Volume 1 — Wendell's New York Reports

A capias was issued during the last October vacation, tested in October, 1828, returnable on the first day of March then next. On the 19th March, the defendant, by his attorney, gave notice of an intended application at this term to set aside the writ, the notice not stating that the attorney was retained to defend the suit.

This is a scire facias against the defendants, as the heirs and terre-tenanls of John Sharp, their father, on a judgment against him. The defendants are minors within the age of twenty-one. On the 25th February their appearance was entered by H. Sharp, their guardian ad litem.

On 20th March a plea was served on the plaintiffs’ attorney by a clerk of the defendant’s attorney, who, before he could have proceeded to the office of his principal, returned and served papers preparatory to a motion for reference.

Attachment against sheriff for not returning execution. The defendant, in his answers to the interrogatories filed, state[] that a paper in the form of an execution of this court, test-1 1 ed at Albany, in August, 1824, returnable on the third Monday of February, and not having the seal of the court attache<^ hereto, was received by one of his deputies; that the deputy had received of the defendant in the execution $165; that the money had not been paid over to the sheriff;…

Motion to set aside a default for irregularity. On the 18th February, ,a plea of the general issue was served. Four days afterwards, the plaintiffs’ attorney amended his declaration by changing the venue from Albany to Oneida, in pursuance of a rule entered in the common rule book, filed and served an amended declaration, entered a new rule to plead, and served notices of the rules to amend and plead.

A question was submitted to the court, whether a disIrict attorney is personally liable to the clerk of the circuit for his fees, on the trial of a cause removed from the oyer and terminer and tried at the circuit.

Motion to set aside an execution as paid. ■ The judgment was rendered in 1819. Sundry payments having been made by the defendant in cash and country produce, in February J . . , . . ._ , , , last an execution was issued by the plaintiff, on which a balance was claimed of less than $50.

Commission to take testimony. Action, assumpsit for goods sold in Boston. The cause is not at issue, nor is the defendant’s default for not pleading entered. A motion is made for a commission to take the testimony of a witness residing in Boston, to be used on the executing of a writ of inquiry of damages.

Scire facias to revive a judgment. The sheriff returned that he had given notice to the defendant to appear according lo the exigence of the writ, by notifying the wife of the defendant, in the house of her husband, he being absent in parts unknown. On this return, a rule was entered that the defendant appear in four, and plead in twenty days, or judgment. A motion was now made to set aside this rule.

The relator, as sheriff of the county of Monroe, was sued before a justice of the peace, for the escape of one R. Fitch, a prisoner in execution, from the liberties of the jail. Elijah Filch, who was bail for the limIits, had notice of the suit, and defended the same.

Application was made to Judge Irving, to summon Robert Sedgwick and Daniel ° . . , , , ..

The plaintiff commenced two suits against each of the defendants, in slander. The words charged in one declaration were for slandering the plaintiff as a clergyman, in the other slandering him as a merchant. The causes were put at issue in September last. On Saturday, the 29th March, at % Past seven P. M. a notice of trial was served on the defendants’ attorney in three causes, one against each defendant, for the , . , 7th April.

The defendant had taxed double costs against the plaintiff in an action of replevin. The defendant having justified the taking of the property as a constable by virtue of an execution issued by a justice of. the peace, obtained a verdict and had damages assessed in his favor. The plaintiff asks' for a relaxation on the ground that the defendant in replevin is not entitled to double costs, and that various items in the bill allowed by the taxing officer are objectionable.

Motion to set aside execution for irregularity. The plaintiff heretofore obtained a judgment in this court against Harriet Fulton, as surviving executrix of Robert Fulton, on which a writ of error was prosecuted by the present defendant. On the 31st Dec. 1827, the judgment of this court was affirmed, and the defendant ordered to pay double costs and interest on the amount of the judgment, by way of damages.

The excuse offered is, that Kimber, one of the lessors of the plaintiff, for whose benefit the suit was commenced, died after the stipulation, and previous to the circuit at which the cause ought to have been tried. Chandler, the other lessor, is merely a nominal lessor.

The affidavit on which the motion was founded did not state that the defendant had a good and substantial defence on the merits, as advised by counsel. It detailed the probable testimony of the witness, but not in a sufficiently explicit manner to enable the court to judge that it would amount to a good defence.

The bond# after reciting the judgment before the justice, and the appeal to the common pleas, contained the condition, that if the defendant “ shall prosecute the said appeal with all due diligence to a decision in the said court, and pay the said judgment and costs of such appeal, in case judgment shall be given in the said court against the said appellant, and further shall pay the debt or damages recovered before the said justice, together with interest thereon and costs…

The relator obtained a judgment before a justice against E. F. Fellows, on the 15th March. On the 19th March the defendant died; and five days thereafter, the administrators of the defendant appealed and delivered a bond to the justice, conditioned that rr J . they would prosecute the appeal, and in case judgment was rendered in the court of common pleas against E. F. Fellows, that they would pay the same.

Case submitted upon a question of costs. Action as-sumps¡t on a promissory note made by the intestate. The declaration contained also a count cromprising the common . money counts against the intestate, and an insimul computassent aga™st l^ie administrators. The defendants plead, h Mon-assumpsit by intestate ; 2. Mon-assumpsit by defend-an*-s j 3 Mon-assumpsit infra, &c. ; 4. Plene administravil; an<^ outstanding bond.

To an action of assumpsit on a promjSSOry note, the defendants plead a joint plea of the general J _ . _ ... . * issue, and separate pleas of discharge, under the act to abolish imprisonment for debt in certain cases. The plaintiff, by replication, took issue upon the pleas of discharge. The jury found for the plaintiff on the first issue, and for the defoudants on the second. A motion is now made for the costs of the special pleas, and of the trial of the same.

Motion to set aside proceedings for irregularity. Verdicts were obtained in each of the above causes against the defendant, at the last April circuit in Orange. On Monday, the first day of the present term, the plaintiffs in the first entitled cause, filed their postea, &c. entered rule for judgmentj absolute, taxed costs, and signed and'filed judgment roll.

Motion to set aside default. During the last October term> the defendant was arrested at Plattsburgh, on a capias issued against him. He claimed to be privileged from arrest as a counsellor of this court, which claim was recognized by the deputy, who discharged him without requiring bail. The capias was, notwithstanding, returned cepi corpus, and the plaintiff proceeded in the suit.

<p>An executoror administrator ts liable to costs on amotion for judgment as in case of non-suit, unless diligence is shewn in the Stion of</p>

<p>Motion for judgment as in case of nonsuit. The excuse offered by the plaintiff for not trying the cause is, that the defendant is insolvent,</p>

Motion to quash a writ of error. The grounds relied on are, 1. That it is prosecuted for delay; 2. That it is sued out without the privity and consent of one of the plaintiffs in error, all not having joined in the recognizance; and S. That one of the bail in error is an attorney and counsellor of this court

From the return to the alternative mandamus in this case, it appeared that after the cause had been committed to the jury, the presiding officer informed the parties that the court would take a recess, and that he would attend and receive, and cause to be entered the verdict of the jury, when they should have agreed upon the same ; to which arrangement neither of the parties or their counsel objected.

Motion to set aside a capias and all subsequent proceedings. In April last, the defendant, Hooker, was arrested in the city of New-York, on a capias returnable in the mayor’s court, on the third Monday of April.

Motion to set aside a default for not joining in demurrer. rphe defendants having made a return to an alternative man- ° , damns, the relators put in five demurrers to various portions of the return, plead four distinct pleas to other portions of the same return, and entered a rule requiring a joinder to the . rri, , r i demurrers, and a replication to the pleas. 1 he deieudants demurred to the demurrers, and on their part put in demurrers to the pleas of the relators.

On the eighteenth day of December, 1-824, the relator sued out an attachment, under the act authorizing the arrest of ships and vessels for debts, (1 R. t-w • ii t i t L. 130,) against the steam-boat Bristol, her tackle, apparel and furniture, returnable at the December term of the may- or’s court in N. Y. The proceedings were removed into this . ..on- . , court by certiorari; and m August, 1825, a judgment was docketed in favor of the plaintiff for about $1200.

<p>¿;company-USa Pegh°n of the monies awarded to owners unknown, on improvements made in the laying out of streets in the city of New-York.</p>

The relator claimed a deed from the sheriff, as having redeemed as a creditor, pursuant to statute, (Statutes, 5th vol. b. 167, passed April 12, 1820,) certain lands sold on execution. The sale was had on the thirteenth day of January, 1827.

This case came before the court on a certiorari to the common pleas of New-York, to remove certain proceedings had under the 23d section of the act relative to absconding and absent debtors, (1 R. L. 157.) A11 attachment was issued on 13lh April, 1826, against the property of Thompson, on a petition duly presented and verified, stating his indebtedness, and that he resided out of this state.

This was an ejectment for a lot of land, tried at the Ulster circuit in April, 1827. A verdict was found for the plaintiff, A case was made by the defendant for the purpose of moving for a new trial, which was submitted to the court at the last February term, on written briefs, by

Orr demurrer to replication. This was an action against defendant for a false return to a certiorari removing a judgment had before him in a justice’s court.

The plaintiff, as a constable, by virtue of an execution in favor of Joseph Jeffords, levied on a pair of horses, waggon and sleigh, in possession of William Shaw, and received for his indemnity an instrument in writing, in the following words : “ I hereby agree to indemnify S. B. Bartlett against all damages he may sustain by levying on a span of horses now in the possession of Win. Shaw. March 7,1826. (Signed) Joseph Jeffords.

This was an actioii under the statute for double rent against a tenant holding over after notice to quit. (1 R. L. 440, s. 21.) The suit was or'§inaIly commenced before a justice, by Mumford against Brown, and a recovery had for $25. The defendant appealec* to the common pleas; and, on the trial of the cause, the plaintiff was nonsuited, the court being of opinion that the 1 , plaintiff was not entitled to recover.

This was an action of debt on matuatus, under the 25th section of the “ act to incorporate the village of Rochester,” (.Statutes, ml. 7, b. 125, passed April 10, 1826,) to recover $> 200, assessed to the plaintiff for land, taken in the opening of a street in the village of Rochester. A resolution was passed, by the board of trustees, for opening a street called Court-street.

Error from the Monroe common pleas. Daniel K. Widner brought an action of slander against Wilber, in the Monroe common pleas. In declaring, the plaintiff, in the commencement of the declaration, is named' David K. Widner, and his name is not again mentioned. The defendant appeared and plead, issue was joined, and the cause brought to trial.

This was a demurrer to a replication. The cause was submitted at the last February term on written arguments, The opinion of the court contains a full statement of the pleadings.

Error from the New-York common pleas. The action in the court below was assumpsit for money had and received. Blea, the general issue. Thé cause was tried in September, 1827, and a verdict rendered for the plaintiff for $58,57.

It was objected to the granting of the rule, that though the witness is at present absent from the state, he does not reside out of the state ; that his residence is in the county of Ulster, where his family now are, though he is, himself, in Pennsylvania, engaged as a contractor in constructing one of the canals in that state.

The relator resides at Crown Point, in the county of Essex. On the 15th of May last, he left home for Albany, for *6 purpose of making sale of his property at Crown Point. Previous to his departure, the object of his journey was cornmunicated to his neighbors, and was generally understood, He publicly took his departure in a canal boat, proceeded to Albany, and returned in the same boat within ten days.

Motion to set aside a default. The declaration, served on the defendant’s attorney, omitted to state the court in which the suit was prosecuted ; for which cause a special demurrer was put in. The declaration on file was correct, and the plaintiff’s attorney served a new narr. conformable to that on file, together with a notice of the rule to plead, but omitted to enter a rule to amend.

Motion to vacate judgment, de bonis propriis, for costs against defendant, and to set aside execution. The defendant plead to a declaration in assumpsit for goods sold and delivered to the intestate, the general issue, and plene administravit.

There were five suits noticed for trial at the Steuben circuit, all depending upon the same title and same defence. One was tried, and a verdict found for the defendant; when the plaintiff gave notice that he would not try the other causes at that circuit. The defendants’ costs of the circuit, in the four causes remaining untried, were taxed by a commissioner, and a motion is now made for relaxation.

<p>Anheir is not do bonis propicadsthe^eneral issue, and ^it, ^wheré *iett1“|tt^ plaintiff, tho= found Against him.</p>

This was an action of debt on judgment. The defendant plead mil tiel record, and gave notice with the plea of special 1 . ., , . , „ , matter intended to be given m evidence on tbe trial or the cause. The plaintiff noticed the cause for trial, by record, at the present term, and tbe defendant applied to the court to postpone the trial, and to direct the cause to be tried at the circuit.

Motion to set aside declaration and subsequent proceed-The plaintiff issued a capias against Atkinson and John Evans. Atkinson only was arrested, a declaration was served, and the general issue plead. Within 20 days after plea, the plaintiff amended his declaration by inserting the name of William, instead of John Evans, and served such amended declaration.

fa. having been issued against the relator in the Chautauque common pleas, and returned satisfied in part, and nulla bona for the residue, the 1 , , . . , relator was taken and imprisoned on a ca. sa. Having ohtained the benefit of the liberties, he escaped, and a suit was commenced against the sheriff.

The plaintiff recovered a verdict in a cause in which he was entitled to only common pleas costs; and in making up his bill, he charged supreme court costs for services incidental to a case made by the defendant for-a new trial, making a difference of about $20in the amount. ■ The notice of taxation was defective, the day of taxation being left in blank.

A justice of the peace of the town of Hartford, in the county of Washington, on 6th July, 1887, made an order, directing the overseers of that town to provide for the support and maintenance of a lunatic pauper residing there, and so unwell that he could not with safety be removed to the county poor house, which, in that count’/, went into operation in June, 1887.

Motion- for judgment as in case of nonsuit for not proceeding to trial.

Motion to set aside inquest taken at the circuit. The plaintiff objected to counsel appearing for the defendant, on the ground that the affidavit of merits was defective, it being ° . ° made by the defendant’s attorney, who swore to merits, as m-formed, by his client. The circuit judge held the affidavit to be insufficient and would not permit the counsel for the defendant to appear in the cause, though it was called in its regular order on the calendar.

Motion to set aside an inquest taken at the circuit. The inquest was taken out of its regular order on the calendar, an affidavit of merits not having been filed. The counsel for the defendant asked leave to cross-examine the plaintiffs witnesses, and to take exceptions to the proof adduced, but was not permitted by the circuit judge so to do, though he was ailowed, as amicus cunee, to suggest bis objections to the court.

The relator applied to the common pleas 1o set aside four judgments obtained against - . , , , . . , . him by attachment before justices of the peace, transcripts of which had been certified and docketed in the clerk’s office of the county ; and also to set aside the executions issued upon the judgments.

A judgment was rendered ag'a™st the relator in March, 1827, in a justice’s court, from which he appealed to the Ontario common pleas.

A judgment was obtained against the relators in the New-York common pleas, and perfected on the seventeenth day of May last, by the signing and filing of the roll. On the nineteenth of May, the relators sued out a writ of error, and put in and perfected bail. Previous thereto, and on the same day, an execution had been issued, and levied on the property of the defendants.

This cause was noticed for trial at the Essex circuit, in 1827, and was put off by the defendant for want of testimony, on payment of costs. The trial went off, the costs were taxed, but not paid, and a motion is now made for a rule of this court, requiring the defendant to pay the costs.

Motion to set aside an original writ in replevin for irreguIarily, on the ground that there.are not 15 days between the teste and return of the writ; and that it is not made returnable on a general return day.

Action on a policy of insurance. On the 29 th October, 1825, the defendants insured the plaintiff against loss or damage by fire on a two story frame building, privileged as a grocery, and on a stable and shed adjoining, situate in the city of New-York, $2,500, and on his stock of groceries, shop, furniture and fixtures, household furniture, &c. §5000, The plaintiff was at the time, and had been for several years, in possession of the premises.

Two lots of land, belonging to the defendant, were sold , . . on the 5th July lasl, by virtue of an execution m iavor or one Orrin Day, and brought the sum of $746. The amount due on the execution, was $411 83 ; leaving a balance in the hands of the sheriff) of $334 17. Immediately after the sale an order was presented to the sheriff, signed by the defendant, requiring him to pay the surplus monies to one Solomon Yeomans, to whom the defendant was indebted by bond.

To a declaration by the plaintiffs, as the third indorsees of a promissory note against the defendant, as the first indorser, the defendant plead the general issue, and a special plea of ml tiel corporation; to which plea a special demurrer was interposed and the plaintiff, on a notice for that purpose, now claimed a priority, and moved for judgment as in case -of a frivolous demurrer or frivolous bill of exceptions.

Motion to set aside a plea. The defendants, on the 17th day of May, during the last term, severally obtained discharges as insolvent debtors. The cause was noticed for trial, and on the first day of the circuit, (5th June,) the defendants. plead their discharges, puis darrein continuance, without verifying the plea by affidavit. The plaintiff objected that the plea came too late, and, at all events, that it should be verified.

A question was submitted to the court, for their advice, hy a commissioner, as to the allowance of a certiorari, to remove into this.court the proceedings in a case of insolvency, The principal ground upon which the certiorari was asked, was, that it was alleged that it did not appear that full six weeks notice to the creditors, to shew cause, had been given.

This cause was tried at the May circuit, in Putnam, in 1826, when the •’ plaintiff was nonsuited. In August, 1826, the defendant obtained an insolvent’s discharge. At the February term, 1827, the nonsuit was set aside, and a new trial granted. Previous to the last circuit, the plaintiff offered to discontinue without costs, which the defendant refused, and now applies for judgment as in case of nonsuit.

In this case a verdict was taken against the prisoner in his absence, He had been indicted and tried for a forgery. When the cause was submitted to the jury, be was commit- . , . .. , , ted to jail; and on the coming in of the jury, their verdict was received without the prisoner’s being brought into court.

A rule for costs was granted against the bank, on the setting aside of a ca. set. for irregularity, issued against the defen^ant- The costs were taxed, and payment demanded of the president and cashier of the bank, who refused to pay. A motion was now made for an attachment, and the court were asked to direct against whom the same should go. °

This was a motion for attachment for non-payment of costs ordered by rule of court. A certified copy of the rule and taxed bill were shewn to the person against whom the * ° attachment was asked, and payment demanded, but a copy bill of costs was not delivered to him ; which was now urged in opposition to the motion. rr

Motion to set aside proceedings in ejectment. The defondant entered into a special consent rule, describing parsecularly the premises for which he intended to defend; leaving about 77 acres of land in the farm for the recovery of which the suit was brought, as to which, neither the defend- ° ant nor any other person appeared.

Costs of preparing for trial. This cause was noticed for trial on the 31st May, for the Delaware circuit, to be holden on the 10th June. On the M June, the notice of trial was countermanded. Before receipt of the countermand the defendant had procured subpoenas for his witnesses, and had gone into adjoining counties to serve the same. The cause not being tried, a motion was now made by the defendant for judgment as in case of nonsuit, for not proceeding to trial.

Application to set aside the election of thirteen persons chosen directors of the Protection Fire Insurance Company, jn the city of N. Y., on the 16th June last, and to declare thirteen others duly elected directors of the company. The stock °f the company consists of 8000 shares, of which only 1788 are outstanding, the residue being owned by the company.

Motion to set aside a rule vacating a judgment and all subsequent proceedings. The defendant is sued on a bond given by his ancestor, to which he pleads a former recovery for the same cause in October term, 1816: the plaintiff replies a vacatur of that judgment; to set aside which this motion is made.

<p>Directions in *2*”*" °f</p>

Motion that clerk pay over to plaintiff money received by him of the defendant. The defendant in this-cause, without obtaining a rule for that purpose, paid to the clerk of this court, at Utica, $1481, in satisfaction of the plaintiff’s demand. The clerk received the defendant’s check for the amount, but declined giving a receipt for the same, until farther advised.

‘Motion that referees report. This cause was brought to a hearing before the referees, during the present term. After the parties had produced their testimony, and the cause was summed up by counsel, the referees retired.

Taxation of costs. For the service of a plaint in replevin, issued from the common pleas, there was taxed to the sheriff the following fees: Service of plaint and deliverance of property, $2,50; mileage to serve summons, 9 miles, Tf? on two defendants residing at the same place, $'1,08; mileage to deliver property, t5„4t ; service of summons on two defendants, TYo; drawing bond, 37i cts., the same being prepared by the plaintiff’s attorney.

Motion to stay proceedings on bail-bond suit. The defendant became bail to the sheriff, on the arrest of one Jones on a capias, returnable at the last May term. Special bail not being put in, the sheriff was ruled to bring in the body, or shew cause, on the first day of the present term, why an attachment should not issue against him.

Motion to mitigate bail on an appeal from an order of the recorder of New-Yorb. The defendants were arrested on a' capias containing an ac-etiam clause demanding $60,000. They applied for an order for the plaintiff to shew cause of action, which he did to the amount of $30,000. The recorder of New-York then directed bail to be given in the sum of $45,000, each of the bail to justify in that amount, making in the aggregate the sum of $90,000.

Error from the Sullivan common pleas. Davis brought an action of replevin against Marshall for the taking and detaining of a horse. The defendant plead non cepit and property in himself. The cause was tried at the Sullivan common pleas in June, 1827.

Error from the Yates common pleas, Genung brought an action of debt against Brown, sheriff of Yates, before a justice of the peace for the escape of a debtor from the limits of the jail, who had been committed on a justice’s execution, and recovered judgment. The defendant appealed to the _ _ 11 common pleas, where the plaintiff again recovered judgment, upon which a writ of error was sued out to this court.

<p>An entry in the account boohs of a mercantile firm, who,with others,arejoint makers of a promissory note, that they are the principals, and the others the sureties, is not admissible in evidence, in an action by the holder of the note. Such evidence is only received, when its operation is against the party making the entry, as between, him and the party with whom he is litigating. One of several makers of a promissory note, discharged as an insolvent debtor, his discharge, unimpeached, and himself released from all liability by the joint makers of the note, has no interest in a suit commenced on such note; yet being a party on the record, is incompetent as a witness, although the jury pass upon his liability, and find a vcidictin his favour. In cases of torts, where no evidence lias been produced against one of several defendants a verdict may be taken in his favour, and he admitted as a witness for his co-defendants. So a party in a cause is allowed to prove the loss of a written instrument. Beyond these cases, the rule, both in England and here, is to exclude a party as a witness. And where, on a trial in an action of assumpsit, on a promissory note against several defendants, the jury were instructed to pass upon the liability of one of the defendants, and a verdict was rendered in his favour, and he thereupon admitted as a witness to testify for his co-defendants, which produced a verdict in their favour also, the verdict was set aside, and a new trial ordered.</p>

This was an action for false imprisonment. The defendants severed in their defences. The Messrs.

This was an action of assumpsit, for the use and occupation of a farm, tried at the Schenectady circuit in January, 1828, before the Hon. William Á. Duer, one of the circuit judges. The defendant hired of the plaintiff the premises in question for one year, from the first day of April, 1821, at a rent of seventy five dollars. At the expiration of (he year he paid the rent, and continued in the possession of the premises until July, 1824, against the will of the plaintiff.

On demurrer to a declaration in covenant. The plaintiffs declared that the defendant, on the 18th day of October, 1821, in consideration of the sum of $4400, sold, assigned, transferred and set over unto the plaintiffs certain contracts, , 1 and covenanted “ that the sum set opposite to each contract in an account or schedule annexed to the covenant, was then justly and truly due thereon respectively; that each and every sum should be well and troly.paid to the plaintiffs,…

This was an action for a malicious prosecution, tried at the Genesee circuit in April, 1828, before the Hon. John Bivdsall, one of the circuit judges. The declaration contained two counts in the ordinary form. The plea was the . . general issue.

Error from the Monroe common pleas. Seymour sued Riley and Wright before a justice on a bond, conditioned that Wright, who was in the custody of Seymour, as sheriff'of the county of Monroe, on a justice’s execution in favor of Lu-man Ashley, should remain a true and faithful prisoner, and should not go without the limits of the liberties of the jail, v y until discharged by due course of law ; and assigned for breach, that Wright had gone without the limits, &c. The…

<p>gains^the'administrators of partner,° the surviving partner is a competent witness partnershipAn the case of a joint contract, if one of the ikexecuto^is “harm'd from liability,, and loneTanbesued; and if the executor be sued, he may plead the survivorship, or give it in evidence under the general issue. The observations of Ld. Mansfield, in Rice v. Shuie, (5 Burr. 2612,) that “ all contracts with partners are joint and several, every partner is liable to pay the whole,” had reference to the extent of liability of the partner, and not to the form of proceeding to be pursued by a creditor. The doctrine that an executor of a deceased party may be sued at law in a separate action, applies only to cases where the contract, by the express agreement of the parties, is made joint and several, and does not authorize a creditor to sue the executor of a deceased partnej, where the contract is not joint and several.</p>

Error from the Orange common pleas. Declaration, debt on bond in the penalty of $104,42.

This is an action of assumpsit. The declaration contains the usual counts in indebitatus assumpsit for monies lent, had and received, &c. &c. Plea, the general issue, with notice set The cause was tried at the New-York circuit, in December, 1S25. The plaintiff’s demand was proved by the production of certain insolvent papers, in an application by tjie defendant for a discharge as an insolvent debtor, in October, 1822.

This was an action of assumpsit, tried at the New-Yoilt circuit in December, 1825, before the Hon. Ogden Edwards, one of the circuit judges.

Error from the New-Yovk common pleas. The declaration contained the common money counts; plea, the general issue.

This was an action of assumpsit, tried at the Saratoga circuit, in Ma3r, 1827, before the Hon. Reuben H. Walworth, then one of the circuit judges. The declaration was on four . . i .i „ . at. promissory notes j plea, the general issue.

Demurrer to declaration. Action covenant. The plain-^c*eclare which was to be deducted and not' paid for. The defendant also agreed to purchase in the premises, if they were sold under certain mortgages which were liens upon ]aQd and to advance sufficient to pay the ambunt of such * J mortgages, and the costs of such sale; for which advances, the plaintiff agreed to allow interest until defendant’s payment fei[ due.

This was an action of assumpsit on a promissory note. Flea, the general issue, with a notice attached, that on the trial of the cause the defendant would prove, that the note declared on belonged to John Welsh, and that the suit was prosecuted for his benefit: that the consideration of the note 1 was a quantity of barilla, purchased by the defendant of John Welsh, which was warranted to be Alicant barilla of the first quality, when, in fact, it was not Alicant barilla of the…

This was an action of assumpsit, tried at the New-York circuit, in January, 1827, before the Hon. Ogden Edwards, one of the circuit judges.

The defendant was convicted at the Genesee oyer and term;ner in April last, of forgery at common law. Tlie judgment 1, , , , . . , , . . , , , • was suspended, that the opinion of this court might be obtain-®d as to the legality of the conviction.

This was an action of assumpsit for money had and received, tried at the New-York circuit in April, 1826, before ’ r . , the Hon. Ogden Edwards, one of the circuit judges.

Demurrer to declaration. The declaration was in cove-«ant, for that the defendant, by an instrument in writing un- . der seal, covenanted to indemnify and save harmless the intestate from all claim, demand, suit, costs, charges or damages, from or on account of a certain bond for the payment of money , , . . ■ , v executed by the intestate; and assigning for breach, that the defendant not having saved harmless and indemnified the intestate from claims, demands, suits, costs,…

This was an action for false imprisonment, tried at the - . . 1 • Oneida circuit m October, 1826, before the Hon. Nathan Williams, one' of the circuit judges. The declaration was in the usual form; plea, the general issue by-the defendants jointly, with notice of special matter.

This was an action of assumpsit on a promissory note, tried at the Herkimer circuit, before the Hon. Nathan Williams, one of the circuit judges.

<p>A., residing havingoudered ®°gy®noof Birmingham, g”nt ^ B^oii a“(g"nt°f drawn by C. in oud'T^LoitÍ don,payaMeto at sixty day's f¿do¡’segUbyIA6 B-_ placed the of^dsbankem ^Birmingham tor collections who transmit-tod their Scorrespondents in London, by whom the bill was presented for acceptance to D., who refused to accept; but no notice of the-non-acceptance was given to B. until the day of payment, when the bill was presented for payment and dishonored. B. transmitted the bill to A., requested payment of the amount, and apprized him of the circumstances in relation to the bill. A. refused payment, returned the bill, and insisted he was discharged from liability to make payment, in consequence of not having had due notice of the non-acceptance. In assumpsit by B. against A., to recover the amount of the bill for which A. was in advance at the drawing of the same, it was held, on a case made containing the above facts, that A. not having indorsed the bill, was not entitled to notice of dishonor, and remained liable to B.fov the amount of the goods ; that C., the drawer, not having funds in the hands of D., and the circumstances not being such as to induce a reasonable expectation" that the bill would be accepted, was likewise not entitled to notice; that the bill was not received as an absolute payment, and that B., in relation to it, stood in the character of an agent to A., and having placed it, according to the ordinary course of business, in the hands of bankers for collection, and having apprized A. of the non-acceptance and nonpayment as soon as he received notice himself, was not chargeable with a want of diligence or fidelity, in the discharge of his trust as an agent; that whatever might be the effect of the laches of the bankers, in an action against them by B. or by A., had he indorsed the bill, such laches had no bearing upon the rights of B.; and, therefore, that B. was entitled to judgment</p>

Error from the Albany mayor’s court. McCrea and others brought an action of covenant in the court below against Ludlow, founded on a sealed instrument, bearing date 9th November, 1815, executed by the plaintiffs, the defendant and ten others, in the words following: “ Whereas we subscribers, being owners' and proprietors of lands . . , . ° _ situate in the patent of Kayaderosseras, have it in contemP^ati°n to commence and prosecute sundry actions of ejectment to recover the…

Error from the New-York common pleas. This was a qui tarn action, for the recovery of a penalty of $100, given ¡by the tenth section of the act for the inspection of flour and meal.

Error from the common pleas of the county of Queens, ■ jones, as supervisor of the town of Oyster-Bay. sued Rogers before a justice of the peace, for the recovery of a penally ol $12,50, created by a by-laxv of the town of Oyster-Bay, passed in town-meeting, on the 5th April, 1825, declaring “ that no person, not being an inhabitant of Oyster-Bay, shall be allowed to rake or take any oysters in the creeks or harbors of the town of Oyster-Bay, under the penalty of $12,50 for…

<p>Where lots tii?6 city1 of N. Y. bounded on a space called a street, des/gimtedias such by the o^sh-ee^sTnd city SofmNew-York,and such previous^*the street being aivecteu, to oe opened by, the themtyUtwas held that the fee of the land comprised in toUsbeet^did not pass to the purchasers of the lots, as it would have done, had the lots been bounded on a public highway, but that the same remained in the grantor; that the owners of the lots had,, however, a perpetual right of way over the space called a street, and an assessment having been made to the full value of the land required for the street, by the commissioners of estimate and assessment, their report was sent back for correction ; which report, being subsequently corrected by an allowance of damages only for the/ee of the land, subject to the right of way of the owners of the lots, was confirmed by the court.</p>

This was an action on the case, against the defendant as a common carrier, tried at the Albany circuit in August., 1827, before the Hon. William A. Duer, one of. the circuit judges. - .

This was a motion to set off the defendant’s against the plaintiff’s costs. The action was replevin. The declaration contained three counts, alleging the taking of the same property in three several places. To the first count the defendant put in two avowries, and to the second and third counts plead cepit in alio loco, with an avowry for a return of the property, and non cepit to the whole declaration.

Motion to set aside taxation of costs. Costs were taxed in this cause on the reversal of a judgment rendered in a justice’s court in the city of New-York, at $88,22. A motion was made to set the same aside, on the ground that on a reversal of a justice’s judgment, the party prevailing is not entitled to costs.

The action was covenant to recover back the consideration money expressed in a deed on the eviction of a grantee, by virtue of a recovery in ejectment under paramount title. The plaintiff, on the trial of the cause, shewed an exemplification of the record of recovery in the action of ejectment against him, the writ of possession executed, and notice to the defendant of the pendency of the suit.

The notice of this motion was given on the eleventh day of October, for , , . . , , the first day of the present term, on an affidavit, stating that the cause had not been noticed for trial at the Oneida circuit, which was then holding, and at which junior issues had been o , ftnedo .

In a suit in a justice’s court, the action was trespass against two defendants, who pleaded jointly, and were found jointly guilty, and the damages were assessed at f26,26. The defendants appealed jointly to the Saratoga common pleas, and gave a bond in the usual form.

J. Williams recovered a judgment against Lincoln in a justice’s court, for $11,27 damages, and $1,85 costs. Williams appealed, and at the time of giv*nS notice of the appeal, paid the clerk of the justice, (in the absence of the justice,) $1,97, as the costs and the fees for ma]f¡ng. retuni) claiming to retain T7/„ as fees due plaintiff’s witnesses, which he alleged he had paid.

Question of costs. On the 26th September, the plaintiff served a replication on the defendant’s attorney, and at the same time delivered a notice of trial for the Oneida circuit, to beholden on the 6th of October. On the SOth September, the defendant gave notice of a motion for a commission, accompanied with an affidavit of the maten'ality of the evidence which he wished to obtain.

Motion to set aside judgment. At the February term, 1828, the plaintiff was allowed to stipulate on payment of costs. On the 21st April, the costs were demanded and not paid- On the 14th May, the plaintiff at Salem, Washington county, paid the costs to the agent who had demanded the same. On the 16th May, the judgment of nonsuit was per^ecte^ by the defendant’s attorney.

Motion to set aside inquest. In consequence of criminal causes being set down for trial, the attorney for the defendant did not attend in court. Those trials were unexpectedly postponed, and the calendar of civil causes called through from No, 18 to No. 96, without any cause being ready for trial. Several inquests were taken, and amongst the number, an inquest in this cause, which stood No. $5 on the calendar.

Motion to set aside proceedings for irregularity. The irregularity shewn was, that the sheriff of Montgomery had returned the capias in this cause, served by him, to the clerk’s office at Utica, whereas he ought to have returned it to the clerk’s office at Albany,' conformably to the directions of the law of the 14th April, 1820. (Statutes, ml. 5, b. 200.) The default was entered on the 26th August, and no inquiries made at the Albany clerk’s office until the 9th September.

Bill of particulars. A motion was made in this cause, to set aside the proceedings for irregularity on various grounds, , i , amongst others that a bill ot particulars had not been served, It appeared, that in pursuance of a judge’s order, the plaintiff had furnished a bill of particulars, in which, instead of setting forth the items of merchandize sold, there was a general reference to “ an account rendered.” This, it was contended, was not a compliance with the order, and…

Costs on appeal. A judgment was rendered against the relators in a justice’s court, for $39,36 damages and costs. They appealed to the Onondaga common pleas, and on the trial of the cause the plaintiff was nonsuited. The taxing officer refused to allow the relators more than seven dollars costs exclusive of disbursements ; and on an appeal, the common pleas confirmed the taxation.

A judgment was rendered in a justice’s court against one Hill for $50 damages, and $3,63% costs. Hill appealed to the Tioga common pleas, and executed the usual bond, reciting the judgment to have been rendered for $50 damages and $3,88% costs. A motion was made to quash the appeal on account of the variance between the judgment and the recital in the bond.

Motion to set aside an arrest, and vacate an appearance indorsed on a capias. Defendant, who is a resident of the county of Onondaga, attended the trial of a cause commenced by him in a justice’s court, in the county of Cortland. Immediately after the termination of the trial, a capias, containing an ac etiam clause for a malicious prosecution, was served upon him. Bail was not demanded of him, but he was required to indorse his appearance, or be committed.

Motion to set aside attachments, and for retaxation, in the above and three other causes. At the last October term, a motion made by the defendant to be discharged from arrest . in those causes, was denied with costs. The plaintiff’s attorney, (the same attorney prosecuting for all the plaintiffs,) had costs taxed in each cause at $13,40, on 30th November last, after due notice to the defendant’s attorney, and had the same demanded of the defendant.

Motion that landlord pay costs. This suit was defended by James Wadsworth, in the name of the defendant, his tenant. The plaintiff succeeded; and now, on shewing a return of nulla bona on a fi. fa. issued against the defendant for the costs of the suit, and the poverty of the defendant, a rule was asked for, that the landlord pay the costs.

William Huntley was indicted for perjury, tried and convicted.

Robert Patterson confessed, a judgment in the Columbia common pleas, in favor of John Hosmer, on the 28th day of August, 1826, by bond and warrant of attorney, conditioned for the payment of $5300, on which a ji.fa. issued on the same day, and the personal property of the defendant levied upon.

Seventy acres of land owned .... , . . , . and occupied by the relator, situate in the county of Herkimer, were sold in March, 1826, for quit rents, due upon a iotin Hassen Cleaver’s patent. The land not having been redeemed within two years after the sale, according to the provisions of the act concerning quit rents, &c. passed April r 0 1 1 1 1 13, 1819, (Statutes, vol. 5, a. 296,) the same was conveyed by the comptroller to the purchaser.

Motion to amend plea. After issue joined, the defendant moved for leave to add the plea of the statute of limitations, and a notice of set off to the general issue, which had been put in by the attorney, for the purpose of saving a default, in the absence of the defendant and of counsel who had been instructed as to the nature of the defence.

Motion to amend judgment roll. H. Clark, as adminisirator, Sic. of A. Clark, deceased, obtained a judgment in the Warren common pleas against Gleason and another, for A ° c a demand due the intestate. The defendants in that suit brought a writ of error, and the judgment was reversed in this court.

Motion to vacate an order to hold to bail. In this case, the defendant was holden to bail in a suit against him as ex- ° eculor, for the recovery of monies owing by the testator in pursuance of a judge’s order, on an affidavit that the defendant had possessed himself of the personal property of the testator, collected debts due to him, and refused to appropriate the same to thé payment of the debts owing by the testator; that he had expressed a determination to leave the…

Motion to set aside proceedings for irregularity. The defendant was arrested on a capias containing an ac etiam clause in trespass, for entering the close of plaintiff and debauching his daughter. The defendant filed special bail, and the plaintiff declared against him in case, and not receiving a plea, entered the defendant’s default, and gave notice of executing a writ of inquiry.

Proceedings on attachment. On the twenty-first day of lasti the defendant, as sheriff of the city and county of Albany, was served with notice of a rule to bring in the bod- ...... . . ... , les of the defendants m a certain cause, within twenty days a^ter serv*ce 0l' notice of the rule, or shew cause by the first day of the then next term, why an attachment should not issue against him.

The defendant demised to the plaintiff a dwelling-house in the city of Albany, for one year from 1st May, 1886, at a rent of $428, payable in quarterly or monthly payments. On the 1st April, 1887, $273 rent being due, the defendant distrained upon the property of the plaintiff, for the payment of the same. After the distress, the defendant agreed to suspend proceedings, and to give the plaintiff time to pay the rent in arrear.

Proceedings on attachment. At the last term a rule was granted that the cashier of the Orange County Bank pay a taxed bill of costs awarded against the bank, or shew cause why an attachment should not issue against him. ‘ (Jlnte, 94.) He now shewed cause, that he was not personally responsible, and that he had no control over the funds of the insti- . . tution.

Motion to direct the sheriff as to the appropriation of monies levied by execution. French and Wilkins being indebted to Wakeman, French, on the 7th day of March, 1828, indorsed his appearance on a capias made out against him and Wilkins, in favor of Wakeman, returnable on the first J day of March, and executed a warrant of attorney under seal, authorizing an attorney of this court to appear for him, file common bail, and confess judgment for 56.

The relator was sued in the Onondaga common pleas, by one I. Stolp, in an action of slander. After the cause was at issue, to wit, in January, 1828, the parties submitted all suits and matters in controversy to arbitration, the award to be made on or before the fourth Monday of April then next. The bonds contained no clause providing for making the award a rule of court, or for the entry of a rule for judgment on it.

The relator commenced a suit in a justice’s court, and the trial, after issue joined, was adjourned, on the application of the defendant, to the second .Monday, the tenth day of December, 1827, as was supposed by 7 . . . , ,* 7/, , . , . , 3 the justice, or intended so to be, (as he stated m his return.) On that day the parties appeared, and the defendant insisted that the cause was discontinued, as it had been adjourned to the ninth day of December, which was Sunday, and…

Motion to admit infants to appear by guardian and enter into the consent rule. The declaration in ejectment in this cause was served on the tenant, who is the step-father of the infants, who claim title to the premises in question, and reside with the tenant on the same. The father of the infants held the premises under a contract of purchase, and since his decease, the title has been conveyed to them by the vendor.

The declaration was in assumpsit on a promissory note for $1093, and also contained a count for goods sold and delivered. Plea, the general issue.

<p>• Motion for a mandamus. At the last term, an alternative manc]amug Was ordered in this case, on the application of the relators, stating that on the 3d day of March last, a petition , , , , „ „ , ... ' was presented to the board of trustees of the village of Brook-praying the opening of a street in that village, called Adams street, from its then southerly termination to Fulton . „ , . . „ , , street; that m conformity to the provisions of the act relat've t0 ^ie v^as!e °f Brooklyn, passed April 3d, 1827, (Statutes, vol. 8, a. 127,) commissioners of estimate and assessment were appointed on the 7th day of May, who, on day JuneJ made a report, that they had estimated and assessed the damages and recompense due and to be made to the several persons whose lands were intended to be taken and appropriated in the opening of the said street, and that amongst others, they had assessed the damages of J. Dikeman, one of the relators, at $6556,20, and of N. L. Martin, the other relator, at ^6714,66= That the trustees of the village refuse to file the report in conformity to the directions of the statute; that in consequence of the commencement of the proceedings, and in anticipation of the street being opened, Martin, one of the relators, has taken down part of a rope walk, which would have been in the way of the contemplated improvement, and has commenced a new building in the line of the anticipated street, which if not opened will occasion him a loss of $4000; and Dikeman, the other relator, has not let, as he otherwise w’ould have done, a rope walk, and other buildings connected with it, as the improvement would require their removal; and has incurred great expense in preparing to erect buildings in conformity to the proposed improvement. And that one R,„ D. Covert purchased a lot in contemplation of the opening of the street, and if the street is not opened, the lot, and the improvements made by hitó, will be of several hundred dollars less value than they otherwise would be. The alternative mandamus directed the" trustees of the village to cause the report of the commissioners to be filed with the clerk of the common pleas of Kings, to the end that the same might be confirmed by the court, and to cause an assessment to be made for the payment of the damages, or to shew cause why a peremptory mandamus should not issue.</p> <p>At this term, the trustees of the village make their return to the alternative mandamus, setting forth, that immediately on the report of the commissioners coming in, to wit, on the 9th June last, a remonstrance was presented to the board, by the owners and lessees of property on Adams-street, and who deemed they would be assessed for the contemplated improvement, representing that the damages assessed by the commissioners were unreasonable and excessive, and should they be levied, in many cases would be ruinous to the owners of property to be affected by such assessment; that the remonstrance was referred to a committee of the board, who reported that they deemed the assessment unreasonable and excessive ; that the board procured an assessment to be made by five indifferent men, who estimated the damage of Mr. Dikeman at only $2025, and the damage of Mr. Martin at only $¡1567,50; [the certificate of those persons, together with a number of affidavits corroborating the same, are annexed to-their return;] and that the board, (believing the assessment to be excessive, and that no rights have been conferred on, or vested in the relators, by the preliminary proceedings in relation to the opening of the street in question,) claim the right of controlling the proceedings, and therefore have declined, and do decline, except under the peremptory order of this court, to file the report, or to take any further measures in relation to the proposed improvement. On the part of the relators, a volume of affidavits was submitted, supporting the assessments made by the commissioners of estimate and assessment, which affidavits were submitted, subject to the exception of the counsel of the trustees, as to their admissibility,</p>

This was an action of assumpsit, tried at the New-Yorb circu¡>; jn December, 1827, before the Hon. William A. Duer, one of the circuit judges. The plaintiffs declared against the defendants, under the statute authorizing proceedings against j°^nt debtors, slating Hagan to be taken on process issued against him and his partner, and Barrett not found. The declaration contains the common money counts, an insimul compu(assent, and a count for work and labor.

<p>This was an action of ejectment brought for the recovery of about three acres of land, tried at the Herkimer circuit, in March, 1828, before the Hon. Nathan Williams, one of the circuit judges. A verdict was taken for the plaintiff, subject to the opinion of this court on a case to be made. From 1 e the case it appeared, that on the 24th January, 1801, the defendant conveyed by deed of warranty to Benjamin Bowen, the premises in question, which, on the 24th May, 1817, were conveyed by the sheriff of Herkimer to the lessors of the plaintiff by virtue of a sale under an execution on a judgment in their favor, against Benjamin Bowen, an exemplification of which judgment and the execution were produced; The defendant read in evidence, a deed to him from John B. Murray, of a large lot, including the premises in question, bearing date 14th May, 1797, and shewed that in 1800, he cleared a part of the premises in question, which had been enclosed and occupied by him ever since. It appeared that about one half of the premises was.a rough piece of ground, composed of the steep banks of both sides of a stream, had never been cleared or enclosed, was mostly unfit for cultivation, and chiefly valuable as a mill-site. It was proved by a witness who had been an assessor of taxes for 14 or 15 years in the town where the premises are situated, that they had been assessed as the property of Benjamin Bowen, up to the time of the sheriff’s sale, and subsequently as the property of the lessors of the plaintiff; that the lot for many years had been called in the neighborhood by the name of Bowerfs mill seat, and that it was his impression and belief, that the defendant in giving an account of his property subject to taxation, had excepted the premises, and said that they must be taxed to Bowen. The plaintiff further proved, that at the commencement of this suit, the defendant said that he claimed the property as owner under a deed from John B, Murray.</p> <p>It was insisted for the defendant, that he had shewn a sufficient adverse possession to bar the plaintiff’s right of recovery ; and if not, that (he plaintiff was not entitled to recover for the want of having given notice to quit.</p>

<p>Error from the Albany common pleas. The action in the common pleas was for a malicious prosecution, brought by Bull against Pangburn. The plaintiff declared that the defendant, on the thirtieth, day of March, 1826, not having any ’ . . reasonable or probable cause of action whatsoever against the plaintiff, which he, the defendant, well knew, procured a summons from a justice, under the fifty dollar act, against the plaintiff, returnable on the 8th day of April then next, to answer the defendant in a plea of trespass on the case; that the same was delivered to a constable, who, on the fifteenth day of March, in the year aforesaid, served it on the plaintiff; tliat the parties appeared; that Pangburn declared on a pretended claim for money, demanding $10, to which Bull pleaded the general issue; that the cause was adjourned, on the application of Pangburn, until the 18th day of April, when ■ . ° the parties appeared and Pangburn discontinued his suit; that on the same day, Pangburn procured another summons from the same justice, in his favor, against Bull, returnable on the 28th day of April, which was served; that on the day of the return the parties appeared, issue was joined, a trial had, and judgment rendered against Pangburn for the costs of the suit; by means of which premises the plaintiff hath been greatly damnified, &c. To this declaration the defendant pleaded-non cul In December, 1826, the cause was tried. The facts alleged in the declaration, were shewn by the production of a written stipulation signed by the parties, and from which it further appeared, that on the adjournment on the 8th of April, Bull took out subpoenas for witnesses, but Pangburn did not; nor did he produce any witnesses on the day that he discontinued the first suit. The plaintiff further proved, that he told the defendant that all the dealings he ever had with him, was, that he, the plaintiff) had boarded the defendant and received twelve shillings for it, which the defendant did not deny; that the only evidence offered by Pangburn, when the cause was tried before the justice, was a declaration made by Bull, that Pangburn had boarded with him, and had paid him $1,50 for the same. The place of trial appointed by the justice was 14 miles from Albany, where Bull resided. The plaintiff further proved a declaration of Pangburn, that he would bring Bull four times to Guilderland, and he would get no advantage of him ; that Bull had taken too much for his board, that he had overcharged him, and charged him more than he did others, or more than he agreed to. On being told that he could not make an action lie, as he had settled with Bull and taken a receipt, he replied, that he would bring him out four times. The witness who was called by Pangburn, on the trial before the justice, testified in the common pleas, that he was the constable who served the summonses, which were regularly served six days before their return ; that previous to his being sworn on the trial before the justice, he had not been asked by Pangburn what he could testify to; that he was desired, on that trial,'to state what Bull told him when he served the first summons ; that he testified that Bull told him that Pangburn had boarded with him in the February term, and that he had received for the same, of Pangburn, twelve shillings, for which he had taken a receipt, and that was the only dealing he ever had with Pang-burn ; that Pangburn, at the time he paid him, complained of being overcharged, and threatened to bring him (Bull) up to Guilderland; that Pangburn did not pay him until after he had been written to, to come and pay. The plaintiff proved that the defendant boarded with him a part of two weeks, the witness stating that he was there more than one day each week, and as long as between three and four days; that witness, who boarded with plaintiff at the same time, paid three shillings per day for his board. The plaintiff rested.</p> <p>The defendant moved that the plaintiff be nonsuited, on the following grounds: 1. That in the suits before the justice, complained of as malicious, the plaintiff in this cause had neither been arrested, nor held to bail; 2. That a want of probable cause for instituting the suits had not been shewn, nor had malice been proved; 3. That there was a variance between the proof and the declaration, as to the time of service of the summons in the first suit before the justice. The court refused to nonsuit the plaintiff, and decided that the several matters offered in evidence by the plaintiff, ought to be submitted to the jury, and that it was their province to determine whether the absence of probable cause and malice had been sufficiently proved. To which opinion the defendant excepted, and then introduced a witness on his part, who testified that Pangburn boarded with Bull apart of two weeks, but he thought he was not there more than three days, and that Bull had agreed to charge not more than three shillings per day for board. The court charged the jury, if from the testimony before them, they should be of opinion that the prosecutions before the justice were malicious, and without probable cause, and that the defendant knew the facts to be so, before and at the time of such prosecutions, they ought to find damages for the plaintiff otherwise they should find the defendant not guilty. The defendant excepted to the charge. The jury found a verdict for the plaintiff, for $7,25 damages, on which judgment was entered.</p>

This was an action of assumpsit, commenced in 1827, tried at the New-York circuit in April, 1828, before the Hon. Ogden Edwards, one of the circuit judges, to recover back $1000, paid by the plaintiffs to the defendant under the following circumstances: In 1821, the defendant brought several actions to recover her dower, as the widow of Dr. John Gr. Wright, in certain real estate in the city of Nevv-York.

<p>where a sheet ™ls.con‘ tions received (n°manPexeci5 tio?>and relinquishes prop» erty on which ¡¡<3 may^aftei the retan day tion, re-take thoughj'm^hd ?nean time> hasbeentransferred by the othe^creditoí íor pre-existwfo have not of0SS^¡ same. The sheriff’s “fees tion^does^ot render the relinquishment valid, as the sheriff had no right to discharge the execution without satisfaction of the judgment.</p>

<p>A road may be commissioners ™der retmlate highways, not-teat í^fonner road laid through the same premises, same ^route has been an-peal The true constmctionof daring the adlhe1Cappeal to be “conclusive in the premises,” is, that the ‘judges1 is conclusive in tilG C£IS6 in which the apEut^Tdoesriot interdict or afplication,W aor deny the right proceedings de gislature™16 intended to vest a power in the commissioners asbth^ernergency of each nfighteequire^ decisiononone application elusive, or p°”sent any obstacle when a new and different state of things required a different decision. The prohibition as to the taking up or altering a road fixed by the decision of judges, applies only to cases where the proceedings of commissioners have been affirmed, and not where they have been reversed.</p>

Error from the New-Yorlc common pleas. The action . , m the common pleas was case, brought by Stuart against Simpson, for enticing and harbouring his apprentices. It was proved on the trial in the court below, that the defendant had employed for a number of months two apprentices of the plaintiff, as supernumeraries, at the Park Theatre. There was, however, no evidence that the defendant knew that they were the apprentices of the plaintiff. The plaintiff was a cabinet maker.

This was an action on the case, brought by Penfield a£ainst Rich and Lincoln, for diverting or withholding the waters of Irondequoit creek from the mills of the plaintiff, sit-i * uate on that creek, below the mills of the defendant, tried at t^e Monroe circuit in September, 1827, before the Hon. John Birdsall, one of the circuit judges.' The declaration averred, that on the 1st September, 1820, and from thence until the 1st August, 1820, the plaintiff was lawfully possessed…

This was an action of ejectment, tried at the Suffolk circujt jn june 1837, before the Hon. Ogden Edwards, one of the circuit judges.

This was an action of debt, against the defendant, sheriff Erie, for the escape of a prisoner from execution.

<p>On a trial at tiont^to Sproduceoneofthe subscribing witnesses to a provecta pe“ b°t exj°cution; of the witnesses to a will proved the sigself11 and hthe two other subscribing witnesses, and cookf noíremember parOcularly whether the other witnesses subscribed their names as such in the presence of the testator, bat presumed they all did so, as he would not have subscribed his name as a witness unless the requisites of the law had been complied with, and it appearing that the two other subscribing witnesses were living and within the state, it was held, that though such evidence would have been sufficient, if the other witnesses had been dead, to authorize a jury to believe that all the formalities of the statute had been complied with, yet, in this case, it was not sufficient; it was resorting to secondary evidence, when that of a higher order was within the reach of the pal ty: the other witnesses being alive and within the jurisdiction of the court, ought to have been called.</p> <p>In the location of 200 acres “to be taken offin a convenient compact form, from the southwest corner of the patent, &e.” the south and west lines of the patent are to be the south and west boundaries of the 200 acres, which must be taken in a square, unless the situation of the land would render such location peculiarly inconvenient</p> <p>A certificate of the proof of a deed was held sufficient, entitling a party to read it in evidence, when the officer certified that “J, D., one of the subscribing witnesses, appeared before him, proved to his satisfaction, by the oath of J. IC. to be the same person,” without adding that J. K. was known to him. What shall be satisfactory evidence that the percoiv offering himself is a subscribing witness, is left to the discretion of the officer.</p>

Error from the Monroe common pleas. This is a writ of error, brought to reverse a judgment rendered in the Monroe common pleas, in an action of ejectment, in the name of James Jackson, on the demise of William W. Mum ford, against Whiteside and McGee. The demise in the declaration was laid on the 1st July, 1826. The suit was commenced in June, 1827, and the cause tried in October of the same year.

This was an action of assumpsit, tried at the Jefferson circuit in June, 1827, before the Hon. Nathan Williams, one 0f fhe circuit judges, J ° On the 13th September, 1826, the plaintiffs bought of the defendants, who, together with one Ames, claimed to be possessed of the rights of the patentee, the exclusive right of . ° ... . . . _ constructing and vending, in six towns in the county ot Jetferson, a threshing machine invented by one James Hyde.

This is an action of debt under the eighth section of the act to prevent and punish champerty and maintenance, tried at the Monroe circuit, in March, 1827, before the Hon. John . . ' Birdsall, one of the circuit judges. In the declaration, the defendant is charged with pretending title to certain premises, describing them ; and that he, on the 8th April, 1825, contrary to the statute, by a certain indenture of bargain and sale, conveyed the same to one Benjamin Shelden.

<p>Error from the Broome common pleas. Close sued Stuart before a justice of the peace, and exhibited an account for work and labor, &c. • Stuart pleaded, first, the general issue; and secondly, a special plea of a former suit for Ihe same cause of action, a judgment recovered and money collected and paid. Close replied, that the judgment mentioned in the plea had been reversed on certiorari. Stuart rej°inerh that the money paid had not been recovered back on the reversal of the judgment. - Close demurred, and Stu- . . , . , . , , . . art joined m demurrer. 1 he cause was tried by a jury, who f°un(l a verdict for Close, for $26 23. Stuart appealed to the Broome common pleas, where the cause was again tried on the pleadings in the court below, in December, 1821. Close proved the several items of his account. Stuart introduced a witness, who testified, that on the joining of the issue, in the suit before the justice, it was admitted by the parties, that the judgment mentioned in Stuart’s plea was paid by Stuart, that subsequently it was reversed on certiorari, but that neither the damages or costs of such reversal had been paid by Close. The court charged the jury that they were to decide the cause as if there had been no previous trial ; that the plaintiff had a right within the time limited by statute, after the reversal of his judgment, to commence a new action for his original demand. The defendant below excepted to the charge of the court. The jury found a verdict for the plaintiff for $26,49, on which judgment was entered.</p>

Demurrer to replication. The declaration is in debt on a judgment obtained against the testator, in the common pleas of Broome, in May, 1817. Plea, plena administravit, except as to 50 dollars, which the defendant says he retains in liis own hands, towards satisfying himself of a judgment recovered by him against the testator, in bis life time, to wit, in July, 1818, before a justice of the peace, on confession of the testator.

This was an action on the case for debauching the sister of the plaintiff, per qvsed sermlium amisit, tried at the Washington circuit, in June, 1827, before the lion. Reuben H. Walworth, then one of the circuit judges. The defendant was a clergyman, a widower, resident in the county of Washington. The seduced and her brother, the plaintiff, were members of the church of which the defendant was minister.

This was an action for a libel? tried at the Cayuga circuit in June, 1827, before the Hon. Samuel Nelson, one of the circuit judges.

This was an action of assumpsit, tried at the Cayuga circuit in June, 1827, before the Hon. Samuel Nelson, one of the circuit judges.

Error from the Albany common pleas. J. Cuyler, survivor of J. & A. Cuyler, sued Fondey in the justice’s court of the city of Albany, on an engagement in writing in the following words: I do hereby promise to pay the damages and costs which may be adjudged against the defendant in this cause, if he do not personally appear at this office on the day and time of adjournment.

This was an action of trespass, for taking and carrying away a quantity of saw logs. The plaintiffs proved, that in the fall of 1825, or winter of 1826, they purchased a quantity of saw logs, which were received by their agent, marked as their property, and left on the bank of the river Au’Sable. The logs were principally cut on the north end of lot No. 210, in Maule’s patent, to 30 acres of which, the vendor of the logs claimed a possessory right.

This was an action of assumpsit for money had and received, tried at the Albany circuit, in February, 1828, before the Hon. William A. Duee, one of the circuit judges. The defendant and William Wemple were tenants in common of a farm in the town of Florida, in the county of Montgomery.

This was an action on the case for slander. The plaintiff was a witness in a case submitted to arbitration between the defendant and one Timothy Rouse, and whilst he was testifying, the defendant, addressing him, said .* e The counsel for the defendant submitted to the presiding judge, whether the words spoken in reference to testimony which was irrelevant and illegal, were actionable.' The judge decided, that although the arbitrators held that the testimony was immaterial,…

This was an action of ejectment, brought for the recovery of about four acres of land in the town of Cazenovia,. tried a t the Madison circuit in September, 1827, before the Hon. Na-THAN WILLIAMS, 0116 of the Circuit judges, The plaintiff shewed title to the premises as follows: 1st, a deed from Charles Hill, (the common source of title to both » ' . parties,) to Stephen Clark, bearing dale 1st January, 1817, conveying 100 acres of land, including the premises in quesjtion.…

Error from the Seneca common pleas. Miller sued Covert in a justice’s court, where judgment, on the 6lh July, 1827, was rendered in favor of the defendant for the costs of the suit. Miller appealed to the common pleas, where he proved a demand for work, labor and services, to the amount of $4,16.

This was an action of ejectment, tried at the Tompkins-iQ June, 1828, before the Hon. Samuel Nelson, one Gf the circuit judges. The plaintiff produced in evidence a deed from the survey°r general of the state to W. G. one of the lessors of the plaintiff, for the survey 50 acres in the S. E. corner of lot No. 20, Hector. This deed bore date in 1792, was acknowledged in 1824, but had not been recorded.

This was an action of assumpsit, tried at the Oneida circuit, in April, 1827, before the Hon. Nathan Williams, one of the circuit judges.

This was an action of debt, tried at the New-York circuit in Feb. 1827, before the Hon. Ogden Edwards, one of the circuit judges. The bond on which the action was brought, was produced and admitted.

This was- an action of ejectment, brought' for the recovery of about 50 acres of land, part of lot No. 75, Ovid, tried at the Seneca circuit, in June, 1828, before the Hon. Enos T. Throop, one of the circut judges. A verdict was rendered in favor of the plaintiff, and a motion is now made to set the same aside, and to grant a new trial. The evidence is detailed in the opinion of the court. The cause was submitted without argument.

Error from the Westchester common pleas. Mary Miller brought an action of slander against Joseph Olmsted. The declaration contained four counts. In the three first, the words charged to have been spoken were the following: “ She (meaning the plaintiff) had connection (meaning carnal and sexual intercourse and connection) with Phineas Barrett (meaning a certain man by that name).” “She (meaning, &c.) had connection (meaning, &c.) with Wm.

This was an action of assumpsit, tried at the Washington circuit in June, 1827, before the Hon. Reuben H. Walworth, then one of the circuit'judges. The plaintiff declared on a joint and several promissory note, made by the defendant and one Eben W. Judd, for the sum of $1000, dated the 1st May, 1824, payable 18 months after date, and acknowledging that the note was given for borrowed money. The declaration also contained the common counts.

Error from the, Schenectady common pleas. Rulesson sued Marsh in a justice’s court, and on a trial by jury, ob(ained a verdict and judgment. Marsh appealed to the Sche- , , J , ... . , nectady common pleas.

Error from the Cayuga common pleas. .Van Anken stied Miller in a justice’s court, and declared on a judgment obtained by him against Miller, before a juslice of the peace, for $35, damages and costs.

Error from the Dutchess common pleas. Pevey brought an acti°n °f covenant in the common pleas, on a joint bond, in’ the penal sum of ten dollars, executed by Margaret Sleight and J. P. Wallace, which recited that a judgment had been rendered before a justice, in favor of Pevey, against Margaret Sleight, for $4,27i, defendant’s costs of suit, from which judgment she had appealed to the Dutchess common pleas; and was conditioned, that if the said M. S. should prosecute the…

This was an action of assumpsit on four promissory notes, tried at the Onondaga circuit, in September, 1827, before the Hon. Enos T. Throop, one of the circuit judges. On the trial of the cause, the making of the notes was proved.

Error from the Onondaga common pleas. A. Leonard sued Mason-in a justice’s court, on an order for the payment of money accepted by Mason. The plaintiff held a promissory note against one N. Leonard for $34,48, underneath which was written an order or bill of exchange, in these words : “ Levi Mason, Esq., please pay the above note, and hold it against me in our settlement.

Demurrer to rejoinder. The plaintiff declared, as the endorsee of a promissory note, made by one of the defendants, ja their partnership name of Crane & Platt, (they being part- . , , , - , , . - , . ners m trade under that name ana style,) and by one .Robert Van Tine, payable to Mary B. Van Tine, who, at the time of the mailing of the note was the wife of the said Robert F. Van Tine, for the sum of $600. The note was joint and seaeraZ.

Error from the Monroe common pleas. Barber sued Allcott in a justice’s court, and declared in writing, in these J . 0 words: “Declaration for botanical medicine for daughter, at three different times in the year 1824, amounting to $18.” The defendant pleaded the general issue, and specially, 1. That the plaintiff was not a licenced physician; 2.

This was an action of assumpsit by the planififfs, as second endorsers against the defendants as first endorsers of a promissory note made by W. H. Allen. Allen was indebted to the plaintiffs for merchandize, for which they held his note. On its becoming due, the plaintiffs, by their agent, P. Hosmer, agreed to give him day of payment, on his making a new note, and procuring the endorsement of Smith and Jenkins, a mercantile firm in Hudson.

Error from the Albany mayor’s court. Evertson sued Westerlo.in the Albany mayor’s court, and declared in assumpsit on the common mtiney counts; the defendant plea-the general issue, and gave notice of set off. On the trial of the cause, the plaintiff proved that he bad paid the amount of a judgment obtained against him and the defen^ant ™ favov °f tbe people of the state, amounting to $290, 47 • the half of which sum he claimed to recover.

Demurrer to replication. This suit was commenced in October term, 1826.

<p>By a devise of “ my whole share of all the land I own, which lies along Schoharie creek, which is connected or belonging to the old farm, and known by the name of Ten Eyck's patent,” a farm owned by the testator, lying along the Schoharie creek wras held to Pass’ ,altho’ not within, the bounds of Ten Eyck’s patent. When the subject matter of devise can be located without reference to the latter words of description contained in a will, such words, if not words of restriction, may be rejected in the construction of the will. Where, from proof atiande, it appears that the testator did not own property corresponding with that described in his will, parol evidence may be resorted to by way of explanation of what was intended to be devised. In cases of latent ambiguity, the declarations of the testator, or his instructions for the drawing of the will, may be given in evidence to shew the intention of the testator. Such proof is only excluded w'here there is no ambiguity, and where the attempt is to shew a mistake in the drawing of the will.</p>

This was an action of false imprisonment, tried at the Herkimer circuit in September, 1827, before the Hon. Nathan Williams, one of the circuit judges. The defendant, a constable of the county of Herkimer, arrested the plaintiff on an execution issued on a justice’s judgment, rendered against him for $6,33.

This was an action of covenant, tried at the Herkimer cir-cit in September, 1827, before the Hon. Nathan Williams, one of the circuit judges. The action was brought for the breach of a covenant of quiet enjoyment, contained in a deed executed by the defendant to one Jacob Springer, the plaintiff having been regularly evicted from one third of the premises conveyed, by a recovery in ejectment against him by a tenant in dower.

This was an action of assumpsit against the maker of two promissory notes; one for the sum of $800, and the other for the sum of $2000 ; the first payable in 30, the second in 60 days after date.

Error from the Albany mayor’s court. Blackwell and McFarlan caused the sloop Rochester to be attached under the act authorizing the arrest of ships or vessels for debts contracted, &c. (1 R. L. 130 and the act amending the same, Statutes 4th vol. b. 49,) and exhibited their declaration in the mayor’s court of Albany, setting forth, that at the request of W. A., the captain or commander of the sloop or vessel called the Rochester, of 144 tons burthen, the plaintiffs furnished…

This was an action on a policy of insurance, brought to recover a loss upon the cargo of the brig Sphinx, insured by the defendants, on a voyage from Alexandria (Columbia) to Canton, and back. The cause was tried at the New-York circuit, in November, 1826, before the Hon. Ogden Edwards, one of the circuit judges, and a verdict taken for the plaintifls, subject to the opinion of the court, on a case to be made.

<p>A release of a debt by two administrators, without the concurrence of a third administrator, is good, and the dissent of the third, forms no objection toils validity. Executors and administrators stand on the same ground; their liabilities and responsibilities, and their rights, interest and authority, over the estate of the deceased, are the same. The doctrine of Us pendens is not applicable to an interlocutory proceeding: as where notice was given of an intended application to the chancellor, by one of three administrators, for the suspension of the powers of the administration, and the appointment of a receiver, on the alleged grounds of the insolvency of one of the co-administrators, and the advanced age and infirmities of the other. A compromise, made by a debtor of the estate with the administrators, whose powers were thus sought to be suspended, and a release executed by such administrators after such notice, was held operative, notwithstanding such notice. An answer to a bill in chancery, charging fraud, responsive to the bill denying the charge, and uncontradicted by evidence, rebuts the idea of fraud. Persons interested in an estate, may pursue property into the hands of any person who colludes or conspires with the executor to produce a devastavit. Collusion is any intermeddling with the executor or the assests of the testator, by which the executor is. guilty of a violation of his duty. A release of a debt, on a compromise with the debtor, executed by the administrators, though contrary to the wishes of one third of those entitled to distribution, will not be set aside where there is no fraud or collusion shewn between the debtor and the administrators.</p>

Jemima Wilkinson, in 1776, became the founder or head of a sect called “ Universal Friends.” She was known among her followers by the name of “the Universal Friendj” and answered to, and acknowledged no other name. In 1791, she removed from Pennsylvania, with a number of followers, into the state of New-York, and took up her residence in the county of Ontario.