elizabeth Wilmurt, in said second plea recited and set forth, it was the manifest design of the said Elizabeth Wilmurt to give and devise, and the said 'testatrix did give and devise, to her daughter, Sarah Ann, in said will named, an estate in fee simple in the lands and real state the subject matter of said bequest, determinable and defeasible only by the death of said Sarah Ann without issue left by her at the time of her death, whereas by the aforesaid judgment it was adjudged and determined that by said devise the said Sarah Ann Wilmurt took and was entitled to an estate tail in said lands and real estate.</p> <p>2. And in the giving of the final judgment aforesaid, there is manifest error in this. That whereas by the record it appears the judgment final was given in said suit, for the said plaintiffs against the said defendant being here the plaintiff in error, whereas by the law of the land the said judgment ought to have been given for said plaintiff in error the defendant as aforesaid in said suit.</p> <p>3. And there is further manifest error in this, that said judg-ment is variant from the verdict rendered by the jury empanelled and sworn to try said cause.</p> <p>4. Arid there is also error in this, that as by the record aforesaid manifestly appears, the verdict rendered by said jury is insufficient, and void in not ascertaining the specific value and kind of trees and wood alleged to have been wasted, and in that the assessment of damage thereby is joint and general, and in that the quantity of land alleged to have been wasted is neither ascertained nor defined.</p> <p>5. And said final judgment is also erroneous in not acquitting and discharging said defendant from the waste charged in the declaration in said suit affiled, and as to which waste the defendant was acquitted by the verdict aforesaid as rendered.</p> <p>6. And further, said judgment and proceedings are in divers other respects erroneous, informal and insufficient, and especially in that the judge, before whom said cause was tried, on exception thereto made by the plaintiffs, refused to admit evidence of the repair’s made to buildings and fences on said premises and other similar improvements thereon, by the said defendant. And the said plaintiff in error prays that the judgments aforesaid for the errors aforesaid and other errors in the record and proceedings may be reversed, annulled, and for nothing held, and that the plaintiff in error may be restored to all things which he hath lost by occasion of said judgments.</p> <p>It further appeared from the record, that in April Term, 1851, the Court of Errors and Appeals reversed the judgment of the Supreme Court for the errors assigned, and ordered that the defendant D. Cotheal should be “ restored to all things which he had lost by reason of such judgment, and that the record and proceedings be remitted to the said Supreme Court.” They were remitted accordingly, the remittitur filed, and the proper order entered thereon.</p> <p>It does not appear from the record what were the exact grounds of reversal of the judgment, nor is there any report of the case in the Court of Errors.</p> <p>Eo other evidence than that which has been stated was given by counsel on the part of the plaintiff before Judge Sandford, nor was any evidence given on the part of the defendant. The learned judge directed, judgment to be entered for the defendant, and stated, in writing, the following as the grounds of his decision:—</p> <p>1. If there was an eviction by means of defendants’ commission of waste as claimed, it took place at the date of their * deed to plaintiff s grantor, their covenant of warranty was then broken, and the damage did not pass to. the plaintiff.</p> <p>2. There has been no eviction as matter of fact, the plaintiff was never molested or disturbed in the possession of the premises, in bon sequence of the waste or by the alleged hostile title.</p> <p>3. The evidence does not show that the title set np in the Morehouses is valid, nor that the defendants had not the whole title in fee. As the law is in this state, Mrs. Morehouse took a conditional fee, with an executory devise over, and her children took no estate by the will.</p> <p>The counsel for the plaintiff excepted to the decision, and the case was now heard upon the pleadings and bill of exceptions.</p>

This cause was tried before Justice Sandford and a jury. A verdict was rendered in favor of the plaintiffs for the amount claimed. The defendant moves for a new trial on the ground that the verdict is clearly against evidence. The facts sufficiently appear in the opinion of the court.

<p>Tms is an appeal from a judgment entered on a report of J. B. Scoles, Esq. as referee. The defendant moves for a new trial on the ground that the facts found by the referee are against evidence. "</p> <p>The facts sufficiently appear in the opinion of the court.</p>

<p>Motion to set aside the report of a referee upon a case and exceptions. The action was to recover damages for the breach of certain covenants, on articles of agreement under seal between the plaintiff and the defendants. The. suit was commenced before the Code, and the declaration, the sufficiency of which to cover the demands of the plaintiff was denied by the counsel for the defendants, was in the words following:—</p> <p> Superior Oowrt, of the Term of October, one thousand eight hundred and forty-six. </p> <p>City and County of Hew York.—ss. Manuel X. Harmony complains of Thomas Bingham, Jacob Dock, William A. Stratton, and William Bingham, being in custody, &c., of a plea of breach, of covenant. For that whereas, heretofore, to wit, on the twenty-fifth day of March, one thousand eight hundred and forty-six, at the city and in the county of Mew York aforesaid, by certain articles of agreement, then and there made, concluded and agreed upon, between the said plaintiff of the one part, and the said defendants, by the name and description of “ Bingham’s Transportation Line,” Dépdt Mo. 276 Market-street, Philadelphia, of- the other part, one part of which said articles of agreement sealed with the seal of said defendants, the said plaintiff now brings here into court, the date whereof is the same day and year aforesaid, it was covenanted and agreed by and between the said parties, that the-said defendants party thereto, of the first part, in consideration of one dollar, the receipt whereof by them was duly acknowledged by said defendants, and of the prices thereinafter stated, would convey and transport from the city of Mew York to. Independence, in Missouri, and would safely deliver at Independence aforesaid, within twenty-six days from the first day of April then next, any and all goods which said plaintiff Manuel X. Harmony might send by said Transportation Line, on or before the said first day of April, one thousand eight hundred and forty-six, at the following prices, to wit: two dollars per hundred pounds weight for goods in boxes, and one Sli-lOOths dollars per hundred pounds weight for goods in bales. And, said defendants party to said articles, of the first part, further covenanted and agreed therein and thereby, that in case of the failure to deliver said goods at Independence aforesaid, within the said period of twenty-six days, the said party of the first part should deduct ten cents per hundred pounds from the freight bill for every day the' goods are delayed beyond the said period of twenty-six days.</p> <p>And the said defendants, in and by said articles, did further covénant and agree to and with said plaintiff, that they the said defendants would in the name of, and at the expense of said defendants, contract for and pay all freight of said goods from Pittsburg to Independence aforesaid; and that said defendants would fully indemnify and save harmless the said plaintiff, from any and all freight and expenses to be paid to third -parties for transporting such goods or any part thereof between the two last named places, and that said defendants would fully indemnify and save harmless the said plaintiff from any lien or .liens for freight, and from any loss or damage sustained by delay of such goods, by reason of such lien or liens, between the two last named places.</p> <p>And, the said plaintiff avers that he, the said plaintiff, at the city and in the county aforesaid, did on or before the said first day of April, one thousand eight hundred and forty-six, deliver to and send by said defendants, by the name and description aforesaid, one hundred tons of goods in boxes and in bales, pursuant to said articles, to be, by them the said defendants, carried and transported to and delivered at Independence aforesaid, at or by the time and in manner aforesaid, pursuant to' said covenant, which said goods so delivered as aforesaid, were of great value, to wit, of the value of one hundred thousand dollars.</p> <p>And the said plaintiff avers, and further in fact says, that although said goods were duly shipped and • sent in manner aforesaid, yet the. said defendants, not regarding their said covenant and agreement, did not in fact carry and transport said goods from the city of Hew York to Independence, Missouri, as aforesaid, and did not deliver the said goods at Independence aforesaid, within said twenty-six days from the said first day of April, one thousand eight hundred and forty-six, as in and by their said covenant said defendants were bound and obligated to do ; but thát said goods were not delivered by said defendants at Independence aforesaid until a long time, to wit, six months after the said first day of April, one thousand eight hundred and forty-six.</p> <p>And said plaintiff avers, that on the arrival of said goods at Independence aforesaid, and before the commencement of this suit, said plaintiff demanded said goods of said defendants, that said defendants then and there refused to deliver said goods to said plaintiff, unless said plaintiff would pay the freight thereon : and that said plaintiff thereupon, and before the commencement of this suit, and before the delivery of said goods by said defendants to said plaintiff, at Jhdependénce aforesaid, did pay to said defendants the freight on said goods, to wit, the sum of three thousand dollars; and said plaintiff avers that said payment of freight was made under an express protest and denial of said defendants’ pretended right to have or claim the same or any part thereof.</p> <p>And the said plaintiff further in fact says that, by reason of the delay of said defendants in making delivery of said goods at Independence aforesaid, pursuant to their said covenant, the said plaintiff was greatly hindered and delayed in forwarding his said goods to Santa Fe and other parts of Mexico, the markets where they were destined to be sent to be sold; that said goods depreciated in value by reason of such delay and non-delivery by said defendants; that said plaintiff thereby lost a profitable market and sale for said goods; and the said plaintiff was subjected to great expense in hiring and keeping men and teams at Independence aforesaid, and also subjected to the loss of his own personal time and services, to the damage of said plaintiff (including the said sum of three thousand dollars, so as aforesaid unjustly demanded by and paid to said defendants for freight, and which said plaintiff hereby claims to receive back), altogether fifty thousand dollars.</p> <p>And, so the plaintiff in fact says, that the said defendants (although often requested so to do), have not kept their aforesaid covenant, so by them made as aforesaid, but have broken the same, and to keep the same have hitherto wholly neglected and refused, and still do neglect and refuse, to the damage of said plaintiff, fifty thousand dollars, and therefore brings his suit, &c."</p> <p>To this declaration the defendant, Thomas Bingham, after craving oyer, and setting forth the articles of agreement, pleaded, first, non est factum, and second, that the plaintiff, if damnified, had been damnified of his own wrong, and appended to his pleas a notice, that upon the trial evidence would be given of certain facts therein specified, proving that the alleged delay in the delivery of the plaintiff’s goods had been caused solely by unavoidable accidents, and was therefore no breach of any covenant in the agreement. In February, 1850, an order was made founded upon the written consent of the attornies, referring the cause to Joseph S. Bosworth, Esq., as sole referee, to hear and decide all the issues, and report thereon, and upon the hearing before the referee, the counsel for the plaintiff in support of the action, read in evidence a stipulation in writing, accompanied with certain schedules, and signed by the attomies of the parties, which stipulation and schedules are as follows:—</p> <p>We hereby stipulate, upon the trial of this cause, to admit in evidence, with the same force and effect as if proved by competent testimony, the following facts (subject to all legal exceptions), viz.:</p> <p>That, on Wednesday, the 26th day of March, 1846, at the city of Hew York, the parties to this suit executed the articles of agreement, a copy whereof is hereto annexed, marked A.</p> <p>That, in pursuance of said articles of agreement, the plaintiff delivered to the defendants, at the city of Hew York, on Wednesday, the first day of April, in the year 1846, to be carried and transported from the city of Hew York to Independence, Missouri, three hundred and thirteen packages of goods, consisting of two hundred and sixty-six bales, thirty-three boxes, nine trunks, three baskets, and two kegs; containing, in all, sixty thousand five hundred and forty-eight pounds weight, as follows, fifty-three thousand and sixty-nine pounds weight in said boxes, one thousand and fifty-six pounds weight in said trunks, one hundred and eighty pounds weight in said baskets, and twenty pounds weight in said kegs; the receipt of which goods, for such transportation, was acknowledged by said defendants by a receipt, a copy whereof is hereto annexed, marked B.</p> <p>That the distance from Hew York to Independence, by the route usually pursued by the defendants in the business of transporting goods and merchandise, is nineteen hundred and seventy-four miles; as follows, from Hew York to Philadelphia, by the Oamden and Amboy Railroad, ninety-six miles; from Philadelphia to Columbia, in Lancaster county, in the stale of Pennsylvania, by the Philadelphia and Columbia Railroad, eighty-two miles; and from Columbia to Hollidaysburg,in Blair county, in said state, by the Pennsylvania canal, one hundred and seventy-two miles; and from Hollidaysburg to Johnstown, Columbia county, in said state, by a mountain railway, over ten inclined planes, thirty-six miles ; and from Johnstown to Pitts-burg, in Alleghany county, in said state, by canal, one hundred and three miles ; and from Pittsburg to St. Louis, in the state of Missouri, by the Ohio and Mississippi rivers, eleven hundred and.forty-five miles ; and from St. Louis to Independence, in Jackson county, in said state of Missouri, by the Missouri River, three hundred and forty miles; and that the usual time occupied by the defendants in transporting goods from New York to Independence is twenty-nine days, as follows, from New York to Philadelphia two days, thence to Columbia one day, thence to Hollidaysburg four days, thence to Johnstown one day and a half, thence to Pittsburg two days and a half, thence to St. Louis twelve days, thence to Independence five days.</p> <p>The said Pennsylvania canal, from Columbia to Hollidaysburg, is a public work belonging to the state of Pennsylvania; that the same lies along and is supplied by water from the Susquehanna River for the distance of forty-three miles, and by the Juniata River for the distance of one hundred and twenty-two miles : that this canal usually freezes up in the winter, and is not usually open until the fifteenth day of March of each year: that it did freeze in the winter of 1845-6. That on the fifteenth day of March, 1846, the said canal, by reason of a great and unusual freshet, was rendered impassable and not navigable; that the same was subsequently repaired by the state of Pennsylvania, which alone had power and authority to repair the same; and which, before the 25th day of March, 1846, gave official public notice to the defendants and others that the same would be ready for use and navigable on or before the fourth of April, 1846 ; but said canal continued not navigable and was impassable until Saturday the eighteenth day of April, 1846.</p> <p>That said sixty thousand five hundred and forty-eight pounds weight of goods, in the packages aforesaid, were, by the said defendants, transported from the city of New York, on the first day of April, a.d. 1846, by the route aforesaid, and arrived at said Columbia, on the third day of April, a.d. 1846, and were then and there ready to be transported to said Hollidaysburg forthwith. That on the said eighteenth day of April, a.d. 1846, three hundred and twelve of said packages of goods were transported by said Pennsylvania canal, from said Columbia to said Independence, in the state of Missouri, and thence safely and in good order delivered- to said plaintiff, on the 17th, 19th, and 23rd days of May, a.d. 1846, respectively, and freight paid thereon by said plaintiff, as appears by the three receipts hereto annexed, marked C1,2,3.</p> <p>That at the time of making said articles of agreement there was and is another route by which said goods and merchandise might have been carried and transported from the city of New York to Independence, in Missouri, to wit: by sea from New York to New Orleans, thence by the Mississippi river to St. Louis, thence to Independence as aforesaid, and that the parties to said articles of agreement knew of the same.</p> <p>That the annexed schedule, marked D, contains a particular statement of the goods contained in the packages aforesaid.</p>

The action was for an injury to the person of the plaintiff, occasioned by the overturning of a stage belonging to the defendants, and was tried before Mr. Justice Duer and a jury, on the 5th, 6th, Ith, and 8th days of February, 1851.

This was an action against the defendants for the breach of an undertaking, executed by them as sureties of one Robert Anderson, upon an app'eal made by him to the court of appeals, from a judgment of this court.

The complaint alleges that on the 24th day of February, 1851, the defendant drew a note to his own order, and endorsed the said note, and transferred the said note so endorsed, so that the same came to the possession of and was owned by the plaintiff; whereby he promised to pay at the Merchants’ Exchange Bank $819 68.

<p>The plaintiff demised to defendant by lease, under seal signed by both parties, dated February 3d, 1849, certain premises for one year thereafter, at $700 per annum, payable quarterly in advance. The action was for the last quarter’s rent. The defence was a surrender by operation of law prior to 1st of February, 1850, and also an eviction during the last quarter in March, 1850, by summary proceedings at the instance of the plaintiff.</p> <p>Held, 1st. That an absolute and unconditional lease by parol during the term, of the whole premises, to a new tenant, occupation and payment of rent by such new tenant pursuant thereto, would work a surrender by operation of law. 2d. That a parol lease for less than a year would be valid in law and effectual to vest an estate for the agreed term in the new tenant: that there was no evidence on which to submit to the jury the question of a surrender. 3d. That where rent is payable quarterly in advance, an, eviction during the quarter, but after the rent becomes due, does not bar an action for the rent. The most the evicted tenant can equitably claim is a deduction for so much of the quarter as elapses after his eviction.</p>

<p>This action was brought upon a- bond given by the defendants on an attachment issued against the property of Jacob Carrigan', of Philadelphia. The plaintiff claimed damages against Carrigan for the non-fulfilment of a contract to deliver coal, and procured an attachment to be issued against his property in Yew York, to relieve which property from' the lien, the defendants gave the bond in question. In their pleas the defendants set up the same matters in defence, which Carrigan might have interposed had he himself been sued upon his contract. The pleadings are voluminous, but their contents need not be stated, as no question in the cause turned upon their construction. The issues made by the pleadings were tried before the chief justice and a jury in May term, 1852; and upon the trial, the contract given in evidence was as follows:—</p> <p>“I do hereby agree to deliver to J. Selby West, at such places as he shall (Erect, during the months of August, September, and October next in about equal quantities each month, five hundred tons of egg and five hundred tons of good size stove coal, best quality of red ash Peach Orchard, at five dollars per ton, cash, or interest added, after delivery, as he shall prefer. The above coal to be in good order and gross tons. Credit not to be over three months.</p> <p>“ Moréis Buckman, Agent,</p> <p>“ For Jacob Oaeeigan, Jr.</p> <p>“ Hew York, April 16,1846.”</p> <p>Ho counterpart was executed by the plaintiff. A brother of the plaintiff testified that at some time during the months of August, September, and October, and he believed in September, though it may have been in October, he heard a conversation between the plaintiff and Morris Buckman, who had acted as agent for Carrigan in making the contract, which conversation had reference to the place where the coal was to be landed, and'the plaintiff told Buckman to send the coal to the foot of 28th street. The counsel for the plaintiff also put in evidence the following correspondence between the plaintiff and Carrigan:—</p> <p>“ Hew York, Oct. 28th, 1846.</p> <p>“ Mr. Jacob Oaeeigan, Jr.,</p> <p>“ Dear Sib,—Inclosed you have a copy of my contract with you, no part of which has been filled. The time for performance expires on the 31st of this month. As I wish the coal, although it is too late to forward it within the time called for in the contract; still, if you will deliver me the coal forthwith, I will receive it as a fulfilment on your part, otherwise I must hold you responsible. Please to let me hear from you by return of mail, without fail, and let me know what you will do about it.</p> <p>“ J. Selby West.”</p> <p>“ Phtladelfhia, Hovember 4th, 1846.</p> <p>“ Mr. J. Selby West, Hew York:</p> <p>“Dear Sir,—Your note of October 28th is received. As the contract made with you called for you to notify me where the coal was to be landed, I have waited and' waited for such notice from you, knowing your means were so limited you would not want any of it stored.</p> <p>“ The coal has been ready and waiting such notice from you. I am certainly a little surprised, at this late day, to receive such a note from you. I had come to the conclusion that you did not want the coal. All whom I sell to in the same way notify me regularly how they want it shipped, and at what pier to land it.</p> <p>“ Yours respectfully,</p> <p>“Jacob Carrigau.”</p> <p>The plaintiff then proved that the price of coal in the city of New York was in August, 1846, $5 10 per ton; in September, $5 20; and in October, $5 42; and on the 1st of November, $5 62. The defendants offered no evidence, but moved for a nonsuit on various grounds. The motion was denied by the judge, reserving the right to afterwards grant a nonsuit, if one ought to have been granted at the trial. The court instructed the jury that the plaintiff was entitled to the difference between the contract price and the market price at the close of the month. To which instruction the defendant excepted.</p> <p>And the court further charged that the jury might also allow interest on that difference.</p> <p>To which instruction the defendant’s counsel also then and _ there excepted.</p> <p>The jury found a Verdict for the plaintiff for $208 33, as damages for not delivering coal, and added thereto the sum of $23 51 for the costs on issuing the attachment.</p> <p>The- court then directed a verdict for the plaintiff to be entered for $231 84, subject to the opinion of the court on a case, with liberty to enter a nonsuit.</p> <p>Either party to be at liberty to turn the case into a bill of exceptions.</p>

This action was brought to recover a fund in the hands of the public administrator, as the administrator, &c., of a deceased infant, Charles W. Willis. The plaintiffs, Mrs. Sweezy and Mrs. Webster, claimed to be entitled to the fund as the next of kin and heirs at law of the infant, but the answer of the defendant denied their title and set np as preferable, that of John Willis, the grandfather of the deceased.

<p>The answer of the defendant, who was sued as the maker of a promissory note, set up as a defence, that the note in suit had been delivered to B for a renewal of a former note of the defendant, for the same amount, of which B was then the holder and owner. And that B, after such delivery, instead of returning the first note, kept them both, and therefore averred that no consideration had been given for the note in suit.</p> <p>Held, that these facts constituted no defence to the present suit, since they were evidence, that the first note, which, for aught that was alleged, was still in B’s hands, had been satisfied, and could not therefore be enforced against the defendant. The answer therefore, in effect, proved that the note in suit was founded on a valid consideration.</p> <p>Held, also, that the motion of the plaintiff, on the trial, to exclude the defence, as irrelevant, ought to have been granted.</p> <p>The evidence which the defendant was permitted to give on the trial tended to prove that B, before the note in suit was delivered to him, had parted with the first note to a holder for value, and that his transfer to the plaintiff of the note in suit was, therefore, a fraudulent misapplication.</p> <p>Held, that as this defence was different in its entire scope and meaning from that set up in the answer, the evidence ought not to have been received.</p> <p>Held, also, for the same reason, that the answer, under the provisions of the Code, could not be so amended as to let in the defence.</p> <p>When a defendant, sued as the maker or endorser of a negotiable note or bill, proves upon the trial that it was obtained from him. by fraud, or was fraudulently put in circulation, the plaintiff is bound to prove that he gave value for it when he received it.</p> <p>When a valuable consideration, however, is proven, the burden of proof is again shifted, and that of showing that the plaintiff had notice of the fraud is cast upon the defendant.</p> <p>A witness who, for a valid consideration, has agreed to indemnify the defendant by whom he is called, is incompetent under the Code “ as a person for whose immediate benefit the action is defended.” (Per Boswobth and Dues, J.J.)</p> <p>A consistent' interpretation must be given to the two sections in the Code (§§ 348, 349), that which declares that “no witness shall be excluded by reason of his interest in the event of the suit,” and that which excepts from the' application of the rule those who are “ parties to the action, or for whose immediate benefit it is prosecuted or defended.” (Dueb, J.)</p> <p>Semble—that these provisions can only be reconciled by confining the exceptions from the general rule to those who, in judgment of law, are parties to the suit; that is, as parties on the record, or parties in interest. (Dueb, J.)</p> <p>Those only, as parties in interest, are parties to the suit, who, in all respects and for all purposes, will be concluded by the judgment to be-rendered. (Dueb, J.)</p> <p>Hew trial granted, costs to abide event.</p>

<p>Appeal from a judgment at special term.</p> <p>The following are the material facts in the case:—</p> <p>The defendant owned an indenture of lease, dated February 1st, 1851, for the term of twenty-one years. On the 31st of May, 1851, by deed, he sold and assigned it to the plaintiff for the sum of $4,000, subject to a mortgage executed by the defendant to secure the sum of $2,000; and subject also to the rents, covenants, conditions, and provisions contained in the assigned lease. The defendant covenanted that “ the assigned premises now are free and clear of and from all former and other gifts, grants, bargains, sales, leases and executions, back rents, taxes, agreements, and incumbrances whatsoever, except said mortgage.” This deed of assignment was recorded June - 18, 1851.</p> <p>The defendant, by an instrument in writing, signed and sealed ' by himself and Smith Sloan, dated on the 21st of May, 1851, had sold and assigned to Sloan the privilege of using as a party-wall one of the end walls of the building on the demised premises, free and undisturbed for the whole term of the lease. Sloan not to be at liberty to insert more than five tiers of beams in the wall, nor to break into the wall more than four inches in depth, four in width, and ten in length. This was recorded the 3d of June, 1851, and Sloan paid for the grant or privilege $100.</p> <p>This action was brought to recover the value of the privilege granted to Sloan, on the ground that the grant was a breach of defendant’s covenant contained in the deed of assignment from him to the plaintiff. At the time this action was commenced Sloan had entered upon the erection of a building on a lot adjoining the wall in question, and had inserted one tier of beams in this wall.</p> <p>The action was tried before Chief Justice Oakley, who “ instructed the jury to render a verdict for the plaintiff' for the value of the privilege granted to Smith Sloan, subject to the opinion of the court on the questions, whether the privilege granted by defendant to Smith Sloan was a breach of the covenant contained in defendant’s assignment to the plaintiff, and if so, whether the plaintiff can recover for the value of the privilege so granted, inasmuch as the same was not any damage to plaintiff’s building.”</p> <p>The jury rendered a verdict for the plaintiff for $150.</p> <p>On a case containing the evidence and the questions reserved at the trial, Justice Dube, at special term, adjudged that the grant of the privilege was a breach of defendant’s covenant, and gave judgment for the plaintiff. From his order and the judgment entered pursuant to it, the defendant appeals to the general term.</p>

This was an action to recover the possession of an undivided moiety of three lots of ground in the city of Hew York. The complaint averred the seizin in fee of the plaintiff, the possession of the defendant, and the dispossession by him of the plaintiff. The answer denied all right, title, or interest, in the plaintiff, and that the defendant had at any time dispossessed him of the premises, or of any part thereof.

Tecs was an action to recover damages for the eviction of the plaintiff, hy a paramount title, from certain premises leased to him by the defendant. The cause was tried before Ch. J. Oakley, and a jury, on the 9th of May, 1852. A verdict was rendered for the sum of $159 51, the damages claimed hy plaintiff, subject to the opinion of the court at general term.

This was an action to compel the return and delivery to the plaintiff of certain certificates of stock, or in default thereof, the payment by the defendants, as the value of the stock, of $15 25, with interest. The cause was tried before Mr. Justice Campbell, and a jury, on the 21st of June, 1852. In order that the application of the evidence given on the trial may be properly understood, it will be necessary to state the substance of the pleadings.

<p>Gas fixtures and sitting stools, when placed by a tenant in a shop or store, although fastened to the building, are not fixtures, as between the tenant and landlord.</p> <p>They are the property of the tenant and may be removed by him not only during the term but after its expiration. He may pass a title to them by a chattel mortgage, and they may be levied on under an execution against him as his personal property.</p> <p>When a subsequent tenant in possession of a store containing such articles, the property of a former tenant, is sued by the landlord for not delivering them to him at the expiration of his term, he may defend himself by showing that they had been mortgaged by the first tenant, and that the mortgagee had entered and removed them.</p> <p>Even when such subsequent tenant had bound himself by an agreement in writing to deliver the articles to the landlord at the expiration of his term, he is liable only for nominal damages, when he proves a paramount title in the mortgagee by whom they were removed.</p> <p>Held, that the judge upon the trial erred in excluding such a defence, and a new trial therefore granted.</p>

This action was founded on a hond given by the testator of the defendant to the testatrix of the plaintiff, and dated the 9th July, 1832. The complaint alleged that the whole principal sum mentioned in the condition of the bond was due with interest from the 1st of May, 1850. The bond was in the penalty of $1,400, and was conditioned to be void on the payment of $700; there was no mention of interest, but no day of payment was specified, and no demand required.

Appeal by the defendants from a judgment in favor of the plaintiffs for $2,280 82 damages and costs. The action was on a, policy of insurance against fire, and was tried before the Ohief Justice and a jury in June, 1851.

Appeal by tbe plaintiffs from a judgment in favor of tbe defendants. Tbe action was for an assault and battery on the person of tbe plaintiff, Elitha C. Beman, and for ejecting her by violence from her lawful occupation of tbe store, No. 1, Astor House. It was tided before Mr. Justice Sandford and a jury in-1851'; and under the direction of tbe judge, the jury found a verdict for the defendant. To this direction tbe counsel for tbe plaintiffs excepted. .

<p>The complaint demanded judgment for the sum of $988 67, as a balance due to the plaintiffs, upon a sale by them to the defendant of a quantity of looking-glass plates.</p> <p>The answer admitted the sale, but set up as a defence, that the whole debt thereby contracted, amounting to $1,029, was satisfied at the time by a cash payment of $38 33, and a delivery ‘ " to the plaintiffs of a promissory note of J. Howland & Son payable in six months from the 23d of September, 1850, and that the plaintiffs, by a receipt in writing then given, acknowledged that the said money and note were received by them as a payment in full.</p> <p>The cause was tried before Hr. Justice Paine and a jury on the. 14th of April, 1852.</p> <p>The plaintiffs proved by a clerk that the glass plates were ordered by the defendant, and the order accepted by the plaintiffs on the 8th of October; that all so ordered were subsequently delivered; and that the sum of $988 69, the balance claimed, was still unpaid. The same witness proved that none of the plates were delivered until the 12th of October.</p> <p>The defendant’s counsel then read in evidence the bill rendered by the plaintiffs, specifying the number, size, and price, of the plates sold. It was dated on the 10th of October, 1850, and was footed at the sum of $1,029 : at the bottom was written the following receipt, signed by the plaintiffs, which was also read in evidence.</p> <p>“ New Yoke, October 12th, 1850.</p> <p>“ Eeceived from John B. Hurray, Hessrs. J. Howard & Sons’ note, at six months from 17th September, for nine hundred and eighty-eight t<lo and thirty-eight fW dollars, in full for the above bill.”</p> <p>The books of the plaintiffs were also produced upon notice, and it appeared from the entries therein that they had credited the defendant with the note in question. The plaintiffs then produced the note, which it was admitted had not been paid, and offered to surrender it to the defendant.</p> <p>No other facts were given in evidence that are deemed material.</p> <p>Hnder the direction of the' judge a verdict was rendered for .the plaintiffs for $l,092f¡f¡r, being the balance claimed, with interest, subject to the opinion of the court upon a case, with liberty to either party to turn the same into a bill of exceptions.</p>

This was an action for the recovery of $4,000 as moneys lent and advanced by the plaintiff to the defendant, and was tried before the Chief Justice and a jury, in March term, 1852.

Appeal by the defendant from a judgment at special term ' upon a verdict in favor of the plaintiff. The action, which was commenced before the Code, was upon special promises, and the issues raised by the pleadings were tried before Mr.* Justice Paine and a jury in November term, 1851. The suit was originally brought against Peter Smith, as surviving executor of the last will, &c., of Hugh Smith, deceased.

The plaintiff, by Ms complaint, demanded judgment for the sum of $916t/7, as moneys deposited by him with the defendants, and which, upon request, they had refused to pay. The defence was, that the defendants had paid to the order . of the plaintiff, upon two checks drawn by him, one dated April 29th, 1852, for the sum of $291Tf„ ; the other dated Hay 3d, 1852, for $445tW ; the whole sum demanded by the complaint. The cause was tried before Hr.

This was an appeal, by the plaintiff, from a judgment at special term, dismissing the complaint with costs. • The following is an abstract of the pleadings:— The complaint alleges that the plaintiff is the owner of the house and lot Ho. 8 Barclay street, in the city of Hew York; that the house is twenty feet wide on first story, and twenty-five feet wide on the second story; that attached to the house is a vault twenty-five feet wide, built under the side-walk; that between…

(Affirmed at general term by Duer, Bosworth, and Emmet, J.J. March 12, 1853.)* This was a motion for an attachment against Oscar W. Sturtevant, one of the aldermen of the city, for an alleged… Held: exercised, and enjoyed by the said Corporation of the said city, were given, granted, and acquiree} by them under the said name of The Mayor, Aldermen, and Commonalty of the city of Yew York.

Ebb. 19,1853.—All the defendants appeared under the separate attachments issued against them. The interrogatories were filed on the part of the relators, which the defendants were allowed time to answer, and were recognised to appear again on the 26th instant. Feb. 26.—Defendants having appeared, the interrogatories and their answers thereto were read.

<p>At a Special Term of the Superior Court of the City of Hew York, held at the City Hall, in said city, on the 12th day of March, 1853. Present, Hon. John Duer, Justice.</p> <p>The People of the State of Hew York, ex rel. Thomas E. Davis and Courtlandt Palmer, against . Oscar W. Stdrtevant.</p> <p>A writ of attachment having heretofore issued out of and under the seal of this court, directed to the sheriff of the city and county of Hew York, against the above named Osear W. Sturtevant, for contempt in .disobeying an injunction granted in the action pending in this court, of Thomas E. Davis and Courtlandt Palmer, as plaintiff, against the Mayor, Aldermen, and Commonalty of the city of New York, as defendants; and the said Sturtevant having been, by virtue of said attachment, attached by said sheriff, and having personally appeared in court; and interrogatories, specifying the facts and circumstances alleged against said Sturtevant, having, by order of this court, been filed, and a copy thereof served on said Sturtevant; and he having been required to answer, and having answered the same; and several affidavits and papers touching the said contempt having been produced and read; and counsel, as well for the said relators as the said Oscar W. Sturtevant, having been heard, and mature deliberation being thereupon had:—</p> <p>It is now here considered and adjudged that the said Oscar W. Sturtevant has been and is guilty of the misconduct alleged against him in the proceedings, and that such misconduct was calculated to, and actually did defeat, impair, impede, and prejudice the rights and remedies of the said plaintiffs, Thomas E. Davis and Courtlandt Palmer, in their said action against the Mayor, Aldermen, and Commonalty of- the city of New York, and that the said Davis and Palmer have, by reason of the said misconduct, been put to a large amount of costs and expenses, to wit, the sum of one hundred and two dollars and twenty cents.</p> <p>And it is further considered and adjudged, that the said Oscar W. Sturtevant for his said misconduct be imprisoned in the common jail of the city and county of New York, for the period of fifteen days; and further, that a fine of three hundred and fifty-two dollars and twenty cents be, and the same is hereby imposed upon the said Oscar W. Sturtevant, for his said misconduct, and that he stand committed to the common jail of the city and county of New York until the said fine be paid.</p> <p>And it is further considered and adjudged, that the sum of one hundred and two dollars and twenty cents, part of the said fine, be paid over to the said Davis and Palmer, or their attorneys, to satisfy their said costs and expenses in the premises; and that the residue of the said fine be paid to the clerk of this court, to be disposed' of according to law, and that a warrant issue to carry this judg ment into effect.</p> <p>Appeal from, a judgment in favor of the plaintiff for $4,000. The judgment was entered upon the verdict of a jury, and the cause was now heard upon exceptions taken on the trial.</p> <p>The action was for injuries to the person of the plaintiff occasioned by the negligence of the defendants, and was tried before Mr. Justice Campbell and a jury, on the 3d of May, 1852.</p> <p>It appeared in evidence, that, on the 25th of October, 1851, a collision took place on the ¡New Haven Eailroad between two trains of cars belonging to the defendants, and that the plaintiff, who was a passenger in a baggage car of one of the trains, had one of his legs broken, and was otherwise severely and dangerously injured.</p> <p>The principal defence was that the defendant was guilty of negligence in talcing his place in the baggage car, as the defendants had forbidden that passengers should be so carried^ and had caused a printed notice to that effect to be posted up in the car. It was also insisted, that, as the defendant was carried gratuitously, the Company was not liable, there being no contract between the parties. The printed notice, which was produced and read, purported to be a copy of a resolution of the Directors of the Company, passed in August, 1849, declaring that thereafter no passengers should “ be permitted to ride in that portion of any baggage car which is used for stowing and distributing baggage.”</p> <p>It was, however, proved on the part of the plaintiff, that he was in a part of the car used as a post-office, and not for stowing baggage; that several other passengers were also there, and that no objection was made to their being there, either by the conductor or by any other servant or agent of the Company. It was also proved that passengers were frequently transported in the baggage cars.</p> <p>When the evidence was closed, the counsel for the defendants moved for a dismissal of the complaint. The motion was denied, and the counsel excepted.</p> <p>The judge then charged the jury as follows:</p> <p>The rule of law is, that a carrier is bound to use the utmost care and diligence in the conveyance of passengers. In this case, if the plaintiff were carried as a free passenger, that circumstance would vary the liability of the defendants in a slight degree.</p> <p>The question of gross negligence of the defendants is not raised in the answer as to the act of the defendants. It is admitted.</p> <p>(To this instruction the defendants’ counsel duly excepted.)</p> <p>Where an injury occurs, if both parties are guilty of negligence, the plaintiff cannot recover. The law cannot measure degrees of negligence. The negligence of the plaintiff, however, must concur directly, not remotely, in producing the accident or injury.</p> <p>(To this charge, as to the plaintiff’s negligence, the defendants’ counsel duly excepted.)</p> <p>The plaintiff here did not contribute to produce the collision itself; and there was not, therefore, such negligence on his part 'as will defeat the action.</p> <p>(To this instruction the defendants’ counsel duly excepted.)</p> <p>My view of the law is, that even if the plaintiff were in the baggage car, if the injury did not necessarily grow out of that wrongful act, it would not defeat the action; not even if the plaintiff was in the baggage car contrary to the express rules of the company, if the injury did not grow out of his being there.</p> <p>(To this instruction the defendants’ counsel duly excepted.)</p> <p>It is not certain that the baggage car is the most dangerous place in the train. In some cases it might not be. The passenger cars might be the most unsafe in some instances. The plaintiff might have been in the passenger cars and have been injured, as in the case of a train being run into by a following train.</p> <p>But admitting the baggage car was an unsafe place, and the - notice was given, I leave it to you to say whether the notice was intended to prevent persons going into the post-office department of the baggage car, and whether the plaintiff was there with the assent of the conductor.</p> <p>(The defendants’ counsel excepted to the submitting this question to the jury.)</p> <p>If the plaintiff was there with the assent of the conductor, notwithstanding the notice, he was not in fault, unless he was guilty of negligence, which concurred directly in producing the injury. ..</p> <p>(To this instruction the defendants’ counsel éxcépted.)</p> <p>On referring to the railroad act of 1850, § 46, it may be a question under that section, whether it means vn the baggage cars. This act has nothing to do with the case, for the defendants. must have complied with it strictly by posting up the notice in the passenger cars.</p> <p>The jury will pass upon the following points:—</p> <p>First.—-Whether the plaintiff was in the post-office part of the baggage car with the assent of the conductor ? That part of the baggage car was not covered by the notice. I state this as matter of law.</p> <p>Second.—Was that part of the car in which the plaintiff was at the time of the collision a part of the car used for stowing and distributing baggage, pursuant to the printed notice of the defendants ? When not so used, the notice, in contemplation of law, did not prohibit passengers going there.</p> <p>Third.—Was the plaintiff guilty of any other act than being in the baggage car, which contributed directly to the injury of the plaintiff?</p> <p>The defendants’ counsel excepted to submitting to the jury the question of fact stated'in the first of the three special inquiries above stated; and also excepted to the charge of the court as to the effect, or construction, of the notice.</p> <p>After the charge, the counsel for the plaintiff moved to amend the complaint by striking the word “ wilfully” therefrom ; which motionwas opposed by defendants’ counsel, and granted by the court.</p> <p>(To this decision the defendants’ counsel duly excepted.)</p> <p>The jury, after being out for some time, returned to the court-room, and stated that they were unable to agree on an answer to the question of fact in the first of the three inquiries specially submitted to them; whereupon his honor withdrew tbe first of the aforesaid three questions from the jury, who then rendered a verdict for the plaintiff, and assessed his damages at four thousand dollars.</p>

This was an action by a lessor to recover the possession of the demised premises, upon the ground that the defendant Williams, the lessee, had broken a covenant in the lease, not to underlet without the consent of the plaintiff, and that for such breach, the plaintiff, by the terms of the lease, was entitled to re-enter. The complaint averred á breach of an under-letting by Williams to the other defendants.

<p>The facts sufficiently appear in the opinion.</p>

Tbce defendant demurred to a bill in equity filed by the plaintiff in the Supreme Court. That court at a special term overruled the demurrer, and gave judgment for the plaintiff, with, costs. An appeal was taken to the general term, and while pending, it was transferred to this court. This court reversed the judgment with costs. The Court of Appeals reversed the judgment of this court, and affirmed that of the Supreme Court at special term, with costs.

Chambers, 9th October, 1852.—A judgment was recovered in this court against both defendants. Thomas resided in Kings County.; a transcript was filed and a judgment docketed in that county. An execution was issued to the sheriff of that county, and returned by him unsatisfied.

At Chambers, October, 1852. Costs. The plaintiff had obtained a judgment upon the report of a referee and claimed upon the adjustment of costs, before the clerk, $10 for each time that the cause had been noticed for a hearing. The clerk had refused to make the allowance, and by the consent of the attorneys the question was referred to the decision of the judge at chambers.

This, was an action to compel the delivery of a warehouse-entry, of which a copy was annexed to the'complaint. The document was entitled “ Warehouse Entry,” and purported to be an entry at the custom-house of certain merchandise imported by'the plaintiffs; but it was not signed by the collector, warehouse-keeper, or any other officer of the customs, nor was it stated to be assignable.

<p>Security for costs cannot be required of an executor, administrator, or trustee, under § 317 of the Code, as amended in the session of 1852, merely upon the ground that the estate which he represents is insolvent.</p> <p>The power given to the court of requiring security from an executor, ¿se., is strictly discretionary.</p>

The action was against the defendant Schmidt as the maker, and Bloomingdale as the endorser, of a promissory note for $150. The complaint set forth a copy of the note, and averred that it was duly endorsed to the plaintiff before it became due, but contained no averment that it had been duly presented for payment to the maker, and that due notice of its dishonor by him had been given. To this complaint, Bloomingdale, the endorser, demurred.

Judgment was had against the plaintiff for costs of the action.

<p>The facts appear in the opinion of the judge.</p>

<p>Where the claim of title to real property arises on the pleadings, and the plaintiff recovers a verdict, he is entitled to costs of course.</p> <p>If the defendant puts the title in issue and compels the plaintiff to prepare to prove it, he cannot relieve himself from the liability, by admitting the title on the trial.</p> <p>The only evidence that can be received as to whether or not , the title came in question at the trial,” is the certificate of the judge who tried the cause.</p>

Tens cause was originally commenced against Ira F. Payson alone, and the complaint alleged a sale of goods to him in the usual form. - , The answer denied the indebtedness, and also alleged that if the defendant was indebted, it was for goods sold to Ira F. Payson & Co., a firm in Michigan, and that the firm was composed of the above defendants. On these pleadings the cause was tried, and a verdict rendered' for the plaintiff.

This was an action of assumpsit, commenced before the Code, against the defendants as partners. It was transferred from the Supreme Court, and since the transfer two new trials had been granted, and upon the third trial the plaintiff obtained a verdict for $50, for which sum, with six cents costs, judgment in his favor was then entered.

<p>In this case a motion for a new trial, upon the ground that the verdict was against evidence, had been denied at special term, and the defendant appealed from the order to the general term. After notice of the appeal had been given, the plaintiff entered judgment upon the verdict, a stay of proceedings, which had been granted when the case was made, having ceased, by the terms of the order, upon the refusal of a new trial. The counsel for the defendant moved, at chambers, to set aside the judgment as irregular.</p>

James Buedell was examined on the 1st of July, 1852, de bene esse, as a witness on the part of the plaintiff, pursuant to 2 R. S. § 392. Defendant’s attorney was duly served with the order for, and attended at such examination and cross-examined the witness.

The summons and complaint were served on the 12th of May. 1852.

Tim court, at the General Term in October, had affirmed the decision of the judge at special term, overruling a demurrer to the defendant’s answer. The demurrer, however, related only to a part of the answer, and it was overruled by an order and not by a judgment. On the settlement of the order or judgment of affirmance, a question arose as to the costs to be allowed to the defendant upon the appeal.

A motion was made for an injunction order restraining If. Ferris, assignee of Tuska, from disposing of assigned property.

<p>A defendant may, in all cases, move for a dismissal of the complaint, where the plaintiff neglects to bring the cause to trial according to the course and practice of the court, without being himself bound to notice the cause for trial.</p>

The plaintiff moves to set aside for irregularity a judgment which has been entered, dismissing Ms complaint with costs. When the action was commenced, the defendant Harley appeared and put in an answer by an attorney of tMs court. Issue was joined in February last, and the defendant’s attorney acted as such, until September.

<p>Where a verdict is taken subject to the opinion of court at general term upon questions of law, and judgment in the meantime is suspended, if judgment is rendered upon the verdict, the prevailing party is not entitled to costs, as upon an appeal from a judgment at special term.</p> <p>(Before all the judges.)</p>

This was an action for a malicious' prosecution, in which the defendants answered separately. The jury at the special term severed the damages, and rendered a verdict against the defendant Smith for twenty-five hundred dollars, and against Brush for five hundred dollars. The plaintiff, to cure this error in the verdict, entered the judgment against both defendants for twenty-five hundred dollars, and waived the five hundred dollars found against Brush.

This was a motion in the alternative that all proceedings should be quashed as irregular, or that the complaint should be made more definite and certain. The notice inserted in the summons was in the terms of subdivision 2, § 129 of the Code, that if the defendant should fail to answer the complaint within, &c., the plaintiff would apply to the court for the relief demanded.

<p>Term fees not allowed for subsequent terms after a cause has been referred. (Oakley, Ch. J., Campbell, Boswokth and Emmet, J. J.)</p>

By an order at special term of the 10th January, 1853, the defendants were required to give to the plaintiff, within twenty days, &c., “ sworn copies of all entries contained in any books, and of all papers and documents in their possession, or under their control, in reference to, or showing when, under what circumstances, for what purpose or consideration, and by or from what person or persons, a post note and some Indiana bonds, particularly described, were transferred,…

<p>The examination, of parties as witnesses, or the production of their books, cannot be compelled, under the provisions of the Revised Statutes, to perpetuate testimony.</p> <p>Where no complaint has been filed, and the nature of the relief sought by the action is not shown by affidavit, the merits of the case cannot appear, and the court in its discretion should not compel the production of books.</p>

This was an application on the part of the defendants to vacate an order of arrest, which had been granted on the allegation that they had disposed of their property, with intent to defraud their creditors (Code, § 178, sub. 5).

This case came before the court on an appeal from an order made at special term, overruling a demurrer to the 5th cause of action set out in the complaint. The cause of action stated is, the speaking of slanderous .words of and concerning the plaintiff’s title to certain lands, whereby he was prevented from procuring a loan upon a mortgage of the lands.

This case came before the court on an appeal from an order, declaring a demurrer to part of an answer tó be frivolous, and that the defendant have judgment on account thereof. The complaint sought to charge the defendant for the alleged conversion of personal property belonging to the plaintiff. The answer, first, denied plaintiff’s ownership, or that the defendant became wrongfully possessed of and converted the property.

<p>The facts sufficiently appear in the opinion of the Court.</p>

Two separate appeals, from two several orders, were argued together: one was an appeal hy the plaintiff from an order, hearing date March 24,1853, denying a motion made hy him to set aside the judgment and execution being void, and fori irregularity. The other was by the sheriff, from an order directing him to proceed and sell the property, which he had levied upon by virtue of the said execution. This order bore date January 29, Í853.

<p>Where a defendant, in his answer, has stated nothing on information and belief, his affidavit, that his answer is true to Ms knowledge, without adding the words « except as to the matters therein stated upon information and belief, and that as to those matters he believes it to be true,” is a sufficient and proper verification.</p> <p>One defendant cannot swear to the want of sufficient information to form a belief on the part of a co-defendant.</p>

The plaintiff declared on a note made by defendant, for the sum of $78 50 due July 20; 1852, and fot a mahogany chair sold and delivered about thel9th June, 1852, of the value of $18, and claimed judgment for $97 25 with interest from 20th July, ■ 1852. The defendant, in his answer, submitted both the note and the account, and set up a counter-claim on which he claimed to' be allowed $30.

<p>A Surrogate’s Court is a court of record within the meaning of the Eevised Statutes, relative to proceedings as for contempts to enforce civil remedies, áse.</p> <p>It has, therefore, the same power as other courts, to punish persons guilty of contempt, and issue attachments for that purpose. But it has no power to enforce by an attachment against the person an order for the payment of money, if the money may be collected under an execution.</p> <p>It has, therefore, no power to compel, by such an attachment, the payment of money due from an executor or administrator to the estate.</p> <p>Held, therefore, that the prisoner who was held under such an attachment must be discharged.</p>

Ttttk is the case in which judgment was rendered for the defendant in January term, 1852, as reported in 5 Sand. S. C. Rep., p. 363. Application was now made to vacate the judgment and for a new trial under the provisions in the title “ Of ejectment,” in the Revised Statutes. The application had been denied at special term, and was now heard upon an appeal. W. 0.

This was an action for a malicious prosecution, in which the plaintiff had obtained a verdict against the defendants, Smith and Brush; but the jury, under the direction of the Chief Justice, who tried the cause, had acquitted the defendant, Kettletas. The plaintiff, in order to exonerate himself from the payment of costs to Kettletas, applied to the Chief Justice for a certificate that there was reasonable cause for making him a defendant.

The defendant moved for an order requiring the plaintiff to file security for costs. The plaintiff moved for an order allowing him to prosecute the action in forma pcmperis. The action was commenced in May, 1852. On the 8th of October, 1852, it was referred, on defendant’s motion, to a referee to hear and determine. On the 16th of Hovember, 1852, the plaintiff noticed it for trial for the first of December.

The plaintiffs moved for judgment on a demurrer to their complaint, on account of the frivolousness of the demurrer. The causes assigned for demurrer were, that the plaintiff has not legal capacity to sue, because, First, that the complaint does not show whether the plaintiffs are a voluntary association or a corporation.

This was .a proceeding upon a habeas corpus, before Mr. Justice Dube. The object of the. writ was to deliver an infant, aged about nine years, named Jane Trainer, from an illegal detention and. restraint, in which it was alleged that she was held by the respondent, to whom the writ was directed.