Volume 1 — Hill & Denio's New York Reports

Davis sued Lattin in the court below, and declared in assumpsit on a warranty of the quality of 271 barrels of apples sold by the defendant to the plaintiff. The defendant lived at Barre, Orleans county, and in the fall of 1840 agreed to sell the plaintiff all the apples he should have to spare at five shillings per barrel — the plaintiff furnishing the barrels.

<p>Assumpsit on two promissory notes, one dated February 17th, 1837, and the other February 18th, 1837. Defence, usury. The cause was tried at the New-York circuit, January, 1839, before Edwards, C. Judge.</p> <p>The notes were accommodation notes made by Rapelye, payable to Gilliland & Raymond ;. and were discounted by the plaintiff at less than their face for the benefit of the payees, after having been endorsed by Gilliland & Raymond and one Carpenter and others, defendants in the cause: but the plaintiff had no notice that they were given to raise money. Carpenter suffered judgment by default.</p> <p>The circuit judge charged the jury, among other things, that though the plaintiff bought the notes, without notice that they were mere accommodation paper; still if they were so in point of fact, and never had been passed in the course of business between the parties, they were void in the hands of the plaintiff, if he discounted them at a greater rate than seven per cent. To this the plaintiff excepted. ■ 0</p> <p>Upon the point whether, in fact, the notes were discounted at an usurious rate, the evidence not being entirely clear, the circuit judge was requested to charge the jury that the defendants were not entitled to a verdict, unless they had established the usury beyond a reasonable doubt. He refused so to charge; but told the jury that it was enough in this case if, from the testimony, they were satisfied of the fact of usury. To this, also, the plaintiff excepted. The jury found a verdict for all the defendants; and the plaintiff now moved for a new trial on a case made, with liberty to turn it into a bill of exceptions. The cause was submitted upon written arguments.</p>

This was a joint afctioh under the-statute, against the drawer and endorser of a bill of exchange. It was tried before Cushman, C. Judge, at the Defcembet circuit,- in Albany, 1839. The bill was as fbllows; “Farmers Bank of Seneca Coünty. At thirty days after date, pay to the' order of Reuben D. Dodge, three thousand dollars, and charge this institution. J. J. Fenton, Cash’r. Romulus, Aug. 15, 1839. To Waltef Mead; Esq. Cash.

Action of Nuisance. The suit was brought to recover damages sustained by the plaintiff in consequence of the erection by the defendant of a dam on the Norman’s Kill, which caused the water to set back and overflow the plaintiff’s land. On the trial the case was this : In 1785, Abraham Ten Broeck and wife became seized in fee of a large tract of land comprehending the premises overflowed and the land on which the defendant’s dam was erected.

<p>Ejectment for one equal undivided third part of two pieces of land, one containing 74, and the other 15 acres, in the township of Hector, tried at the Tompkins circuit in February, 183?, before Monell, C. Judge.</p> <p>Several years before the trial, Tunis Swick died seized of the premises in question, leaving a widow named Charity, who afterwards married Eldreth Covert; and leaving also five children, of whom the plaintiff was one. All the other heirs had conveyed their interests to the plaintiff. The plaintiff, then, by warranty deed dated March 31, 1836, conveyed the said two parcels of land to the defendant in fee, describing the same by metes and bounds; and immediately after the description was a reservation in the following words: “ Reserving the equal undivided one third part of above described premises that is covered by the dower right of Charity Covert.” The judge decided that the reservation was absolute, of one third of the premises, and that the plaintiff was entitled to recover that third.</p> <p>The defendant then offered to prove that, when the deed was executed, it was intended and agreed by the parties that the reservation should cover nothing but the dower right of Charity Covert, the widow; and that the whole interest of the plaintiff, subject to the right of dower, was intended to be conveyed, and that the plaintiff declared and agreed so at the time. This was overruled. The defendant then offered a deed to himself, dated April 8, 1836, from the widow, and Covert, her then husband, and John E. Swick and Minor Swick, two of the heirs at law of Tunis Swick, for the equal undivided third part of the premises in question: and also offered to prove that when this deed was executed, the plaintiff was present, advised that it should be given, and declared that it would pass the undivided third part reserved in his deed, and so make the defendant’s title perfect; that, in consequence of this advice, the defendant accepted the deed from the widow and two heirs, and paid the consideration money therein mentioned, $722,97. This was also overruled; .and a verdict having been rendered for the plaintiff, the defendant now moves for a new trial on a case.</p>

Debt on bond, executed by a deputy sheriff and his surety, to the sheriff, on the deputy receiving his appointment; tried at the Oneida circuit, April 17th, 1839, before Gridley, C. Judge.

Ejectment, tried at the Essex circuit, January, 1839, before Willard, C. Judge. On the trial, the evidence was mostly documental; and among a number of questions there raised and decided against the defendants, was this: whether the lot in question did or did not lie in Summer Vale patent. The judge decided, from the documental evidence, that it appeared it did.

Assumpsit by payee against acceptors of a bill of exchange for $100. The bill was drawn by one Wood, and “ accepted subject to the arrangement with C. B. Hatch, which is to pay this before the closing of the navigation.” The bill was assigned to Hatch, to apply, when paid, on a debt due from the plaintiff to Hatch. The defence turned on the consideration as between the drawer and acceptors.

<p>Where a policy upon the cargo of a vessel, insured in express terms, among other things, against “ thieves, &c., barratry of the master and mariners,” &c.: Held, that a loss by theft, whether the offence was committed by the crew or others, was covered by the policy.</p> <p>The term “ thieves,” in such a policy, is not limited in its application to external or assailing thieves merely, but extends to thefts from within, by mariners, passengers, &e.</p>

Error from the New York common pleas. Colgan recovered against Aymar and others in an action for his services as clerk in a sugar refining establishment. The refinery was at Jersey City. It was in the month of February conducted by one Bevan as proprietor, who had employed Colgan as clerk on a yearly salary.

Action on a promissory note made by defendants Morley, Easton and Orandall, and payable to Dunbar, who sold it to Isaac Johnson, who sold it to the plaintiff. The note is dated April 9, 1839, and is for §130. It was payable one year after date. The note was given to Dunbar by Morley alone, for a horse which he purchased in order to defraud Dunbar’s creditors.

<p>Covenant. The facts of the case are sufficiently stated in the opinion of the court.</p>

<p>Error from Livingston common pleas, where cause was on appeal. Plaintiff sued defendant on a note of $68.21, payable January 1st, 1842. Plea as to all except $32.19, payment; as to that, money brought into court with costs of suit, viz., 81 cents. Plaintiff at the same time held a note against defendant of $260.54, payable in October, 1842.</p> <p>On the 23d August, 1842, plaintiff gave one Wilson a written request directed to the defendant to pay Wilson $40, proposing to endorse the $40 on “ one of your notes.” In exchange for this order, Wilson gave his own on one Anderson for $40. On presentation of the first, the defendant refused to accept, inasmuch as he was dissatisfied with the money being applied on the large note. But finally by arrangement with Wilson, the latter took a yoke of oxen, to be received in satisfaction of the order, and applied on the note in suit. Wilson was to give notice to the plaintiff, and if he was dissatisfied, he (Wilson) told the defendant he would pay him for the oxen. Wilson accordingly informed Godfrey, and the plaintiff proposed to ask what he replied, which the court overruled. The plaintiff afterwards received the amount of the order from Anderson. The written request of the plaintiff was left with the defendant; and the cattle had been retained by Wilson till he sold them. The plaintiff endorsed the payment on the large note.</p> <p>The court put the case to the jury as in effect a receipt of the cattle by the plaintiff; and charged that the person making payment has a right to direct the application; and that they were to receive Warner’s declarations as evidence of his intent. If the jury believed it was his intention that the cattle should apply on the small note, they should find for him.</p> <p>The court were asked to charge that, to warrant an application on the small note, the jury must be satisfied that plaintiff had changed his intention from what he had expressed in the order. This was refused.</p>

Motion by the defendants, Edwards & McKibben, to set aside a report of referees made in favor of the plaintiff. The defendants were partners under the name of John Tannahill & Co., and, in this action of assumpsit, the plaintiff gave in evidence an account stated in .writing on the 3d September, 1839, with an acknowledgment at the end, signed John Tannahill & Co., in the handwriting of Tannahill, by which a balance was admitted to be due the plaintiff of $747,36.

<p>Error from the New York common pleas. The facts are sufficiently stated in the opinion of the court.</p>

Motion to set aside report of a single referee in favor of plaintiff. The facts are sufficiently stated in the opinion of the court.

<p>The deed of a debtor, which expresses a consideration, is evidence that the consideration passed, as against his creditors who afterwards obtain judgment.</p> <p>And an admission made by the purchaser at the time of the purchase, that he was to pay the debts of the grantor, is admissible in evidence if offered as proof concerning the consideration of the purchase; if offered for any other purpose, the admission is not evidence.</p>

Action on a promissory note for $3000, made by defendants, dated December 28, 1836, and payable to the order of D. K. Minor one year from date. Minor endorsed the note in blank and gave it together with his check for $2000 to his broker, with instructions to borrow $2000 on the check and leave the note as security. The broker testified that he negotiated the loan with Smith & Sherman for twenty or thirty days at an interest of one dollar per day for each $1000.

' Assumpsit for money lent, tried at the Albany circuit, December 13th, 1839, before'CusHMAN, C. Judge. After the general issue, the defendant pleaded a submission of the matters in controversy to, and an award by, arbitrators.

<p>Error from superior court. The facts of the case appear in the opinion of the court.</p>

Error from New York common pleas, where the cause was by appeal, by P. A. Pulver, the intestate.

Demurrer to the return to an alternative mandamus. The facts are sufficiently stated in the opinion of the court which was delivered by

<p>Error to superior court of the city of New York. The case is sufficiently stated in the opinion of the court.</p>

<p>Where a claim for damages is made up of good and bad items, and there is a general verdict for the plaintiff, it wil be intended on a motion in arrest of judgment that the verdict was given on the good items only.</p>

Case for fraudulent representations to the plaintiff, a broker, as to a $500 bill on the bank of Millington, Maryland, a bankrupt institution, by which the plaintiff was induced to advance $478.25 as the purchase money of the bill, and for a fraudulent and artful concealment of facts material to the value of the bill. The plaintiff’s clerk, J. T. Gough, testified that, October 19th, 1840, the defendant offered him the bill at Albany, at plaintiff’s office there.

Debt on bond, tried at the Rensselaer circuit, March 16, 1840, before Cushman, C. Judge.

Error from the Montgomery common pleas. The action below was debt on a bail bond given to the plaintiff below, sheriff, &c. upon the arrest of Rosenstein in 'virtue of a capias ad respondendum issued out of said court, returnable in September term, 1839. The bond was in the form required by the revised statutes.

<p>Error to the Montgomery common pleas. . The facts are sufficiently stated in the opinion of the court.</p>

On error from the Herkimer C. P. Grim sued Whitney-before a justice of the peace, and declared against him for a breach of warranty of a horse, which he had of Whitney, and also for fraud in the purchase. Whitney pleaded the ' general issue; and the cause was tried by a jury. There-was some evidence given tending td show that, upon the facts, Grim ought to recover, though the preponderance was in favor of Whitney.

Certiorari from Oswego general sessions. The prisoner, in the night time, entered the flouring mill of Mr. Bumpus in Pulaski, Oswego, and stole flour. The entry was through an open window without sash; whence the prisoner crossed a floor, went up a ladder and raised a trap door, not fastened. This door let him into the room where the flour was. The court charged that this was burglary. Exception. The pri-. saner was found guilty of burglary. Sentence suspended.

Action for criminal conversation with the plaintiff’s wife, tried at the Sullivan .circuit, in June, 1838, before Ruggles, C. Judge. The plaintiff, after showing a divorce a vinculo matrimonii, called his former wife to prove the adultery with the defendant, for which the action was brought. The defendant objected that she was incompetent to prove any fact which took place while she was the plaintiff’s wife. The judge overruled the objection, and the defendant excepted.

<p>Action on notes made to Green or bearer by Wadhams; one of §80, the other of §100. The defence was opened by a statement that the notes were taken, under the negotiation of a ten per cent loan by Green for the plaintiff, and on the plaintiff saying he would take a good note procured from Wadhams. That Green gave his notes in exchange for defendant’s, and a chattel mortgage to secure the amount. Green was offered as a witness, but objected to and released by defendant “ from any liability to me on account of the notes which are the subject matter of this suit.” Plaintiff still objected on the ground that the “ release applies only to the notes and not to the mortgage.” The judge held, that a discharge of the notes secured by the mortgage discharged the mortgage. A farther objection that release was insufficient generally, was overruled. Green was then sworn as a witness and testified that the plaintiff' told him he was not good ; but that if he would get defendant’s notes, he would lend him the money at ten per cent. Whereupon the notes were procured in the manner mentioned in the opening, and passed to the plaintiff at the ten per cent. Verdict for defendant. Plaintiff moves for a new trial on a bill of exceptions.</p>

Demurrer to declaration. The action was covenant, on articles executed by all the parties, whereby they covenanted, each with all the rest, to pay their proportion of the expense, needful and incidental to the erection of a steam saw-mill in Michigan^ and such sums as might be required for fixtures, &c. The defendants covenanted to honor the plaintiff’s drafts an them, to be made from time to time, as his contracts and the execution of the proposed plan might require, to an…

Motion by plaintiff to set aside report of referees. The action was on a bond and the report in favor of the defendant on the ground that the bond was void for usury. The facts of the case are sufficiently stated in the opinion of the court.

Error from Madison common pleas. I. Lewis sued Palmer before a justice, in trespass for entering his close and taking away his cow. Trial by jury. Plaintiff bought the cow of C. Lewis, who bought her of Stocking, who bought her of defendant, who took her away from the plaintiff. Stocking gave his note to Hart at three months, adding that if the cow was not paid for, he would turn her out as security.

On error from the Onondaga C. P. Stanley sued West in assumpsit, before a justice, and after issue joined, the cause was adjourned.

Trover for a pair of horses tried before Willard, Oir. J., at the Washington circuit in June, 1840. The plaintiff had formerly owned the horses, and the only question was whether the title had passed to the defendant.

Action on a policy of insurance. The declaration commenced as in an action of covenant, thus: “ The N. A. F. Ins. Co. (defendant) was summoned, dec. to answer N. Ferriss and J. E. Baton (plaintiffs) in a plea of breach of covenantdec.

Replevin in the cepit for horses, cows and other property, tried before Dayton, Cir. Judge, at the Genesee circuit. The case was this: Morris M. Pendrill owed his father-in-law, the plaintiff, two promissory notes given for money lent; one note dated January 7, 1840, for $1000, payable in one year with interest; and the other dated November 30, 1841, for $50, payable one year from date with interest.

Assumpsit tried at the Genesee circuit in March, 1841* before Dayton, Oir. J. The suit was on a promissory note as follows: “ $300. One year from date value received we jointly and severally promise to pay J. Davenport or order three hundred dollars at the bank of Genesee with use. South Barre, April 23, 1839. (Signed) J. A. Buckland, J. D. Buckland.” The note was made under the following circumstances.

Motion to set aside report of referees. The report was for the plaintiff $52,15. The facts are sufficiently stated in the opinion of the court.

Demurrer to replication. The declaration was for trespass, assault and battery, and false imprisonment; alleging that the defendant, on, «fee. at Redhook!¡ in the county of Dutchess, with force, «fee. assaulted and beat the plaintiff, and compelled him to go in and along divers roads, «fee. from Redhook aforesaid to the county of Onondaga, and then and there imprisoned the plaintiff, and detained him in prison, without any reasonable or probable cause, for a long ' space of…

Certiorari at common law to James Lynch, one of the associate Judges of the court of general sessions of the peace of the city of New York. Held: nor where the creditors resided. He also objected that the papers 'Served on him were not true copies of the originals; and on comparing them two slight variances appeared to exist. The judge made no order in relation to these objections.

<p>D., having contracted with the trustees of a religious society to do the carpenter’s work of a church they were about erecting, and afterward becoming indebted to the plaintiff for doing part of it, gave him an order on the defendant, who was then treasurer of. the corporation, and likewise one of the trustees, and a member of the building committee; which order the defendant, on its presentation to him, promised should he paid in eight or ten days. There were then funds enough in the defendant’s hands, as treasurer of the corporation, to meet the order, but none specifically appropriated to D., the drawer; and the treasurer was not authorized to pay orders, unless countersigned by the building committee. Under these cir- ' cumstances, held, that the defendant’s promise was without consideration; but even were there a consideration, it was a promise to pay the debt of a third person, void for want of writing within the statute of frauds.</p> <p>Regarding the order, moreover, as a bill of exchange, the acceptance was void, because not in writing.</p> <p>The case is not like those, where assumpsit has been held to lie against an executor, on his promise to pay the testator’s debt, or a legacy, and judgment was rendered de lonis propriis—for the assets in the hands of an executor are at his disposal exclusively; but in this case, the defendant held the funds of the society as bailee, subject to their control.</p> <p>Semble, even were the promise valid, the plaintiff could not recover under a count for money had, and received.</p> <p>Had the defendant, instead of the society, been D.’s debtor, the order might have operated an assignment of the debt; in which case, on an express promise to pay, an action could, it seems, be maintained. And it would be sufficient, under such circumstances, to declare for money had and received.</p> <p>The principle is the same, where the person on whom the order is drawn has funds in his hands belonging to the drawer, and promises to pay.</p>

Action for work and labor. The principal question was, whether the defendants were answerable as partners, or whether the plaintiff must look to McGinity alone for his pay. There was a sole referee who reported in favor of the plaintiff, and the defendant moves to set aside the report.

On error from the Oneida C. P. Newland sued Parker before a justice, and on issue joined, proved a judgment in his favor against Parker for $2,77. The defendant below, under a proper notice, claimed a set off amounting to §30, for money he let the plaintiff below have, under the following circumstances.

The cause originated in a justice’s court, where Higley sued Farrell in trespass for taking a quantity of hay, oats and potatoes. The property was taken under a justice’s execution in favor of Farrell against Higley, who was a householder, and owned a cow, two hogs and ten sheep. He claimed that the goods in question were exempt from seizure on execution, and the justice rendered judgment in his favor for $ 10.50, which was affirmed by the common plea's on certiorari.

<p>Where a note was given for a fanning mill, conditioned, that if the maker was not suited with it, he should return the same in a given time to the payees, they, in that event, to furnish him with a new mill: held, that the maker having returned the mill within the time, and refused to accept a new one, though offered him hy the payees, he was entitled to no abatement from the amount of the note by reason of latent defects in the mill.</p>

Replevin tried before Kent, Cir. J., at the New York circuit in July, 1842. Barker & Holt recovered a judgment in this court in an action upon contract against Samuel M. Pike and three others. A fi. fa. was issued on the judgment to the sheriff of New York, and the defendant, being such sheriff, levied the fi. fa. upon the goods of the plaintiff in this suit, whose name is Solomon M. Pike. The plaintiff thereupon brought this action.

On error from the New-York common pleas. Labron 6f Ives sued Woram in the court below, and on the trial, sought to recover the amount of a promissory note -for #635, dated June 21, 1836, made by A. H. Nichols, payable to the order of the defendant, twelve months after date, and endorsed by the defendant. It was proved by way of defence, that Nichols applied to the defendant to borrow money, which the defendant agreed to loan on the note of Nichols, endorsed by the plaintiffs.

Ejectment to recover lot No. 16 in the towship of Camillus, now town of Van Burén, containing 600 acres, tried at the Onondaga circuit in April, 1842, before Moseley, Cir. J The plaintiffs gave in evidence the award of the Onondaga commissioners dated December 29, 1798, awarding the' lot to Stephen N. Bayard. Also a warranty deed of the lot from Bayard to Thomas Ritson, dated December 14, 1798.

<p>Certiorari to the Orange oyer and terminer. The prisoner, Cogdell, was convicted at the Orange oyer and terminer, October, 1840, (Ruggles, C. Judge, presiding,) of feloniously stealing, &c. the pocket-book of John Warren, and bank bills therein belonging to him, amounting to $600.</p> <p>Warren lost his pocket-book on the highway; and the defendant found, and immediately after concealed it, with the bills, fraudulently, and with intent, as the prosecution insisted, to convert the whole to his own use. The evidence was entirely sufficiént to warrant the jury in so finding.</p> <p>The court left the facts to the jury as sufficient to warrant a conviction, and the prisoner’s counsel excepted.</p>

Replevin for. 1069 barrels of flour tried before Kent, Oir. J. at the New York circuit in February, 1843. The plaintiffs were commission merchants in the city of New York, and the defendants were millers at Phelps, Ontario countyv defendants also re-manufactured sour flour at the Troy. There had been extensive dealings betwee parties, the defendants consigning their flour to the plftii ™ to be sold, and drawing on the plaintiffs for funds ttb carry on the business.

<p>An action for money had and received to the use of a lunatic, cannot be maintained in the name of his committee.</p> <p>Nor can ejectment be maintained in the name of the committee, on the title of the lunatic.</p> <p>There is no difference, in this respect, between actions relating to the real estate of the lunatic, and those relating to his personal estate.</p> <p>It seems, that the rule as to parties, where a claim of this nature is prosecuted, is the same at law and in equity.</p>

Ejectment for dower, tried at the Albany circuit, June 19th, 1841, before Cushman, C. Judge. The facts are sufficiently-stated in the opinion of the court.

<p>Where, in replevin, the cause was reached at the circuit in its regular order on the calendar,_ and the defendant refused to appear; whereupon the plaintiff entered his default, and the cause proceeded, both parties treating it as an inquest: Held, on bill of exceptions for the exclusion of evidence proposed by the defen. dant, that he could not be allowed to change his ground, and claim rights beyond what are incident to an inquest</p> <p>On an inquest at the circuit, the defendant may examine the plaintiff’s witnesses to controvert the evidence given to sustain the action; but he cannot, under color of exercising this right, show a substantive defence aliunde.</p> <p>The rule on this point laid down in Hartness v. Boyd, (5 Wend. 563,) approved, and the previous case of Green ads. Willis, (1 Wend. 78,) regarded as overruled.</p>

Assumpsit, for not accepting a quantity of wheat, tried at the Tompkins circuit, February 12th, 1840, before Monell, C. Judge. The declaration contained a count upon the special contract, and also counts for goods sold and delivered.

This was an action of assumpsit upon two promissory notes, which was heard before a sole referee. After the evidence had been given and the cause summed upon both sides the referee intimated an opinion against the plaintiffs as to one of the notes, and as to the other note said he would take time to consider. The plaintiffs thereupon asked the referee to hear further evidence, and the referee said he would do so, if the witnesses on both sides were still in attendance.

Assumpsit upon several promissory notes made by the defendants, amounting to $870, tried at the Oneida circuit in October, 1841, before G-ridlby, Cir.

<p>Where the assignee of a mortgage takes a quit claim deed of one half of the mort. gaged premises, this docs not extinguish the mortgage. At most, it can only operate an extinguishment of a part of the mortgage debt, leaving the assignee at liberty to foreclose for the residue.</p> <p>It will make no difference in such case, that the assignee’s title to such half is derived from one who had purchased it of the mortgagor, and gave back an agreement to pay off the mortgage; especially if the assignee had no notice of the agreement. And, sémblé, even were he notified, the result would be the same.</p> <p>Quere, whether if thd assignee’s deed, instead of being for half, had covered the whole premises, it could have operated an extinguishment of the mortgage.</p> <p>Where one, in a mortgage foreclosure under the statute, through an honest mistake of his legal rights, "claims in his notice more than is due him, this will not affect the validity of the sale. And quere, whether such erroneous claim could, under any circumstances, prevent the purchaser from acquiring a good title.</p> <p>E. having a judgment, obtained inl832, which was a lien on premises covered by a prior mortgage dated in 1829, caused the same to be levied on and sold, and bid them in himself. After the sale became absolute, he obtained the sheriff’s deed, mid the mortgage was foreclosed under the statute. Held, that E. acquired no title under the judgment, and of course could convey none to the defendant, his grantee.</p> <p>A sheriff’s deed, given after the sale becomes absolute, takes effect by relation from the timé when it might have been demanded. Semble.</p>

Motion by the defendant to set aside a report of referees, finding $881*25, in favor of the plaintiff. The facts are stated in the opinion of the court.

A controversy having arisen between the parties in relation to the building of a ship, and cross actions having been commenced, they entered into bonds submitting the whole matter to the arbitrament of two individuals, who had power to appoint a third. It was agreed in the submission that judgment should be rendered upon the award by the Superior Court of the city of New York.

<p>Ejectment, tried before Ruggles, C. Judge, November 12, 1839, at the Westchester circuit. The case was this: In May, 1799, Joseph Eden, being seized in fee of the premises in question under the will of Medcef Eden the elder, subject to an ex-ecutory devise over to Medcef Eden the younger, in fee absolute, in the event of said Joseph dying without isssue before said Medcef the younger, executed a deed of said premises, in fee, to Alexander McComb. The defendant claimed under this deed. But, in 1826, it being discovered that her title was defective, on account of the executory devise over to said Medcef the younger, which had attached by the death of said Joseph without issue, an attempt was made to remedy the defect, as follows:</p> <p>Medcef the younger had made his will in 1819, devising all his real find personal estate to Rachel, his wife, fpr life, or durante viduitate, for the maintenance and support of herself, her daughter Sally Ann, (one of the plaintiffs,) Elizabeth and Re-' becca, and also of John Pelatreau; and on the death or marriage of his wife, he devised said estates to said John Pelatreau- during his natural life, for the support of himself and the said three girls; and after the death or marriage of his wife, and the death of Pelatreau, he devised all his said landed ’ estates to Sally Ann, Elizabeth and Rebecca, in fee. He gave to his said wife, so long as she should remain single, and to said Pelatreau, after her death, or marriage, power to sell and convey any part of his real estate, provided Aaron Burr should, in writing, signed by his hand, consent; no sale to be valid without such consent; the moneys arising from such sale to he invested under the direction of said Aaron Burr, for the purposes of said yñll■ He appointed his wife executrix, so long as she remained single and unmarried • and declared, that afterwards, said Pelatreau should be his executor.</p> <p>. In 1826, Medcef the younger being dead, and his will duly proved, said Rachel, the widow of Medcef the younger, with consent of said Aaron Burr, signified by his signing, &c. conveyed the premises in question to James Renwick, in trust, for the defendant Mary C. P. McComb. The deed recited, that said Medcef the elder had, April 1st, 1787, demised the premises in question to M. Wattles for ten years; that Wattles assigned to D. Halsey; that, April 1st, 1789, by articles reciting said lease and assignment, said Medcef the elder covenanted with said Halsey, that if he should pay to said Medcef the elder £1000, with interest at the end of eight years from the date of said articles, then said Medcef the elder, his heirs, &c. should convey in fee simple; that by sundry assignments, Halsey’s interest had become vested in Alexander McComb, Then, after reciting the will of Medcef the elder, the devises to said Joseph and Medcef the younger, the death of said Medcef the elder, the. payment of the £1000, and interest, by Alexander McComb to said Joseph, and Joseph’s said deed, in fee, to Alexander McComb, it proceeded further to recite, that all the estate of said Alexander McComb had become vested in said Renwick and M. C. P. McComb, the defendant: that said Joseph died without issue, said Medcef the younger surviving. It also recited parts of the will of said Medcef the younger, and the. said power of sale, and then proceeded thus: “ Now this indenture witnesseth, that the said Rachael Eden, widow, &c. in consideration of $750, &c. to her in hand paid, &c. and by virtue of the power, <fcc. and with the approbation, &c. of the said Aaron Burr, &c. hath granted, bargained, &c. and hereby doth, fee. unto the said Renwick, &c. and all the estate, &c. of the said Medcef the younger,” &c. in fee. Signed and sealed by Rachael Eden and A. Burr.</p> <p>The plaintiff called one Berrien as a witness, who stated, that the premises in question were, in 1826, worth ,$4000 or $5000.</p> <p>It was also proved, in the course of the trial that, Elizabeth having previously died without issue, said Rebecca, in 1834, conveyed her interest to the plaintiff, Beniamin Waldron.</p> <p>The plaintiffs’ counsel insisted at the trial, that the said deed of Rachael Eden was not sufficient to convey a title under the will of said Medcef the younger; that it was not a valid execution of the power therein contained; that, on account of the gross inadequacy of the consideration, and the matter contained in the recitals thereof it was void in law. But the judge decided and charged the jury that, upon the evidence given, the defendant was entitled to a verdict. The plaintiffs’ counsel excepted, and the verdict being for the defendant, the plaintiffs’ counsel now moved for a new trial on a bill of exceptions.</p>

<p>Where a defendant obtained judgment of discontinuance against a plaintiff for costs of suit, and the plaintiff brought a second suit pending which the defendant assigned his judgment to his attorney in the first suit, giving the plaintiff notice, held, that the plaintiff', on recovering judgment in the second suit after the assignment, was .not entitled to set it off against the judgment which had been obtained by the defendant.</p>

Assumpsit tried before Kent, Cir. J. at the New York circuit. The declaration commenced thus:—Frederick Pentz, President of the Mechanics’ Banking association, the plaintiff in this suit, complains of Elisha B. Sackett, &c., for that whereas the said defendant on, &c., at, &c., was indebted to the said plaintiff in the sum of $3000; and so went on in the usual form to set out the money counts, laying the indebtedness and promise to the plaintiff.

Actiost on the case for the negligence of the testator as an attorney.

Assumpsit, tried at the Albany circuit, .in December, 1839, before Cushman, C. Judge. The action was on a note, dated Oct. 24, 1837, by which the defendant, “ for value received,” promised to pay the plaintiff $110, in leather, to be delivered on demand in Albany. The leather had been demanded, and the defendant refused to pay, on the ground that the note was void.

Trespass de bonis asportatis, tried at the Tompkins circuit in February, 1839, before Monell, C. Judge. Both parties are constables, and both sought to make title to the possession of the property, under several attachments issued by justices of the peace, in favor of several individuals, against one Edwin Dart. The plaintiff made the first levy, and took the property into his possession; and _for the subsequent taking by the defendant, this action was brought.

Action by indorsee against indorsers. The note was made by H. Richards, 29th August, 1842, for $218.10, payable three months after date to the order of the defendants, at the Bank of Troy, and indorsed by them and held by the Troy City Bank. On the 2d December, the third day of grace, the note was sent by the holder to the Bank of Troy for payment.

Ejectment, to recover lot No. 24, in Junius, now Tyre, Seneca county, containing 600 acres, tried before Moseley, C. Judge, at the Seneca circuit, in May, 1838. The first count alleged a title in fee in Zacheus P. Gillett, and Isaac Norton and William H. Jacacks, surviving assignees of the said 2Jacheus P. Gillett.

Action upon the two following promissory notes: $6000. Oswego, Dec. 31, 1840. Three months after date, I promise to pay to the order of J. & B. Knower, at the Oswego Bank six thousand dollars, value rec’d with interest. $5,700. ~ Oswego, Dec. 31, 1840. Four months after date I promise to pay to the order of J. & B. Knower, at the Oswego Bank, five thousand seven hundred dollars, for value rec’d with interest.

<p>Defendant was indorser of a promissory note payable on the 3rd of April, and notice of protest was on that day duly mailed by a notary, addressed to defendant at his place of residence; and on the • next day the notary enclosed a duplicate of this notice to one of the officers of a bank which was the owner of the note in suit. On the trial defendant produced the duplicate notice, which bore date the 17th of April, and was addressed to defendant at a place, not the place of his residence, in the handwriting of the teller of the bank; defendant also gave some negative evidence to show that he had not received the first notice. Held, -that defendant had been duly notified.</p>

Ejectment to recover a lot of land in Hancock, Delaware county. One Bailey Hatheway had been in possession of the'lot some 13 or 14 years, and cleared and fenced some ten acres, claiming only a possessory title, and conveyed by quit claim to one Onderdonk, 29 September, 1836, and left the possession the following year. Onderdonk resided in the neighborhood, but never moved upon the lot; nor does it appear that he ever occupied it.

Ejectment, for 91 acres of land, part of military lot No. 11, Dryden, tried at the Tompkins circuit, in September, 1839, before -Monell, 0. Judge, The plaintiffs made title to four ninths of the premises in question, as the children and heirs at law of Henry Bloom, deceased. The defendant relied on showing title out of the plaintiffs by virtue of a surrogate’s sale.

Thompson, the plaintiff below, brought trespass against Otis for entering his close and carrying away a quantity of wheat. Thompson had taken the premises of one Mrs. Young, a widow, for the year 1840, on shares, with the privilege of sowing fifteen acres of wheat in the fall, each to furnish one half of the seed and the crop to be divided in the half bushel.

The prisoner was indicted at the Monroe general sessions for the crime of arson in setting fire to his own dwelling, for the purpose of charging the insurance company with the loss. The policy covered an insurance of household furniture and the personal property in the dwelling to the amount of |6000.

<p>After the jury in a justice’s suit, had retired they sent for the justice ; he notified the parties, expecting them to follow him, and went into the jury room alone, when the jury informed him that, they could not agree and that they wished further instructions. The justice, on discovering that the parties had not followed him, declined giving instructions, advised the jury to make another effort to agree, and then retired and informed the parties what the jury had said. They all then returned to the jury room, when it was agreed that the jury might examine witnesses further, which they did without objection. Held, that there was no irregularity.</p>

<p>Ejectment for lot No. 40 in the city of Rochester. The plaintiff claimed under a sale of the premises for a tax of $2,35 for improvement of Buffalo street in city of Rochester, and produced a title derived from a lease of Mr. H. Rochester, mayor of the city, dated 15 June, 1839, for the term of 200 years. Plaintiff then proved the defendants in possession, and rested.</p> <p>The defendants in order to prove that the assessment for which the lot had been sold, and lease given, were unauthorized, illegal and void, produced the records of the common council by. which it appeared; 1. That an ordinance was passed Dec. 8, 1835, to macadamize Buffalo street, from the west line of the burying ground lot to the west end of the bridge which crosses the canal; 2. Another ordinance, passed July 12, 1836, reciting the former, also that the expense of the improvement had been duly estimated at $7017.42, and declaring that the whole expense should be assessed upon the owners and occupants of lands and houses benefited, and that one tier of lots on both sides of North Trow-bridge street as far north as the canal (including the premises in question) would be benefited, and- directing, assessments to be made on same.</p> <p>The assessment roll was then produced, by which it appeared that no owner or occupant was designated for lot No. 44, nor was it returned as non-resident land, nor was any other description of the premises given than simply the number “ 40 ” in the column, under the head lots, except that “ JV. Trowbridge street ” was written in the column designating the owners of the respective lots as far as given.</p> <p>The defendants' also gave in evidence the return of the collector of the city by which it appeared that the tax assessed upon the lot was unpaid. They also produced a file of a daily newspaper of the city, containing a notice of the sale of the lot in question, among others, for non-payment of taxes, which had been published once a week from 8th April to 18th May following.</p> <p>The only description of the lot in the notice was as follows :</p> <p>“ Lots returned for Buffalo street improvement, middle section—names of possessors or reputed owners. Gen. tax ■- of Ogden, lot 40, 2.35.”</p> <p>It appeared in evidence that lot 40 was a part of an allotment well known in the city as the King tract, and so appeared in all the maps, being a tract laid out into village or city lots. Bradford & King were the reputed owners of the tract.</p> <p>The defendants then showed title to the premises in one Edwin Beers, and that they were occupying as his tenants.</p> <p>The testimony having closed, the defendants’ counsel asked the judge to charge, that, as it appeared the plaintiff was not the original lessee of the premises, and as at the time of the conveyance to .him by Byington, the purchaser, the lot was held and occupied under an adverse title, the conveyance was void, and that plaintiff could not recover. The judge declined to so charge.</p> <p>The counsel further insisted, that the lot was not legally assessed for the tax for which it was sold, and that the proceedings to authorize the sale were not correct as shown by the evidence given by the defendants, and that, therefore, the lease under which the plaintiff claimed title was not authorized by law and was void.</p> <p>But the judge decided, that the tax was legally imposed on the lot, and that the proceedings to authorize the sale were correct, and directed the jury to find for the plaintiff. Exception. Verdict for plaintiff, and defendant now moves for a new trial on a bill of exceptions.</p>

Ejectment, for a farm in Coeymans, tried at the Albany circuit in June, 1839, before Cushman, C. Judge. At the trial, the plaintiff deduced a title to himself by sheriff’s sale, under a judgment of the 11th of May, 1835, in favor of the plaintiff and another, against. James Armstrong and Lawrence Armstrong. The judgment was obtained in assumpsit,' and amounted to $302,91.

<p>In debt on bond, conditioned to pay a sum of money for the plaintiff on a bond arid mortgage executed between third persons, and to save the plaintiff harmless, Sic.; held, that a breach, alleging merely that the sum became.due, &c. and was not paid at the day, was well assigned, though it did not show that the plaintiff had been actually damnified.</p> <p>The case of Douglass v. Clark, (14 John. R. 177,) contra, is overruled.</p> <p>Such a bond is more than a bond of indemnity—it imposes a positive obligation to pay at the day.</p>

The suit was originally commenced in a justice’s court, where the plaintiffs declared against the defendant in debt for penalty of |25 for a violation of section 7, chap. 4, art. 1, of an ordinance of the common council of the city of Rochester. The defendant pleaded the general issue.

Assumpsit, on the money counts, tried at the Rensselaer circuit, before Cushman, C. Judge, in March, 1839. The plaintiff claimed to recover for money paid to the defendant’s use; and the case was this: In December, 1824, the defendant conveyed a farm, containing 43 acres of land, to Philip I. Wheeler; and Wheeler, at the same time,' gave back a mortgage, with a bond, to the defendant, to secure the payment of $550, with interest.

Assumpsit for lands sold and conveyed. The case turns upon the nature of the authority of the agent (Greves), who madb the purchase, and gave his own securities for the balance of the purchase money.

Assumpsit on a - special contract, tried before Willard, 0. Judge, at the Oneida circuit, in May, 1838. The plaintiffs gave in evidence a written agreement, dated December 19,1833, by which the defendant agreed' to furnish and deliver to the plaintiffs, on the bank of the Brie canal, 3000 sticks of cedar timber of a particular description—2000 sticks to be. delivered by the first of June then next, and the residue by the first of boating in the year 1835.

Ejectment for part of a lot of land in the town of Herkimer. The plaintiffs, R. Griswold and Mary, the wife of Small, are the children of Joab Griswold, who died 20th August, 1811, seized of the premises. He left six children at his decease, two of whom have since died intestate, and unmarried. R. Griswold, one of plaintiffs, was born 22d December, 1800 j Mary, the wife of Small, was born in February, 1809, and married in January, 1829. Defendant proved, -1.

Action on the case. ' The first count set out, that the plaintiff was lawfully possessed of a dwelling house, office, barn and carriage house, and out buildings, garden, &c., in the town and county of Herkimer, of great value, &c., and that being so possessed, the defendants did then and there carelessly, negligently and unskillfully cause to be constructed, and continued until the commencement of the writ, an embankment of the height of five feet, in front of and near to…

The action was assumpsit brought in justice’s court by Mead against Lawson, for -non-fulfillment of a contract for the purchase of land to his damage of $100. The defendant pleaded the general issue. The plaintiff recovered $100 damages before the justice, and the defendant appealed.

<p>Motion to set aside report of referee. On a settlement of accounts-2d May, 1842, between the parties, the plaintiff gave to defendant the following receipt:</p> <p>“ Received of F. Marquand his orders on Messrs. Tompkins & Black, for one hundred dollars in goods; and on Mr. Frask for one pair of boots, being in full of all demands for ■ drawing and services for himself and Southport Church.”</p> <p>The two orders as follows:</p> <p>To Messrs. Thompkins & Black;</p> <p>Pay to the order of Mr. French the value of $100 in watch jewelry or household furnishing articles (excepting silver ware.) F. Maequand.</p> <p>N. Y., 2d May, 1842.</p> <p>Let the bearer Mr. French have one pair of boots, and charge them to me. F. Maequand.</p> <p>To Mr. Feask. 2d May 1842.</p> <p>The first order was presented and accepted, but the parties differed about the price of the articles. It was proved, however, that the drawees offered to pay the order by the delivery of articles at the prices ordinarily charged to good customers. The holder insisted upon receiving a particular watch, at some $ 15 less than the customary price, because the drawees had offered to take $ 100 cash down for the same, after some hesitation, when they supposed the bearer was going to pay cash for it.</p> <p>The case as made in respect to the second order was still stronger for the defendant, and was given up by the counsel for plaintiff. The referee reported in favor of defendant.</p>

<p>The commissioners of highways have power to alter a public highway without the intervention of a jury.</p> <p>It is only in case of laying out a new road through improved lands, or of discontinuing an old one, that the intervention of the jury to examine and certify to the necessity and propriety of the 'measure is made a pre-requisite. Per Nelson, Ch. J.</p>

An error from the Recorder’s court of the city of Buffalo. The action was assumpsit brought in the court below by the defendants in error, who were warehousemen and forwarding merchants at Buffalo, doing business under the firm name of J. Salter & Co. It appeared on the trial that on the 10th of August, 1839, the plaintiffs below shipped on board the Osceola,. a vessel belonging to the defendants and of which one Billings was master, a quantity of goods consigned to a house…

This was an action of trover for a canal boat. The plaintiff claimed title through a mortgage dated 22d September, 1841, made by R S. Dickinson to James A. Baker, both, as described in the instrument, of the town of Mexico, Oswego county.

<p>In a suit on a bond given for the discharge of goods attached, pursuant to 2 R. S., 12, 5 55, et seq., the plea of nil debet is bad. The debt, as security for which the bond was given, is not the foundation of the action; it is brought on the specialty itself, and is like an action upon any other bond conditioned to pay the note or obligation of a third person, (a)</p>

Ejectment for lot of land, B., in lot No. 1 in great lot 5 in 5th allotment of Kayderson’s patent. The plaintiffs are the heirs of Peter R. Kissane, and claimed to recover through him. There was no question made as to his title; he died in June, 1799, leaving a widow and two daughters, Catherine, the mother of some of the plaintiffs, and Esther, the mother of the others. They are both dead.

Motion by defendant to set aside report of referees in favor of the plaintiff for $669,07. The defendant entered into a contract for the sale and delivery of lumber to the plaintiff in the year 1835, and again in 1836; large quantities of lumber were delivered by the defendant, and payments made by the plaintiff from time to time.

This was an action of assumpsit by endorsee against maker . of a note for $4,125, dated July 29, 1835, and negotiated after maturity. The defendant pleaded the general issue, and set up as a defence on the trial failure of consideration. The note was turned out by Eastman, the payee, to plaintiff as collateral security for some $1,200, and had been given by the defendant to Eastman on a purchase of lands in Maine.

<p>Prima facie, a building erected by one person on another’s land, is to be treated as a fixture, and a part of the realty.</p> <p>But, if it he so erected, under an understanding or agreement that it may be removed at any time, it is then no part of the realty, but personal property, for the conversion of which trover will lie; especially where it is only slightly fixed to the freehold. One deriving title from a person who had previously mortgaged a building, so erected, as personal property, is not in a situation to insist, as against the mortgagee, that it is a part of the freehold.</p> <p>Nor is he at liberty to dispute the title of the mortgagor.</p>

E. Cooper, for the people, moved to change the venue from Otsego county to some county adjoining, on the ground that, previous to and about the time of the session of the oyer and terminer at which the indictments in these causes were expected to be tried, various publications had been issued and distributed among the inhabitants of .the county of Otsego and the jurors summoned for the court, tending to prejudice their minds against the prosecutor in respect to the trials.

Ejectment for a lot in the village of Elmira. The plaintiff gave in evidence a judgment in favor of I. J. & C. V. S. Eosevelt against Vail, Knapp & Swan for $776.25, docketed 6th August, 1827. The judgment was on a note given 27th May, 1826. The premises in question were sold upon this judgment to Arnot, the plaintiff, on the 26th September, 1836, for $100; certificate given, and deed in pursuance thereof, 14th March, 1838.

<p>Action on the case, tried before Gridley, C. Judge, at the Oswego circuit, in June, 1839. The defendants were common carriers on lake Ontario, and were sued as such; the process, however, having been served upon Fitzhugh only. Before the suit was commenced, the defendant, Fitzhugh, had agreed in writing, without seal, with the plaintiffs, in consideration that the plaintiffs would release Throop from all liability in this matter, that any liability which he, Fitzhugh, might have incurred, or was subject to in the premises, should in no respect be impaired or affected by the release. The plaintiffs thereupon released Throop, who was a partner with Fitzhugh in the carrying business. Fitzhugh set up the release as a bar to the action. The judge decided in his favor, and the plaintiffs thereupon submitted to a nonsuit, which they now move to set aside.</p>

K Emmett, for the corporation, moved the confirmation of the report of the commissioners of éstimate aiid assessment, in the matter of opening Twenty-ninth street from the East to the North river. Mr. Delaplaine, on behalf pf John F. Delaplaine, opposed the motion. The facts, as they were admitted on the argument, were as follows: Mr. Delaplaine owned four adjoining lots on the southerly side of the street, and most of the land in the street in front of those lots.

Assumpsit. The first count sets forth that the plaintiffs were accommodation acceptors of a certain draft of 11,200, drawn by one Maynard; that said Maynard, the drawer and for whose accommodation they accepted, became insolvent and unable to pay the draft at maturity, on which account they stood liable to pay the same; that said Maynard was also indebted to them for moneys advanced to and for his use, <fec.; and for the purpose of securing them for the aforesaid liabilities…

<p>One who conveys lands in the city of New-York, bounding the purchaser by a street designated on the commissioners’ map, thereby dedicates his adjoining land, in the site of the street, to the public use; so that, on the opening of the street, he will be .entitled only to nominal damages therefor: and this, whether he bounds the purchaser by the centre of the street or the side of it, and though he sells in parcds less than the usual size of city lots.</p> <p>S., who owned a small strip of land in that city, north of an unopened street designated on said map, and also the adjoining lands in the street and on the south side of it, conveyed the strip to N., designating the north side of the street as his southern boundary; and subsequently conveyed the rest to A., designating the same side of the street as his northern boundary. Held that, by the deed of the strip to N., the adjoining land in the street was dedicated to the public; and though A. had purchased without notice of that deed, and procured his conveyance to be first recorded, he was only entitled, on the opening of the street, to nominal damages.</p> <p>Quere, whether the recording statute could, under any circumstances, affect a right of this nature which had previously accrued to the public.</p> <p>One who has been assessed for benefit by the commissioners of estimate, &c- has a right to oppose the confirmation of then report, where it contains an erroneous allowance to others by which his burthen has been enhanced.</p>

Trespass tried at the Washington circuit in June, 1839, before Willard, C. Judge. The plaintiff declares against the defendant for throwing a stone at his daughter and putting out her eye, per quad, &c. Plea, the general issue, with notice of special matter. The case was this: The plaintiff’s daughter (Clementine), who was about five, and the defendant, about six years of age, were associates and in the habit of playing together.

H. M. Western moved for a certiorari, prohibition, mandamus, “or some other writ, instrument, process, order or proceeding,” for the relief of the relator and other taxable inhabitants of the town of North Hempstead, Queens county, from the tax which the town collector was proceeding to collect by virtue of a warrant from the board of supervisors of the county.

Replevin for the taking of a quantity of rye in the sheaf. Lucinda Williams, being the owner of a farm in Rensselaer county, on the 18th January, 1838, mortgaged it to Y. R. Ray to secure the payment of $3,300, Avhich was subsequently assigned to E. Alvord.

Assumpsit to recover the amount of a draft drawn upon the defendant for $459.75 in pursuance of the following agreement: “ 1 do hereby agree to accept and pay any drafts that may be drawn upon me by Thomas Blanchard for any sums of money paid into my hands by his attorney, William Platt, from collections made by him on account of balance due on certain contract dated September 17, 1834, for building a steam boat, after reserving and deducting such sums and interest thereon…

Motion to set aside an order made by a commissioner, discharging the defendant from custody on filing common bail, and to amend the. ac etiam. The action was instituted for breach of marriage promise, and a commissioner’s order obtained, on affidavit, to hold the defendant to bail. But the ac etiam was in the ordinary form in assumpsit: “ and also, &c. upon promiseswithout adding, “ to marry.” The commissioner’s order to discharge was founded on this omission.

Motion to set aside a writ of replevin, the service thereof, and subsequent proceedings. The writ was made returnable before “ the justices,” &c. instead of “ our justices,” &c. and mentioned no place of return. It was in the detinet only; and the summons served by the coroner was in the cepit and detinet. The return itself was correct in form, but was filed in the Utica clerk’s office; whereas it should have been in the clerk’s office at Geneva.

Assumpsit on two notes against makers and indorsers, one for $ 1137.68, payable to the order of Manly & Clark in four months, dated November 26th, 1841, the other for $750.00, to the order of the same payees, in ninety days, dated January 21st, 1842. Both were made by J. & 0. Townsend, indorsed by the payees and discounted by the plaintiffs.

Debt upon bond, dated February 8th,1837; penalty, $2,000. The condition recited that the said Alfred F. Dunham had, without the consent of the plaintiff, received from the surrogate of the city and county of New York the sum of $380.50, being money of the estate of Mary Dunham deceased, and also, that the further sum of $776, other parcel of the estate, was then in the hands of the said surrogate, and that the said Alfred claimed that this sum ought to be paid to him under…

<p>Where jurors during the trial of a civil cause were allowed to separate, and one of them drank spirituous liquors: held, not a ground for setting aside the verdict, it not appearing that in so doing he violated any express direction of the court, and there being no reason to suppose that he drank to excess, or upon the invitation or at the expense of either of the parties.</p> <p>The case of Brant v. Fowler, (7 Cowen’s R. 562,) so far as it holds the mere fact of drinking spirituous liquors by a juror, during the progress of a trial, to be sufficient, per se, to warrant the setting aside of the verdict, cannot be supported. íSveiy irregularity of a juror which would subject him to censure, whether in drinking spirituous liquors, separating from his fellows, or the like, should not overturn the verdict, unless there be some reason to suspect that the irregularity may have had some influence on the final result of the cause.</p> <p>Cases relating to the misconduct of jurors in civil and criminal trials, cited and reviewed.</p>

The action was traver for a quantity of household furniture.

Verifying pleas. .The declaration stated a parol submission to arbitration, and a written award to pay a sum of money and the costs of a suit to be taxed. The plaintiff served a copy of the award, and taxed bill of-costs, with the declaration; with notice that these were the only demands to be given in evidence.

Replevin in the detinet. An agreement was entered into between the plaintiffs and the firm of Standart, Chamberlin & Co., on the 20th January, 1841, by which the former agreed to furnish the latter funds to purchase wheat in the-state of Ohio, to be manufactured into flour and forwarded to their house in the city of New York, to be sold on commission.

Amendments. The plaintiff served a declaration containing the money counts, with a notice that two promissory notes, of which copies were subjoined, would be given in evidence on the trial.

P. Cagger, for the defendant in error, moved to quash or supersede the writ of error, on the ground that the name of one of the parties was omitted in the body of the writ. He moved on an affidavit, and what purported to be a copy of the writ; but neither the affidavit nor notice of motion mentioned any defect or omission in the writ.

Service of papers by mail. The papers were deposited in the post office, and postage paid as for a double letter, which was all that the postmaster demanded; though treble postage should have been paid. The postmaster at the office to which the letter was directed marked it undercharged, and demanded the balance of postage from the attorney to whom it was directed; in consequence of which the attorney refused to ■ take it out of the office, and a default was entered.

Motion on the part of Mason, to set off judgments. The affidavits on the side of Mason, made out the following case. Mason, on the 15th June, 1838, purchased a promissory note against W. Knowlson, payable to A. Thomas or hearer, and commenced his suit upon it Nov. 1st, of the same year. The cause was tried in April, 1839, on a plea of the general issue, and notice of a set off against Thomas; and a verdict was rendered for Mason, the plaintiff, of $956,97.

<p>Action upon the following guaranty:</p> <p>“ Ithaca, Sept. 20, 1841.</p> <p>James McElroy.</p> <p>Dear Sir: Mr. John Tichenor is going to the city to purchase goods. He is desirous of purchasing on credit to the amount of from $1,000 to $1,500. I will guarantee the payment of such debts as he may contract for the purchase of goods on credit to that amount.” Signed by the defendant.</p> <p>McElroy, to whom the letter of credit is addressed, had been a merchant in Ithaca, and was an acquaintance of Tichenor and the defendant. He had removed to the city of New York, and was at the time a clerk in the store of Williams, White & Co. Tichenor carried the letter with him when he went to buy the goods, and made some four bills at different houses, amounting in the aggregate to a little short of the $1,500. The bill at plaintiff’s was $655.04 and the usual credit given at four months upon the strength of the guaranty. One of the bills was made at the house of Williams, White & Go. where McElroy was clerk. ■</p> <p>The four bills of goods were endorsed on the letter at the time of the purchase, and the following receipt given by Tichenor : “ Rec’d on the above guaranty goods from.the above houses as per amount stated. Sept. 29, 1841.”</p> <p>When the plaintiff rested the defendant moved for a non-suit on various grounds: 1. Variance between proof and declaration; in this, that the guaranty was set out as an absolute one for $1,500, whereas it was conditional or in the alternative, $1,000-or $1,500. 2. That no consideration is expressed in the guaranty. 3. That it is not a contract with the plaintiffs, and not assignable. 4. That it is addressed to one person, and does not authorize the credit of several houses, making several distinct contracts. Overruled, and verdict for plaintiff for $723.23. Defendant moves for new trial on a bill of exceptions.</p>

Notice to set aside referees’ report. This was an action of assumpsit on the common money counts, and was refered by stipulation to Benj. W. Bonney, H. B. Cowles and John I. Palmer as referees.

Lawrence' circuit. The cause was duly noticed for Tuesday, the first day of the circuit, and placed upon the calendar hy the plaintiff’s attorney, who omitted to file the circuit roll till Thursday, when the cause was called for trial. He was not aware that the practice required the circuit roll to be filed the first day.

Motion to discharge the defendant Treat, from arrest on a ca. sa., issued on a judgment obtained in this cause. The two first counts of the declaration were in assumpsit, and the third in case, for negligence of the defendahts as ware.house-men, in not safely keeping and delivering to the plaintiff certain goods and chattels. The fourth count was in trover, for the same goods. Plea, not guilty.

Motion to set aside the report of referees. The action was assumpsit on a note dated February 10th, 1837, made by the defendant James Miller and his sureties, whereby they jointly and severally promised to pay to the order of Hiram Pratt, Lewis F. Allen and Joseph Clary, assignees of B. Rathbun, the sum of §12,000, at the Bank of Buffalo, twelve months after date. The note was duly endorsed to the plaintiff. The defence interposed was that the note was usurious and void.

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

The plaintiffs below (the city) declared in debt for penalty of $50, for a violation of an ordinance of the common council, entitled “ a law to regulate public markets”—Sec. 4, tit. 4. Also for penalty of $50 for an other violation of the same ordinance. Also in debt for penalty of $25 for violation of section 5 of same ordinance. The words of these two sections are cited in the opinion of the court. The defendant pleaded the general issue.

Assumpsit for wheat sold and delivered. .After issue joined, the cause was referred to a single referee. The plaintiffs were Edward Putnam, Harrison L. Putnam, Elias Melendy, David Collins, David L. Farnam, and Selam S. Putnam; and the main question in the case was, whether they could maintain this action jointly. The wheat was raised on a farm called the Collins farm, in Yates county.

This was an action on the case for fraud in the sale of lands.

Summary proceedings to remove tenant, under 2 E. S. 512, § 28, subd. 1.

Action of covenant. The plaintiff entered into a contract with one Wiltsey, Dec. 24th, 1836, to sell a lot of land for the consideration of $700, payable, $65 at the execution of the agreement, and the residue in instalments at fixed periods of time; a deed to be given when $500 were paid, and bond and mortgage taken back.

Randall sued Hall before a justice of the peace and on the return day both parties appeared and issue was joined and the cause adjourned. At the day to which it was adjourned both parties again appeared, when the' plaintiff stated to the justice and the defendant that he understood that the defendant and the justice were related, the father of the justice and the mother of the defendant being first cousins.

<p>Plaintiff’s declaration recited that he had sold and conveyed to defendant certain premises by indenture subject to a bond and mortgage previously given by plaintiff to W. Then followed averments that defendant accepted said indenture; that the sum mentioned in the bond and mortgage was in arrear and unpaid to the mortgagee from the plaintiff who was “ liable to pg,y the same, and which said sum formed a part of the consideration for the said premises, and was deducted out of the same, and was to be paid and borne by the said defendantthat defendant went into possession under the deed; that the mortgagee foreclosed and sold “ for a sum which left $4522.38 still due to W. and which the plaintiff was liable to pay, and which, to-avert an execution against his property therefor, he did pay to the said W.” “ By means whereof the defendant became liable,” &c., “ and in consideration of the premises undertook and agreed to pay the plaintiff,” &c. Held, on general demurrer, that the declaration was good.</p> <p>The statements in declaration amount to an averment that it was agreed between plaintiff and defendant, at the time of the sale, that the latter would pay off the mortgage with so much of the purchase money, instead of paying the same directly to the plaintiff. And such a promise is unquestionably binding.</p> <p>It seems, that purchasing premises from a mortgagor, by a conveyance de. daring the premises subject to the mortgage, followed by actual possession under such conveyance, is a sufficient consideration to uphold such a promise as is alleged in the declaration in this case.</p>

<p>A new trial will be granted if the materiar'points of the cause have not been submitted to the jury, although it is not improbable that upon the testimony given the jury might have found a verdict such as has already been rendered.</p> <p>In a suit against two persons, one the payee and endorser, and the other an accomodation endorser of a promissory note, admissions by the former as to the object for which the note was made, that object being in dispute, are not evidence, as against the latter, and the judge should so charge the jury on the trial.</p>

Error from the common pleas of Franklin county. The action below, was by Eldridge & Ransom against Williams, to recover the balance of a merchant’s account, which was proved by the testimony of James Loney, the former clerk of the plaintiffs. This testimony was taken under a commission addressed to Solomon Y. Chesley and Guy 0. Wood, of Cornwall, Upper Canada, authorizing them, or either of' them, to act.

<p>A promise by defendant to pay for work done by plaintiff on the goods of a third party on which plaintiff has a lien for his Work, and which lien plaintiff thereupon relinquishes, is not within the statute of frauds.</p>

<p>Assumpsit to recover the amount of a promissory note, dated July 27, 1839, signed Evans and Carman, for one thousand dollars, payable to the order of James Dobbin, four months from date with interest, and indorsed by said Dobbin. The general issue was pleaded. The cause was tried in May, 1843, before Kent, Cir. J. The plaintiffs wore admitted to be a corporation duly created and organized by and under an act of the legislature of the state of Maryland. It was admitted that James Dobbin died shortly after the date of the note in suit and that the defendants were his executors. The indorsément of said note, demand of payment and notice were also admitted, and the note was read in evidence. It was admitted by the plaintiffs that previously to the 15th February, 1837, and until and after the 30th November, 1839, the plaintiffs kept an office in Wall street in the city of New York. A book was produced by the plaintiffs and given in evidence by the defendants, called “ Domestic Bills,” which was marked in columns, appropriately headed, so that the entries therein show the presentment of various notes and bills of exchange to said company, and the transfer thereof to the plaintiffs; which notes and bills were payable elsewhere than in the city of New York. The said, entries, in their appropriate columns, state the names off' the presenters of such bills and notes; the names of the indorsers, of the payers, the place of payment, time of payment, the period of time to the time of payment, rate of exchange allowed to the company, amount of discount and exchange, total amount of the obligation, amount paid to the presentor and date of the purchase as called in said entries by the plaintiffs. This book was admitted to have been kept at the said office by the plaintiffs, and contained a statement of a part of their proceedings in said office. These entries in said book were from August 1, 1836, to June 26, 1841, and cover twenty-seven pages of said book. Certain entries in said book of the date of 15th February, 1837, state that on that day Evans & Carman presented to said plaintiffs a note payable June 17, 1837, by Holmes & Carro way at Mobile, in Alabama, indorsed by James Dobbin; that the time the said note had to run was 122 days, rate of exchange five per cent; the amount of discount and exchange thereon, $148.55, the total amount of note being $2,015.18, and the net proceeds paid therefor by the plaintiffs to Evans & Car-, man amounted to $1,866.63. Said book indicated it as a purchase of said note. The defendants then proved that the note last mentioned was dated September 14, 1836, at nine months, payable at Mobile in Alabama; that it was indorsed by said Dobbin; that it had been given by the makers thereof, Holmes & Carroway, to Evans & Carman for goods sold by Evans & Carman. That Evans & Carman applied to the plaintiffs at their said office to obtain the money upon" said note, and the plaintiffs agreed With them to take said note, and let them have the money therefor, on the terms stated in said entries in the aforesaid book, the interest being computed at seven per cent, and exchange as stated at five per cent. And thereupon the plaintiffs, at said office, advanced to Evans & Carman $1,866.63, the amount of said note, less the said interest and exchange, and took said note. Evidence was given to show that the rate of exchange at that time was about one and a half per cent on bills payable at sight, but no question as to usury was decided by the judge. Said note of Holmes & Carroway was not paid, but was returned protested in July, 1837, at which time Evans & Carman paid a part of the amount of it to the plaintiffs and gave to. the plaintiffs a new note for the balance, at four months, • indorsed by said James Dobbin as accommodation indorser, and thereupon the said note of Holmes & Carroway was given up to said Evans & Carman by the plaintiffs. The. aforesaid note so given by Evans & Carman was reduced and renewed from time to time, until the note in suit was given in renewal thereof.</p> <p>The judge charged, as matter of law, that the plaintiffs in taking the note of Holmes and Carroway, under the circumstances in proof, violated the laws of this state against unauthorized banking, and that therefore they could not recover. To this the counsel for the plaintiffs excepted. There was a verdict for the defendants, and plaintiffs move for a new trial on a bill of exceptions.</p>

Assumpsit tried before Moseley, C. Judge, at the Yates county circuit, on the 8th of June, 1840. The action was by the plaintiffs, as bearers of a joint and several promissory note, made by Edson and Arnold, two of. the defendants, payable to one Parsons or bearer. The note bore date April 10th, 1839. On the back thereof, Prosser, the other defendant, had signed the following—“ For value received I guaranty the payment of the within note, and waive notice of non-payment.

<p>Action of covenant for breach of covenant of seizin, upon which defendant took issue.</p> <p>The deed containing the covenant in question was dated June 28th, 1837, purporting to convey a lot of land in the town of Hempstead, Queens county, executed by the defendant, and Mercy Ann, his' wife, for the consideration of #1,100. ' ,</p> <p>The plaintiff, also, gave in evidence a deed from Phebe Horton, and Mercy Ann Amerman, but then Mercy Ann Wright, as administrators of D. Horton deceased, to Isaac Wright of the same premises in fee.</p> <p>This was a deed which purported to have been given in pursuance of an order of sale by surrogate of the county. Mercy Ann Wright, one of the grantors, was, at the time of the sale and conveyance, the wife of the purchaser and grantee. The acknowledgment of the deed is taken the same as if she had been discovert at the time.</p> <p>A petition, in the usual form, to the surrogate, applying for a sale of the real estate on account of deficiency of personal assets, was given in evidence. The only account accompanying it is as follows:</p> <p>The amount of inventory is...................... $360</p> <p>The amount of debt............................ 1,850</p> <p>Balance of debts against estate...................$1,490</p> <p>An order to show cause for a sale, and appointment of guardian for infant heirs, report and confirmation of sale were, also, given in evidence.</p> <p>It was then proved, on the part of the plaintiff, that David Horton died in 1822 seized in fee of the premises in question, leaving three children, Smith W. Horton, Mercy Ann Amerman and Adeline Horton, and two grand-children, David Horton and Eliza Ann Horton, children of a deceased son, who were his heirs at law. Mercy Ann was a widow at the time, and afterwards married the defendant in the spring of 1824. The plaintiff then rested.</p> <p>The counsel for defendant then read in evidence proceedings in chancery reforming the deed of the sale by the administrators, as respected the form of the conveyance; the orders of the surrogate not having been set out at large, in pursuance of the statute.. It was also proved that the plaintiff had conveyed the premises to one George Leavens in May, 1838, and that they were re-purchased in August, 1839, at master’s sale on foreclosure of the mortgage given for the purchase money. It was then admitted by the plaintiff, that Isaac Wright and Mercy Ann, his wife, Adeline Horton, William B&sh and Ann Eliza, his wife (formerly Ann Eliza Horton, one of the grandchildren), and David Horton, the other grandchild, all executed releases of their several interests and estates in the premises in question to Leavens, while he was owner and in possession of the same before the foreclosure and sale under the mortgage; and before the commencement of this suit—that but a nominal consideration was expressed in the releases, and none, in fact, paid by said Leavens.</p> <p>Said release or quitclaim was not acknowledged by either of the parties thereto, so as to entitle it to be put on record, and at the time of the execution and delivery Adeline was under age—Ann Eliza was the wife of said Bush.</p> <p>When the testimony closed, the judge intimated that he should instruct the jury to find a verdict for the plaintiff for five-eighths of the purchase money paid by him with interest from the date of the defendant’s deed—the amount agreed upon, $928.12|; and charged accordingly, and verdict found for that amount. Defendant moves for a new trial on exceptions.</p>

Error from the Schenectady general sessions. Stevens was indicted for petit larceny. The first count was for petit larceny simply. The second was for petit larceny, as a second of-fence : alleging, by way of showing the first offence, that at a former general sessions in the same county, Stevens was convicted of the crime of petit larceny, but giving no particulars.

Demurreb. This was an action of slander, and the words set forth in the declaration were—“He swore false, and I can prove it; but I am not liable because I have not said in what suit he testified ”—“ He swore to a damned lie, and I can prove it, but I am not liable because I have not said in what suit he testified ”—“ Morgan swore false, and I can prove it, but I will not tell before what justice he testified”— “Morgan swore false, and I can prove it, but I will not tell…

<p>Assumpsit, tried at the Saratoga circuit, in May, 1840, before Willard, C. Judge. The action sought to charge the defendant as endorser to the plaintiff of a bill of exchange, drawn on and accepted by one Webster, of the city of New-York. The plain-. tiff had endorsed it to the Union Bank of that city, for collection; and the latter gave it to their notary, who presented and protested it for non-payment, on Saturday, August 31st, 1839, between the hours of three and five P. M. On Monday following, the notary mailed notice of protest to the plaintiff, enclosing another for the defendant, in season for the New-York five o’clock mail to Troy; at which latter place the plaintiff resided. The plaintiff received these on Tuesday following, at eight o’clock, A. M. ;' and the same day, after nine o’clock, A. M., the notice of protest intended for the defendant, was mailed at Troy, directed to him at Lansingburgh, his place of residence*; but the mail for the day had closed before this was done. It appeared in evidence that the course of mails from. New-York to Troy, was as follows : One mail was closed on Saturday at three o’clock P. M., and started at five P. M.—two left on Sunday—and, on Monday, one closed at half past five A. M., leaving at seven A. M., but there was no other on that day except the one by which the notice in question was sent.</p> <p>The defendant objected to the plaintiff’s right of recovering, on the following grounds: 1. That notice of protest should have been mailed at New-York in time for one of the mails which left on Sunday; or, at all events, in time for the Monday morning’s mail; 2. That the notice mailed at Troy, by the plaintiff to the defendant, should have been deposited in the post office before the mail for Lansingburgh had closed; 3. That notice should have been mailed at New-York directed to the defendant at Lansing-burgh.</p> <p>The circuit judge overruled the objections; whereupon exceptions were taken, and the defendant now moved for a new trial ón a bill of exceptions. ■</p>

<p>Jakes Curran and Daniel Leonard were the owners as tenants in common in equal shares of a mill and ten acres of land in the county of Montgomery. There were several judgments which were liens upon the land, as follows: (1.) Henry Sponable v. Leonard & Oaks, $97.20. (2.) Jesse Klock v. Leonard & Curran, $602.35. (3.) Mills and others v. Leonard, $10.48. (4.) Eosdick v. Leonard, $125.68. (5.) James Curran v. Daniel Leonard, docketed December 1, 1842, for $9,000, on bond and warrant of attorney conditioned to pay $4,500. (6.) Saddler v. Leonard & Curran, $696.60, docketed January 10,1843. On the 14th June, 1843, the sheriff of Montgomery sold the land by virtue of executions upon the four first 'mentioned judgments, and Jesse Klock became the purchaser for the sum of $835.80, being the amount due on the four judgments.</p> <p>James Curran, the plaintiff in the fifth judgment, made a written statement by which it appeared that he was indebted to several persons, as follows : to George Lake $740.41 j to Sarah Carter $420; to John Nellis $146.41; and to Jesse Curran $200; making in all $1,506.82. On this paper, after mentioning his judgment, he made an assignment as follows: “ For the purpose of securing the payment of the within mentioned $1,506.82 due this day to the persons within mentioned respectively, as within mentioned, to them, I hereby sell, assign and transfer to the said George Lake, Sarah Carter, John Nellis and Jesse Curran the above mentioned judgment and all moneys owing thereon, and authorize them to use all lawful means to collect the same to satisfy their claims and demands or liabilities, with interest, out of and from all moneys that may in any way be realized thereon, and respectively in the order within mentioned,” &c. George Lake afterwards assigned all his interest in the judgment to the relator Beekman.</p> <p>James Curran made a second assignment, by which, after reciting the assignment to Lake and others, he transfered the balance of the judgment to H. B. & N. Kennedy to secure several sums of money therein mentioned; and the Kennedys afterwards assigned their interest to the relator Beekman. By a third assignment, reciting -the two first, Curran transfered his remaining interest in the judgment to the Herkimer County Bank to secure the payment of $1280. The bank transfered its interest in the judgment to Alfred G. Story. The judgment of Sadler v. Leonard & Curran (6.) had also been assigned to said Story.</p> <p>On the 14th September, 1844, Beekman, Carter and Jesse Curran went to the sheriff and claimed to redeem under the judgment No. 5, Curran v. Leonard, and paid the sheriff $582.06, that being the amount bid on the sale, less one half of the judgment No. 2, which was against both Leonard and Curran—the assignees claiming to redeem Leonard’s interest in the property only. At the same time Story appeared, also claiming an interest in the -judgment No. 5, and offered to unite with Beekman and others in redeeming, and to contribute his proportion of the money. But Beekman and others would not consent to this proposition. Immediately after Beekman an<| others had paid their- money, Story as assignee of the judgment No. 6, Sadler v. Leonard & Curran, claimed to redeem the interest of both Leonard and Curran in the premises. He paid to the sheriff $910, being the whole amount bid at the sale with interest. He insisted that the redemption first made by Beekman and others was void, for the reason that they owned only a part of the judgment.</p> <p>Story also claimed to redeem the interest of Curran only in the property, and in addition to what had already been done, he produced a judgment (No. 8) of the Herkimer County Bank against Curran, docketed January 20,1843, for $2,331 62, whichad been assigned to said Story. Afterwards, on the same day Solomon Devendorf, Jr. claimed to redeem, so far as related to the interest of Curran, under a judgment in favor of said Devendorf against both Leonard and Curran (No. 7), docketed January 14, 1843, for $284.74; and he paid to the sheriff $690, being one half of the judgments Nos. 2 and 6, which were against both Curran and Leonard, with interest.</p> <p>All the papers were in due form; and it was agreed that the court should order peremptory writs of mandamus, according as the rights of the parties should be adjudged.</p> <p>The several parties made cross motions for writs of mandamus requiring the sheriff to convey according to their respective claims.</p>

Demurrer to pleas. The declaration was for trespass de bonis, &c. and contained two counts, both of which alleged the taking by the defendants of certain goods, &c. the property of the said plaintiffs. The defendants pleaded separately: 1. The general-issue; 2.

Ejectment, tried at the Albany circuit, October 15th, 1840, before Cushman, C. Judge. The land in question was formerly owned by Samuel Starr, deceased. The plaintiffs claimed as the children and heirs at law of Chauncey Starr, deceased, a son of said Samuel. They and the defendant were the only persons entitled to the land. It was admitted by the defendant, that the plaintiffs were entitled to one half.

Comstock, president of the Mechanics’ Banking Association, an association formed under the general banking law of 1838, as is alleged, brought an action of debt in the superior court of the city of New York against Willoughby.

Case against the defendant, sheriff of Oneida, for neglecting to collect and réturn a fi. fa.; tried at the Oneida circuit, in October, 1840, before Gridley, C. Judge.

• On error from the New-York common pleas. Rudd and Rudd sued Davis, under the New-York city mechanics’ act. (Sess. Laws of 1830, p. 412, .and Sess. Laws of 1832, p. 181.) Their attested account, which was for labor done, and materials furnished, amounted to $968, and was served a few days after the substantial completion of the building contract. Harold Geer was the contractor.

Case for raising the defendants’ dam, so as to flow the plaintiff’s lands lying along the margin and inlet of Crooked Lake. The cause was tried before Moneel, C. Judge, at the Steuben circuit, 1839. Ill 1830, the plaintiff purchased and took possession of two parcels of land, one containing 30 acres, bounded on the inlet of the lake; and the other containing 36 acres, bounded tin the lake and inlet. Of these he had remained in possession ever since.

Assumpsit, to recover money paid on a draft, tried at the Albany circuit, in 1840, before Cushman, C. Judge. The draft was drawn on the plaintiffs by the Montgomery County Bank, payable to the order of E. Bentley, jun. It purported to have been endorsed successively by Bentley, then by one Budd, afterward by the Bank of New-York, and lastly by the defendants, to whom the plaintiffs paid it. The payment of it was made on the 28th of March, 1839.

<p>T., the owner of a certificate of deposit m the bank of L., payable to order, caused it to be endorsed with directions that it should be paid to W. & Co., and then transmitted it to them by mail, though without their knowledge or request. It never reached W. & Co., but was stolen on its way, and their names forged upon it; after which, it came to the defendants’ hands in the ordinary course of business, who collected the money on it, supposing themselves to be the owners; Held, that T. had an election, either to sue the defendants in trover as for a conversion of the certificate, or to recover the amount in an action for money had and received.</p> <p>And though the bank of L. had been guilty of laches in apprising the defendants of the forgery after the payment of the certificate; held, that this constituted no defence against T.’s claim, however the matter might stand as between the defendants and the bank.</p> <p>Under such circumstances, a recovery and satisfaction in favor of T. against the defendants, would transfer the property in the certificate to the latter.</p> <p>The owner of a certificate of deposit who’endorses it payable to another, and sends it to him by mail, but without his knowledge, retains the property in it until the endorsee receives it.</p>

<p>A bond taken by a justice of the peace, in a prosecution for bastardy, containing, iq, addition to the provisions required by law, others, imposing further obligations on the obligor, is void.</p> <p>Accordingly, where M., being arrested on a charge of bastardy in a county other than the one where the warrant issued, entered into bond, conditioned to “ in. ' demnify any town,” &c. (as provided by 1 It. S. 650, § 8, 2d ed.,j and also, to “pay the sums for the support of the bastard and the sustenance of its mother, as the same is ordered by J. I. B. (the justice who issued the warrant,j and such other justice as shall associate with him, or as shall be ordered by the court of general sessions,” &c.: Held, an unauthorized bond, taken colóre officii, and therefore void in toto.</p> <p>Quere, whether, independent of the statute against unauthorized bonds, &c. taken colote officii, the bond in this case might not have been upheld.</p>

Slander, tried at the Delaware circuit, in June, 1840, before Cushman, C. Judge. A verdict was rendered for the defendant ; and the plaintiff now moves for a new trial, on a case. The facts are sufficiently stated in the opinion of the court

<p>A member of ah insolvent partnership at Syracuse, consisting of two persons, purchased goods in Philadelphia on the credit of the firm, under a misrepresentation of its circumstances. The goods were forwarded to Syracuse, but before they arrived, the partner not privy to the purchase, apprised the vendors by letter, of tíie insolvency of the firm, and, among other things, declared the goods subject to their order. The vendors, thereupon, took immediate steps to reclaim the goods, and actually succeeded as to a part: The residue, however, before the vendors found them, were seized and sold by the sheriff of Schenectada, while lying in a ware house at that place. In an action by the vendors against the sheriff, held, that the case should have been submitted to the jury on the question, whether there was such fraud in the purchase as avoided the sale; and a new trial was granted, because the circuit judge nonsuited the plaintiffs.</p> <p>A purchase of goods with a preconceived design not to pay for them, is such a fraud as will avoid the sale.</p> <p>Where a sale of "goods is procured by fraud, the vendor still retains his legal right in them, unless, after discovering the fraud, he assent to the act of sale, either positively, or by such delay in reclaiming the goods as authorizes the inference of an assent. '</p> <p>As a general rule, a vendee of goods who, by reason of fraud in the purchase, has acquired no title as against the vendor, can convey none. An exception, however, is recognized by Mowrey v. Walsh, (8 Cowen’s Rep. 238,) in favor of the title of subsequent lona fide purchasers.</p> <p>Whether this exception would be sustained, were the question now res nova, is doubtful.</p> <p>The doctrine of Mowrey v. Walsh examined, and various cases in relation to it cited and reviewed.</p> <p>Semble, a sale procured by fraud does not divest the possession as between vendor and vendee, so as to deprive the former of his right to bring trespass, &c.</p> <p>A sheriff, who, in virtue of an execution against a fraudulent vendee of goods, and without notice of the fraud, seizes and sells them to bom fide purchasers, is not within the exception established by Mowréy v. Walsh, but is liable in trespass at the suit of the vendor.</p> <p>Quere, whether purchasers under the sheriff would be protected, were the vendor to sue them.</p> <p>The act of stoppage in transitu, is, in its nature, adverse to the vendee; and the doctrine on that subject does not apply, where the vendor and vendee are agreed that the property shall be reclaimed; for it is then a question of re-conveyance or rescission.</p> <p>Where one of two partners purchased goods without the privity of his copartner, and the latter, on learning the fact, proposed by letter that the vendors should have the goods again, which proposal was accepted before the goods had reached the vendees; held, that the sale was. thereby rescinded, and the goods could not be subsequently^seized in virtue of an execution against the vendees. ,</p>

The articles recited, that, whereas divers unhappy differences and disputes have lately arisen between the said John Wilson and Ellenor, his wife, and they have mutually agreed to live separate, and apart from each other, during their natural lives; and that previous to Such separation he, the said John having consented thereto both proposed and agreed that he, the said John, would allow and pay the said Ellenor for her support and maintenance, and also during a certain…

Assumpsit upon the common counts. Williams & Hitchcock Avere millers in the city of Rochster, and the defendants commission merchants in the city of New York, and in the spring of 1841, the latter agreed with the former to accept drafts to the amount of some $4000, Avithout being covered with bills of .lading, for the purpose of putting them in funds to make purchases of wheat to supply their mill, and these to be refunded by sending flour in the course of the season,…

<p>Ejectment for part of a street in the city of Rochester. It was admitted that the «premises were • originally part of town lot, No. 48, in township No. 1, in what was called the “twenty thousand acre tract,” and that in 1813 Thomas Mumford was owner of one undivided half of said lot, and that Mathew Brown, Jr., and David Brown, two of the plaintiffs in this suit, and one Francis Brown, now deceased, were owners in common of the other. That partition was made in that year between the said Mumford and the said Browns, and mutual deeds exchanged; that the lot was subdivided, allotted and numbered on a map of the same, to which reference was had in said partition deeds for the number and description of the several lots as conveyed. That partition was not made of the premises in question, but the same was dedicated by said map as a public street marked thereon as “ Court street,” now called “ Brown street.”</p> <p>That in the year 1821, Thomas Mumford coveyed by deed all his interest in the premises claimed to William W. Mumford, another of the plaintiffs. That in the year 1824, Francis Brown died,, having devised all his interest to his sons Francis and Daniel, plaintiffs in the suit, and to his wife Jane, who shortly after conveyed her interest to H. F. Pen-field, another plaintiff in the suit.</p> <p>That the premises were used as such street or highway, from the time of said partition until the year 1828, when a building was erected thereon by the trustees of the village of Rochester for a public market.</p> <p>The defendants were in occupation of part of said building at the commencement of this suit, under a lease from the Mayor of the city of Rochester.</p> <p>The plaintiffs rested, and defendants moved for a nonsuit on the ground that the action would not lie to recover possession of premises dedicated as a public street or highway, and occupied as such. The motion was overruled.</p> <p>The counsel for defendants then proposed to prove a paroi license from the plaintiffs, previous to the erection of said building, to erect the same upon said street instead of upon the adjoining lots, which had been dedicated by said partition map to the public for markets, and to use said market lots, or part of same, for highways or streets, which was overruled on the ground that paroi evidence was inadmissible to defeat the plaintiffs’ title.</p> <p>It was then proved that in the year 1828, Mathew and David Brown (plaintiffs) gave a written consent to the trustees to erect the market building on its present site, and that William W. Mumford refused to execute the same.</p> <p>The defendants further gave in evidence a quit claim deed from William W. Mumford to Mathew Brown, dated May 6th, 1840, conveying with other lands the premises in question, subject to all the legal rights of the public in, to and over the same.</p> <p>The counsel for the defendants insisted that this deed would enure to the benefit of the trustees, and prevent Mathew Brown from recovering a moiety of the premises under the circumstances of his previous assent to the erection of the market. Which view was denied by the judge.</p> <p>The judge charged that Mathew Brown was entitled to recover, under the deed from Mumford to him, one moiety of the premises, and the plaintiffs Penfield, Francis and Daniel, three-eighteenths of the same; that as to the residue, the jury should find for the defendants. Defendants move for a new trial on a bill of exceptions.</p>

<p>A sale and delivery of goods, procured through a false representation of the vendee ■ in regard to his solvency and credit, passes no title as between the parties ; and the vendor may maintain either trover or replevin in the detinet, or trespass or replevin in the cepit, to recover their value.</p> <p>So, it seems, of a sale to a vendee, purchasing with a preconceived design not to pay.</p> <p>Under such circumstances, the general and absolute ownership remaining in the vendor, not only the original interference with the property on the part of the vendee, hut any subsequent ¡tots of -ownership by Mm, may be treated as an unlawful or tortious taking.</p> <p>The general owner of personal properly holds the constructive possession, and may maintain trespass, though the actual possession be in another.</p> <p>A fraudulent vendee of goods may be charged in assumpsit for the price, or as a trespasser, at the election of the injured party.</p> <p>Contracts of sale, procured through fraud, are no,t always valid, it seems, even as in favor of bona fide purchasers.</p> <p>One who obtains .the bailment of goods, fraudulently intending to deprive the owner of Ms property, may be convicted of larceny, under an indictment alleging that he felomously stole, took and carried away the property, &c..</p> <p>But if the transaction is made to assume the form of a sale, unless it comes within the statute as to false pretences, the fraudulent vendee is sMelded from the charge of taking, in a criminal sense, though it is otherwise in respect to the civil remedy.</p> <p>A sale of goods, procured through the fraud of the vendee, is equally void as between the parties, whether the fraud he in its nature indictable or not</p> <p>Where the question is, whether a vendee of goods procured the sale of them through fraud, distinct purchases made by him of others, under similar circumstances, at or about the same time, and when the like motive as the one imputed may reasonably be supposed to have operated, are admissible in evidence against him, with a view to the quo animo.</p>

Action op debt on a decree of the surrogate’s court for Albany county, tried in April, 1842, at the Albany circuit before Cushman, C. Judge. On trial the decree was given in evidence, by which it appeared that Daniel Coonley (the defendant) and Ambrose Wiltsie were the administrators of the estate of George Coonley, deceased, who was husband of the plaintiff, and that the sum of $2,942.97, was decreed to her.

Replevin, for taking and retaining forty-five barrels of flour,, tried at the Albany circuit, in June, 1839, before Cushman, C. Judge. Plea non cepit. The plaintiffs’ proof tended to make out a case- similar to that of Cary and Cary, against these same defendants; (see ante, p. 311;) and most of the questions raised and decided in that case, were also made in this. The only additional point here raised, was upon the liability of Samuel Hotailing.

<p>A submission by D. and M. on one side, and W. and his partner on the other, will authorize an award in favor of the former, against W. alone.</p> <p>In an action on an award, a court of law cannot inquire whether the arbitrators erred on the merits, or acted corruptly—but only, whether the award is within the jurisdiction or power conferred by the submission.</p> <p>That the arbitrators refused to swear the witnesses, but allowed them to be heard without oath, is at most mere error, and no defence to an action on the award.</p> <p>On a motion to set aside an award, where provision is made for enforcing it by rule of court, other matters than those which are admissible as a defence to an action upon it, may be inquired into.</p>

<p>Error to the court of common pleas of the county of Rensselaer. The facts of the case sufficiently appear in the. judgment.</p>

Motion to set aside the report of a referee. The action was debt, on an award made under mutual bonds, dated 6th March, 1839. The condition of the bonds was in the usual form, and concluded thus-*-1' So as the said award, This suit-was commenced in May, 1839; no award or counterpart having, as yet, been delivered to, or prepared for, the defendant Wadsworth. The referee having reported in favor of the plaintiff,' Foster, for the defendant, now moved to set .aside the report.

Demurrer to replication. The action was in debt by Foster, as assignee of the sheriff, on a bond executed to the sheriff by Slingerland principal, and Rainsford his surety, on the arrest of the former in virtue of capias ad respondendum, conditioned that Slingerland should appear by putting in special bail. The declaration was in the usual form. Plea, by Rainsford, that Slingerland did so appear. Replication, that Slingerland was an infant, and did not appear by guardian.

<p>The master of a vessel has a general authority to bind the owners for needful repairs and supplies for the vessel, (a)</p> <p>By agreement one Jackson was to go in a schooner as captain, and devote all his time for the benefit of the owners. He was to hire and pay the crew, except the wages of the cook which were to be divided, as also were the port charges, and he was to furnish provisions, &c.; for all which he was to be “ entitled to one half of the net profits of sailing said schooner, the other half to go to the owners the agreement to continue as long as both parties might agree. It did not appear that plaintiff was aware of this agreement, and the schooner was enrolled at the custom-house with defendant’s name as owner, and that of Jackson as captain. Held, that the agreement did not make Jackson owner pro hac vice of the schooner, and that the general owners were liable to plaintiff for stores supplied the schooner on Jackson’s order. (b)</p> <p>Semble. The general authority of the master to procure, on the credit of the owners, all needful supplies for Ms ship does not, under ordinary circumstances, cease when the ship is in the port where the owners reside, (c)</p>

Ejectment, tried at the Otsego circuit, on the 10th of September, 1839, before Gridley, C. Judge: The premises in dispute formerly belonged to one Delong. The plaintiff made title under proceedings in chancery in his favor, against Delong, to foreclose a mortgage on the premises, which Delong had executed January 1st, 1830, and which had .been assigned to the plaintiff.

Demubeeb. The declaration contained two counts, the first of which avers that Simons and Taft on January 31st, 1843, drew a certain bill of exchange of that date on the defendant, and payable to the order of the plaintiffs by the description of S. Kellogg & Son, for $1,455.57 on the first of July then next at the Oneida Bank, and delivered the same to plaintiffs, which said bill of exchange was accepted by said defendant on March 21st, 1843, in the following words and…

<p>Trespass, assault and battery, tried at the- Oneida circuit April 23d, 1840, before Gridley, C. Judge. The plaintiff was sheriff of Oneida, and having a Ji. fa. against Schuyler Hubbard, the defendant’s brother, went to Schuyler Hubbard’s house for the purpose of levying. Schuyler Hubbard was in the door-yard, and forbade the sheriff’s coining on the premises. The outer door of the house was closed and latched. The sheriff entered the yard, proceeded to the house, opened it, (Schuyler Hubbard not being in the house,) and went in; and being about to fetch away a clock he had seized on the fi. fa., the defendant, who was there on a visit, and in the house, seized the sheriff as he was going out of it with the clock, and in the struggle that ensued, the sheriff was thrown down, but no more force was used than was necessary to prevent the sheriff from taking away the clock.</p> <p>The judge nonsuited the plaintiff, saying that the sheriff having entered the house illegally, had no right to levy; and even if Jhe had levied before, he had no right to enter; that forbidding the sheriff to enter the premises, was equivalent to forbidding his entry into the house; that there was no proof of excessive force, «fee. The plaintiff excepted, and now moves for a new trial on a bill of exceptions.</p>

<p>A judgment is a chose in action, within the statute, (2 R. S. 274, § 5, 2d cd.) authorizing assignees, in certain cases, to sue in their own names: and a scire facias quare executionem non, is a suit, within the same statute.</p> <p>Where the assignee of a covenant sued, and recovered judgment thereon in the name of the assignor, after which the latter died, and no executors or administrators were appointed upon his estate; held, that the assignee might sue out a scin facias, &c. in his own name.</p> <p>Semble, that the scire facias, in such case, should show the residence of the assignor at the time of his death.</p> <p>The scire facias reciting the assignment as under the assignor’s hand and seal, sufficiently showed that it was made upon a valuable consideration, without the fact being otherwise alleged.</p> <p>Though the covenant was to the assignor and another jointly, yet, as judgment upon it had been recovered in the assignor’s name alone, the defendant was held estopped from denying the assignor’s right to assign.</p> <p>In scire facias by an assignee, it need not appear that the defendant had notice of the assignment.</p> <p>A scire facias in the usual form, setting out that execution yet remains to be made, is sufficient, without showing in terms that the judgment is unsatisfied. If such be the fact, the defendant may plead it, and that will bar the suit.</p> <p>Where an assignee sues out a scire facias in his own name, the assignment being a material and traversable fact, must be set forth with circumstances of time and place, or the defendant may demur.</p>

Demurrers. Plaintiffs sued defendant in debt. Declaration ; for price and value of certain goods, &c., sold and delivered ; for the price and value of certain work done, &c. ; for money lent, paid, had and received, &c.; for interest due from defendant to plaintiffs for a forbearance of money, and for money found to be due on a settlement of accounts.

On error from.the Dutchess common pleas. The action below was debt, by the people against Germond and Bowman, for $23, the penalty of a bond executed by them.

Replevin, tried at the Albany circuit, October 9th, 1839, before Cushman, C. Judge. The plaintiff’s title to the goods in question was by a sale to him, from the assignees of one Norton. The latter kept a boot and shoe store, and, before the assignment, these goods constituted a part of his stock in trade. He made an assignment of them, in trust for creditors, and soon after, the assignees sold them to the plaintiff.

Error from the Schenectady general sessions, where Hays was convicted of an assault with intent to commit a rape on Maria Webb, a female under ten years of age. He enticed her into the loft of a building, for the purpose of ravishing her; and was detected, while standing within five feet of her in a state of indecent exposure. There was no evidence that he touched her at any time.

Action op Assumpsit tried at the Otsego Circuit, April, 1843, before Gridley, 0. judge. The declaration contains themoney counts, and one for goods, wares and merchandise, &c., and one on a special agreement as follows to wit, “ Worcester, April 28th, 1842. “ Two months after date I promise to deliver to Adoniram Stever, a good new lumber waggon with box and finished in a workmanlike manner for sixty dollars payable at D. D. Sheldon’s store for value received.

<p>Demurrer to pleas. The declaration was in replevin, for taking a yoke of oxen. Hammond pleaded property in Mead, his co-defendant; and Mead the like plea, of property in Hammond. Each then pleaded various pleas of property in other persons, strangers to the suit. The pleas did not connect the defendants, or either of them, with the title set out, and each plea prayed a return of the property. The plaintiff demurred to all the pleas; and the defendants respectively joined in demurrer.</p>

Error from the New-York common pleas. The suit in the court below was against. Duffy, on a recognizance taken before a justice of the peace, conditioned for the good behaviour of one Dayly, towards the people, &c. for one year, The recognizance recited, that Dayly had been convicted of being a disorderly person, viz. one who had neglected to provide for his wife, &c. It was taken May 18th, 1838.

<p>Trespass on the case, against the defendants, Monteith, Joy, and two others, as common carriers, tried at the Oneida circuit, October 9th, 1840, before Gridley, C. Judge. The defendants were members of a transportation company consisting of more than twelve persons, and including B. C. Brainard, .whom two ■ of them, viz. Monteith and Joy, (who defended separately,) offered as a witness on the trial. He was objected to by the plaintiffs, as interested; and the judge decided he was incompetent. Monteith and Joy then executed a release to him, “ of all liability or responsibility on his (Brainard’s) part, to them or either of them, by. reason of any damages or costs to be recovered against them or either of them, in this suit, or by reason of any costs or expenses incurred by them in prosecuting, &c., or of any claim which they, or either, &c. had, or might hereafter have against said Brainard by reason of the commencement, &c. of this suit.” Brainard was again offered by them, and objected to as interested. The judge decided that he was still incompetent, and he was excluded ; whereupon a verdict was rendered against all the defendants. The defendants, Monteith and Joy, now move for a new trial on a case.</p>

<p>A conveyance of personal property by a man to his wife and another person, as trustees for the son or the grantor, passes no title to the wife.</p> <p>Thus, Benliam conveyed certain goods to his then wife, now one of the plaintiffs (Mrs. Ely), and Van Arsdale, another of the plaintiffs, in trust for the infant son of Benliam. After Benham’s death, his widow married Ely, the third plaintiff in this suit. In replevin to recover the goods, which were taken subsequently to Mrs. Ely’s marriage, the declaration contained a statement that Ely “ has never considered himself entitled to any property in the said goods other than hy virtue of the said conveyance in right of his wife as trustee,” and that Van Arsdale and Mrs. Ely “ have continued to hold and did hold and were in possession of the said property, as trustees, in pursuance and under the provisions of the said conveyance.” Held, that Mrs. Ely was improperly joined as a party plaintiff, the conveyance from her former husband Benham being, as to her, a nullity.</p> <p>An allegation of a mere possessory title would have been unavailing. Possession by Van A. and Mrs. E., as trustees, is unavailing in favor of her husband without showing her right as such trustee, which in this case is not done. Possession by them in their own right would not avail, as on marriage the possession of the husband supersedes that of the wife, and therefore, for a taking during coverture, the wife should not be made a party plaintiff. Per Beardsley, J.</p>

Ejectment. The declaration contained three counts for the same- premises. By the first count the plaintiff claimed an estate in dower in the land, as the widow of her deceased husband; and in the two other counts she claimed an estate in fee, as heir,at law. The defendant pleaded one plea of not guilty to the whole declaration; and on the trial the jury found a verdict for the plaintiff on the first count, (for dower;) and for the defendant on the other counts.

Action on judgment rendered by a justice of the county of Erie, Pennsylvania.

<p>On a writ of error to this court from the court for the correction of errors, the prevailing party is not entitled to charge by the folio, for copies of the points furnished on the argument in the latter court, but only the expense of printing them.</p>

<p>The revised statutes, as well as the act of 1821, providing for an annual salary to the district attorney of New-York, preclude that officer from a right to compensation extra the salary, on account of suits brought by him for'fines and forfeited recognizances.</p> <p>A salary officer cannot rightfully claim compensation extra his salary for performing a new duty, or one imposed by the legislature since the salary was provided.</p> <p>A board of supervisors, by auditing and paying part of a claim presented, is not thereby precluded from contesting the residue even upon a principle which would show the former allowance to have been improper.</p> <p>A mandamus will not lie to a board of supervisors, to control them in the exercise of their discretion as to the amount at which an account presented shall be audited.</p> <p>Where the claim of a district attorney is presented to the board, consisting of costs for prosecuting recognizances, &c. and the costs have been taxed as against the persons sued, quere, whether such taxation is conclusive upon the county.</p>

Action of assumpsit, tried October, 1843, at the New York circuit, before William Kent, C. Judge.

Verifying plea. The declaration, which was served on the 13th of January last, contained the money counts, to which was subjoined the copy of a promissory note with a notice that it would be given in evidence on the trial, but it was not stated that the note was the only cause of action on which the plaintiff relied.

for the plaintiffs, moved to strike out two special pleas put in by the defendant, on the ground that they were both false and frivolous. The notice did not state on what ground the motion would be made, but the affidavits alleged that the pleas were false. for the defendant, objected, that the papers could not be read, because the Christian name of one of the plaintiffs was not mentioned in the title of the cause.

Ingersoll sued Rhoades in a justice’s court in trover for fifty-nine barrels of salt, to which the defendant pleaded the general issue and gave notice that the salt was taken on an execution in favor of Hall, Rhoades & Sherman, which was issued on a judgment in their favor against Ingersoll. The plaintiff recovered in the justice’s court and judgment was rendered 9th Sept., 1843.

<p>Where the maker and endorsers of a note are sued together under the act of 1832, and a verdict passes in favor of all the defendants, without any severance of the action, only one judgment can be perfected against the plaintiff</p> <p>But if there be a severance either before or on the trial, a defendant who succeeds may perfect a separate judgment, without reference to his co-defendants.</p>

Verifying pleas. The declaration contained two special counts on a promissory note, and the common money counts. A copy of the note was served with the declaration, but without a notice that the note was the .only cause - of action on which the plaintiff relied.

<p>A defendant cannot be held to bail without a judge’s order, in an action on contract, (e. g. a promise of marriage,) where the damages can only be rendered certain by the verdict of a jury.</p> <p>The revised statutes have changed the rule which prevailed when the case of Bunting v. Brown, (13 John. R. 425,) was decided.</p>

Venue. Amendment. Issue was joined on the 24th of April last, and on the same day, the defendant served papers for a motion to change the venue from the county of Saratoga to the county of Montgomery,, with an order to stay proceedings until the motion should be decided. On the 28th of April, the plaintiff amended his declaration, under'the'- 23d> rule,., by changing the venue to - the- • county of Albany.

<p>Error to the court of common pleas in the county of Genesee. The facts of the case are sufficiently stated in the opinion.</p>

<p>On habeas corpus to discharge the prisoner, Alexander McLeod, from the custody of the sheriff of Niagara county, by whom he was confined in jail. The prisoner having been brought before the court, it appeared by the sheriff’s return to the writ that he was imprisoned on an indictment for the murder of Amos Durfee, found by the grand jury of that county ; that he had been arraigned at the oyer and terminer held there, and, after pleading not guilty, was in due form committed for trial. The indictment, which was annexed to the return, sufficiently charged the crime upon the prisoner, alleging it to have been committed at a certain town within the county of Niagara.</p> <p>On the side of the prisoner the following affidavit was" read: “ Supreme Court. .</p> <p>Alexander McLeod 1</p> <p>ads. V City and County of New-York, ss.</p> <p>The People. )</p> <p>Alexander McLeod; the defendant in this cause, being duly sworn, doth depose imd say, that he has read the return of the sheriff of the county of Niagara to the writ of habeas corpus, on which this deponent has been brought into this honorable court, and in relation to that return and the facts therein contained, this deponent says:</p> <p>That in the month of December, 1837, and deponent believes about the middle of said month, a body of men, in number, as deponent believes, about two or three hundred, proceeded from the state of New-York and took forcible and hostile possession of Navy Island, in the Niagara river, and lying within the province of Upper Canada, and there organized and defended themselves, in a warlike manner, against the lawfully constituted authorities of the said province and against the dominion of her majesty the queen of Great Britain, and made war, by the discharge of cannon and in other ways, upon her majesty’s subjects at Chippewa in said province.</p> <p>That the said occupants of Navy Island, as deponent is informed and believes to be true, were to a considerable extent composed of citizens of the United States, and were commanded by Rensselaer Van Rensselaer, one of such citizens.</p> <p>That,' as said deponent is informed and believes to be true, the said invaders were supported with provisions and arms and whatever else they had for the purpose of the said invasion chiefly, and deponent believes exclusively, from the United States and by citizens or residents thereof.</p> <p>That the object of this invasion of her majesty’s territory, as the same was then proclaimed, was to make a revolution in the said province, to cause the same to be- separated from the government of Great Britain, and to erect it into a new and independent nation by force.</p> <p>That in order to repel the said invasion and to prevent the said dismemberment of the British dominions, an army of about 2500 strong was assembled at Chippewa, by the authority and under the direction of the provincial government, as soon after the said invasion as was practicable.</p> <p>That between this army, and the occupants of Navy Islánd, a frequent and sometimes a heavy cannonade was kept up.</p> <p>That owing to the support which the invaders received from citizens and residents of the United States, the efforts on the part of the provincial authorities to dislodge them, were for a long time fruitless—they having retained the possession of the island until about the 16th day of January, 1838.</p> <p>That on the 29th day of December, 1837, the steam boat Caroline proceeded from Black Rock or Buffalo, and having, as was alleged and believed, landed a quantity of military stores on Navy Island, commenced plying between the said island and Schlosser, in the state of New-York, transporting, as deponent has been informed and believes to be true, to the said island, men and provisions and implements of war for the support, aid and comfort of those who were there engaged in hostilities against the government of Great Britain.</p> <p>That in the afternoon of that day, the said boat made two or three trips between the places last aforesaid.</p> <p>That, as deponent is informed and believes to be true, the evening following, an expedition of several small boats and with armed men, was fitted out at Chippewa, by the direction of Col. Allen McNabb, (who was lawfully in command of her majesty’s forces at the last named place, and vested with full authority to do so,) and commanded to take the said steam boat by force, wherever found, and to bring her in or destroy her. .</p> <p>That, as deponent has been informed and believes to be true, the persons who composed the said expedition and who were all subjects of her majesty, the queen of Great Britain, embarked in the said boats and started off in search of the Caroline, and found her fastened to the dock at Schlosser, and there made a hostile attack upon her by the use of swords and fire arms, and haxfing expelled those who occupied her, destroyed her.</p> <p>That, as deponent has been informed and believes to be true, the said attack was made betxveen txvelve and one o’clock of the morning of the 30th of December. .</p> <p>That, as deponent has been informed and believes to be true, while the persons who composed the said expedition against the Caroline were engaged therein, and acting under the orders they had so as aforesaid received from their superior and commanding officer, one Amos Durfee, a man then employed on the said steam boat, was killed, by being shot through the head with a pistol or-musket ball.</p> <p>That the said Durfee, as deponent has been informed and believes to be true, xvas slain by some one of the persons engaged in that expedition, and while engaged in accomplishing the objects thereof, and not by any other person, or in any other manner, or at any other time.</p> <p>That this deponent is indicted in this cause for- the crime of murder, in killing the said Durfee on the" occasion aforesaid, and for being an accessory before the fact of such killing, with various individuals, "but not for having any agency in the death of said Durfee at any other time or manner than as being one of the persons who composed and accompanied that expedition.</p> <p>That, as deponent has been informed and believes to be true, the act of destroying the said steam boat Caroline, together with the manner in which the same was done, and the conduct of the persons engaged in it, including the killing of the said Durfee, have since been approved and adopted by the national government of Great Britain, as a necessary act of self defence, on the part of the authorities of the province of Upper Canada. And that, as this deponent has been informed and believes to be true, the federal government of the United States, immediately after the destruction of the Caroline, opened a correspondence with the government of Great Britain in relation thereto, and demanded reparation therefor, and that said correspondence has not yet been brought to a close.</p> <p>And in confirmation of the foregoing statement, this deponent craves leave to refer to the published correspondence between the government of Great Britain and the United States, to the communications of the President of the United States to congress, and the accompanying documents, and to the annexed authenticated extract of a letter from Mr. Fox, her Britannic majesty’s minister, to the secretary of state of the United States, -together with the authenticated copy of the credentials of Mr. Fox to this government, also hereunto annexed; and he prays that they may "be so taken as part of this, his answer, to the alleged cause of his detention and iMprisonmeht, and as together furnishing the grounds of his claiin to be discharged therefrom.</p> <p>And this deponent further says, that he was not one of the persons engaged in the said expedition against the Caroline, nor did he accompany the same, or take any part in it, nor in the killing of the said Amos Durfee: and further saith not.</p> <p>Alexander McLeod.</p> <p>Subscribed and sworn in open ) court, &c. before me, $</p> <p>W. P. Hallett, Clerk of Supreme Court.”</p> <p>A copy of the credentials of Mr. Fox, and also the extract from Mr. Fox’s letter to Mr. Webster, secretary of state, mentioned in the affidavit, were annexed. The letter was dated March 12th, 1841,.and the extract is as follows:</p> <p>“ Her majesty’s government have had under their consideration the correspondence which took place at Washington in December last, between the United States secretary of state, Mr. Forsyth, and the undersigned, comprising two official letters from the undersigned to Mr. Forsyth, dated the 13th and 29th of December, and two official letters from- Mr. Forsyth to the undersigned, dated the 26th and 30th of the same month, upon the subject of the arrest and imprisonment of Mr. Alexander McLeod, of Upper Canada, by the authorities of the State of New-York, upon a pretended charge of arson and murder, as having been engaged in the capture and destruction of the steam boat “ Caroline,” on the 29th day of December, 1837.</p> <p>“The undersigned is directed, in the first place, to make known to the government of the United States,- that her majesty’s government entirely approve of the course pursued by the undersigned, in that correspondence, and of the language adopted by him in the official letter above mentioned. And the undersigned is now instructed again to demand from the government of the United States, formally, in the name of the British government, the immediate release of Alexander McLeod.</p> <p>“The grounds upon which the British government make this demand upon the government of the United States, are these: that the transaction on account of which Mr. Me? Leod has been arrested, and is to-be put upon his trial, was a transaction of a public character, planned and executed by persons duly empowered by her majesty’s colonial authorities, to take any steps, and ,to do any acts, which might be necessary for the defence of her majesty’s territories, and for the protection of her majesty’s subjects; and that consequently those subjects of her majesty who engaged in that transaction were performing an act of public duty, for which they cannot be made personally and individually answerable to the laws and tribunals of any foreign country.”</p> <p>Affidavits were read, on the part of the people, materially contradicting that of the prisoner, and tending to show, among other things, that he was present, participating in the attack on the Caroline; that he shot Durfee, and afterward declared he had done so, at the same time exhibiting a pistol, which, as he averred, had Durfee’s blood still upon it.</p> <p>for the prisoner, contended, that an order should be made discharging him, or directing a nolle prosequi on the indictment. They insisted, that as the supreme court had the right of ordering a trial of the cause at bar, it therefore had the right of ordering a nolle prosequi. (2 M. S. 330, § 1, 2d ed. Id. 609, § 54, and the revisers’ notes to the latter, 3 id. 845.) The right to enter a nolle prosequi, previous to the revised statutes, was exercised by the attorney general or- district attorney, on considerations of sound policy, and wise expediency; and the same reasons ought to influence the court in ordering its exercise now. and in reference to the present case. This question. is emphatically a question of political expediency in the highest sense, involving the cherished rights and interests of the nation; and all the consequences which would naturally flow from the decision, may, therefore, properly be considered..</p> <p>They then examined the power of the court under the act relating to writs of habeas corpus, to enquire into the cause of detention, dice.; (2 R. S. 465, et seq. 2d ed.;) affirming, that those powers had been greatly extended beyond what they were under the former laws of this state, or the laws of England; so that now, the court were authorized to look beyond the indictment returned, into all the facts of the case, and to dispose of the party “ as the justice of the case might require.” Indeed so solemn, and so far involving the entire-merits of the case, is the present proceeding, that a writ of error lies upon the final decision by this court, to the court for the correction of errors; (2 R. S. 474, § 72, 2d ed.;) and thence, in a proper case in other respects, to the supreme court of the United States. (Holmes v. Jennison, 14 Peters' Rep. 540.)</p> <p>The destruction of the Caroline was an act of public force, done by the command of the British government; and all the prisoner did, if any thing, was by command of his superior officer, and in obedience to the orders of his own government. He was bound to obey those -orders ; (Vattel, B. 1, c. 1, § 1, 2; ch. 3, § 26; ch. 4, § 38, 40 to 42, and also § 53;) and is, therefore, not responsible for acts done under them to any court of law whatever. (Id. B. 2, ch. 6, § 73, 4. B. 3, ch. 2, § 6, 7, 8, 9. Burlam. part 4, ch. 3, § 18, 19. Rutherford, B. 2, ch. 9, § 18.) Though there had been no declaration of public war between the United States and Great Britain, not only the Caroline, but Durfee, in concert with those who had taken possession of Navy Island, were engaged in a hostile invasion of Canada. It was like the affair ’of Copenhagen—a species of unsolemn war; (Vattel, B. 3, ch. 4, § 67;) and the laws of war, and of nations, must therefore govern the case. (Elphinstone v. Bedreechund, 1 Knapp's Rep. 316.)</p> <p>Again: by the constitution of the United States, the power to declare war, conclude peace, and, generally, to superintend our foreign relations, is vested in congress and the general government. Under the exercise of the treaty-making power, redress for this whole offence—the destraction of the Caroline, and the killing of Durfee—was at an early day demanded of the British government by the government of • the United States; and the matter is still in course of negotiation between them. ' The state of New-York, therefore, cannot discreetly or lawfully interpose its municipal jurisdiction, and take cognizance of any part of this public offence against the nation. It is the exercise of an authority by the state, repugnant to the constitution and laws of the United States, bringing the two jurisdictions in conflict; and the general government having taken jurisdiction of the entire subject, that must be exclusive; for two separate and independent jurisdictions cannot lawfully act at the same time upon the same subject matter. (Const. U. S. art. 1, § 8, 10, and art. 2, § 2. Gibbons v. Ogden, 9 Wheat. Rep. 1. Wilson et al. v. The Black Bird Creek Marsh Co. 2 Peters’ Rep. 245. Harford v. The United States, 8 Cranch, 109. United States v. Peggy, 1 id. 103. Ware, adm’r, v. Hylton et al. 3 Dall. 199. Cooper v. Telfair, 4 id. 14. 2 id. 304. Sturges v. Crowningshield, 4 Wheat. 122. Houston v. Moore, 5 id. 1. McMillan v. McNeill, 4 id. 209. Jack v. Martin, 12 Wend, 311.)</p> <p>The act in which McLeod is alleged to have participated, being an exercise of .the public force of Great Britain, of a hostile character, constitutes the subject of reclamation, reprisal and war, on the part of the government of the United States, as it shall deem fit, on a failure to obtain indemnity for the offence by negotiation. Any interference of the state authority is, and will be, incompatible with the exercise of this high power. The offence was committed against the nation, and not against, the state.; and the case belongs to congress and the national executive. New-York is unknown in our foreign relations, as is every other state in the union. A violation of her soil by foreign force, is an injury, not to any individual member of the confederacy, but to the United States. In that respect we are one territory, one people; having one interest,- one voice, one duty, one responsibility. All—all— are the United States; and it is her territory that has been violated; her honor stained; the property of her citizen destroyed, and her citizen slain, Nations are only known to each other as friends, by their ambassadors; as enemies, by their armies. Of these, New-York has neither: they are forbidden her by the fundamental law of our government.</p> <p>But we deny the right to put the prisoner on trial in any court, whether of the state or nation. They are both destitute of jurisdiction. The offence involves no individual guilt, nor does it call for individual expiation. Great Britain has avowed this open, flagrant violation of our territory, with whatever of aggravation accompanied it. Let us take her at her word—hold her to the responsibility; and let the prisoner go.</p> <p>insisted that the present motion was without precedent—a mere experiment; and being the first of the kind ever made, he trusted the court would find it their duty so to pronounce upon it, that it would be the last. By the law of England, a person indicted for murder will not be brought before the king’s bench; nor will a writ of habeas corpus be granted at all, in a case like this. He commented upon the act of 31 Car. 2, c. 2, and the more recent act of 56 Geo. 3, c. 100; affirming, that were the prisoner’s case to be disposed of according to the laws of his own country, the court could not listen to this application.</p> <p>By that law, moreover, when a writ of habeas corpus is granted, the court gathers the facts from the return, and will not look beyond it even with a view to the question of bail. He referred, to various decisions in support of this doctrine, among which were, Swallow v. The City of London, (2 Keb. 50; S. C. Sid. 287, pi. 3;) Gardiner's case, (Cro. Eliz. 822;) Leonard Watsons’s case, (9 Adol. & Ellis, 731;) Bushell's case, (Vaugh. Rep. 157.)</p> <p>The revised statutes had gone farther; but not far enough to warrant the present motion. The provision allowing the prisoner to controvert the return, is not applicable to the case of one confined under an indictment, regular on its face, and found according to the form of law. An indictment is in the nature of a final judgment by a court of exclusive jurisdiction, and not a mere interlocutory proceeding. The court cannot control the finding of a grand jury. If they discharge the prisoner, it is a virtual trial of the indictment in a way unknown to the law.</p> <p>Again: if the court go beyond the indictment, what facts are they to consider 1 Can they extend their inquiry aliunde farther than to ascertain if the commitment or detention be legal ? They cannot. But once establish the principle claimed for this motion, and the range of inquiry becomes unlimited; extending to the most difficult questions of guilt or innocence. It admits of no assignable boundary, but throws open the whole ground covered by the plea of not guilty, and invites every criminal, no matter how complicated the circumstances of his case, to come here and demand a summary trial, without jury. For, there is no distinction, save a nominal one, between inquiring whether the party is innocent, and trying his plea of not guilty. They are identical ; and must be disposed of in the appointed mode for determining the merits of a criminal prosecution. Besides, a grand jury are not to disclose the evidence on which they act. If, therefore, the court should attempt to go beyond the in-' dictment, to the facts on which it was found, how are these to be ascertained 1 In what mode are we to be informed of the secrets of the jury room, so as to determine that the case presented there, was not one of murder ? To the general doctrine, he cited Rex v. Dalton, (2 Strange, 911;) Lord Mohun’s case; (1 Salk. 104;) Bethell’s case, (id. 348;) adding, that as the sheriff’s return set forth a formal, valid indictment, and showed the commitment and detention to be legal; and as there was no fact proved, going to impugn either, the case should end here.</p> <p>But the course taken by the prisoner’s counsel, compelled him to go further. They insisted, the order under which the prisoner acted, admitting him to have participated. in the affair of the Caroline, had been avowed by the British government. What weight is this entitled to? Viewed as a matter of justification to establish innocence, it involves facts exclusively for the consideration of a jury. Was any such order given? If so, was the prisoner acting under it when he encountered Durfee; and was the killing of the latter, within the order, or beyond it—an act of obedience simply, or of cold-blooded murder 7 These questions are all to be answered in favor of the prisoner, before the legal effect of the alleged avowal can be considered. The ground assumed therefore is not one consistent with the indictment, but negates its most material averments. It virtually says— “ though the prisoner killed • Durfee, he did it not in malice, but from duty." The whole is nothing more than a plea of not guilty.</p> <p>But the order, if one was given, does not sufficiently appear by Mr. Fox’s letter. The letter says, that the transaction in question, was “ planned by persons empowered by her majesty’s government.” Was the transaction thus planned, the murder of Durfee? Such a supposition is absurd. What was it that these persons planned? There is a rumor that it was the destruction of the Caroline; but the letter leaves us to the widest latitude of conjecture. This letter further speaks of an authority to take any steps necessary for the defence of her majesty's subjects. Can this court determine that the murder of Durfee was such a step? No.</p> <p>But it is denied, that the order could protect the prisoner, whatever its form. Though it might justify him to his own sovereign, it was inoperative here. Nor can the circumstance of this outrage having become the subject of a still pending negotiation, between the British government and our own, vary the result. On these topics Mr. Hall commented at length, reviewing the different propositions advanced by the prisoner’s counsel, and illustrating his observations by reference to the following books and documents, viz: 4 Black. Com. 67; 1 id. 411; 1 Kents Com. 3; Vatt. B. 2, ch. 7, & 93; id. B. 3, ch. 2, § 15; id. ch. 6, § 68; Baker’s case, House Doc. 20th Con. No. 90; Greely’s case, id. 25th Cong. No. 1; Vatt. B. 3, ch. 8, § 154; 4 Marshall’s Life of Washington, 368; Vatt. B. 1, ch. 6, § 75; id. B. 2, ch. 6, § 75; Co. Inst. 163; 1 Hale’s P. C. 99; Foster’s Crown Law, 188; 1 Black. Com. 245, 246; Vatt. B, 4, ch. 7, § 100; 2 Ward’s Law of Nations, 578.</p> <p>As to the entry of a nolle prosequi, the court cannot interfere. Nor is this a proper case for the exercise of that power, wherever vested. The main transaction, out of which the present indictment grew, was a lawless invasion of our territory—an offence which, according to Yattel, should be repelled by a state with the utmost vigor. . Chancellor Kent maintains that there is no exception to the rule that a neutral territory cannot be lawfully invaded. (1 Kent’s Com. 121.) If the Caroline had given just provocation, no time had been afforded to the authorities of New-York to act in the matter. The facts, moreover, contained in the affidavits produced against the prisoner, show the case to be one which should be passed on by a jury. If these facts should be established on an investigation, the British nation would be the first to repudiate the alleged crime, and declare that it was not done by their authority. At all events, Great Britain could not complain that we should, under these circumstances, refuse to deliver up the prisoner without trial, She has taken the lead among nations, in establishing the doctrine that she will not listen to a demand for redress of an injury done by herself, while a prior one committed against her remains unatoned for. Witness her transactions with Spain, in reference to the dispossession of her subjects at Nootka Sound, by the Spaniards; and afterward, in reference to a similar dispossession of her subjects at the Falkland Islands. These things are .not referred to in the spirit of reproach, but of admiration. Great Britain there acted on a principle of high toned national self-respect—a principle, to the resolute maintenance of which she is indebted for her lofty and enviable position among the nations. In my early days, (Mr. Hall concluded,) in reading the records of Roman greatness, it was not her palaces, nor her temples, nor the extent of her dominions, nor the power of her armies, that thrilled me; but it was the magic power of the exclamation, even amongst the remote and barbarous nations, “lama Roman citizen.” And in. modern times, the exclamation, “I am an Englishman,” has become an almost equal passport and protection. When will the time arrive when the exclamation, “ I am an American citizen,” shall claim a like respect? Never, until we .learn with equal scrupulousness to protect the life, liberty and property of the humblest citizen of our republic. Never, while we disarrange the decent folds of the drapery of our judiciary, with undignified haste, to obey the irregular and illegal demands of a foreign nation.</p>

This is an action of debt brought upon an order of filiation, in which the defendant was adjudged to pay to the plaintiffs the sum of $20, the amount of expense for the lying in of Jane Moncrief, he being the reputed father of her bastard child, and the further sum of fifty-six cents per week for the support of said child, and to indemnify the county, &c.; payable weekly. The order bears date, July 1, 1828.

This was an action of trover for a deric, tried in a justice’s court in Yates county, and judgment rendered for the plaintiff for f22.46. The judgment was removed by certiorari to the common pleas and there reversed, and that judgment is brought here by writ of error.

The first and second counts are on promises alleged to have been made by the defendants, as executors, to the plaintiffs, as executors, and founded on the legal liability of the defendants’ testator to the testator of the plaintiffs.

Defendant moves on a case agreed on to set aside an inquisition to assess the value of the mesne profits of premises recovered in ejectment. The facts of the case and the grounds of the motion are stated in the opinion.

<p>Assumpsit tried at the New York circuit in May, 1843, before Kent, C. judge. The declaration contained the usual counts for work and labor, materials, &c., and the money counts. Plea of the general issue. It appeared that plaintiff worked many years for the defendants Cocks & Vredenburgh, co-partners in the city of New York. The defendants proved that after said services were performed the defendant Yredenburgh and the plaintiff liquidated the amount due to plaintiff, and a bond and warrant of attorney were given to him for $1,143.36, and upon which judgment was entered. The plaintiff) to show that this bond and warrant of attorney were intended to defraud him, proved that shortly previously thereto Yredenburgh had confessed judgment to Cocks, which required all the joint property of the two to satisfy, and upon which it was sold, and nothing remained to pay plaintiff’s judgment. The counsel for the defendants requested the circuit judge to charge the jury, that the plaintiff in this suit, having previously recovered a judgment against Yredenburgh alone for the same cause of action upon which this suit is brought, was barred from recovering in this suit. The judge refused so to charge, and the counsel for the defendants excepted. Yerdict for the plaintiff for $1,143.36, which the defendants move to set aside on a case.</p>

Demurrer to plea. Action of assumpsit, brought October, 1843.

Action of assumpsit tried at the Wayne circuit, August, 1843, before Mosely, 0. judge. The declaration was upon a note for $1,000.00, signed by Joseph M. Demmon and indorsed by Charles Demmon. The defendants pleaded the general issue, and certain matter stated in the opinion of the court was set up under a notice. The making and indorsement of the note were admitted, and also protest and notice of non-payment.

Action of trover. Plaintiffs in their declaration allege that at a certain time, in the city and county of New York, they “ were lawfully possessed, as of their own property, of certain bank notes, commonly so called, issued by each of the incorporated banks of the state of New York, commonly called and known as the Bank of America; the Bank of New York,”—here follows an enumeration of many more of said banks, designating them by certain names, as the two above are…

<p>This was an action for false return of nulla bona to an execution of plaintiffs against Marcellus and Rice, the former living out of the county, the latter in the county, at Phoenix. He had resided there after February or March, 1841. The under-sheriff received the fi. fa. May 4th, 1841. He' made inquiries and was informed that both defendants in the execution lived out of the county and had broken down, whereas Rice in fact lived in the county and had personal property sufficient to satisfy the debt. Of this the under-sheriff might have been informed had he written and inquired of plaintiffs’ attorney who resided at Lysander, and that was known to the under-sheriff. The question of negligence generally was submitted to the jury, who found for defendant. Plaintiffs n'ow move for a new trial on a case made.</p>

Assumpsit to recover $10,000, a balance on deposit. The defence was that plaintiff had drawn for it and the draft paid. The plaintiff was president of the Albany Exchange Bank and the defendant of the American Exchange Bank of New York. The defendant gave in evidence the following draft or check: No. 166. “ Albany Exchange Bank, Albany, Sept. 10, 1840. Cashier of the American Exchange Bank, N. Y., pay to the order of Thomas Rutherford, ten thousand dollars.

Action of assumpsit for the non delivery of one thousand flour barrels, tried January, 1844, in the mayor’s court of the city of Rochester. 'It appeared on the trial, that the defendant carried on the business of coopering, by her two sons, William H. and Samuel D. Moore, and had done so up to 1843, and for a year or more previous, and in prosecuting her business had leased the Wordsworth warehouse, situated in the city of Rochester.

Assumpsit for work, labor and materials, heard before James Edwards, Esquire, sole referee.

<p>Demurrers. The action was replevin on the cepit, and the declaration contained one count It is for taking and unjustly detaining one stage or post cdach, &c., “ goods and chattels of which the said plaintiffs were the owners and entitled. to the possession thereof.”</p> <p>Several of the pleas terminate in issues of fact, but the 2d, 5th and 6th end in issues of law.</p> <p>Second plea. That the plaintiffs were not the owners of said goods, but they were the goods of Elias Pattison, James H. Hooker and Isaac V. Baker (Pattison and Hooker being two of the plaintiffs, but Baker not being one), and not of the plaintiffs, as is supposed. Verification, praying a return, &c. Replication. That said goods, with other goods, heretofore, &c., owned and possessed jointly by said Pattison, Hooker and Baker, all of which goods, they, before that time, put into a company or association, composed of said persons, called, &c., and made stock of said goods, and divided the same into shares, and of which stock or property, scrip was made the representation or evidence of title, and one third of which said property or stock was owned by each of said three persons, composing said association, and which scrip was transferable by assignment and the purchaser or assignee became possessed of the title to and interest in the property of the association, corresponding with the amount of stock or scrip transfered to him, and also became a member of said association and a partner in business ; and that heretofore, to wit, &c., the said Baker sold, transfered and assigned to the plaintiffs in this suit, or some of them, all the stock owned by him in said company or association, together with his right to the possession and control of said property; that the goods in suit are part of said goods, so transfered and assigned by Baker. Verification. Demurrer for special causes. Joinder.</p> <p>Fifth plea. Plaintiffs were not the owners of said goods nor entitled to the possession thereof, but one Isaac V. Baker was the owner thereof, and the defendant was entitled to the possession thereof. Verification, praying return. Replication. That heretofore, &c.., Baker sold, assigned and transfered his title to said goods and his right to the possession thereof to the plaintiffs, or some of them; and that the plaintiffs at the time, <fcc., were the owners of and entitled to the possession of said goods. Verification. Rejoinder. That the plaintiffs, at, &c., were not the owners of and entitled to the possesion of said goods. Conclusion to the country. Demurrer to the rejoinder for special causes. Joinder.</p> <p>Sixth plea. Plaintiffs were not the owners of said goods and entitled to the possession thereof, but one Isaac V. Ba-leer was the' owner, and the defendant was entitled to the possession. Verification, praying a return. Replication. That heretofore, &c., said Baker, in good faith and for a valuable consideration, sold, transfered and assigned to the plaintiff's or some of them, his title to said goods and to the possession thereof,* and the defendant at the time when, &c., was not entitled to the possession of said goods, but the said plaintiffs at the said time, when, &c., were the owners of and entitled to the possession of said goods. Verification. Rejoinder. The plaintiffs were not the owners of nor entitled to the possession of said goods—issue to the country. Demurrer to the rejoinder, for special causes. Joinder.</p>

The defendant, Robert P. Bell, was sued as indorser upon two promissory notes, bearing date June 1st, 1837, signed by George W. Tpson & Co., and payable to the order of Robert P.' Bell and indorsed by him. The notes were for 1887.34 each, one being payable fourteen and the other sixteen months from date.

Replevin, tried before Ruggles, C. Judge, at the Dutchess circuit in October, 1839. The plaintiffs are paint, oil and dye-wood merchants in the city of New-York. Prior to 1837, Washington Davids kept a paint and oil store, and was engaged in the business of house painting in Poughkeepsie.

Ejectment for part of lot No. 43, Ulysses, now Enfield, Tompkins county. The lot was awarded by the Onondaga commissioners to Hannah G-uiteau and Polly Williams, daughters of James Wilson, the soldier. Mary, the wife of the plaintiff, inherited from Polly, her grandmother, one-sixth of the lot; and the only question 'in the case is, whether her interest was cut off by partition and sale in 1825.

The action was brought by the plaintiffs to recover the price of two French bills of exchange sold by them to the defendant through a broker.

The proceedings were instituted by Griffith and. nine others, of whom John S. Ide was one, by a petition stating that they werq forwarders on the Erie canal under the name of the Troy and Erie line; that they were creditors of E. & T. Fairbanks of St. Johnsburgh in the state of Vermont, and had a demand against them arising upon contract amounting to more than $100; and that E. & T. Fairbanks were not residents of this state, &o. The petition was signed by John S. Ide, who…

Replevin, by Prentiss against Slack and Jones, tried at the Albany circuit, in June, 1839, before.Cushman, C. Judge. On the trial, the plaintiff’s title was by a bill of sale executed to him. by one Froment.

Debt, to recover a penalty of $200, tried before Cushman, C. Judge, at the Albany circuit, in December, 1839.

<p>On a demurrer to evidence, every conclusion which the jury would have been warranted in drawing from the testimony given, must be considered as admitted by the party demurring.</p> <p>Where the defendant was prosecuted for a penalty under the act <pf April 15th, 1830, regulating the speed of steamboats in passing the wharves at Albany; and, for the purpose of identifying him as the person in charge of the boat at the time, a witness swore that the defendant was captain of her during that season, and also on the day upon which the alleged offence was committed, but he did not ‘ know whether the defendant was on board when she passed the wharf as charged: Held, on demurrer to the evidence, that it was sufficient to warrant judgment for the prosecution.</p>

<p>After default in payment of a chattel mortgage, the mortgagee’s title to the property becomes absolute at law, and he is entitled to the possession immediately. Hence, he may maintain replevin in the cepit against one who tortiously takes it from the mortgagor.</p> <p>Nor can it vary the case though, subsequent to the default, the mortgagee filed a copy of the mortgage and a statement, pursuant to the act of April 29th, 1833; for that will not operate an extension of credit, or give the mortgagor any additional right of possession.</p> <p>Though it be proved that the mortgagor of a chattel continued in possession, yet if the mortgage was given to secure a true debt, and the jury have negatived the allegation that it was made to defraud creditors, &c. this court cannot set aside their verdict as against the weight of evidence.</p> <p>A mortgage dated in 1837, appointing a day in 1830 for payment, is in legal effect payable immediately ; and, as between the parties, oral evidence is inadmissible to vary its operation.</p> <p>Otherwise, as between the mortgagee and a judgment creditor assailing the mortgage as fraudulent. "The former, for the purpose of repelling the fraud, may show the day of payment intended, and that the error occurred through inadvertence or mistake of the draftsman.</p>

<p>Error from 'the superior court of the city of New-York. The action below was debt, brought' by Abbott and Ely against Burgess. The declaration was on a judgment of the superior court of Cincinnati, Ohio, rendered against Burgess and one Henry Crane; but it did not expressly show whether Crane, at the time of commencing the present suit, was living or not. The defendant demurred generally, and the plaintiffs joined in demurrer. Judgment having been rendered for the plaintiffs in the court below, the defendant sued out a writ of error.</p>

On error from the superior court of the city of New-York.. The action below was case, by Vanderbilt, for a collision- of the-steamboat “ Sampson,” belonging to the defendants below, with the steamboat “Wave,” owned by Vanderbilt. There was. strong reason oii the evidence for believing that the master of the “Sampson” perpetrated the injury wilfully. The court below refused to charge that, if wilful, the defendants below were not liable.

<p>Demurrer to declaration. The action was on a bond given under the statute, (1 R. iS. 764, 773, § 55 et seq. 2d ed.) relating to attachments against absconding, concealed, and non-resident debtors. The declaration set out the attachment proceedings, showing that the attachment was issued on the petition of the plaintiffs as the attaching creditors, against the property of James Y. Sanger, ■ Lucien P. Sanger, and David Sanger. Tfi.e declaration further set forth that property had been seized on the attachment; that Lucien P. Sanger, one of the defendants, applied pursuant tó § 54 of the statute above referred to, for a discharge of the attachment, and that thereupon the bond in question was executed by said Lucien, with Palmer and Rosevelt, the other defendants, as his sureties. It further appeared from the attachment proceedings as detailed, and from other independent averments in the declaration, that the plaintiff’s demand upon which the attachment issued and which was claimed as recoverable on the bond, consisted originally of a joint and several promissory note, executed by the said J. Y., L. P., and D. Sanger, to the plaintiffs; that they (the plaintiffs) caused a suit to be commenced upon the note, against the said J. Y., L. P., and D. Sanger, in a circuit court of the state of Indiana, wherein judgment was recovered against L. P. Sanger, he alone having been arrested; that said suit and judgment were nominally in favor of one Elias Smith, but the plaintiffs were the real parties in interest, and are still the owners, &e.; that the judgment was in full force and unreversed, &c. at the time of commencing the attachment proceedings; and that neither the said note or judgment had ever been paid or satisfied, &c.</p> <p>The defendants demurred to the declaration, and the plaintiffs joined in demurrer.</p>

<p>A. executed a memorandum under seal in February, stating that he had hired of W. a certain lot'in the city of New-York, for one year from the first of May next, at $1000 rent. He was induced to make the contract through the fraudulent representations of W. that the lot comprehended a certain other parcel of land, which, as it afterwards turned out, belonged to the corporation. A. discovered the fraud before the first of May; and on that day, having obtained a lease of the parcel owned by the corporation, took possession of the whole, and occupied during the year. Held, in an action by W. for the rent, that A. was entitled to a deduction, by reason of the fraud, of at least what he was in good faith obliged to pay for the corporation lease.</p> <p>A demise for a term commencing in futuro, passes a present interest in the term to the lessee.</p> <p>A., immediately after the fraud, might have elected to treat the lease from W. as entirely void; not having done so, however, but having occupied under it during the term, his only remedy was by action or recoupment for the damages.</p> <p>The same rule applies to purchases of personal property; and in neither case does the party waive .his right to damages by merely acting in aifirmance of the contract, after discovering the fraud.</p> <p>Semble, that actual damage is not necessary to the maintenance of an action: A violation of right with a possibility of damage is sufficient.</p> <p>Semble, also, if one be led through fraud to contract that he will accept and pay for a chattel at a future period, he may maintain an action for the fraud before the period arrives, though he has paid nothing.</p> <p>A right of action once vested can only be destroyed by a release, or the receipt of something in satisfaction,</p>

<p>A building contract provided, that in case of disagreement between the parties in respect to certain extra work, it should be appraised by two persons to be selected by the parties, and, in case of disagreement between the appraisers, then the appraisal to he made by an umpire: Held, that an award of the umpire pursuant to this arrangement was conclusive, and precluded a recovery for any thing beyond the amount fixed by it.</p> <p>Due notice to the parties of the times and places appointed for the meeting of arbitrators, is to be presumed; and the party seeking to' impeach the award for the want of such notice, must prove that it was not given.</p> <p>Though one of the arbitrators appointed by the parties signed and sealed the award with the umpire; yet held, that it was to be regarded as the sole award of the latter, and the addition of the other signature might be treated as surplusage.</p> <p>Arbitrators authorized to choose an umpire, are not bound to defer the choice until a disagreement between them; but may make it before proceeding to act upon the matters submitted.</p> <p>The award in this case referring to the original contract; held, that both might be read as one paper, for the purpose of identifying the subject matter of the umpire’s decision.</p> <p>Where an award is ambiguous, the subject matter to which it relates may be identified by parol evidence.</p> <p>Technical precision and certainty are never necessary in an award. If it be expressed so that plain men, acquainted with the subject, can understand it, that is sufficient, however short and eliptical the phraseology.</p> <p>Where arbitrators were authorized to determine the increase or diminution in the cost of buildings by reason of extra work, which the contractor was bound to complete; held, that an award finding the contractor entitled to “ receive $8385,29 for the increased cost of said buildings, after he shall have filled up,” • &c. (specifying a part of the extra work not then completed,) was not rendered totally invalid by reason of the latter clause.</p> <p>If, in respect to that clause, the umpire exceeded his jurisdiction, the party by whom the money was to be paid had a right to insist that it should be regarded as mere surplusage, leaving the award to stand for the sum named as due immediately.</p> <p>Semble, that for the purpose of sustaining the award, the court would intend that the filling up, &c. was part of the extra work provided for by the contract; in which case, the finishing of it might properly be directed, or made a condition.</p> <p>An award importing on its face a regular adjudication pursuant to the submission, cannot be impeached, when used collaterally, by oral evidence that the arbitrator either exceeded his jurisdiction, or omitted to decide on all the matters submitted.</p> <p>Semble, that in a cqurt of law, an award good by intendment is not open to collateral impeachment, on the ground that the arbitrators transcended or fell short of the limits of the submission; for the.intendment being presumptio juris et de jure, can no more be 'contradicted than the legal effect of any other written instrument.</p> <p>Otherwise, since the case of Elmendorf v. Harris, (23 Wend. 628,) in respect to want of notice of hearing to the party.</p> <p>If an excess of jurisdiction appear on the face of an award, it is then void pm tanto, or in toto, according as the bad matter is, or is not separable from the good; and a separation should always be made, if possible.</p> <p>On a motion to set aside an award, it is examinable more freely than when used as the foundation of an- action or defence.</p> <p>Quere, whether the judgment of a domestic court of general jurisdiction can be impeached collaterally, by shewing want of notice to the defendant; the record importing full jurisdiction ?</p>

<p>Assumpsit, on a policy of insurance against fire, tried at the Oswego circuit, before Gridley, C. Judge, June 26th, 1840. The insurance was for $2400 on the plaintiff’s tannery, &c. for the term of five years, commencing in February, 1836, when the policy was issued. It recited that the plaintiff “ had become a member of the Saratoga County Mutual Fire Insurance Company,” &c.; and contained this clause: u The interest of the assured in this policy is not assignable without the consent of the said company in writing; and in case of any transfer or termination of the interest of the assured, either by sale or otherwise, without such consent, this policy shall thenceforth be void, and of no effect.” The property insured was mostly destroyed by fire on the 7th of March, 1839. The written application for insurance contained the following statement: “ The property is mortgaged to E. M. Gilbert & Co. for $3000, to be paid in tanning, together with the dwelling house. The applicant wishes an assignment to E. M. Gilbert' & Co. for the amount of $2000,” &c. 0</p> <p>The defendants proved that by a written assignment under seal, duly executed by said plaintiff on the 17th of September, 1836, he had assigned and transferred the policy, and all rights and claims which might arise thereon, to John Williams. The consideration expressed in the assignment was one dollar.</p> <p>The plaintiff then gave in evidence a mortgage dated Oct.' 24th, 1835, executed by the plaintiff to Elisha M. Gilbert and said John Williams, to secure the payment of $3000; and it was admitted by the defendants that said Gilbert and Williams composed the firm of E. M. Gilbert & Co., referred to in the application for insurance: and further, that the said firm had been dissolved, and the whole interest in the mortgage transferred to the said Williams, previous to September 17th, 1836, the date of the above mentioned assignment.</p> <p>The defendants’ counsel objected at the trial that the plaintiff could not recover unless he proved the assignment to have been made with the defendants’ written consent; or that they had in some way waived their rights in this particular. The circuit judge overruled the objection; holding, and so directing the jury, that the assignment in question, even without any consent" of the defendants, constituted no defence. Verdict for the plaintiff of $2087,11. The defendants’ counsel having excepted, now moved for a new trial on a bill of exceptions</p>

Assumpsit, tried at the Brie circuit, before Gridley, C. Judge, August 29th, 1840: The plaintiffs sought to recover as endorsees of two bills of exchange drawn by Gillespie, Joice & Co., on E. Norton & Co., payable to Gillespie & Woodruff, at sixty days after date. The firm of E. Norton & Co. was composed of said Norton and Simeon Fox, two of the defendants, who alone defended the suit.

Motion to set aside the report of referees, The action was on a policy of insurance against fire upon a brick house of the plaintiff; and the policy after describing the height of the house above the basement, added—“ which basement is privileged as a cabinet-maker’s shop.” The cause was referred to referees.

On certiorari, to remove proceedings under the landlord and tenant act for the recovery of possession of demised premises. The proceedings were had before W. A. Bell, one of the assistant justices of the city of New-York, in favor of John McDonald, landlord, against Daniel D. Cameron, the tenant. The only facts important to a proper understanding of the points decided are sufficiently stated in the ooinion of the court.

<p>A note drawn payable at the bank of A., was endorsed by C. and L. for the accommodation of the maker, to enable him, as he told the endorsers, at the time, to taise money at the bank for purchasing barley; instead of which, the maker caused the note to be applied in payment of a debt which he and V. owed at another bank: Held, not such a diversion of the note from its alleged object as to discharge the endorsers, it not appearing that, at the time of endorsing, the use to which it might be applied was at all important to them.</p> <p>Otherwise, semble, had the note been made for the purpose of taking up another note in the bank of A. to which the endorsers were parties.</p> <p>Where a bank received B.’s note, endorsed by C., L. and V., before it became due, in payment of other notes of B. endorsed by V. alone, thereupon delivering up the latter and discontinuing a suit commenced thereon; held, a sufficient parting with value to entitle the bank to the rights of a bona fide holder.</p>

<p>The promissory note of a debtor given for a precedent simple contract demand will not operate as payment, so as to preclude the creditor from suing on the original consideration, though given under an express agreement that it was to be received in full satisfaction and discharge: 'Otherwise, if the note be that of a third person.</p> <p>The case of Arnold v. Camp, (12 John. R. 409,) considered, and disapproved.</p> <p>E. and C., being in partnership, gave their note for a precedent debt of the firm, under an agreement that it should be received in full satisfaction and discharge. Afterward they dissolved, E. agreeing, for a consideration received from C., to assume and pay the debt for which the note was given; in pursuance of which arrangement, C. took up the note, and gave his own in lieu thereof. Held, no bar to a recovery upon the original consideration.</p>

<p>The general turnpike act, (1 E. S. 580, 2d edi) confers no power on the commis- ■ sioners to receive conditional subscriptions for stock; and a subscription conditioned that the road should be laid through a specified place, is contrary to public policy, and void.</p>

P. Coonley sued Anderson in the court below for not delivering barley pursuant to agreement.

Assumpsit by the plaintiffs against Bailey and Conkling, tried at the New-York- circuit, December 18th, 1840, before Edwards, C. Judge. The sole question was, whether certain articles of agreement dated April 15th, 1837, between the defendants, constituted them partners in trade, and so jointly liable in this .case. The terms of the agreement sufficiently appear in the opinion of the court.

Assumpsit, tried before Gridley, C. Judge, at the Oswego circuit, in June, 1839. The case, as it stood upon the evidence given, and the evidence offered by the defendant and rejected by the judge, was this: The plaintiff owned two pieces of land in the county of Oswego, and on the 27th of April, 1830, mortgaged the same to Richard Varick, to secure the payment of $1000, with interest.

Assumpsit, tried at the Albany circuit, June 17th, 1839, before Cushman, C. Judge. The declaration was general, for goods sold and delivered, money paid, &c. lent and advanced, &c. and money had and received, together with a'count upon an account stated. Plea, non-assumpsit, with notice of an accord and satisfaction.

Ejectment for lands in St. Lawrence county, tried before Willard, G. Judge, at the St. Lawrence circuit.(a) The will of Governeur Morris, (the plaintiff’s father,) was a necessary link in the plaintiff’s chain of title.

On error from the Onondaga C. P. Action on the case by Kinney, before a justice, against Showdy, a school district collector, for selling the plaintiff’s cow on a tax warrant for $16,12!, when $25 was bid for the cow. The $25 was bid by the plaintiff’s son, who was an infant under twenty-one years of age, and the officer refused to receive the bid, and struck off the property to the next highest bidder.

Demurrer to declaration. The action was case, against the defendants as successors of the President and Trustees of the Tillage (now city) of Brooklyn. The liability is claimed to have devolved on the present defendants, in virtue of Sess. Laws of 1834, p. 115, 116, § 71.

Motion to set aside the report of a referee. Declaration in assumpsit—common money counts—with the copy of a note annexed. Pleas, 1. non-assumpsit; 2. payment, and 3. set-off—all in the usual form. Replications denying payment and ’ set-off, in the usual form. The plaintiff gave in evidence a promissory note, not negotiable, dated September 25,1838, by which the defendant promised to pay the plaintiff $100, six months after date.

<p>Assumpsit, tried before Moseley, C. Judge, at the Onondaga circuit, in September, 1839. The action was on a promissory note made, by the defendants, dated April 20, 1838, for $200, payable to the plaintiffs 63 days after date. The defendants pleaded the general issue, and gave notice of the defence of usury, verifying the truth of the plea by affidavit, pursuant to the second section of the usury act of 1837. (Stat. of 1837, p. 487, § 2.) On the trial, the, defendants called Elisha Chapman as a witness, who testified that he was, and always had,, been, the, owner of, the note, and that the Bank of Salina had no interest in it. The defendants then proposed to prove by this witness that the note was usurious and void. The judge decided that the witness could not be compelled to testify to the usury, and the defendants excepted. Verdict for the plaintiffs.</p>

Debt on a replevin bond given .pursuant to 2 R. S. 431, § 7, 2d ed. The action was tried at the New-York circuit March 31st, 1841, before Gridley, C. Judge.

<p>Case against the sheriff of Kings, for official negligence, tried before Edwards, C. Judge, at the Kings circuit October 2d, 1839.</p> <p>The proof at the trial showed the following, among other facts: Mr. Bosworth had an execution in the defendant’s hands against one Hendrickson, in virtue of which a levy had been made on all Hendrickson’s personal property not claimed by others. While the property was held under that levy, the plaintiff caused an execution to be issued on a judgment in his favor' against Hendrickson, which execution Mr. Bosworth put into the defendant’s hands. The defendant received the latter March 9th, 1838. On or about the 0th of May following, Hendrickson, with Mr. Bosworth’s consent, sold the property seized under his execution to one Pine; Pine purchasing with knowledge that there was an execution against it. The entire proceeds of this sale were received by Mr. Bosworth, and applied on his execution, and Hendrickson made him some other payments about the same time; whereupon Bosworth, on or about the 18th of May, 1838, withdrew his execution, telling the sheriff, however, that the plaintiff would expect him to go on with the execution in question. The latter was returnable on the first Monday of May, 1838. The sheriff never did any thing under it, and had suffered Pine to take and appropriate the property.</p> <p>The judge charged the jury that, inasmuch as Mr. Bosworth, whose execution was levied first, consented that Hendrickson should sell the property, and apply the proceeds on his execution, the plaintiff could not recover, as he had not been damnified. He also refused to charge, that the sale of the property to Pine was subject to the plaintiff’s execution. Exceptions were taken to the charge, as well as to the refusal; and a verdict having passed for the defendant, the plaintiff now moved for a new trial on a bill of exceptions.</p>

Demurrer to pleas. The declaration was on promises to the plaintiff’s intestate made by the defendants jointly.

Assumpsit, tried before Dayton, C. Judge, at the Monroe circuit, in April, 1839. Held: that from the fact of possession before due, the testator was to be presumed a bona fide holder until the contrary was shown. The defendant excepted. The defendant also offered to prove, first, that the nbte was usurious and void in the hands of the bank, and then that the testator had notice of the usury at the time of the transfer.

On error from the superior court of the city of New-York. The plaintiff in the court below, Amelia W. Stout, sued Matthews, the defendant, in replevin, and declared for taking, &c. certain household furniture from a house in the city of New-York. The defendant avowed the taking, by way of distress for rent due him from one Hannah Dayfey, upon a lease of the house in which the 'furniture was seized.

<p>A conveyance of lands was made to a husband and wife, upon which there existed a prior unrecorded mortgage. The mortgage was afterward foreclosed, and the purchaser under it sued the husband in ejectment, and recovered. The latter having died, the wife brought ejectment against one in possession under the foreclosure; and, on the trial, the defendant offered the former recovery against the husband in evidence, together with proof that it was obtained on the ground of his having been duly notified of the mortgage when he and bis wife purchased. Held, not admissible.</p> <p>Notice to a husband, at the time of receiving a conveyance to himself and wife, of a prior unregistered mortgage on the land conveyed, will not operate as notice to the wife so as to give the mortgage a preference in respect to her title; especially where she pays the whole consideration for the conveyance out of her separate estate.</p> <p>Otherwise, if the consideration is paid by the husband out of his own funds, and he takes a conveyance to himself and wife, or to her alone, either by way of advance, or for the purpose of defrauding creditors.</p> <p>On a conveyance to two or more as joint tenants or tenants in common, notice to one of them of a prior unrecorded mortgage will not affect the rest, except in the case of a trust estate. Otherwise, where the one receiving notice is agent for the rest.</p> <p>Married women, lunatics, infants, and other persons not sui juris, are, in general, incapable of appointing an agent or attorney.</p>

Assumpsit, tried at the New-York circuit in March, 1841, before Gridley, C. Judge. The action was brought by the National. Held: that the fact of th'e dissolution coming to the knowledge of Mr. Grosvenor, one of the plaintiffs’ directors, whose duty as a member of the board of directors was - to pass on the discount and renewal of notes, and who therefore might he regarded as the plaintiffs’ agent, was sufficient to charge the plaintiffs with .actual notice…

Covenant, tried before Cushman,'C. Judge, at the Albany circuit in December, 1839. . The plaintiff owned a house and ' some other property, worth in all about $600, aftd owed debts to 'about $150; and on the 8th of April, 1828, entered into a sealed contract with his two sons, Abraham, Pool, the defendant, and John Pool, jun., by which the plaintiff assigned his property to the two sons, and they, on their part, covenánted to pay the plaintiff’s debts.

On error from the New-York common pleas. Morton sued Naylor in the court below. The declaration was in replevin, for taking, &c. certain goods. Avowry, for three months rent, $200, due by one Morgan, tenant, under a demise from J. Russell, who granted to the defendant. The goods were distrained on the demised premises.

<p>Assumpsit, tried before Dayton, C. Judge, at the Chautauqua circuit, in July, 1840. The action was on a promissory note made by the defendants, for $781,17, dated August 8, 1838, and payable to the plaintiffs on demand. The defendants called Hiram Gardner as a witness, and offered to prove by him a state of facts which would constitute a good defence to the action. The note in question was owned by the Niagara Suspension Bridge Bank, “ á partnership or unincorporated banking association,” and the suit was brought in the names of the plaintiffs for the benefit of the bank. Gardner was, and from the beginning had been, one of the copartners and shareholders in the association. The witness insisted that he was a party in interest, and declined being sworn. The judge decided that the witness could not be compelled to testify without his consent. The defendants excepted, and the jury found a verdict for the plaintiffs. The defendants now moved for a new trial on a bill of exceptions.</p>

Motíon to set aside the report of a referee. Stephen Fessenden, on the 9th of November, 1837, made his note dated September 2, 1837, for $1440, payable to William Bradley, jr. or bearer, one year after date, and lent it to Bradley, for the purpose of enabling him to raise money on it from one Wood—if the money was not obtained, the note was to be returned to Fessenden. No money was obtained on the note.

Ejectment, tried at the Westchester circuit, before Rtjggles, C. Judge, in April, 1839. The action was for two adjoining parcels of land in the town of Cortlandt, Westchester county; the first parcel, supposed to contain about 80 acres, and the other about 30 acres.

On demurrer. The 1st, 2d and 3d counts of the declaration were in debt, on sealed articles of agreement entered into between the parties, physicians and surgeons, containing various stipulations on both sides, and among others, that in case the plaintiff should not, within a given time, resume the practice of physic and surgery in Chesterfield, county of Franklin and state of Massachusetts, the defendant would pay certain notes (not mentioning their amount) given by him and…

<p>Motion to set aside the report of referees. The action was debt brought by Wager Hull, jun. to recover against the defendant Abel Adams, for services and board of the defendant’s workmen; also upon a note under seal, whereby the defendant promised to pay the plaintiff $2000 on the 1st November, 1840, with interest after the 1st May, 1839. The cause was referred-to referees.</p> <p>The principal question arose upon the defendant’s claim to be allowed $1000 as for money paid, &c. for the plaintiff; the facts in relation to which were as follows:</p> <p>On the 5th of November 1837, one Cocks, by indenture, demised to Samuel C. Adams a brick-yard and dock for the term of twenty years from the 1st of May, 1838, at an annual rent of $1000 per annum, payable on the 1st of May, &c. Samuel C, Adams, on the 11th of December, 1837, assigned his term to Hull the plaintiff, subject to the rents and covenants in the indenture, which the plaintiff covenanted to perform. On the 12th of January, 1839, the plaintiff, by writing, assigned the whole term (excepting a sub-lease of part) to the defendant,- subject, as therein ex-' pressed, to the rents and covenants in the lease. This assignment was under seal, and purported on its face to have been given in consideration of $3000 in hand paid, and in consideration of the defendant’s having covenanted to perform all the covenants which the plaintiff was bound to perform by his covenant with Samuel C. Adams. On the same day and at the same time the following writings passed between the plaintiff and defendant, viz: 1st, a covenant of the defendant, “ in consideration of the above assignment” (it being written under the latter) to keep and perform all the covenants of the plaintiff with Samuel C. Adams: 2d, two notes, by one of which, the defendant promised to pay the plaintiff $1000 on the 1st of May, 1839; and by the other, $2000 on the 1st of November, 1840, with interest after the 1st' of May, 1839, being the note sued on. The notes, also, were under seal.</p> <p>On the trial, the defendant offered to show by parol, that the plaintiff, by a verbal stipulation between them contemporaneous with the writings, was to pay the rent for the year ending on the 1st of May, 1839, the defendant having executed the note of $1000 as an indemnity for that purpose; that the plaintiff neglected to do so, whereupon Cocks, the lessor, compelled him (the defendant) to pay it. He therefore insisted that he should be allowed this payment against the plaintiff’s demand.</p> <p>The plaintiff objected to the evidence, as tending to contradict and vary the legal import of the written instruments between the parties; but the referees admitted it, and allowed the defendant the $1000, reporting a balance in favor of the plaintiff. The latter now moved to set aside the report.</p>

Debt, on recognizance of bail taken in an action of assumpsit brought by the plaintiffs against A. F. James, and Wm. R Taylor, in the supreme court of the state of New-Jersey. Plea, to the jurisdiction, that this court ought not to take cognizance of > the action, because at and ever since the time of becoming bail, the defendant was and still is, a .freeholder and resident of the state of New-Jersey, within and subject to the jurisdiction of the supreme court of that state.

Ejectment for a village lot in Knowlesville, Orleans county, tried before Dayton, 0. Judge, at the Orleans circuit, in October, 1839. Frederick B. Moore, being the owner of the lot, by deed bearing date November 1, 1835, for the consideration of $550, as therein expressed, conveyed the same in fee to the plaintiff, with the usual covenants of warranty. The conveyance was in terms an absolute deed, and it was recorded as a deed on the 11th July, 1836.

Motion to set aside report of referees. The action was on a promissory note for $326,59, dated October 23d, 1839, made by the defendant, and payable immediately, to S. Rice, or bearer. Rice transferred the note to the plaintiff, on the 11th January, 1840.

In March, .1839, the plaintiff brought an action of replevin against the defendant, to recover a quantity of hemlock logs. In April following, the plaintiff died, and administration de bonis non, with the will annexed of Peter Bain, has since been granted to Silas Brown. for the defendant, moved for a rule substituting Silas Brown, administrator, &c. as plaintiff in the place of Nancy Bain, deceased, and that the suit proceed in the name of said Brown.

The Bank of Watertown is an association formed under the act of 1838, (Statutes of 1838, p. 245,) with a capital paid and secured as the statute directs, of $100,000; and carrying on the business of banking in the village of Watertown.

<p>Motion by the defendant Spicer, to be relieved from the judgment and execution in this cause. The facts are sufficiently stated in the opinion of the court.</p>

Motion to set aside, judgment for irregularity, This suit was commenced in Nevember, 1840. The defendant’s default for want of a plea having been duly entered, the plaintiff, pursuant to notice for that purpose, proceeded on the 15th of February last to .execute a writ of inquiry, and had his damages assessed at $3328,87. The defendant on the same day gave notice of a motion to be made at the next March special term to open the default.

moved for a rule that Jacob Berringer pay the defendant his costs which he had recovered against the plaintiff in this cause by the judgment of this court. He read affidavits showing that the demand for which this suit was brought had been, assigned to Berringer, and nominally to Barent P. Staats jointly with Berringer before this suit was brought; and that Berringer had, according to his admissions, participated in its prosecution for his own benefit.

moved to set aside the default and subsequent proceedings for irregularity, on the ground that the default was entered after the service of a plea. He read án affidavit of the defendant’s attorney stating the service of a plea in due season upon the clerk of this court, as agent for the plaintiZf’s attorney, but there was no proof that the attorneys for the respective parties resided either in different counties, or more than forty miles from each other in the same bounty.

Amendment, in slander. The words charged in the, declaration imported that the plaintiff was a thief, and had stolen the defendant’s apples, to which the defendant, supposing he had no evidence of justification, pleaded the general issueAfterwards, discovering evidence by which he believed he could justify the words, he moved for and had leave to amend.: by adding a plea that the words were true.

Redemption of lands sold on execution. Motion in behalf of Ives, for a peremptory mandamus, on á case agreed,, to be directed to the sheriff of Rensselaer county, commanding him to execute a deed to Ives of pertain lands sold under a fi.fa., and which Ives had sought to redeem. There were three judgments against Hedges & Mulford, all docketed at the same hour, October 24th, 1839; one in favor of Bell, one in favor of Miter, and another in favor of Clark.

<p>moved for a perpetual stay of the fi. fa. issued in this cause against the defendant, in respect to a farm situated in that county, purchased by G. S. Tiffany of the defendant S. Tiffany, on the 26th day of July, 1831. ■ ;</p> <p>It appeared that the judgment on which the execution issued was perfected on the 28th day of April, 1826, on a bond and warrant intended to secure the plaintiff against a letter of credit, in consequence of transactions under which there was now due $1456,13, on the judgment, with some interest, for which the execution issued tested the first.Monday of January, 1841.</p> <p>G. S. Tiffany purchased without actual notice of the judgment, paid a part down, and afterwards the remainder, the defendant being apparently in good circumstances.</p> <p>read an affidavit showing that the plaintiff, before J. G. Tiffany had paid the defendant in full for the farm, gave him notice of the judgment, when he promised to keep back sufficient of the purchase money to indemnify the plaintiff for the sum he . then stated to be due.</p>

AffíüaVit of merits. The defendant’s default for not pleading haviiig been entered, he now moved to set it aside for irregularity ; bút failing in that, he asked to be let in on terms, upon an affidavit of merits setting forth that he had “ fully and fairly stated the facts of his case,” &c. and then going on in the usual form.

Motion in behalf of the defendants, for a rule that the proceedings on the part of the plaintiff be stayed, or that the plaintiff discontinue, with costs. The action was debt, on a judgment in assumpsit. The motion was founded on the fact, that the action had been brought within the thirty days allowed to the defendants by the statute, (Sess.

moved for a rule that one Bogert pay the plaintiffs’ costs of prosecuting this cause to judgment, on the ground that the defendant ■had been before and during the pendency of the suit, the tenant of Bogert; and that the latter had defended the suit in his name.

moved for. a, rule against one Polly, that he pay the plaintiff’s costs of this suit. The action was ejectment for land in the defendant’s possession, and Stevens read an affidavit of the defendant, that Polly claiming title, the defendant at his request continued, in possession and defended, on the faith of Polly’s promise to indemnify him. That he should not otherwise ijave defended.

for a rule staying all proceedings on the part of the plaintiff, until a chancery suit in the 6th circuit should be decided, in which the present defendant had filed a bill, and obtained an injunction against the plaintiff. The present suit was an action of ejectment.

Subrogation. The action was on a note made by F. W. Walker, payable to the order of M. Walker,, and endorsed successively, 1st by M, Walker, 2d by I, Harris,' 3d by S. B. Roberts, and 4th by A, Blair.

<p>A justice of the peace whose wife is the sister of A.’s wife, cannot take jurisdiction of a cause in which A. is the plaintiff in interest, though prosecuted in the name of another; and if he render judgment therein, it may be treated as absolutely void.</p> <p>Such relationship between the plaintiff and a juror, constitutes a ground of challenge for affinity.</p> <p>And if the sheriff is thus related to the plaintiff, it is cause for challenge to the array.</p>

<p>A. C. Hand moved for a mandamus to be directed to the board of excise of the town of Westport, Essex county, commanding them to enter a resolution to grant a license to the relator for keeping a tavern in that town, and to sign such license, pursuant to 1 R. 8. 676, 2d ed. The motion was founded on affidavits tending very strongly to show, that the relator was in every respect a fit person, within the statute, to receive a license to keep a tavern at his residence in the village of Westport, and in the house proposed, at which he had kept a tavern under regular licenses for several years; and that all this was known to, and admitted by the board, on his application to them for a license. Yet, on applying and offering the proper- bond, they refused to enter a resolution pursuant to § 3 of the act, or to grant the license, though they all knew the fact that no 'tavern was licensed in the village, and admitted that a tavern was absolutely necessary there.</p> <p>The affidavits tended to show, that the refusal to license was on the sole ground that the board considered any license under the excise laws, giving authority to retail spirituous li-' quors, a public evil. They also tended to shów that, at first, the board concluded to grant a license; but no resolution had been entered in their minutes to that effect, and they continued; to withhold a license.</p>

H. P. Hastings, in person, moved to set aside all the proceedings in this cause on the part of the plaintiff, since January 1, 1840, with costs. It appeared by various affidavits that in May, 1838, the plaintiff having recovered a general verdict on three counts, the defendant made a case for a new trial, and moved in arrest of judgment, having procured the proper order to stay proceedings in respect to both motions.

<p>A notice of special matter accompanying a plea of the general issue, .will not be struck out as frivolous, if it contain what may plausibly be urged in bar of the action.</p> <p>The main reason for striking out frivolous pleas, (viz. delay,) does not apply to a notice,</p> <p>A notice, however, containing matter .palpably absurd end impertinent, - will bp stricken out.</p>

<p>ffWs court will not grant a mandamus to compel a county medical society to admit one as a member, where it clearly appears that if admitted he would be immediately liable to emulsion for gross ignorance or misconduct.</p> <p>Semble, that even where an officer of a corporation has been irregularly removed, yet if there appear to have been good cause for removal, a mandamus will not lie to compel his restoration.</p>

Motion to change the veiiue. In this case, several objections were taken to the form' of the affidavit on which the motion was founded. It was said, that the affidavit did not state the nature of the action, so that the court might see whether it Was local or transitory.

moved to change the venue from Allegany to Cattarqugus, on an affidavit that the defendant had fifteen witnesses in the latter county. read an affidavit showing that the defendant’s witnesses reside nearer the court-house in Allegany, where the venue was laid, than they do to the courthouse in Cattaraugus, to which the defendant proposed to change the venue—the witnesses having only 25 miles to travel in the one case, and 27 in the other.

<p>' Action on the case against the defendant for not returning a_/&./«.. delivered to him in favor of the plaintiffs, alleging that the defendant, before the return day, levied on sufficient goods, to satisfy the execution, but that he had not paid the money or returned the writ. The defendant pleaded, 1st, not guilty, and 2d, that he was not guilty at any time, within three years next. before the commencement of the suit.</p> <p>on affidavits, stating that the execution was not .returned, moved to strike out the second plea as false. It did not appear when the execution was returnable, though it was assumed by the counsel'on both sides that it was more than three years before this, suit was, commenced.</p>

<p>Double costs. In an action of replevin, brought against ' the defendant for taking certain goods on execution as sheriff of the city and county of New-York, the costs of a special motion, made after verdict for the defendant, but pending a case, were ordered to be paid by the plaintiff. The taxing officer allowed the defendant the usual costs, with one half in addition. (3 R. & 617, § 34.)</p> <p>moved for a re-taxation, and insisted, first, that an officer was not entitled to double costs in the action of replevin ; and second, that he was not entitled to such costs on a special motion. On the first point, he cited Crummer v. Huff, (1 Wend. 34.)</p>

The defendants, as commissioners of highways of the town of Newtown, laid. Out a road over the relator’s land, and on his behalf, now moved for a certiorari to remove the proceedings into this court, on the • ground that the defendants, although they had been duly elected commissioners, had not taken the oath of office within the time prescribed by law.