Volume 1 — Edmonds's Select Cases

On the petition of the mother, a writ of habeas corpus was issued to bring up the body of Rachel Hansen, alleged to be illegally detained by her father, Tunis Hansen. A return to the writ was made by the father, wherein he confessed the detention and claimed a right, as father, to the custody of the child.

The defendant having been arrested in trover, obtained an order to show cause of action, on an affidavit that the only transaction he ever had with the plaintiff was the purchase of bills of goods on the 12th of September, 1844.

The prisoner was arraigned on an indictment charging him with the willful murder of Catharine Hanlin, on the 23d December, 1844. On being called upon to plead, his appearance and deportment were such as to excite doubts in the mind of the court as to his sanity.

<p>Challenge to jurors for principal cause, and to the favor. Mode of trial. What Mas disqualifies.</p> <p>Circumstantial evidence; what is the weight to which it is entitled; the different kinds of it, and the rules governing the reception and efficacy of the different kinds.</p> <p>When and how far the onus probandi rests upon the accused to prove facts peculiarly within his knowledge, where the absence of such proof justifies an adverse presumption.</p> <p>The weight to wMch evidence of good character is entitled, and what is justly to be inferred from its absence.</p>

Assumpsit on a promissory note. Isaac Covert being unable to pay his debts, applied to the defendant to aid him, who agreed to do so, and gave him the note in question for $100, for that purpose. Covert being in debt to the plaintiffs between- $300 and $500, gave them, this note and three others of a similar amount, and at the time of the transfer obtained from the plaintiffs more goods to the amount of about $80.

H. W. Hunt & Co., upon petition, etc., verified under 2 R. S. 405, § 1, obtained an attachment against the steamboat Virginia, her tackle, etc., for a bill of lumber alleged to have been “ contracted by Driggs, the master, or agent, and furnished for the steamer.”

Assumpsit tried before Kent, Circuit Judge, February 17, 1845. The plaintiffs declared on a special promise of defendant to be accountable for all the goods sold on credit by plaintiffs to Crane & Stone, of Tallahasse, Florida, which they might require in their business; with counts for merchandise, and money counts. Pleas — general issue, payment and set-off.

Case against defendants, as common carriers, tried at the New York Circuit, May 8, 1845.

Feigned issues from chancery in a suit for divorce on the ground of adultery.

<p>The plaintiff was arrested by the defendant, a deputy sheriff, in Hew Jersey, and instead of giving bail for his appearance, deposited with the defendant the money now sought to be recovered, under an agreement that if he did not surrender himself to the defendant on a certain day, or settle with the party at whose suit the process was issued, the money might be paid over to the latter.</p> <p>The plaintiff proved he had offered to surrender himself ' before the day appointed, and, also, that the money had been demanded from the defendant. For the defense, it was proved that the offer to surrender was made on a Sunday, and that, after the day named within the agreement for the plaintiff’s surrender, the money had been paid by the defendant to the party at whose suit the process issued; and it was contended that the defendant had a right to pay over the money, as the offer to surrender on Sunday was not a compliance with the condition in the agreement on behalf of the plaintiff</p>

H. F. Clark moved for an order for discovery. The petition set forth that Robert Bogardus, in his life-time, had been employed, as counsel, to examine the title to, and search for incumbrances against, certain real estate which plaintiff had purchased, and that Bogardus had overlooked an incumbrance which the plaintiff was compelled to pay off, for which negligence this suit was brought.

<p>A juror who has conscientious scruples against the punishment of death, is disqualified from sitting in a case of murder, even though he is not a member of any religious denomination having such scruples.</p>

To an indictment for manslaughter, the defendant pleaded to the jurisdiction, that the offense was committed at the navy yard, on board a government vessel, while both parties were in the service of the United States, and occurred in the discharge of the defendant’s duty as an officer of that vessel.

<p>This was an action of replevin for eight bales of fleece wool. The cause was tried before Kent, Circuit Judge, November 16, 1844, and a verdict rendered for the plaintiff The defendants moved for a new trial on a ease made.</p> <p>In March, 1842, the defendants hired from Gray & Co.fSM*\ part of a store, the whole of which was on lease to the lattei¿§jjff!/ The defendants claimed that the attic was included in the demise to them by Gray & Co., which fact was disputed by the plaintiff A short time after this subletting one of the firm of Gray & Co. died, and the partnership thereby became dissolved, and, on investigation, proved to be insolvent. In August following the landlord applied on the premises for the rent due on the lease to Gray & Co., when he was requested by the plaintiff and other under-tenants occupying the store, to make them his tenants, and to take from each his share of the aggregate rent. He agreed to do so, and to regard the plaintiff as his tenant of one room or office, a person named Wheeler as tenant of another office, and the defendants as tenants of the residue of the store, including the attic.</p> <p>The wool in question,, which had been consigned to the plaintiff, was stored in the attic till the following May, when the whole store was rented to another firm, and all of the former tenants removed.</p> <p>The defendants, on quitting, left some property in the store, among the rest this wool which was in the attic, and they requested the incoming tenants not to allow it to be removed without their, the defendants, being informed.</p> <p>Before the 1st of May the new tenants had leased the attic to the plaintiff from that day to the first of July, but it did not appear that the defendants were apprised of this letting. After the 1st of May the defendants removed the wool and their other property from the attic to their new store, and the plaintiff then brought this action of replevin for the wool. The defendants claimed a lien for storage and defended on that ground.</p> <p>At the trial the circuit judge submitted to the jury as a question of fact, whether the defendants were lessees of the attic; and charged that if they were they had a lien for storage; and also that if the jury should find- that the plaintiff obtained possession of the wool, by renting the attic from the new tenants of the store without the knowledge of the defendants, the of the latter was not thereby lost or destroyed.</p> <p>The jury found a verdict for the plaintiff.</p>

<p>This was an action of trover for a number of beer barrels and casks. A plea of not guilty was put in.</p> <p>- To secure a debt owing by Mm to the defendants, the plaintiff entered into an agreement with them whereby the property then in the possession of the defendants was deposited and pledged with them, to be held and retained by them as a pledge and security for Ms indebtedness, with leave, on default in payment, to sell at public or private sale, and pay the debt and expenses; and that, in the mean time, the defendants might use the property for a compensation agreed upon.</p> <p>The debt becoming due, the defendants gave notice that unless it was paid they should sell the property, which they accordingly did, at public auction. ■ The property was sold in one lot, and was afterward bought by the defendants, of the purchaser at the auction, at an advance of five per cent.</p> <p>The court, on the trial, ordered a verdict for the plaintiff, subject to the opimon of the court, etc.</p>

<p>The prisoner was indicted for the murder of one Erastus Coit.</p>

The defendants were proprietors of the Fulton street ferry, between the cities of Hew York and Brooklyn, on which they ran steamboats for the carriage of passengers, teams and goods.

<p>This was one of the few mere political cases in this country, in which there has been a conviction by a jury. A report of the case cannot fail to he interesting. By a report of it as a mere law case, it would he shorn of much of its interest, for the main point of the trial was a question of identity. But there were so many other incidents connected with it, and which would not appear in a mere law report, that I have departed, in this instance, from my ordinary form of reporting my cases, and adopted a plan that may he regarded as rather a historical than a legal account.</p> <p>How far I am excusable for my departure, I must leave for others to determine. J. W. E.</p>

A school-district owned two lots of land, on one of which they had a dwelling-house which they leased to their schoolteacher, and he sold to the defendant the grass growing on the land, and the privilege of pasturing his cattle there.

This was an indictment for murder, and the question was, whether it was a case of felonious homicide or suicide. The defendant was a young man, the son of a respectable farmer in Orange county. The deceased was a young girl of about twenty years of age, the daughter of disreputable parents, who were accused of keeping a house of ill fame, and she had an elder sister who had an illegitimate child.

Indictment for the murder of George Kempf. K. was a German, about twenty-eight years old, very large and stout. He worked at his trade of wheelwright. His wife, who was -.also a German, kept a liquor store, an eating room, and boarding-house where lewd women resorted. The prisoner was an Irishman, and lived in the neighborhood, and occasionally frequented that store. All the parties were in the habit of getting drunk.

A defendant in execution on a ca. sa. for costs, upon a judgment recovered against Mm after he had presented his petition for a discharge as an insolvent debtor, and before an assignment had been ordered, applied, on motion before the eircrnt judge at Ms special term, for his discharge from the arrest, on the ground that he had duly obtained Ms discharge in the insolvent proceedings.

<p>This was an action of slander tried at the New York Circuit, before Kent, circuit judge.</p> <p>The defendant kept a store in New York, and plaintiff was his clerk. In the absence of defendant, and while plaintiff was in charge of the store, it was robbed of fifty dollars. The robbery was effected in the day-time by forcing open an iron chest in the office.</p> <p>Plaintiff being suspected, defendant sent for a police officer and employed him to discover the robber, and charged plaintiff with the theft and demanded he should be taken into custody. The officer refused to arrest him, and afterward found the actual offenders, thus establishing plaintiff’s innocence. Defendant immediately expressed his regrets for having cast suspicion upon plaintiff, and offered any reparation in his power. Defendant admitted the grounds of suspicion were very strong against him, and said he would be satisfied if defendant would write to his brother, declaring his innocence, which defendant did.</p> <p>Plaintiff afterward brought this suit, and defendant pleaded non cul and accord and satisfaction.</p> <p>On the trial, in support of the second plea, the defendant’s brother proved the contents of the letter, its loss having been sufficiently established.</p> <p>The plaintiff called as a witness the defendant’s attorney, who proved some attempts to submit the controversy to arbitration, and who, on cross-examination, testified that the defendant in his conversations relating to the agreement to arbitrate, always said he had satisfied the plaintiff. The latter evidence was objected to, but admitted.</p>

Plaintiff was traveling in a one-horse wagon, about nine o’clock, of a dark evening. He was driving very slow, and was near to the extreme right side of the road. He heard a team approaching toward him, apparently a heavy one, and going fast.

<p>On an agreement to compromise a debt for less than the full amount, the creditor gave a receipt in full, the debtor giving his own notes for part of the composition, and an order on a third person for the residue. The notes and order being duly paid, Held, that the order was a good consideration for accord and satisfaction, which was properly pleaded in bar to a suit for the residue of the debt.</p>

Debt for rent. This cause was tried at the New York Circuit, May 9,1845, and the jury found a verdict for the plaintiff for $253.36, subject to the opinion of the court. On the 9th of March, 1839, plaintiff leased to the defendants portions of the Shakspeare hotel, in New York, for five years from May 1, at a rent of $300.

AssuMPsrr for money had and received. The plaintiff having lost her husband in the West Indies, returned to the United States in 1837 with $3,000 in cash and a claim of $2,500 against the firm of David Rogers & Son, both of which she put into the defendant’s hands, for the purpose of having the same invested on bond and mortgage for her in the city of New York, and she took from the defendant a receipt specifying the object of the deposit as above mentioned.

<p>This was an action of assumpsit on a policy of insurance against fire, tried at the New York Circuit, June 11, 1845.</p> <p>The plaintiff was the owner of the Pavilion hotel at Sara-toga Springs. R. H. Cummings held two mortgages on the premises, given by the plaintiff, one for $12,000, and the other for $6,000, which were reduced by payments to $14,253.05. Still farther to secure this debt, this policy of insurance was effected and assigned to Cummings.</p> <p>In 1843 Cummings foreclosed his mortgages, and on the 6th ©f September of that year the premises were sold on that foreclosure. One of the conditions of the sale was, that $10,000 of the purchase-money might remain on bond and mortgage, that $500 should be paid at the time of the sale, and the residue when the decree should be enrolled and the deed be ready for delivery. A. Quackenbush became the purchaser for $15,000, and paid the $500 to the master and signed a memorandum of the sale. The decree was not enrolled till 6th November, when the deed was delivered and the sale completed, by Quackenbush giving his mortgage on the premises for $14,000, and paying the balance of his bid in cash.</p> <p>The avails of that sale, and other moneys received by Cummings, paid off his mortgages in full, and on the 6th of November, 1843, he delivered to the master his acknowledgment that on that day he had received from the mortgageor $290.31, the deficit on the amount reported due to him, and which satisfied the full amount, both principal and interest, so reported due to him.</p> <p>On the 11th of October, 1843, the buildings insured were entirely destroyed by fire, and this action brought for the benefit of Cummings, the assignee of the policy.</p> <p>A verdict was taken for the plaintiff for $5,466, subject to the opinion of the court on a case to be made.</p> <p>The case now came on for argument.</p>

<p>The statement required by the Act of 1833, on renewal of a chattel mortgage, must be positive and distinct as to the interest of the mortgagee. It should give such precise information of the amount due as to enable other creditors or persons to judge how far it would be safe or prudent to give credit to the mortgageor.</p> <p>The words “ no interest to date,” indorsed in pencil on the copy filed as a renewal of the mortgage, are not a compliance with the act, and are objectionable as being easily obliterated.</p> <p>A judgment and execution by the plaintiff, against the mortgageor, are sufficient evidence of his being a creditor, within the meaning of the act, to enable him to take advantage of the defective renewal of the mortgage.</p>

The plaintiff recovered a judgment in this court against his debtor, and issued an execution to Erie county, which, by mistake, was issued out of the common pleas. No transcript was filed in Erie, but the defendant, as sheriff of that county, collected the money on the execution.

The plaintiff purchased of one Voorhis'the premises Ho. 50 Maiden Lane, then in the occupation of Mrs. Leman as a boarding-house. She not paying any rent to plaintiff, he took summary proceedings to remove her.

This was an. action of slander, tried at the New York Circuit, in May, 1845. The plaintiff, a drover, was in the habit of bringing cattle to the Bull’s Head, for sale, a business in which credit was essential. The defendant, on one occasion, speaking of a particular debt which he claimed against the plaintiff, said of him, “he is not good for the debt,” or “I do not consider him good the witness could not say which was the expression used' by the defendant.

Trespass de bonis tried at the May ’Circuit, in New York, 1845. In a suit in the New York Common Pleas, between Rice & Blakely, Platt, the plaintiff in this suit, as the attorney for Blakely, in that suit, issued a precept to the sheriff of New York, against Rice, for the collection of seven dollars, costs of a motion.

Assumpsit on a policy of insurance tried at the New York Circuit in May, 1844. The plaintiff, as one of a joint stock company who owned the National Opera House in New York, made an insurance with the defendants of $900 on his interest in the building, and $500 on his furniture, liquors and fruit.

<p>The prisoner was convicted of grand larceny at the September term of the General Sessions of New York, 1844, and sentenced to five years imprisonment in the State prison. Under that sentence he remained in prison until the 12th of April, 1845, when he received a pardon from the governor, “ on condition that he should, on or before the last day of the said month of April, depart from and out of the United States, and never return to the same. And in the event of his not complying with the said condition, the pardon should cease and be inoperative, and he should be arrested and imprisoned according to his sentence.”</p> <p>In November, 1845, the prisoner was arrested in the State of Louisiana, on an indictment preferred against him for another offense, and brought to the city of New York. On his arrival he was committed by the Court of Oyer and Terminer to the custody of the keeper of the city prison of that city. In February, 1846, on his petition to the circuit judge setting forth that he was ^unjustly detained, a writ of habeas corpus was issued to the keeper of the city prison, whose return set forth the following commitments as the authority by which he held the prisoner in custody:</p> <p>New York General Sessions of the Peace: The People of the State of New York v. George Potter. January 8th, 1846. On indictment for an attempt to commit a grand larceny, goods of Edward Jones.</p> <p>On motion of Jonas B. Phillips, Esq., acting district attorney, ordered that the said George Potter be committed to the custody of the keeper of the city prison in the city of New York, until thence delivered by due course of law. Extract from the minutes.</p> <p>HENRY YANDERYOORT, Clerk.</p> <p>New York Oyer and Terminer, January 8th, 1846.</p> <p>The People v. George Potter.</p> <p>It appearing to the court that the said George Potter was convicted of grand larceny at the September General Sessions, 1844, and‘was sentenced on the 13th day of September, 1844, to be imprisoned in the State prison at hard labor, for the term of five years, and that the said George Potter had received a conditional pardon from the executive of this State, and that he had not complied with said conditions: on motion of Jonas B. Phillips, Esq., in behalf of the district attorney, ordered, that the said George Potter stand committed to the custody of the keeper of the city prison of the city of New York, until thence delivered by due course of law.</p> <p>A true extract from the minutes.</p> <p>HENRY YANDERYOORT, Clerk.</p> <p>At a Court of General Sessions of the Peace holden in and for the city and county of New York, at the Halls of Justice of the said city, on Tuesday the tenth day of February, in the year of our Lord one thousand eight hundred and forty-six: Present, the Honorable Frederick A. Tallmadge, Recorder of the city of New York, Joseph A. Diver, Bernard J. Messerole, aldermen of said city, Justices of the Sessions.</p> <p>The People v. George Potter. The prisoner is arraigned on a former conviction in this court, at the August Tern, one thousand eight hundred and forty-four, for grand larceny of the goods and chattels of Abraham Mallory, and for which he was sentenced to be imprisoned in the State prison at hard labor, for the term of five years. Whereupon the district attorney moved that he be'arraigned upon the said conviction and that he be required to show cause why he should not be remanded to, and be imprisoned in, the State prison for the residue of the said term, to which the said prisoner objected; first, because the court had no jurisdiction; and, secondly, because a habeas corpus was now pending before his honor the circuit judge of this circuit in the same matter. Whereupon, it is ordered by this court that the said prisoner be remanded to the custody of the keeper of the city prison of the city of New York, upon the said conviction, until he be thence delivered by due course of law.</p> <p>A true extract from the minutes.</p> <p>HENRY YANDERYOORT, Clerk.</p> <p>To that return the prisoner pleaded that at the September term of the General Sessions of New York, 1844, he was convicted of a grand larceny, and sentenced to five years imprisonment in the State prison, that he was immediately, by virtue of that sentence, committed to the State prison, and there remained until the 12th April, 1845, when the governor of the State did execute, grant and deliver to him his certain pardon or act of grace, whereby he pardoned, released and remised him from the said offense, and from all sentences, judgments and executions thereon, on condition that the prisoner should, on or before the last day of the said month of April, depart from and out of the "United States, and never return to the same, and in the event of his not complying with the said condition the pardon should cease, and be inoperative, and he should be arrested and imprisoned according to his sentence.</p> <p>The plea further stated that upon the execution and delivery of the pardon to him he was immediately discharged from the State prison and from imprisonment, and so remained until the time of the said several commitments; that on the 28th of April he did depart from the State of Hew York into the Canadas, and into others of the United States, viz., Missouri, Ohio and Louisiana, and remained out of the State of Hew York until the 21st of Hovember, 1845, when he was forcibly brought from the State of Louisiana into this State by one of the policemen of Hew York.</p> <p>To this plea the district attorney interposed a general demurrer, and the prisoner joined in demurrer.</p>

<p>This was an action for false imprisonment.</p> <p>The plaintiff, a negro, was steward and cook on board a schooner trading between New York, and Norfolk, Virginia.</p> <p>On a return trip from Norfolk it was discovered that the plaintiff had concealed in his galley a negro woman and child, whom he admitted he was trying to smuggle to New York that they might obtain their freedom.</p> <p>The defendant, who was the captain of the vessel, immediately put the plaintiff in irons and returned to Norfolk, where he delivered up to the authorities the steward and the woman and child. The steward was tried and convicted under the laws of Virginia, and sentenced to twelve years imprisonment, which he was undergoing at the time of the trial.</p>

On the 5th of June, 1846, Bradlie presented to the circuit judge his petition for a discharge under section twelve of the act to abolish imprisonment for debt, passed April 26, 1831.

<p>The prisoner was brought ■ before the circuit judge on a writ of habeas corpus, on the return to which it appeared that she had been sentenced to the penitentiary for two months, as a vagrant, by one of the police magistrates.</p> <p>- The record of conviction was in the following words:</p> <p>Crrr antd County of New Yobk, ss: •</p> <p>33eit remembered, that-on-the twenty-sixth day of-July, 1846, Harriet Charles was convicted- before- the-undersigned, one of the special-justices'for preserving the peace-in the city of New York, on competent testimony of-being vagrant, viz.,: a common prostitute, who has no lawful employment whereby to-maintain'herself and being an improper- person to be sent to the alms-house, she was sentenced to be- committed to .the penitentiary of said city of New York for. the term of "two months.</p> <p>In witness whereof, I have hereunto subscribed my name the day and year first above mentioned.</p>

<p>This action was brought by the plaintiff for the seduction of his daughter, a girl of about nineteen years of age.</p> <p>The defense set up was the consent of the plaintiff.</p> <p>The defendant was a young man living in the neighborhood, and became in the habit of visiting the daughter, and when he did visit her, he stayed until a late hour at night, and sometimes all night, generally blowing out the light, and sitting in the dark, sometimes in the same room in which plaintiff and his wife slept, and sometimes in an adjoining room, the only access to which was through the room in which plaintiff slept. Both rooms had heds in them, and they sometimes laid down on them together, but generally sat in each other’s laps, and taking great liberties with each other’s persons.</p> <p>All this was well known to the plaintiff, and he once advised his daughter that “when Jess: Smith came to stay with her she had better have it in his room; that was the way his sister did.”</p> <p>In answer to this defense, several witnesses—among them three married women, who were mothers, and the wives' of respectable farmers in the neighborhood—testified that that manner of courtship was the universal custom of the country; and one of the married women, who was fifty-six years old, said that such had been the custom since she was young; and she added, “they sit in a room, alone, and blow out the candle, and having a bed in the room is no killing matter.” All the witnesses agreed in saying that a girl’s thus “ staying with” the young men did not affect her character any.</p>

<p>When a party is convicted at the Special Sessions, and he obtains a certiorari to review the decision, he may be let to bail until the final determination.</p> <p>Such bail requires him to appear at the next term of the General Sessions who thus obtain jurisdiction of his person and the subject-matter, and may take the proceedings necessary to carry out the final judgment.</p> <p>His appearance must be in person, and cannot be by attorney.</p>

The plaintiff, a boot-maker residing in Hew York, called at the hotel kept by the defendant within the limits of the military station at West Point, and asked permission of defendant’s servant to leave a bag containing a quantity of boots. He was told by the servant that he could not be permitted to do so, but he nevertheless set down the bag and quitted the premises.

<p>Ejectment for dower. The cause was tried at the Bichmond County Circuit, in June, 1845, and a verdict taken for the plaintiff, by consent, subject to the opinion of the court on a case.</p> <p>On the 19th day of May, 1817, Frederick Merrill and wife mortgaged the premises in question, in fee, to John Johnson, for $1,250, payable on the 1st of May, 1818. Merrill and wife, by deed dated 9th April, 1818, conveyed the premises in fee to Benjamin Decker, who entered into possession under that deed. On the 22d of March, 1827, Decker alone executed a deed, in fee simple, to Johnson, in satisfaction of the ■ mortgage and the bond given therewith, and Johnson thereupon entered into possession. By his will, proved in September, 1832, Johnson devised the premises to his son, Joseph Bedell Johnson, describing them as the premises he had purchased of Benjamin Decker. J. B. Johnson entered into possession under that devise, and he, together with his wife, conveyed the premises in fee simple to the defendant in this suit, on the 3d of Hay, 1838, under which deed the defendant entered, and was in possession at the commencement of this suit. Decker died in August, 1843, leaving the plaintiff, his widow, and to whom he was married before his conveyance to Johnson.</p> <p>On these facts the plaintiff rested, and the defendant moved for a nonsuit on the ground that the plaintiff had not proved such a title or right of possession as entitled her to maintain this action. The motion was denied, and defendant excepted.</p> <p>The defense then offered in evidence the original bond and mortgage, from Herrill and wife to John Johnson, and proceedings taken by his executors to foreclose, by advertisement, under the statute, in the year 1844. The plaintiff’s counsél objected to the evidence, on the ground that by the conveyance from Decker to Johnson, in his life-time, the mortgage had merged in the legal estate thereby conveyed to Johnson, and was extinguished. The evidence was admitted, and the plaintiff excepted.</p> <p>It was admitted that Johnson, at the time of Decker’s conveyance to him, was owner and holder of the mortgage; that he continued to be so until his death, and that it came to the hands of his executors.</p> <p>The defendant also gave in evidence a statute foreclosure of the mortgage, on the 3d of Hay, 1844, by John Johnson’s executors, and an affidavit of the sale of the premises, under that notice, to Haney Westenfieldt, on the 29th of July then following, and it was admitted that the defendant had her authority and permission to occupy the premises at the time of the commencement of this suit.</p>

Assumpsit for the amount of an order drawn by Davis on the defendant, in favor of the plaintiff, and accepted by the defendant. The declaration contained the usual money counts.

Assumpsit on a promissory note. In December, 1842, Griggs was an applicant for a discharge under the bankrupt act, and one of his creditors, named-Bend, had filed objections to his discharge. To get rid of the opposition the defendant made three notes in favor of Griggs, who indorsed them to Bend, on receipt of which the latter withdrew his objections.

<p>Assumpsit on marine insurance.</p> <p>On the 4th October, 1843, plaintiffs made j m insurance on their vessel, body, tackle, apparel, and other furniture at and from Trieste to New York, which was underwritten by the defendants at $10,000. The policy contained a clause that it should be lawful for the vessel, in her voyagji, to proceed and sail to, touch and stay at, any ports or places, if thereunto obliged by stress of weather or other unavoidable accident. And also a clause that if the vessel, upon a regular survey, should thereby be declared unseaworthy by reason of her being unsound or rotten, or incapable of prosecuting her voyage on account of her being unsound or rotten, the insurers should be discharged.</p> <p>On the trial it appeared that the vessel sailed from. Trieste on her voyage to New York, 16th October, 1843, with light airs and fine weather. In a few hours there came on heavy gales and rain, and she returned to the port of Trieste on the same day.</p> <p>On the 17th and 18th, the storm continuing so that the vessel could not go to sea, the master, on the 18th, got ready to take in more cargo, and for two or three days was engaged in taking in the balance of her cargo, which had not arrived at that port at the time he had first sailed on the 16th, and on the 23d he again set sail.</p> <p>On the 26th the vessel encountered a storm and began to leak about thirty strokes per hour. The leak continued and increased until the 22d November, when the vessel put into Gibraltar, where she was surveyed, and on the survey it was declared that she could not be put in a seaworthy condition for less than $10,000, whereupon she was abandoned to the underwriters, and on the 25th January sold for $2,588, 7 reals and 3 quarters.</p> <p>On reading the preliminary proofs it appeared that the protest contained the following entries: “ 26th November—Surveyors came alongside and on board, and examined ship, and reported accordingly. 12th December—Surveyors came on board, who recommended accordingly. On the 22d, surveyors came on board again, and surveyed the ship. On the 11th January surveyors came alongside and examined her larboard side out, and reported accordingly. On the 13th, surveyors came alongside and reported accordingly.” Accompanying the protest were copies of all the surveys made except that spoken of on the 22d December.</p> <p>On reading these proofs the counsel for the defendants objected to their sufficiency, because no copy of that survey was furnished. But the circuit judge overruled the objection on the ground that there was no evidence that any report of that survey had ever been made. To which the defendants excepted.</p> <p>In the course of the trial Joseph Townsend was introduced as a witness for the defendants, who testified that he arrived in Gibraltar on the 18th December, and left there on the 2lth, and, while there, he, with two others, made a survey of this vessel, which was reduced to writing, sworn to by him, and left with the American consul. The defendant’s counsel •inquired of the witness as to the contents of that report, which was objected to, and excluded by the judge. To which the . defendants excepted.</p> <p>After the plaintiffs’ testimony closed the defendants’ counsel moved for a nonsuit on the grounds—first, that the return of ■ the vessel to Trieste, and her remaining in port, were a deviation, unless justified by stress of weather, which had not been , shown; second, that her springing aleak was evidence of unseaworthiness. Which motion was denied, and the defendants : excepted.</p> <p>The Defendants' Counsel requested the judge to charge: —</p> <p>1. That the vessel broke ground and set sail on her return voyage from Trieste, on the 14th October, 1843, and had no right, under the policy, to return to the port of Trieste, unless she was justified in doing so under the authority given “ to proceed and sail to, touch and stay at, any ports or places, if thereunto obliged by stress of weather, or other unavoidable accident, without prejudice to this insurance.”</p> <p>. 2. The vessel having returned to Trieste, unsealed the .hatches, and taken in an additional cargo, the burden of proof was on the plaintiffs to show that the vessel was compelled, by stress of weather, not only to return to port, but that she was prevented by stress of weather from sailing on her voyage until the time she actually sailed.</p> <p>3. That the plaintiffs, being bound to make out affirmatively that the vessel was compelled by stress of weather to remain at Trieste until her final departure, there is not sufficient proof, in contemplation of law, to establish that affirmative proposition.</p> <p>The Judge charged the jury: That the plaintiffs had a right to recover unless the grounds of defense, or either of them, prevailed. The two objections interposed to a recovery were deviation and unseaworthiness.</p> <p>Was there a deviation? It was to be understood in its legal meaning, which is, increasing or varying the risk without necessity or reasonable cause. Was the risk vailed or increased at Trieste without cause ?</p> <p>Seaworthiness was a preliminary condition of the contract, without which the contract would not attach, and reasonably and justly so. If the vessel was defective it was unimportant whether the owners knew it or not, or whether there was an excuse for it. The owners agree there shall be a seaworthy vessel from the beginning. If there was unseaworthiness at the commencement of the risk, the intention of the parties does not matter; the only inquiry is as to the fact. But in regard to deviation, more was required; it must occur after the commencement of the risk, and it must be without necessity or reasonable cause. The vessel was bound, under the policy, to remain at Trieste until she sailed, and, when she sailed, to proceed from Trieste to New York. He was of opinion that when the vessel set sail the first time she commenced her return voyage. In regard to deviation the question is, was it without necessity or reasonable cause? It frequently happened that masters of ships might deviate in good faith, for the benefit of all concerned, or for reasonable cause; for instance, if an enemy or pirate were pursuing a vessel, or she was dismantled by stress of weather, she might make for the first port if, in the exercise of good faith, the deviation were deemed matter of necessity by the master. The master might justifiably depart from the regular track of his voyage, for the purpose of saving life, though it was doubtful whether he could do so to save property. The master should have no other object in view than to conduct his ship and her cargo on her voyage. The vessel, having once got under weigh, to proceed on her voyage, and having afterward returned to her anchorage and remained for some days, the questions were: —</p> <p>1. Was there a necessity that the vessel should return?</p> <p>2. Was there a necessity that she should remain after her return until the time she actually sailed ?</p> <p>After reviewing the testimony, Aom the time of the first sailing until the return to Trieste, the judge said the question for the jury was, whether it was a reasonable exercise of discretion, or not, for the captain to return to safe anchorage. It was not necessary for the jury to find there was an absolute necessity for his return back, as tested by subsequent events— there must be an apparent necessity, a fan* exercise of discretion and good faith in the captain, and the jury must be satisfied that he returned for a reasonable cause.</p> <p>The delay after the vessel came to anchor, until she finally sailed, might be equivalent to a deviation, or it might be a deviation in fact. There were two days when it appeared she might have proceeded to sea; and the inquiry is, was it discreet and proper she should do so? Was it a varying or increasing the risk without necessity or reasonable cause? If by reason of the unsettled state of the weather it was proper and reasonable for the vessel to delay sailing, the fact of taking in additional cargo would not, of itself, amount to a deviation; the delay must have been in the exercise of good faith and ■ sound discretion; and by necessity, or for a reasonable cause, otherwise there was a deviation.</p> <p>As to seaworthiness, that was a condition precedent. The question is, was she fit in materials and other qualifications to encounter the ordinary perils of the sea for the voyage insured l The question of seaworthiness must have relation to the nature and character of the voyage; she might have been seaworthy to remain in the harbor of Trieste, but not so for the voyage to New York. It had been alleged by the defendants that she was unseaworthy by reason of being worm-eaten and rotten, but this result would depend on the extent to which she was wormed or rotten, and which, to render her unseaworthy, must have made her unfit to encounter the ordinary perils of the sea during the voyage in question.</p> <p>The Judge remarked it was extraordinary that some of the surveyors had not mentioned in them reports the rottenness of which they had testified in this cause.</p> <p>The DefendcmtS Counsel excepted to all that part of the charge which related to the question of deviation; and also to his refusal to charge the jury as requested by them; also, to that part of the charge regarding the inconsistency of the statements of the surveyors, in their reports and their evidence.</p> <p>The jury returned a verdict for the plaintiffs.</p> <p>The case was now brought to a hearing on a bill of exceptions.</p>

<p>The prisoner was indicted for murder, and when arraigned and asked the usual question, whether he demanded atrial? He answered, “ I suppose I am guilty.”</p> <p>Judge—Prisoner, have you counsel?</p> <p>Prisoner—No, sir; I am not able to employ any.</p> <p>Judge—Do you know the difference between murder and manslaughter?</p> <p>Prisoner—No, sir; I only know I struck Cogan with my hod, but I didn’t mean to kill him.</p> <p>The judge then ordered the clerk to enter a plea of not guilty, and assigned counsel to defend him.</p> <p>On the trial, a juror was challenged for principal cause, for bias. Being sworn, he testified that he had formed no opinion as to guilt or innocence. He had heard what had occurred when the prisoner was arraigned, and thought he should have some bias when he thus offered to plead guilty, but he could render a fair verdict. The challenge was overruled.</p> <p>The juror was then challenged to the favor, triers were sworn, and the same testimony given before them.</p> <p>The judge charged the triers that it would never do to exclude jurors on such a ground. The law did not require the juror’s mind to be free from all knowledge or impression of the case. It would be impossible to administer justice under such a rule, for at every moment that the juror was in the court-room, from the opening of the case until the closing of the trial, something would occur in the proceedings of the court that could not fail to make an impression of some sort upon an intelligent mind. But so long as a juror could render a verdict according to the evidence, he was competent. It was only when he had such a bias on his mind that he cotdd not decide fairly, or would not be likely to do so, that he was disqualified.</p> <p>But, in this case, there was another consideration: There was no doubt it would seem that the prisoner had committed a homicide—of that he had confessed himself guilty; but the real question which the jury was to try was, whether that homicide was murder or manslaughter'; and upon that point the prisoner had made no confession. And it would be the height of folly to exclude a juror from trying the main question, because the prisoner raised no question as to another part of the case.</p> <p>The triers found the juror competent.</p>

<p>1846. June 4. Juan Leon, and five others, presented a petition for a writ of habeas corpus, setting forth that they had been arrested as deserters from a Chilean vessel; that they had shipped on board the vessel in Chili, on a voyage from Valparaiso to Talacuhana, thence to Coquimbo and back to Valparaiso, being a coasting voyage along the western coast of South America; that the master of the vessel had, without their consent, doubled Cape Horn, touched at Nantucket, and finally arrived in New York, where he had discharged them.</p> <p>June 5. The prisoners were brought up by the keeper of the city prison, who returned that they were committed by warrant, signed by the recorder of New York, setting forth that they were deserters from a foreign vessel, and had been demanded by the consul of the country to which the vessel belonged, and ordering them to be arrested and brought before him in order to their being delivered up to such foreign consul.</p>

On the 22d October, 1846, on a petition presented by Lewis Napoleon, setting forth that a colored boy, whose name was unknown, was closely confined on board the brig Mobile, lying at the foot of… Held: under and by virtue of the laws of said State of Georgia, as the slave of the said Charles Chapman.

<p>The duty of court and jury on a feigned issue out of chancery, on a hill filed to set aside a marriage on the ground of incapacity.</p> <p>What is the mental unsoundness that incapacitates entering into the marriage relation.</p>

This was an action of trover for a package of money. On the trial of the cause it appeared that defendant was at plaintiff’s banking-house, on 27th March, 1846, and was asked, by the president of the bank, if he knew Marvin Wheeler, and should see him on his return home ? To which the defendant made no definite reply, and said he would call in again. On the same day he called again at the bank, said he knew W., and should see him on business the next day.

Assumpsit for an attorney’s bill. The defendant being sued, employed the plaintiff to defend the suit, which he agreed to do for thirty dollars.

The defendant, as sheriff of Kings county, under an execution against the village of Williamsburgh, levied upon certain fire-engines, for which the plaintiff brought his replevin in the c&pit. It appeared that the property had once belonged to .that village, and had been sold on an execution in January, 1839, and bought by one Meserole.

<p>The law of passenger carriers as applied to railroads.</p> <p>The company, being the owner of the road, as well as of the carriages, is bound to the same care, diligence and skill, as to the condition and con.struction of the road, as they are in regard to the carriages.</p> <p>If the road is built on an embankment, or a side hill, the company is bound to take all due precautions against a carriage being precipitated down the declivity, either by widening the crown of the road, or erecting walls or railing sufficiently strong to prevent it.</p> <p>When a train was passing over an embankment, by an accident the wheels were thrown off the track, and the car, with the passengers, was thrown down the declivity, whereby the plaintiff was hurt; held, that he was entitled to recover, because the company had taken no precautions, by widening the road, or by the erection of suitable barriers, to prevent a car thus being thrown down the side of the embankment.</p>

<p>A bond to "indemnify and save harmless from any loss or damage to which a party may be subjected,” is not broken by a mere liability to pay, but only by actual payment, or loss actually incurred.</p>

This was a special action on the case tried at the December Circuit, 1846. The plaintiffs were merchants, in Rome, Oneida county, and had sent a load of oats to New York, on board a canal boat, which the master of the boat was authorized to sell for cash, at the market price.

<p>Although the several parties to a bill or note may be sued in one action, yet their being so sued does not make them jointly liable.</p> <p>Where the makers and several indorsers of a note are sued in one action, an answer by the makers will not enure as an answer of the indorsers, nor will the answer of one of several indorsers enure as an answer of the other or others.</p> <p>If in such an action the complaint be verified, and the several indorsers make a joint answer, the answer must be verified by or on behalf of each indorser.</p> <p>An answer which is so framed that it does not set up a valid defense, but which states facts which may, by being properly averred, constitute a defense, will not be struck out as sham, irrelevant, or frivolous.</p>

The defendants, foreign fruit dealers in Hew York, having a limited capital, and not having established a credit for their house, made an arrangement with the plaintiffs whereby the plaintiffs should gauranty paper which the defendants might issue in their own name, and business paper which the defendants, in the course of their business, might receive and desire to raise money upon before maturity, upon condition that defendants should meet all such paper at maturity, and…

<p>The effect of over valuation of a loss under a policy of insurance.</p>

<p>This was an appeal from a decree of the surrogate of Hew York, admitting to probate the will of Benjamin Taylor, who died in Hew Haven, Connecticut, in January, 1845, aged about 83 years.</p> <p>In 1803 his first wife, by whom he had four children, died.</p> <p>From 1804 to 1816 he cohabited with the appellant as his wife, and by her had three children. He then went abroad and remained there some ten years, leaving the appellant in charge of his household, and his other children, and supporting that establishment.</p> <p>On his return from abroad, he went to live with the children of his first wife, in Hew Haven, the appellant, who claimed to be his second wife, living with her children, and supported by him in Hew York.</p> <p>On the 10th April, 1843, at Hew Haven, Taylor made a will, wherein he made a bequest “ to Ann Cornell, my late housekeeper, but who was never my wife,” etc., etc., and gave the bulk of his estate to the children of his first wife.</p> <p>In July and September, 1841, while he was thus living with his children in Hew Haven, such proceedings were taken by those children, that he was declared, by the courts of Connecticut and Hew York, to be insane, and the husband of one of his daughters was appointed conservator of bis estate in Connecticut, and Ms Hew York estate was put into the custody of the Hew York branch of his family.</p> <p>In January, 1845, he died insane.</p> <p>On the appeal, wMch was argued by Howes for appellant, and J. Anthon for respondents, the questions discussed were, the testamentary capacity of Tayloiyand undue influence.</p>

This was an action on the case—the declaration containing two counts: first, for a false return; second, for neglecting to levy and return an execution. The venue was laid in New York, and on the trial it was proved that the defendant in the execution had property enough to satisfy the debt in the county of Kings, which was pointed out to him, but which he neglected to levy on.

<p>Summary conviction for vagrancy.</p> <p>On the 31st of August, 1846, Eliza Phillips presented to the circuit judge a petition for a writ of certiorari to certify the cause of her detention in the penitentiary on Blackwell’s Island.</p> <p>On the 3d September, the keeper made a return to the certiorari, that she was detained in his custody by virtue of a commitment by one of the police magistrates in the following words:</p> <p>City acto County op New York, ss :</p> <p>By--, Esq., one of the special justices for preserving peace in the city of New York:</p> <p>To the constables and policemen of the said city, and every of them, and to the keeper of the penitentiary of the city of New York.</p> <p>These are in the name of the people of the State of New York, to command you, the said constables and policemen, to convey to the said penitentiary the body of Eliza Phillips, who stands charged before me of being a vagrant, viz.: an idle person, having no home or means of living, being a common prostitute, having no lawful employment whereby to maintain herself, and whereof, Tie-convicted on competent testi-</p> <p>mony. And you, the said keeper, are hereby commanded to receive into your custody in the said penitentiary, the body of the said Eliza Phillips, and her safely keep for the space of sixty days, or until she shall be thence delivered by due course of law.</p> <p>Given under my hand and seal, this 4th day of August, in the year of our Lord one thousand eight hundred and forty-six. (Signed) 0--</p> <p>A, Nash, on behalf of the prisoner, controverted the return and set forth the record of conviction in the following words:</p> <p>Police Office, Halls of Justice.</p> <p>City and County of New York, ss :</p> <p>Be it remembered, that on the 4th day of August, 1846, Alexander McDougal, of the said city and county, did bring before me, one of the special justices for preserving the peace in the city and county of New York, one Eliza Phillips, and did complain unto me, and give me to be informed, that on this present day, at the said city and county, the said Eliza Phillips was a common prostitute, who had no lawful employment whereby to maintain herself, and was a vagrant within the intent and meaning of the statute, which complaint and information being heard by me at the city and county aforesaid, I, the said justice, on the day and year aforesaid, at the city and county aforesaid, upon the oath of said Alexander McDougal, as well as upon the examination of the said Eliza Phillips, taken before the undersigned, having jurisdiction in the matter, being satisfied that the said charge and accusation were in all respects just and tine, and that the said Eliza Phillips was a vagrant within the description of the statute in such case made and provided, did therefore convict the said Eliza Phillips of being such vagrant; and it appearing to me that the said Eliza Phillips -improper person to be sent to the almshouse, I, the undersigned, thereupon sentenced her to the penitentiary, for the term of two months.</p> <p>(Signed)--</p>

The circumstances of this application, and the points upon which the opinion of the court was sought, sufficiently appear in the adjudication.

<p>Habeas corpus. Convention with France of 9th Novem1843, relative to fugitives from justice.</p> <p>The prisoner was a notary public in one of the departments of France, which he left and came to this country. After he had left his residence, it was charged against him that he was a defaulter to his clients to a large amount, for moneys of theirs which he had embezzled, which embezzlement he had attempted to conceal by means of forgeries.</p> <p>Complaint to that effect was made against him, before a French committing magistrate, who issued a warrant for his arrest. He was.not, however, apprehended on the warrant, but the papers, duly authenticated, were transmitted to this country, and the French minister to this country demanded his surrender under the treaty with France of 1843. That functionary was referred by the secretary of State to the courts or magistrates of the country, and accordingly made application to one of the police magistrates of Sew York for a warrant, on which Metzger' was arrested. An examination was had before that officer, who adjudicated that the prisoner was within the treaty, and issued his warrant committing him to prison until the President of the United States should demand him.</p> <p>Before that demand was made, the prisoner was taken before the circuit judge of the first circuit on habeas corpus. That officer decided that the police magistrate had no jurisdiction in the matter, and the prisoner was entitled to be discharged from that commitment.</p> <p>The French diplomatic agent then made application to the United States district judge, before whom similar proceedings were, had, which resulted in a similar adjudication, and a like warrant of commitment.</p> <p>Application was then made to the Supreme Court of the United States for a writ of habeas corpus to review the action of the district judge. The application was denied on the ground that that court had no power to review the action of a district judge at chambers.</p> <p>Thereupon the President of the United States issued Ms mandate to the marshal of blew York, commanding him to surrender the prisoner to the diplomatic agents of the French government. Before, however, the surrender was actually made, a writ-of habeas corpus issued, directed to the marshal, returnable before Edmonds, Circuit Judge.</p> <p>The matter was twice argued before him, and under the judiciary act of 1847 was transferred from him as circuit judge, to Mm as judge of the Supreme Court under the new Constitution.</p> <p>The following is a copy of the petition upon wMch the writ of habeas corpus was granted:</p> <p>To John W. Edmonds, Circuit Judgo of the first circuit of of the Supreme Court of Judicature of the people of the State of New York.</p> <p>The petition of P. Barthelemy shows, that Nicholas Lucien Metzger is detained, and imprisoned, and restrained in his liberty by the marshal of the District Court of the United States for the Southern district of the State of New York, at the jail of the city and county of New York, and that he is not committed or detained by virtue of any process issued by any court of the United States, or by any judge thereof, in any case where any such court or judge has or had exclusive jurisdiction under the laws of the United States, or in any case where any such court or judge has or had acquired exclusive jurisdiction by the commencement of any suit in any court of the United States; nor is he committed or detained by virtue of the final judgment or decree of any competent tribunal of civil or criminal jurisdiction, or by virtue of any execution issued upon such judgment or decree; that the cause or pretense of such detention and imprisonment, according to the best of the knowledge and belief of your petitioner, is a warrant of commitment, a copy whereof is hereto annexed, marked A, issued by his honor, Samuel Betts, District Judge of the District Court of the United States, for the Southern District of the State of New York, under pretext of the provisions of the treaty between the United States and France, called the treaty of extradition, and dated the ninth day of November, A. D., 1843, against the said Metzger as a person charged with some one or more of the offenses named in the provisions of said treaty, having escaped from the jurisdiction of the government of France, which imprisonment, your petitioner submits, is illegal for vant of jurisdiction in said district judge over the person of said Metzger, or the subject-matter aforesaid, wherefore yom* petitioner prays that a writ of habeas corpus issue, directed to said marshal, commanding him to bring the body of the said Nicholas Lucien Metzger, together with the time and cause of such imprisonment and detention, by whatsoever name the said Metzger phn.n he called or charged before, to do and receive what then and there be considered concerning said Metzger.</p> <p>Dated the second day of March, 184'T.</p>

<p>The mode of changing the place of trial in criminal cases.</p> <p>The court have no power to dismiss an indictment on the merits, on the ground of failure of sufficient proof. It can only ^/dvise the public prosecutor not to press for a conviction, but consent to ¡L verdict of acquittal. The district attorney is not bound to follow the advice, though it is very unusual in this country and in England to disregard it.</p> <p>The attorney-general has power of himself to enter a nolle prosequi on an indictment. The district attorney can do so, only with the consent of the court.</p>

Assumpsit against defendant as indorser of a promissory note, which was dated in New York, and payable to defendant’s order in four months, without specifying any place of payment. The plaintiff gave in evidence the certificate of a notary that on the day the note became due he had sought for the maker, and on due inquiry had been unable to find him, whereupon he had protested the note.

Case against defendant as a common carrier. The plaintiff, a merchant of Worcester, Ohio, in May, 1839, made a contract with the agent of the Troy & Ohio Transportation line, for the carrying his goods from New York to Cleveland, Ohio. That company was engaged in transporting only from Troy to Buffalo, and had made a contract with defendant, who was engaged in the transportation of goods between New York and Troy, for the carriage of goods between those places.

This was an action of trover, tried at the Hew York Circuit, December 4,1847. The plaintiff, being in want of money to carry on his business as a bookbinder, advertised for a loan. He was waited upon by the defendant, who loaned Mm $250 on an agreement to pay therefor five dollars a week, and, to secure the loan, plaintiff gave his note for the amount loaned, payable on demand, together with a chattel mortgage on the tools of his trade.

<p>The Court of Common Pleas for the city and county of New York has no jurisdiction to award as to the custody of children pending an action for a divorce of the parents of such children.</p>

This was an action of trover tried at the. New York Circuit, December 3, 1847. The present plaintiffs were the defendants in a preceding case, and having paid the recovery there had against them, brought this suit to recover from the now defendants the value of the goods mentioned in that suit. Lawrence & Trimble were commission merchants in the city of New York, and the defendant Ward was a licensed cartman who carted for their house.

The Centenary M. E. Church, in Brooklyn, was organized in the year 1839, as a society of the Methodist Episcopal Church, in the United… Held: and appointed, for the religious worship of said Methodist Episcopal Church, assembling under the charge of ministers of said church, in said city and county as aforesaid, and by you held, as trustees as aforesaid, for the purpose aforesaid, and did designate him, said Griffen, as the preacher, and pastor in charge, of said Centenary…

Oh the 30th of March, 1848, the legislature passed an act entitled “An act in relation to justices’ and police courts in the city of New York,” by which the city was divided into six judicial districts, in each of which was to be elected a police justice and a justice for civil business.

<p>The prisoner .was convicted of manslaughter in the second degree, for having caused the death of his mother, in a cruel and unusual manner, by kicking her, and wounding her womb, when she was afflicted with prolapsus uteri.</p>

<p>The prisoner, indicted for the murder of her son, was acquitted on the ground of insanity, and committed to the State lunatic asylum.</p>

The prisoner was indicted for the murder of his wife. On impaneling the jury one of them was challenged to the favor by the prisoner’s counsel, on the ground that he had formed an opinion, and it was agreed that the challenge should be tried by the court. On being sworn he testified that he had read an account of the transaction in the newspapers, but had formed no opinion as to the guilt or innocence of the prisoner.

This was an action on the case tried at the Orange Circuit in October, 1848, to recover damages for an injury which the plaintiff had sustained while a passenger in the cars of the Erie Railroad Company, from an accident to the cars and the road. It appeared that in July, 1846, the plaintiff took a passage in the cars of the defendants, which were running from Middletown to Piermont.

The prisoner was indicted for murder in shooting one Richard Wall. It appeared on the trial that the prisoner was an educated physician, who had practiced as such for several years in or near Poughkeepsie, until he had accumulated some property, with which he had bought a farm, and then had retired from practice to reside on it. A man by the name of Newcomb owned the adjoining farm, through which the prisoner claimed a right of way out to the main highway.