Volume 1 — Johnson's New York Reports

THIS was an action on a policy of insurance, on the cargo of the ship Sisters, upon a voyage at and from New-York to Havre de Grace, in France.

THIS was an action on a policy of insurance upon ten hogsheads of Sugar, specified in the margin of the P°^c7’ on board of the ship Charlotte, at, and from Antigua to New.York. At the trial, before his honor, Mr. Justice Radcliff, at the New-York Sittings, the 10th April, 1802, a verdict was found for the plaintiff, for a total loss, subject to the opinion of the court, On the following case.

THIS was an action of covenant on a charter-party dated the 4th day of August 1803, between the plaintiffs, as agents for the owners of the brig Jefferson, and the defendants, by which the plaintiffs granted, and let to freight to the defendant, the said brig, for a voyage from the port of New-York to the island of St. Lucia, and back again ... ° to New-York.

THIS was an action of assumpsit, tried before Mr. justice Livingston, at the New-York sittings, the 27th day of September, 1804. The declaration contained the usual counts for goods sold and delivered, money had and received, &c. and an insimul computassent. The defendant pleaded non assumpsit, with a notice of the special matter intended to be given in evidence, under the general issue.

THIS xvas a special action on the case. The declaration stated the defendant to be the attorney of the plaintiff; that m consideration oí a certain reward he promised to put out such monies belonging to the plaintiff, as came imo his hands, on bond and mortgage ; but that he failed and neglected soto do, by which means the mo ney was lost, &■’.

THIS was an action of trespass quare clausum firegit, for ente™g the house of the defendant in the city of New-York. It was tried before Mr. C. J. Lewis at the New-York sittings, the 11th day of April, 1803. In September, 1801, about a week before the trespass complained of, the plaintiff was taken in execution, and confined within the limits of the gaol in the city of New- York, where he remained with his family at the time of the supposed trespass.

<p>THIS was an action for publishing two libels, concerning the plaintiff, in 'the Lansingburgh Gazette. The cause was tried before Mr. Chief Justice Kent, at the Albany cir-_ J cuit, in October 1804. The declaration contained two counts ! one for a publication, on the 3d day of May 1803, 0f the following words : “ The character of the wretch is too well known to require a description, every lineament of his countenance reminds the beholder, that he was not bom to be drowned.”—The other count- was for a publication, on the 16th August, 1803, of the following words : “Yet “ these are cases which by a commissioned pettifogger of “ the lowest grade, are represented as being in analogy “ with that of Mr. Croswell, and which to deceive a too “ credulous public, hé has ushered to them through the “ foul swillage of a mercenary, drunken, subsidized rene- “ gado.”—The defendant pleaded not guilty. The publication was admitted, and the inuendoes proved.</p> <p>The defendant then offered to prove the general character of the plaintiff, both as a lawyer, and a man, to beso bad, as not to entitle him to more than mere nominal damages, which evidence .was overruled by the Judge,</p> <p>The jury found a verdict for the plaintiff, for two hundred dollars damages.</p> <p>A motion was made for a new trial for the misdirection of the Judge who tried the cause, and the same was argued at the last term by Ematt for the defendant, and by Wood-worth Attorney General, and Edwards for the plaintiff.</p>

FROM the return of the certiorari directed to the court 0f general sessions in the county of Ulster, it appeared,.' ° . . . 11 that an order had been given by two justices of the peace, ^or t^ieremoval°f Sarah Hide, a pauper, from the town of Mamakating to the town of Shawangunk.

The return to the certiorari in this case, stated, that the plaintiffs, in the suit before the justice, declared against the . . . present plaintiff m error, on a written agreement, dated the February, 1804, by which he promised to frame and put up for them a house of certain dimensions, on or before the first day of June following.

THIS was an action of slander, in which an interlocutory judgment had been obtained for want of a plea, and a writ of inquiry awarded, on which six hundred dollars damages were assessed by the jury.

WOODWORTH, attorney general, for the plaintiff, moved for a struck jury in this cause, on an affidavit stat- ** ing, that the plaintiff, at the time of the publication of the libel for which this action is brought, was, and now is, Recorder of the city of New-York, and ex officio, a director of the Manhattan Company ; that the libellous publications in question were concerning his conduct in relation to the interests and affairs of the said Company; and that the same were…

L. ELMENDORF moved to set aside the judgment and execution in this cause, for irregularity. .

<p>AT the last term, an alternative mandamus had issued, directed to the defendants, and no return having been made, Émott now read an affidavit, stating that it had been served ^ delivering a copy thereof to each of the defendants, and at the same time shewing the original, and moved that a peremPt0i7 mandamus should issue.</p>

<p>In trover, the court will not. order articles which have been tendered to the plaintiff and refused, to be struck out of thededaration; for the plaintiff may claim damages for their deterioration. Machines and tools of a man’s trade, are not allowed to be brought into court in an action of trover.</p>

<p>THE defendants were indicted, at the general sessions of the peace, in Washington county, in September, 1803, for a conspiracy, and were brought to trial on that indictment, at the court of oyer and terminer, held in that county in' June, 1804. The district attorney, discovering some material evidence, which could not be immediately obtained, moved to withdraw a juror, which was granted by the court, without the consent of the defendants. At a subsequent day, the defendants were again arraigned, tried, and found guilty on the same indictment. In February term, 1805, upon a case submitted, this court decided, that judgment must be arrested on that conviction, and the defendants discharged, on the ground that the juror was improperly withdrawn, by order of the court of oyer and terminer, on the first trial.* After the defendants had been thus discharged, they were again indicted for the same offence, at the oyer and terminer in June, 1805. To this indictment the defendants plead autrefois acquit, and the district attorney replied nultiel record.</p> <p>The indictment on which the defendants were first tried, was, in substance, as follows : That the defendants, wickedly devising, and intending to defraud one Oliver Darren of his money, goods, &c. on the 11th. day of June, 1803, at Green-wich in the county of Washington, xvickedly, fraudulently, &c. did conspire to cheat, the said O. D. of his money, goods and chattels, under a false and deceitful color and pretence of Barrel#s securing to be paid unto the said 0. D. 341 dollars and 30 cents, by indorsing and transferring to the said 0. D. a certain promissory note, made by one Medad Gun, by which note the said Medad promised to pay Barret, or order, 341 dollars and 30 cents on demand: and that the said Barrett, in pursuance of and according to the conspiracy aforesaid, did, on the 1st day of September, in the year aforesaid, wickedly and fraudulently pretend, that the said Medad was solvent, and able to pay the said note, and that O. D. would be in no danger of losing the sum of money contained in the said note, by taking the .assignment thereof, at the risque of the said 0. D’s collecting the contents frcm the said M. G. and without resorting to íhé said Barrett as indorsor: and that the said Ward, according to the conspiracy aforesaid, afterwards, to wit, on the 1st day of September, at Greenwich aforesaid, falsely and deceitfully represented to the said O. D. thathe, the said Ward, was the said Medad Gun, the maker of the said note, and that the said Ward, then had §200, in money, for the purpose of paying in part, the contents of the said note, and that in case the said 0. D. would purchase the said note of the said Barrett, he the said Ward, -would thereupon immediately pay the sum of §200 to the said 0. D. in part payment of the said note, and would pay the remainder in a short time thereafter. The indictment further charged, that Barrett, according to the said conspiracy, assigned the said note in the manner above stated ; and that Barrett, in purance of the said conspiracy, under false pretences, did wickedly and fraudulently obtain from the said 0. D. one horse of the value of §30, • a waggon of the value of §30, &c. of the goods and chattels of the said 0. _£>. whereas, in truth, the said Medad was not solvent and able to pay, ike. and that the defendants, at the time, well knew the same ; and whereas, .in truth, the said Ward was not the maker of the said note, nor liable to pay the same, as was falsely pretended, &c. and that the defendants well knew the same, &C.</p> <p>The question as to the validity of the plea of autrefois acquit, was brought before the court on a case made.</p> <p>The case ivas argued, in August Term last, by Russell, attorney for the people, and Cretry, for the defendants.</p> <p>The points contended for by Russell, were, 1. That the of-fence charged in the first indictment does not appear to be the same as the one laid in the second.</p> <p>2. That the former indictment was erroneous, and therefore no bar to a second prpsecution.</p> <p>The judges, not being unanimous, now delivered their opinions seriatim.</p>

THE defendants were indicted in Kings County for keeping a nuisance. The indictment contained two counts.

THIS was an action of debt on a judgment in this court. The defendant pleaded, that after the rendering the said judgment, and before the commencement of the present suit, to wit, on the 4th day of June, 1803, the defendant, being an insolvent debtor, within the true intent and meaning of the act, for giving relief in cases of insolvency,did, in conjunction with three-fourths of his creditors, &c. present a petition to the Recorder of the city of New-Tork; (which petition…

¡ m, . , . r , ,, 1 A bis was an action ovassumpsit, on a promissory note made by the defendant, in 1798, for 3400 livres, paya- . - 1 J ble to Alexander Stewart, or order, on demand, for value received of Paul R. Randall, which note was indorsed to the plaintiffs, as trustees of Randall. The declaration also contained a count for money had and received. Plea, non assumpsit.

THIS was a special action on the case. The declaration, contained four counts.

THIS was an action of assumpsit for money paid, laid out an¿ expended by the plaintiffs for the defendants, and r J f 1 for money had and received by the defendants to the Plea non assumpsit. The by the use of the plaintiffs. Plea non assumpsit. ltie cause was tried at the New-Tork sittings, on the 5th of July 1803, before Mr. justice Livingston, when a verdict was found for the plaintiffs, subject to the opinion of the court, on the following case.

This was an action of assumpsit, for goods sold and delivered. Plea, non assumpsit. The cause was tried before Mr. Justice Livingston at the New-Tork sittings, on the 14th January, 1805. On the trial, the plaintiffs proved their account for the goods sold, and there rested the cause.

<p>THIS was an action of assumpsit. Tiie declaration contained five counts. The first count stated, that whereas the defendant, in consideration that the plaintiff would buy of the defendant, at his special instance and request, a quantity of cotton, to wit, 67 bales and 2 bags, weighing &c. at á certain price per pound, to be paid &c.—.the defendant, “ then and there undertook, and faithfully promised the said “ Robert Perry, that the said cotton, and every part thereof tc was good merchantable cotton, and fairly packed, bound, “ and put up in "the said bales and bags, and was equal in “ quantity to a certain parcel then and there produced and 66 shewn as a sample thereof.” It then avers, that the plaintiff confiding, &c. did buy the cotton for the price mentioned, and paid the defendant for the same ; but that the defendant not regarding his promise, &c. did craftily and subtilly deceive the plaintiff in this, “ that a great part of the “ said cotton, to wit, 16 bales, was then and there deceiiü fully and fraudulently packed, bound and tied up, and in “ an unmerchantable state, and the middle or inside of dia vers, to wit, the said 16 bales, was not good or merchant* “ able cotton, but was then and there dirty and unmerchant- “ able, and of a very inferior quality,” &c. The second count stated, that in consideration the plaintiff had bought of the defendant the like quantity of cotton, at the same price, Ike. the defendant “ undertook, that the said cotton was “ merchantable, packed up,” &c. as in the first count. Yet the said defendant, not regarding, &c. but contriving and fraudulently intending to injure the plaintiff, deceived-him in this, that 16 bales of the cotton wore not merchantable, -packed up fairly, &c. but was unmerchantable and of an inferior quality, &c. The third court stated, that in considreration that the plaintiff had undertaken and promised to pay the defendant 7021 dollars and 60 cents, when requested &c. the defendant undertook and promised to deliver to the plaintiff, 67 bales and 2 bags of good merchantable cotton, of the value of 7021 dollars and 60 cents, when requested, Ike. Yet the defendant did not deliver the same, &c. but instead thereof “ did deceitfully and fraudulently deliver to the “ plaintiff, 67 bales and 2 bags of base, unmerchantable “ cotton, of a very inferior quality, and of small value, to “ wit, of the value of 10 dollars, contrary,” &c. The fourth count was for money paid, laid out, &c. and the fifth for money had and received to the use of the plaintiff. Plea, the general issue.</p> <p>The cause was tried at the New~York Sittings, the 18th December, 1804, before Mr. Justice Livingston. On the trial it appeared in evidence, that the defendant sold the cotton in question, as being in the public store on Staten-Island, where it had been deposited when imported on its. arrival from New-Orleans. The defendant produced a sample, and “ on being asked by the plaintiff if he “ might depend on the quality of the cotton being.like the sample, the defendant answered, lie would warrant the “ whole to be of the same quality and of equal goodness1 “ with the sample.” A short time after the purchase was concluded, the plaintiff sent his clerk to examine the cotton, taking with him" the sample which had been produced to the plaintiff; that on examining the bales, without -opening them so as to inspect the inside, the whole appeared to be as good as the sample, and in the same state as when it was imported. The bill of parcels was produced which contained no warranty. The cotton was exported to Liverpool, in England, where it was delivered in the same state as when it was taken on board of the ship, except a small portion which received some sea-damage. The consignees of the shippers sold the cotton to certain dealers in that article for a full price, but without any warranty. On opening the bales, considerable quantities of dirt and cotton seed were found in the inside ; the purchaser then demanded of the consignees compensation for the damage, in consequence of the cotton being falsely packed. The question of damage was voluntarily referred to arbitrators, mutually chosen by the consignees and the purchasers of the cotton, who after examining the cotton &c. awarded 187 - 4 t 11 sterling, to be allowed by the consignees for a compensation to the purchaser, and the consignees accordingly allowed and paid the same, and the expenses attending the arbitration, being TSl - 0 - 5 sterling, which sums, with interest, the plaintiff claimed in damages from the defendant.</p> <p>The defendant’s counsel moved for a nonsuit, on the ■ same grounds on which it was now argued before the court. The judge directed the jury to confine their attention to the third count in the declaration, and the proofs in support of it, and observed that the plaintiff was not entitled to recover, unless the defendant had been guilty of a fraud, in selling the cotton as good, knowing at the same time that it was not so ; and that there was no evidence, in his opinion, to warrant this conclusion ; that if the plaintiff was entitled to recover, there was no proof of damage, as the sale in England was so made as not to entitle the purchaser to claim damages of the consignees ; and that the damages he paid were in consequence of his voluntary act, in submitting it to arbitration, for which the defendant could not be answerable in law. The jury found a verdict for the plain tiff for 827 dollars and 76 cents. On being asked by the qourt on what grounds they found the verdict, they aiaswer ed, on the warranty charged in the first count of the decía7 vo ration, being of opinion that "no fraud was to be imputed to the defendant in the sale of the cotton.</p>

THIS was an action of trespass, for taking and detaining-ti16 plaintiff’s ship. Plea not guilty. This case was tried at the Ncrw-Tork sittings, the 8th January, 1805, before Mr- Justlce Livingston.

<p>A paiol pvomise from one person to an-*he third person, thh-d person* to maintain an promise" S"C Where die consideration 1 is set forth inja h'acTevMcnce to show that difíb'cntconsí"’-as inadmissible,</p>

FROM the return to the certiorari in this cause, it appeared that an action had been brought by the defendant in 1 _ ° J error, against the present plaintiff, before a justice of the peace, in which he declared on a writing or note, in the following words, “Due the bearer hereof / 3, 18, 10, .... . ** which I promise to pay to Abraham Thompson, or order, on demand, as witness my hand, this 22d 11th month, 1803signed, Jordan Cock.

FROM the affidavits in this case it appeared that William Brewerton, in 1799, recovered judgment in the court-of common pleas for the county of Washington, against Moses Harris and Moses Harris, jun. on which judgment a capias ad satisfaciendum issued, on which the defendants were taken in execution and paid the amount, being the sum of eighty dollars.

PENDLETON, for the defendant, moved for leave to amend the special verdict in this cause, by striking out the following words, “ that the said plaintiff, made to the said “ defendants, the usual proof of interest, and. proof of loss, “ more than thirty days before the commencement of his “ action, as was required by the said writing or policy of “ assurance,” which had been added to the verdict when it was corrected before the judge who tried the cause.

PENDLETON, in behalf of the defendant, moved for leave to amend the special verdict in this cause, by adding , r „ . , r , „ , , / . .. the following words, “ that one of the letters ordering msurance to be effected, was put on board of a certain brig ’ 1 ° therein mentioned, called the Friends, at Jamaica,” or that a venire de nova may issue, to ascertain that fact.

<p>THIS was an .action of ejectment. The cause was tried at the Washington Circuit, on the 12th june, 1805, before . ’ , Jrr Justice Spencer, when a verdict was found for the defendants. The plaintiff claimed title to lot No. 10, in the 1 1 25th allotment of the Kayaderosseras patent, granted November 2, 1708 ; the only words of which, material in , J 1 the present case, are, “ thence northerly to the north-west- “ most head of a creek, entitled, Kayaderosseras, about fourteen miles more or less ; thence eight miles more notherfy, thence easterly or north-easterly to the third falls on jii’¡)c¡nlj Niver. about twenty miles more or lessN This patent had been divided, in 1770, by certain commissioners, w'no had run the boundary lines, which the plaintiff contended were the true limits of the patent. The defendants claimed title to the premises in question, under the ^ueensboroitgh patent, dated the 1st June 1762, and insisted that a certain creek, assumed by William Cockburn, the c^ePuty surveyor general, as the north-xvest-most head of the Kayaderosseras was the true one, and that the premises i"a question, consequently fell within the bounds of the OPueensborongh patent. ^</p> <p>. On the trial oi| the cause, it was admitted, that the third fa^s-> down by the commissioners in the partition of the first patent, are the same as designated in that patent third falls in the Albany (Hudson) river, and known by the name of Bakeds falls.*</p> <p>On the motion made to set aside the verdict in this cause, as against evidence, as well as law, the following questions were raised for the consideration of the court.</p> <p>1. Whether in the map of the partition, made by the commissioners, about the year 1YYO, in running from the station on the Schenectady, or Mohawk river, they have assumed the real north-zvest-anosthead of the creek called ■Kayaderosseras ?</p> <p>2. Whether, as the patent describes the course 'from that point to be eight miles more northerly, the commissioners were correct in running the line a due north course P</p> <p>3. Whether the defendants have made out an adverse possession of twenty years'?</p>

THIS was an action of ejectment for a lot of ground and dwelling-house in the city of New-York..

THIS was an action on the case. The declaration contained eight counts-—!. For services, work, labour, care and diligence as master of two certain vessels, &c.— 2. Quantum meruit thereon—3. For work and labour, care and diligence in recapturing a certain schooner or vessel called the Romp—4. Quantum meruit thereon—5. For work and labour generally—6. Quantum meruit—7. For money paid, laid out and expended—and 8. For money had and received to the use of the plaintiff.

THIS was an action on a policy of insurance on the cargo of the sloop Masones Daughter, at and from New-York to v v a port or ports in the island of Cuba, and from thence back to New-York. The policy was underwritten on the 7th January, 1802, for the sum of twelve thousand dollars, at a premium of five per cent, and expressed to be on goods out, and on merchandize or specie, or both, home.

<p>A policy of insurance contained the followmgmemorandum: “ The 4evtsea fetter' without a regiswLianteSmerican." Itwas held that parol evidence could not be admitted to explain what was meant by a ■Sure of die'12 document was settled by pub-lie treaties and A^eadettliand a certificate of dSfnct doom ments; and saSing with a cei-tificate of no™"coinplianee with the Where money i s paidinto court under a rule on . . a policy of insurance, the plaintiff, by taking it out, will not be precluded from proceeding for a total loss when he informs the defendant’s attorney, at the time, of his intention to go for a total loss. Where a bill of exceptions or a special verdict is taken, and a case is also made, the party must make his election to proceed on one or the other, and will not be allowed to argue both.</p>

THIS was an action on a policy of insurance dated the 3 Ah February, 1804, on the freight of the ship Culloden- ^ JO r ■> valued at 03,200, on a voyage 44 at and from New-York to Barcelona with liberty to touch at Gibraltar.”.

THIS was an action on the case for an escape, and false return, on mesne process. The cause was tried at the New- ' r e Tork Sittings, the 17th April, 1805, before Mr. Justice Thompson. One Briggs was arrested by the defendant, who was sheriff of the city and county of New-Tork, on a capias ad respondendum, returnable in July Term, 1798, at the suit of the present plaintiff, and after being in custody in the gaol some weeks, he made his escape.

THIS was an action on a policy of insurance, dated the 26th June 1801, on the vessel' called the Mar cus, valued at 3400 dollars, on a voyage “ from New-York to Trinidad and from thence back to New-York, with liberty to stop and trade at CurracoaT 'The cause was tried at the New-York sittings, on the 24th day of April, 1805, before Mr. Justice Thompson, when the jury found a verdict for the plaintiff. The plaintiff claimed for a total loss by barratry of the master.

THIS was an action on a policy of insurance, dated the 31st of December, 1796, on the vessel called the Peggy, at and from Turks-Island to New-York. The plaintiff declared for a total loss by the perils of the sea. The cause was tried at the New-York sittings, April, 1805, before Mr. Justice Thompson; and the defendants demurred to the evidence produced on the part of the plaintiff.

THIS was an action on a policy of insurance, dated the r •' ’ 5th July, 1803, on thirty-five bales of cotton, valued at 1,800 dollars, at and from Nerai-Tork to Hamburgh, on board of the American ship Oroximbo. The cause was tried at the New-Tork Sittings, on the 27th day of April, 1805, before Mr. Justice Thompson.

THIS was an action of ejectment, for lands in Pittst own, in the county of Sensselear. The cause was tried at the circuit in Rensselear county, on the 30th May 1804, before Mr. Justice Spencer. The plaintiff produced, and proved, a lease of 248 acres of land, the premises in question, dated, the 15th March, 1794, for the term of 21 years, executed by Alexander Golden, deceased, on the one part, and Ebenezer Wilson, as lessee, of the other part.

THE facts in this case, which was tried at the same time with the preceding one, are nearly the same. Both leases contained the same covenant. This lease was for 135 acres, and there was a reservation of 40 acres for wood. Benjamin Agan, the son of the lessee, occupied a part of the premises under his father, who improved the remainder. Part of the time they worked separately, and took their respective crops.

<p>in every sale of, a personal chattel, there is an" implied warranty, in respect to the title of the’ vendori Aliter as to the quality or soundness of tile tiling sold-</p>

BY the return to the certiorari in this cause, it apPearech that, on the 23d of April, 1804, the justice issued a summons in behalf of Morehouse, in a plea of trespass on the case, against the present plaintiff, Elijah Owens, Sen. and Daniel Owens, to appear on the 4th of May fol- , , , , , , lowing ; and that the summons was returned as served on. the 28th of April, by reading to each of them.

THESE causes were argued at a former term, and judgments given in favour of the plaintiff, with liberty for the attorney general to make application to the court, for compensation for the improvements made by the defendants.

<p>FROM the return made to the certiorari in this cause, it appeared, that Dousrlas, the defendant below, was sued , A. . . - . , , . , , by Hoag, m an action of assumpsit; and pleaded to the plaintiff’s declaration, that previous to the commencement of that action, he had brought an action against Hoag, before another justice of the peace, in a plea of trespass on the case, and that the summons had been duly served on „ , - , . . _ Hoag, prior to the commencement of this action. On a demurrer to the plea, the same was overruled by the justice, and a judgment rendered against Douglas. A motion was now made to reverse the judgment; and the case was submitted to the decision of the court, without any argument.</p>

THIS was an action for a libel. The cause was tried at the Oneida circuit, on the 14th June, 1805, before Mr.Chief Justice Kent. The publication of the libel by the defendant, as editor of the Gazette in which it appeared, was proved.

THE plaintiff brought separate actions of trespass against the defendant, and five other persons for a joint trespass.™ The defendant was the principal trespasser, and the other defendants acted as his servants.

<p>THIS was an action, on an inland bill of exchange, against the defendants, as drawers. The cause was tried at the Nezv-York sittings, the 27th April 1805, before Mr. Justice Thompson, when the jury found a verdict for the plaintiff.</p> <p>The defendants, who are merchants, residing at Peters-burgh in Virginia, drew the bill in question, for $391 and 33 cents, at 6 months sight, dated “ Nezv-York, April 15 1803,” on Messrs. Hackley £s? Fisher of Nezv-York, by whom it was accepted.</p> <p>When the bill became due, payment was demanded of the acceptors, which was refused. The bill having been protested on the 18th of October 1803, the clerk of the notary on the same day, or the day after, put two notices in the post-office, in the city of Nezv-York, one directed to the defendants at Norfolk in Virginia, and the other to the defendants at Nezv-York, informing them of the protest for non-payment. The clerk testified that he made diligent inquiry after the defendants, at the banks in Nezv-York and elsewhere, and the information was, that they resided at Norfolk. The plaintiff was absent from the city at the time.</p> <p>Several bills had been drawn at the same time, by the defendants on Hackley Fisher, one of whom testified, that they were not furnished with funds belonging to the defendants, sufficient to take up all the bills. By an account current, however, it appeared, that after charging all the bills, there was but a small balance due the acceptors.</p> <p>One Whitlock, to whom the bill had been indorsed by the present plaintiff, and who had taken it up at the bank, and held it after it became dishonored, testified, that in April 1804, he called on Lipscombe one of the defendants, for payment; Lipscombe admitted the bill to be his, and said he would make arrangements for payment, that he had no means then, but would call and pay it before he left 1 town.</p> <p>A motion was now made td set aside the verdict, and for a new trial; 1. for the misdirection of the judge ; 2. because the verdict was against evidence.</p> <p>Three points were raised in the argument of this cause.' 1. That no notice was given to the drawers of the bill, of its having been dishonoured. 2. That no notice was necessary, as there were no funds of the drawers, in the hands of the acceptors. S. The subsequent promise by the defendant, Lipscombe, to Whitlock, was a waiver of the want of notice, and will enure to the benefit of the plaintiff.</p> <p>As the court decided the cause on the first point, and declined delivering any opinion on the other two, it is unnecessary to state the arguments of the counsel, farther than as they apply to the first question.</p>

<p>■ THIS was an action of trespass, for asssaulting, beating, seducing, debauching, and getting with child, the daughter of the plaintiff, per quod servitium amisit. Plea not guilty. The cause was tried at the West-Chester circuit, on the 21st of May, 1805, before Mr. Justice Livingston.</p> <p>The plaintiff produced his daughter, who proved the seduction, &c. She was then asked by the defendant’s counsel, whether the defendant had promised her marriage, previous to that fact ? This question was objected to on the part of the defendant; but on the plaintiff’s counsel offering to stipulate that the witness should not bring any action on account of the breach of such promise of marriage, the judge, though the question was still objected to on the part of the defendant, suffered it to be put to the witness, who answered, “ that the defendant did promise her marriage, before any connection between them, and that she yielded to his solicitations in consequence of that promise.”</p> <p>The judge charged the jury, that they might give the plaintiff damages, not only for the injury alleged in the de« claration, but also such damages as they might think the witness entitled to, had she brought a suit for a breach of the promise of marriage. The jury found a verdict for the plaintiff for five hundred dollars, damages.</p> <p>A motion was now made to set aside the verdict, for the misdirection of the judge.</p>

ON the trial of this cause, the defendants offered in Whence, their discharge under the insolvent act. It was attempted, on the part of the plaintiff, to show that the discharge was void, on account of fraud. The fact alleged in proof of the fraud, was the stating, in their account to the judge, that the plaintiff was their debtor, when, in truth, he was a considerable creditor of the defendants.

THIS was an action, on a policy of insurance, on the cargo of the schooner William, on a voyage from New-York to Madeira. The goods consisted of corn, flour, and a small quantity of beef, and were specifically enumerated 1 . . and valued m the policy, which contained the usual memorandum in regard to fruit, grain, &c. being free from average, &c. The defendants had paid into court Jive hundred and ninetu-seven dollars, under a plea of tender.

THIS was an action on the case. The cause was tried , , . . , . . - at the Nerw-York sittings, on the 10th ot January, 1806, before Mr. justice Livingston.

<p>THIS was an action of dower. The claim of the demandant was resisted on the ground, that by the will of Cornelius Van Alstyne, the late husband of Mrs. Larrabee, she was barred of her dower. The testator, bequeathed to his wife certain specific articles of household furniture, and forty pounds in money, to be paid at the times therein mentioned, and then declares, “ that this bequest and u devise, shall be understood in no other sense, than to ft be in lieu and stead of every other claim and preien61 sion, my said wife can, or may have on my estate.” Thirty-seven pounds had been paid to Mrs. Larrabee, but it did not appear with certainty on what account it was paid.</p> <p>This case was submitted to the court without argument.</p>

BENSON, opposed the hearing of the motion in afrest of judgment, in this cause ; he contended, that it xnust be made within the first four days of the term, next after the verdict, or that an order should be obtained, to stay proceedings until a further day for that purpose.

A suit had been commenced, at the instance oí William Cunningham,, on an administration bond. The present defendant and Cunningham were co-sureties for James Mavor, in the bond taken by the Surrogate, on granting administration to Manor, on the estate oí Robert W. Hal-stead, deceased.

Baldwin, in behalf of the defendant, moved to vacate , . , ,, , . . r t . , r th»? rule entered ior the trial or this cause by a joreign rim, from the city and county oí New-Tork. He read . . ' . an nffi lavit, stating that the parties had been prepared for trial at two circuit courts held in King's county, and a sufficient number of jurors did not attend, though they had - , , , . . , , , be m regularly summoned, and particularly requested to attend.

IN the liquidation of a partial loss on the cargo, in an action on a policy of insurance, a question was raised for the consideration of the court whether interest was allowable on the account.

<p>Where referrees in a case are chosen by the parties without any rule of court; the court will not listen to an application to set aside the report.</p>

<p>THIS cause was on a cer tiorari from a justice’s court.The present defendant, brought an action against the. pre- , . . „ , c . v c , c , . sent plaintiff, before a justice of the peace, tor the penalty °f twenty-five dollars, for taking excessive toll on the turnpike-road, from Newburgh to Cochechton, contrary to the provisions of the act establishing the turnpike.†</p> <p>On the jurors being called, the defendant objected to one of them, alleging as a cause of challenge, that the juror had previously expressed his opinion, that the toll so taken by the defendant, was unlawful and not authorised by the act, and at the same time, offered to verify by Proof’ the truth of the exception ; but the justice overruled the objection, and allowed the juror to be sworn;. given thereon for the debt and costs. A verdict was found for the plaintiff, and. a judgment</p> <p>Jones for the plaintiff in error, contended', 1. That the exception taken to the juror was legal and valid, 2. That the toll-gatherer was not liable to be sued under the act for this penalty. He is a mere agent acting under the directions of the company, and is bound to take such tolls as they establish; he is liable only if he take more than the rate fixed by the directors, whose rules and orders he is obliged to obey. If the rate of toll given to him by the direc-. tors is higher than what the law allows, the Company are the proper persons to be made responsible, not the defendant, who is an innocent ag-mt, and answerable only for his own misconduct. The words of the act, (sect. 13 J are “that “ if any toll-gatherer shall unreasonably delay or hinder “ any traveller or passenger at any of the gates, or shall “ demand and retain more toll than is established by the “ act, he shall, for every such offence, forfeit and nay 25 “ dollars, to be recovered to the use of the person so unrea- “ sonably hindered or detained.” In construing a penal act, the words ought to be taken in their strictest sense, and the offence alleged must be clearly within the terms of the law. Here the penalty is given to the person hindered or detained, but the plaintiff complained only of the defendant’s taking more toll than was authorised by law, and not for being hindered or detained. 3. The section which declares the penalty and gives the right of action, is silent as to costs ; yet the justice gave judgment for the costs.</p> <p>Kent, C. J. We have decided that in all suits brought under the ten-pound act, costs are given of course, where a debt, or damages are recovered.</p>

THIS was an action of assumpsit on a promissory note, . given by the defendants in England, to one M. G. Waage, resident there, for £ 223 sterling, dated 28th September, , 1803, payable to his order, on demand. The note was in- dorsed to one Thomas Holmes, and by him to the plaintiff.

<p>On an indict-anent for forging a checi, drawn in the name of a co-partnership firm, on the President and Directors of the Manhattan Company, it was held that it was not necessary to set out the names of all the partners wha composed the copartnership, or the Banking Company.</p>

THIS was an action of ejectment, brought to recover the possession of a lot of land, distinguished by lot number seven, in class number three, of the house lots in lot number seven, in the subdivision of lot number twelve, in the sixteenth allotment of the Kayaderosseras patent.

THESE were actions to-recover dower. P. W. Radcliff, f°r the demandant, on the return of the Grand Cape, moved thatrthé tenants should be called to save their defaults, that . . , , , , , , . , , final judgment should be entered up against them, and writs ,sf seizin and inquiry be awarded, u J • D. B. Ogden, for the tenants, thereupon moved, that the defaults entered at the last term, should be set aside; so that the tenants might now come in and plead.

BY the return to the certiorari in this cause, directed to t^le general sessions of the .peace for the county of Orange, it appeared, that an order had been made by two justices of the town of Newburgh, for the removal of one Thomas Hart, a pauper, from that place to the town of Piattekill; and that an appeal had been made from this order to the court of general sessions of the peace, by whom it was quashed, with costs. „ A few days before the order of removal was made, the…

<p>THIS was an action on a policy of insurance, dated the 22d September, 1803, upon the schooner Little Tom, valued at §2000, “ on a voyage from New-York to Barbadoes and a market, and at and from thence to New-York.</p> <p>The cause was tried at the New-York sittings, the 9th fanuaru 1806, before Mr. Justice Livingston. J J ’ J</p> <p>, , , , . , 1 he vessel sailed on her voyage, and arrived at Barbadoes in safety, and not finding a market there, proceeded to Santa Cruz, after stopping at one or two other places, and finding no market. The greater part of the cargo was sold at Santa Cruz ; but not being able to sell the residue, the vessel proceeded to St. Thomas, where the remainder of the outward cargo was sold, and after taking in a homeward cargo, she set sail for Néw-York. The , , . . , , . . , vessel having encountered very heavy gales of wind, was so shattered as to be obliged to put into Norfolk to refit; and the present action was brought to recover the amount of repairs.</p> <p>The plaintiff offered parol evidence to prove, that according to the understanding of merchants, and persons engaged in the West-India trade, the words in the policy, ft to Barbadoes and a market,” gave a liberty to go from island to island, in the West-Indies, and- to sell a part at each, until the whole was disposed of. The counsel for the defendants objected to this evidence ; but the judge, considering the-word “ market,” as one of doubtful signification, admitted the proof. Several merchants and underwriters testified, that these words had been used in policies for many years, and that they always understood, and believed, and that it was generally so received among the merchants trading to the West-Indies, that they gave the liberty of going to all or any of the ports in the West-Indies, and to touch and trade, until a market was found for all the cargo. Some of the witnesses, however, thought the liberty extended no farther, than to one port beyond that named in the policy, or at least, that after having sold a part of the cargo at one island, the insured could not proceed to another, and be protected by the policy. The jury found a verdict for the plaintiff.</p> <p>A motion was now made to set aside the verdict, and for a new trial. 1. Because, the parol evidence of the meaning of words in the policy, was not admissible. 2. If it was admissible, it was insufficient.</p>

<p>THIS was an action on a policy of insurance, dated the 18th of January 1804, on goods valued at 860 dollars, on a voyage from New-York to Newbern, in North Carolina, J ° on board the vessel called the Nantasket.</p> <p>when The loss was thus stated in the declaration ; “ that the said vessel, on the 1st of February, 1804, on her voyage, was, by and through the force and violence of the winds and waves and currents, and by the perils and dangers of the seas, forced and driven upon and against certain shoals and reefs, and by means thereof, the said goods laden on board of the said schooner, were then and there wetted, damaged and wholly spoiled, and became totally lost.” &c. J</p> <p>The cause was tried at the New-York sittings, on the 4th ®f January 1806, before Mr. Justice Livingston.</p> <p>The policy, abandonment, and interest were proved.— r The vessel sailed from New-York, on the 20th of January, 1804, on her voyage to Newbern, and arrived off Occacoke Bar, on the afternoon of the 31st of January. A signal was made for a pilot, to conduct the vessel over the Bar, which lies near the mouth of the inlet. 7</p> <p>_ _ In the morning of the. next day, a pilot came on board, who conducted the vessel over the bar, where, on account of the darkness of the night, they came to anchor. The anchor fouled, and dragged, and the- vessel was driven by the violence of the wind and current on the reef, from which, by cutting the cable, she was got off, and was driven on the beach at Occacoke point. In drifting over the reef, the vessel lost her rudder and boat, and a great 7 ° part of her sheathing. The master went to Shell-Castle, about six miles distance, to gain assistance and advice, and applied to the deputy Marshall of the District, of the name of Wallace, who refused, on account of the situation of the vessel, and state of the weather at that time, to furnish lighters to take the goods out of her. After’many inefTectual f . , . , attempts to get the schooner off, the master, with the best advice he could obtain from the persons there, had the cargo unladen, on the second day of February, and advertised £Qr saje at pUyjc anction, for the benefit of all concerned. The schooner was about fifty tons burthen, and when the goods were unladen, she had several feet of water in her hold, occasioned principally by the surf breakingover her as she lay. The master, after the first day, did not apply for lighters, nor endeavour to obtain another vessel to .carry the goods to Newbern, though lighters might have been obtained. The vessel belonged to Dewey and Stow, who were also the consignees of the goods. Stow was on board of the vessel, and Dewey came from Newbern to Occacoke, and gave directions as to the sale of the vessel and cargo, which took place, at public auction, on the 13th of February. Dezuey and Stozv, the owners of the vessel, attended and purchased most of the goods. One box was opened, and appeared wet, but the goods were not taken out, or examined, but were all sold by the package, without inspection. In consequence of a favourable wind, and high tide, the vessel was got off, and the goods purchased at auction, were put on board and carried to Newbern.— Occacoke is about 80 miles from Nczvbern; about six miles from Portsmouth, and the same distance from Shell-Castle. The vessel, in going up to Nezvbern leaked, but was easily kept free by the pumps, and the cargo was not damaged. It appeared to be the practice to sell the cargoes of stranded vessels on the beach at Occacoke. Lighters may be obtained, at regular prices, at Portsmouth and Shell-Castle, to carry goods to Newbern, or to other places in the vicinity.</p> <p>The jury, after going from the bar, returned into court, and asked the judge whether, if Dezuey acted with good faith, but mistook the law, respecting his obligation to early the goods to Nezvbern, after the accident, the defendants xvere liable. The judge said, that if the jury believed that Dewey acted with good faith, they ought to find for the plaintiff.</p> <p>The jury found a verdict for the plaintiff, for 871 dol- *> 1 1 7 lars and 83 cents.</p> <p>A motion was now made to set aside the verdict and for a new trial.</p>

• THIS cause came before the court on a writ of error, from the common pleas, or Mayor’s court, of the city of New-Tork. An action of trover, for certain goods and chattels, had been prosecuted in the court below, by the defendant in error, against the plaintiff in error.

THIS was an action on a bend with a special condition, and breaches assigned, &c. The jury had assessed the damages to the full amount of the penalty. The question submitted to the court Was, whether the plaintiffs were entitled to interest from the time of the verdict, to the day •of taxing the costs.

THIS was an action of debt, brought by the plaintiff qui tam, &c. to recover the penalty given by the 9th section of the “ Act to prevent and punish champerty and maintenance.” * The déclaration, after reciting the statute, states that one Maria Herkemer, unjustly pretending a right and tide to one undivided ninth part of sundry lots, pieces or parcels of land, &c. lying in the town of Kinderhook, in the county of Columbia, after the publishing of the said act, to wit, &c.…

<p>THIS was an action of assumpsit. The cause was tried ... at the New-York sittings, the 11th day of December, 1804, before Mr. Justice Livingston. The agent of the plaintiff delivered to the defendant, who was master of the ship _ r Paulina, at New-Orleans, three barrels of cochineal, the ProPerty °f the plaintiff, to be delivered to him at New* Tork, &:c. paying freight, &c. The defendant, on the 15th June, 1799, signed four bills of lading, one of which he retained. The cochineal was stated to be shipped for the . _ 1 r account and risk of the plaintiff, and to be delivered to him at Yíervo York. An invoice of the cochineal, and proof 0£ the ownership, made before the American vice-consul . at Netv-Orleans, (there being no consul there) with a conSL1bir certificate in the usual form, were delivered at the ¿ame time to the defendant, for the purpose of proving the property in case of necessity. The defendant refused to receive the cochineal, or to sign the bill of lading, until he was furnished with such proof of the property. The Pavlina sailed from New-Orleans for New-Tork, the 18th June, and was captured the 16th July, by an English privateer, and sent to New-Providence, where she arrived the 22d July. The captors seized the letter-bags and ship’s papers, broke open the trunks in search of papers, and carried all they could find on board of the privateer. The Paulina and her cargo were libelled in the vice-admiralty court at Nassau, as Spanish property. The defendant put in an answer and claim under oath, in which, after specifying the names of several shippers and consignees of the goods, he says, i" that the three barrels of cochineal were “ put on board by a Mr. James Freret, and that the de6‘ fendant was to deliver them to a Mr. Pierce, who was a 6i passenger on board, and resided at New-Tork, and since “ the arrival of the Paulina at Nassau had proceeded for “ that city. That the claimant did not sign any bill of la-fl ding therefor, and cannot take upon himself to say whose a property they are, having merely received them into his 61 state-room, and was to deliver them to .he said passenu ger, who was to pay him a consideration therefor.” It further appeared from the admiralty proceedings t Nassau, that the defendant had answered various interrogatories, in which he mentioned the names of the passengers and various particulars concerning them and the goods on board, and of bills of lading; but said nothing of the cochineal, nor of any bill of lading therefor. The court acquitted the Paulina, and the greater part of the cargo, being satisfied it was neutral property, and ordered further proof as to some shipments of money claimed as neutral, but condemned the three barrels of cochineal as lawful prize, being the only part of the cargo that was condemned. It appeared also that a commission to obtain further proof as to the property, was sent to New-Tork, but nothing was done as to the cochineal.</p> <p>^ie declaration contained counts on the bill of lading not delivering the cochineal, and a special count on the whole case. The defendant pleaded non assumpsit.</p> <p>The judge charged the jury, that it was a question of good faith between the parties,and that if they believed that the loss of the plaintiff’s property has been occasioned by the fraud or design of the defendant, they ought to find a verdict for the plaintiff; but if they believed that the defendant was innocent of any fraudulent intent, and that the loss had happened through mere forgetfulness, mistake, or unintentional default on his part, they ought to find for the defendant. That as all his papers had been taken from him, it was to be presumed that the defendant had forgotten that he had signed the bills of lading. That it was the duty of the captors, according to the prize-act, to deposit all the papers with the register of the admiralty, where they might and ought to have been examined by th& court. That if the papers relative to the cochineal were found in the register’s office, they ought to have been considered as evidence in the cause, though not exhibited by either party. So that the misconduct or inattention of the defendant was not the cause of the loss of the property, but rather the misconduct of the captors or the court, in not depositing the papers in the admiralty, or in not referring to them. The jury found a verdict for the defendant. A motion was made to set aside the verdict as against evidene'e, and for the misdirection of the judge.</p>

THIS was an action of trover. At the New-Yo'rk, sittings, on the 15th of December, 1804, a verdict was ta^cen f°r the plaintiffs, by consent of counsel, subject to the ppinion of the court on the following case : s W. & D. J. Cummings, the bankrupts, in the month of August, 1803, before any act of bankruptcy had been. committed by them, shipped a quantity of rice and other artic^es’t0 t^e*r correspondents at Cape Francois for sale and returns.

THIS was an action of debt on a bond, with á special condition. The cause was tried before Mr. Justice Livingston at the New-Tork sittings, on the 3d January, 1805.

THIS cause, came before the court upon a writ of er* from the court of common pleas, of the county of Cayuga.

THIS was an action on a policy of insurance on the Bri- . . tish sloop Betsy, the plaintiff, master, on a voyage at and from Charleston, S. C. to Jamaica, valued at 02000, at a premium of seven per cent. The cause was tried at the New-Tork Sittings, the 11 ih of April, 1805, before Mr. Justice Thompson, when the jury found a verdict for the plaintiff for a total loss. On a motion for anew trial, the' following facts appeared in the case.

THIS was an action of assumpsit for money had and received by the intestate. Plea, general issue.

THIS was an action on a policy of insurance, on the cargo of the brig Eliza, from Demerara to Netv-York. Held: and an order of restitution granted, on the ground, that the captor had neglected to prosecute his claim, Inconsequence of the order the master took possession of the vessel on-the 12th September, previous to which the vessel and cargo had remained in the possession of the captors, and the vessel had been much injured in consequence;…

was an action on a warranty, on the sale of the m°iety °f a ship. The cause was tried at the New-Tork sittings, the 10th of January, 1806, before Mr. Justice Livingston. On the trial it appeared that a regular bill ot sa^e ^or t^ie moiety of the ship had been executed and de* livered by the defendants to the plaintiffs.

THIS was an action of assumpsit. The cause was tried at the New-Tork sittings, in April, 1805, before Mr. Justice Thompson. In the year 1801, the plaintiff in this suit, who resides at Norwich in the state of Connecticut, commenced an action in this court for money had and received to his use.

THIS was an action on the case, brought on a judgment Dr decree of the supreme court of judicature of the state . of Vermont. Plea non assumpsit.' . . , . , plaintiff had exhibited a petition to that court, stating her The cause was tried at the circuit held at Albany ^the 17th October, 1805, before Mr. Justice Thompson.

THIS was an action on a policy of insurance. The cause was tried at the New-York Sittings, the 17th day of June, 1805, before Mr. Justice Tompkins.

THIS was an action of trespass, originally commenced before a justice of the peace, in which a plea oí title was put in, and was afterwards removed from the court of common pleas °f Queens County, by habeas corpus, to this court.

THIS was an action on the case, in the nature of a writ of deceit, and was tried at the New-York sittings, on the 31st December, 1805, before Mr. Justice Livingston, when a verdict was found for the plaintiff.

THIS was an action of trover, for a quantity of coffee. The cause was tried at the New-York sittings, the 18th day of April, 1806, before Mr. justice Spencer. At the trial, the following facts appeared in evidence.

THIS was an action of debt on a bond. The cause ... ■ was tried at the Orange circuit, in May, 1305, before Mr. Justice Thompson. The bond was dated the 21st August, 1794, and executed by the defendant and one Thomas Belknap, now deceased.

■ IN behalf of the- defendant,- a motion was made for judgment as in case of nonsuit, for not bringing this cause to trial at the last sittings, in Nezv~York. ' For the plaintiff, an affidavit was read that issue was joined in March last, and that if the cause had been noticed for trial, it could not have been tried, as older issues-on the calendar of the sittings, were not called on in their turn, or tried.

JONES, for the defendant, moved for judgment as in case of nonsuit in this cause, upon a report of referees. After the cause was at issue, the parties agreed to submit, it to referees, and that their report should be conclusive i and that if they decided in favour of the, defendant, he should be entitled to a judgment of nonsuit. 'A

VAN YEVEREN moved for leave to withdraw the assignment of errors, and for a rule, that the justice amend the return to the certiorari in this cause.

RUSSEL moved to set aside the capias ad satisfaciendum in this cause, for irregularity, and that the defendant be discharged from custody. From the affidavit it appeared that the rule for judgment was entered the 15th day of , 7 May last, and the judgment roll filed the 21st day of June.

THIS was an action of ejectment, for land in the township of Aurelius, in the county of Cayuga. The cause was tried at the circuit in the county of Cayuga, the 26th June, 1805, before Mr. Justice Tompkins, when a verdict was taken for the plaintiff, subject to the opinion of the court on the following case.

<p>The proof of the execution ef a deed, canáot,be taken by a judge of this state, out ofthe jurisdiction of the state. The judge before whom the proof is taken* is a competent witness to prove that it was done out of the state ; but he is not bound to answer any question that may impeach his conduct as a public ofheer.</p>

FROM the return to the certiorari in this cause, it appeared that the plaintiff in error was prosecuted by the defendant in error, qui'tdm. &c.‘ before it justice of the peace, to recover the penalty of 25 dollars for selling strong li-quors by retail, without having a license according to the' act.

THIS cause came before the court on a certiorari. The defendant below, brought his action against the pre- ... ° ° r sent plaintiff in error, a constable of the town of JohnstovJni in the county of Montgomery, for not levying ceiv tain executions at the suit of the plaintiff below, and delivered to him to be executed, within twenty days after receiving the same, and for not paying the debts and costs, in ten days thereafter to the plaintiff, in the manner required by the…

1 HE declaration in this- cause contained two counts. , , The first count stated, that whereas, on the 31st August, 1805, at, &c. a certain communication and conversation, ’ ’ ’ was had and moved between the plaintiff and defendant, of and concerning certain four obligations or bills for the payment of wheat, (which are set forth in the declaration,) and thereupon the defendant offered to sell and transfer the said obligations or bills to the plaintiff, and to induce the…

ON certiorari. The action below was to recover the amount of a subscription to a school for one year. On producing the subscription paper, the defendant below denied that he had ever signed, or authorised any person to put his name to it. A witness was sworn, and on his evidence, which was not particularly stated, the justice gave judgment in favour of the plaintiff.

<p>f action of slander3 on a motion of armenM^was held, tIlat if one count in the declaration be bad, and the other comits good, and a general verdict, and the judge before whom the cause was tried, certifies tnat the evidence did not particularly apply to the bad count, but went to the other counts, the plaintiff jjiay ejateg up his judgment on the good counts, on payment of costs.</p>

<p>P.oot, for the defendants, moved for as judgment, in case of a nonsuit, for not proceeding to trial pursuant to notice.</p>

<p>Root moved to set aside a judgment taken by default in this cause, and the subsequent proceedings.</p>

<p>THIS was an action for debt, on a judgment recovered in the court of common pleas, of the county of Ulster. The cause was tried at the circuit in Ulster, on the 2oth of June, 1806.</p> <p>The declaration was in the usual form. The defendant pleaded nil debet, andsubjoined thereto a written notice that the defendant would give in evidence under that plea, that an execution had been issued on the judgment which had been duly levied and paid to the sheriff.</p> <p>On the trial, after the record had been produced by the plaintiff, the defend ah t offered the special matter mentioned in the notice to his plea, in evidence, which was obiectedtoby the plaintiff. This point being reserved, the. . / ‘ . , r , , „ ’ jury, on the evidence, round a verdict for the defendant.</p> <p>A motion was now made to set aside the verdict, and for a new trial, on two grounds. 1. That the plea was not an answer to the plaintiff’s declaration. 2. If a good plea, it was not such a plea as would authorise the defendant to give any special matter in evidence under it.</p>

ON certiorari. The suit below was brought by the defendants to recover a penalty for encroaching on the highway, contrary to the provisions of the Act for regulating highways.* The process issued in the name of the plaintiffs, and required the defendant to shew cause, why, &c. and not to answer. On the trial, the justice admitted one of the plaintiffs as a witness.

THIS was an action of trespass, quare clausum fregit. 1 1 . J ° The cause was tried at the Washington circuit, the 11th Jutte, 1806.

ON return to the certiorari, in this cause, it appeared, that an action of debt had been brought by the defendant in error, against the plaintiff in error, before the justice, to recover the penalty of 35 dollars, for practising and administering medicine, contrary to the act,* and without obtaining the certificate, or making such proof as is required by the 1st section of the act.

<p>journment of a cause before a justice ofthe tice^ought ¿US" receive such affidavit,unless some special contrary be^ shown. If an attorney of the defendant offer to make affidavit of the absence of a material witness, and request an ad-</p>

Henry moved for a rule to stay proceedings in the bail-bond suit. He read an affidavit, stating, that the defendant and ■Jonathan Colton, now deceased, executed a bail-bond to the sheriff of Otsego, in 1804; that Jonathan Colton died in 1805 ; that the present defendant is sued on the bail-bond as survivor, and that the writ issued against him is returnable in this term.

ON certiorari. The present defendant in error, brought an action, before a justice of the peace, against the plaintiff in error, for money had and received to the use of the plaintiff, in order, to recover back so much money, which had been assessed by the commissioners of the highways, against the defendant, and collected by the present plaintiff, who was ah overseer of the highways, pursuant to the statute.

THIS was an action on the case, on an implied warranty in the sale of a horse.

THIS was an action of ejectment. On the trial of the cause, the record of the conviction of the attainder of Francis Pfister, under whom the lessors of the plaintiff claimed title, </ ' 1 was produced, and it appeared that the judgment was signed the 14th July, 1783.

THIS cause came before the court on the return to a writ - . r , - - , oi error to the court of common pleas or the county or Montgomery. The present defendant in error brought his action ^ , J 1 ° against one of the plaintiffs in error in the court below on a bail-bond.

<p>THIS was an action on a policy of insurance cm- the ship T/z'zíí, at and from Jamaica to New-Tork, valued at 8000 dollars. The cause was tried at the Nexv-York sittings, the 19th December, 1805, before Mr. Justice Livingston.</p> <p>The Eliza was a British vessel, and sailed from Jamaica the 25th September, 1801, on her voyage to New-York, and foundered at sea in a gale ef wind on the 25th October. The policy, interest and abandonment were admitted. The policy in question, was opened on the 16th November, by the broker, at a premium of 6 per cent, and 2000 dollars were underwritten, being all that was then ordered. The policy was again opened on the 18th November, about 12 o’clock, when the defendant and two other insurers subscribed, and another was about to subscribe, when the news of the loss of the vessel was announced. The order for insurance was given to the broker, by the agent of the plaintiff, who, about 10 o’clock in the morning of the 18th November, was advised by the broker to have a larger sum insured, as the vessel would soon be considered as out of time and he then re* quested the broker to get 3000 dollars more insured. It appeared that a vessel had arrived on the morning of the 18th November, in 35 days from Jamaica, the captain of which informed the agent of the plaintiff, that the Eliza had sailed from Jamaica about the 3d of October, but could give no further information concerning her. The broker b.ing called as a witness, swore, that he received a written order for the insurance, from the agent of the plaintiff, mentioning the time of the vessel’s sailing, which was shown to the underwriters who subscribed the policy on the 16th, and also to those who subscribed on the 18th November. Tha¿ he delivered this order, with the other preliminary proofs, to the defendant,' who soon after returned them to the witness, who delivered them, a day or two after, to the agent of Tie plaintiff, but he did not examine the papers when they were so returned, to see if the order was among them ; though he had since examined them, but could not find it. He said that it was usual to entrust the papers with the insurers, and that.they were generally returned all together. Notice had been given, on the part of the plaintiff, to the defendant to produce the order ; but on its being called fon. ■ c^en^ec^ that it vc as in his possession. The plaintiff’s counsel then asked the witness to state the contents of the written order ; but this was objected to on the part of the defendant, and- overruled by the judge. The witness was then asked, whether he did not communicate verbally to the underwriters, what was contained in the written order ? This being objected to, the judge ruled that thé witness might answer as to any verbal communications to the defendant, concerning the time of the vessel’s sailing, though it had been reduced to writing and shown to them. The witness then said, that he always laid before the underwriters the order of insurance with the policy; that some looked at them, and some of them did not; that they frequently asked him, as to the contents of the Order, and he answered them according to the order ; that he had no doubt that he had done so in this case, and that he communicated to the underwriters on the 16th November, that the Eliza was expected to sail about the last of September or the beginningof October ; and that he communicated the same information to those who underwrote on the 18th November, because, it was his general practice to communicate ' to them verbally, what was contained in the written order of insurance. The premium was an ordinary premium for a vessel not out of time. The agent of the plaintiff did not mention to the broker the- fact, that a vessel had arrived on the morning of the 18th November, bringing information that the Eliza sailed about the 3d October, nor was that fact communicated to the underwriters. It appeared, from the evidence of the broker, and several insurers, who were examined, that a vessel which has been out from Jamaica 45 days, would be considered as out of time, and a higher premium than ordinary, would be demanded in such case. Other witnesses testified, that, generally speaking, a vessel which has been out from Jamaica 45 days; would be considered out of time, but that it often depended on the course of the winds, and of voyages during the season ; that different Insurers made Very different calculations as to premiums, according to their different views of circumstances. It appeared that from the 1st to the 19th of No-member, different vessels had arrived at Nezv-York from Ja7 maica, with various passages, irom 29 to 45 days.</p> <p>The judge charged the jury, that it was the duty ofthe agent of the plaintiffs, to have communicated to the underWriters, on the 18th November, the information brought by the vessel which had arrived that morning, as to the time when the Eliza sailed; but that the materiality of such communication, was a question of fact, which the jury were to determine. The jury found a verdict for the plaintiff.</p> <p>A motion was now made to set aside the verdict, and for a new trial, on the following grounds. 1. That the testimony of the broker that he communicated to the defendant, which was contained in a written paper, was incompetent and inadmissible, as the paper was not produced, nor proved to-be in the possession of the defendant. 2. That the material information received by the agent of the plaintiff, was concealed and not communicated to the defendant. 3. That the verdict was against evidence.</p>

THIS cause came before the court, on an a Interlocutory order of the court of chancery. ppeal from an The following are the material facts which appeared in the case: On the 15th June, 1800, Joseph Eden, in order to indemnify John Wardell, a broker, in the city of New-entered up in the supreme York, against certain indorsements which he had made on the notes of J. Eden, and to secure the payment of monies lent to J. Eden, executed a bond in the penal sum of $100,000,…

<p>AYLMAR TOHNSON, on the 2cl September, 1796, be- . . . J 7 íngjustly indebted to William Green, m the sum of jgl55l 64 cts- Save him a promissory note for that sum, payable to him, or his order, at the Bank of New-Tork, on the 1st of May, 1798. To secure the payment of this note, Jonas Platt, who was a trustee of Johnson, executed a mortgage of two lots of land in Corley’s Manor, which was duly registered.</p> <p>In October, 1796, Green indorsed the note to the respondent, and delivered it to him, with the mortgage, which he bolds. The respondent filed his bill against the appellant and others, stating the above facts, and that he paid a valuable consideration for the note and mortgage, and that by non-payment of the money, he was seised of the mortgaged premises ; requiring an answer to every part of the bill, and praying that the money might be paid, or the premises sold in the usual manner.</p> <p>The respondent, on the 3d, of March, 1798, gave ai eeeiptto Green, acknowledging that he received the note of Johnson as collateral security for the payment of Greet?s note to him for $1491 11 cts. payable the 3d of May 1798, and stating, that the note oí Johnson was secured by a mortgage which was “ not assigned.”</p> <p>Johnson, in his answer, insisted that the mortgage had not been assigned to Green, who stated, that the sum really lent to him by the respondent, was only $1035 ; the residue of the note being for usurious interest. There was no satisfactory evidence of the usury ; and the chancellor decreed a sale of the mortgaged premises, and an account to be taken of what was due on Johnson’s note, and directed the proceeds to be applied to the payment of what was due, and the costs. From this decree, Green appealed to this court.</p> <p>The reasons for the decree were assigned, by - ■</p> <p>The Chancellor. Since I have had the honour of presiding in the court of chancery, I have uniformly made it my practice, on every occasion which involved the least doubt, to reduce the opinion I expressed, to writing. Hence, on every appeal from any decree pronounced by me, in that court, I have, in assigning my reasons for it, strictly confined myself to the precise terms in which my opinion was conceived at the time of delivering it.</p> <p>I regret, that either an impression that the decretal order appealed from in this case, was consonant to the established principles of the court, or my having parted with, or mislaid the paper containing my reasoning on the subject, will prevent me from following my usual course.</p> <p>As the circumstances attending the argument have left very indistinct traces of it in my mind, and as I have not even a note respecting the manner in which i disposed of the points presented for my determination, I must necessarily substitute my present view of the subject, for that on which the decree appealed from was founded.</p> <p>It cannot be of much use to travel farther into the cause, than the points on which the appellant relies for the reversal of the decretal order ; and as the solicitude which a sense of duty cannot fail to excite, is now devolved upon this court solely, the reasons which occur to me in support of the order, will be stated with the utmost brevity. , The disparity between the amount of the sum, to secure which the note was transferred, and the sum due on it, is a proper subject for the examination and adjustment of the master ; upon the coming in of whose report, it would have been competent for either party to apply for a modification of the judicial decree so as to consist with the rights of the several parties in interest. ' ■</p> <p>.The usury is disclosed in the appellant’s answer. The existence of the mortgage and the note is admitted. The allegation of usury is merely in avoidance, in its present complexion ; for though in answer to the complainant’s allegation of a pre-existing bona fide debt, it might have effect, if the evidence of the existence of the debt depended upon parol only ; yet, I think, it is not of itself, and unsupported by other proof, available to defeat a deliberate promise in -writing•, acknowledging a receipt of the value, and engaging to pay in consequence of it.</p> <p>The inceptive steps of strictly fair and legal loans, are not unfrequently, from the nature of the transaction, secret and confidential, and the knowledge of them confined to the parties interested ; and if the simple averment of the borrower, though verified by his oath, possessing the force attached to it as an extorted disclosure from a deponent, can. be admitted to destroy the effect of securities deliberately formed, and clothed with the necessary legal formalities, the suppression of the exaction of usurious interest by those means, must unavoidably tend to promote the greater evils of fraud and perjury.</p> <p>The circumstances to be collected from the testimony, have no necessary connection with the transfer ; nor does it appear to me, that they are so corroborated by the appellant’s answer, as to render it doubtful which ought to preponderate. If that were not the case, it could not be a proper subject for an issue.</p> <p>As to the second point, whether the respondent acquired any right to the mortgage in question, by the .transfer of the note ?</p> <p>The note given to the appellant by Ayhnar Johnson, was coeval, and part of the same transaction, with the mortgage in question, and the only reason why the agency of Jonas Platt was at all connected with it, appeared to have been, because, he held the mortgaged lands, which were intended as collateral security for the payment of the debt due from Johnson, as his trustee. Johnson, therefore, in every equitable point of view, was both the maker of the note and mortgagor, as the mortgage was executed by his direction or procurement, by his trustee, who has disclaimed all other interest than such as he holds as trustee, and respecting whose .interest the parties do not differ.</p> <p>The indorsement of the note by the appellant to the respondent, was accompanied by the delivery of the mortgage. If the note was satisfied, it involved the satisfaction of the mortgage, for the existence of the mortgage, by express reference, depended upon that of the note. In its essence, and by act and operation of law, it was parcel of the same contract, executed at the same time, directed to the same object, and to be satisfied by the same means.</p> <p>The doctrine laid down by Lord Mansfield in the case of Martin ex dem. Weston v. Moxvlina* which was cited in argument, before me, applies to this point with much force.</p> <p>The question in that case arose on a bill, between the representatives of the real, and the representatives of the personal estate of the testator.</p> <p>In defining the species of property of a mortgagor, Lord Mansfield observes : “ A mortgage is a charge upon the land, and whatever will give the money will carry the estate in the land along xvith it, to every purpose. The estate in the land is the same thing as the money due upon it. It will he liable to debts ; it will go to executors j it will pass by a will not made and executed with the solemnities required by the statute of frauds. The assignment of the debt, or forgiving it, will draw the land after it, as a consequence ; nay, it would do it, though the debt were only forgiven by parol; for the right of the land would follow, notwithstanding the statute of frauds.” .</p> <p>The receipt of Ephraim Hart, designates the mortgage as delivered, but not assigned. This, it appears to me, was merely descriptive of its situation, at the time of its delivery. It had no formal assignment; but if it was intended not to be assigned, its delivery to the respondent is inexplicable, unless the slight ligament connecting the note with the mortgage, is the reason, as alleged by the appellant. But that circumstance would appear to intimate, that the parties intended they should remain inseparable.</p> <p>I think, however, that the transfer of the note, and the delivery of the mortgage, are decisive on this point, and that the respondent took the latter as a legal incident of the transfer of the debt.</p>