Volume 10 — Wendell's New York Reports

<p>Error from the supreme court. Patrick Fitz Simmons brought an action of ejectment in the supreme court for the recovery of a moiety of 200 acres of land, whereof his uncle, Felix Fitz Simmons, died seised in 1828, and whereof the defendant, Thomas Fitz Simmons, a brother of the deceased, and uncle of the lessor of the plaintiff, was in possession. Felix was a naturalized citizen, died intestate, and left no issue. In his life time he had five brothers and two sisters,—all aliens; one 0f big brothers, Thomas, the defendant in this cause, havhig come to this country, was naturalized in 1810; and in 1824, Patrick, one of seven children of Hugh Fitz Simmons, the eldest brother ■ of Felix, also was naturalized, having previous to that time resided in this country several years. Hugh Fitz Simmons died in 1820, he and all his children at the time of his death being aliens. The cause was tried, and the above facts were found in a special verdict. The supreme court gave judgment for the defendant. For the reasons of their decision, see the opinion of the court in Jackson v-Green, 7 Wendell, 333. The plaintiff sued out a writ of error.</p> <p>The cause here was argued by</p> <p>The counsel for the plaintiff in error insisted upon the following points:</p> <p>1. The lessor having been naturalized before the death of the intestate, the fifth canon of descent of the statute regulating descents, passed in 1786, 1 R. L. 52, 3, cast the inheritance directly upon him, and the alienage of his father at the time of his death cannot affect the lessor’s right to take.</p> <p>2. The reference to the share of the father in the statute is for the purpose merely of determining the quantum of interest, and does not affect the right to inherit.</p> <p>3. The. lessor being the only one of his father’s children capable of taking, he represents the whole quantum of interest his father would have taken had he been living and capable of inheriting, and he is therefore entitled to an equal moiety of the estate.</p>

Error from the supreme court. The canal board of this state, on the third day of March, 1828, adopted a resolution or made an order for an extra allowance to N. Allen & Co., contractors on the Oswego canal, in addition to the contract price agreed to be paid to them for building certain locks, &c, in the construction of a part of that canal.

Negus having applied to the supreme court to set aside the decision of the trustees appointed in the matter of the proceeding against him, in respect to the amount awarded by the trustees to the attaching creditor, and the court after hearing the parties, having denied his application, see 7 Wendell, 499, fyc., sued out a writ of error to remove the proceedings into the court for the correction of errors.

Mandate from the supreme court of the United States. Davis was sued in the supreme court of this state, as special bail on a recognizance in a suit of Packard and others against Hill and others, in which suit he pleaded several pleas to the merits, on which issues were joined, a verdict rendered in favor of the plaintiffs, and judgment entered accordingly.

Demurrer to plea. The plaintiff declared in debt on judgment rendered in this court in the term of August, 1815, for the sum of $830,42.

This was an action of trover, tried at the Chenango circuit in October, 1831,- before the Hon. Robert Monell, one of the circuit judges. The action was brought to recover the value of a horse let to hire by the wife of the plaintiff, in the absence of her husband, to the defendant to go a journey of 35 miles; the horse died while in the possession of the defendant. The plaintiff was from home, attending to the business of rafting lumber.

<p>This was an action of assumpsit, tried at the Yates circuit in June, 1831, before the Hon. Daniel Moseley, one of the circuit judges.</p> <p>The plaintiff proved a contract made between him and the defendant in April, 1828, by which it was agreed that the defendant should deliver to the plaintiff, at his mill at Milo, in the county of Yates, 500 bushels of wheat, as fast as the plaintiff should want it between the time of the contract and the first day of July following, and that the plaintiff should pay him five shillings and sixpence per pushel in seven months from the first day of May, with interest, after five months. Between the first of May and the eleventh of July, the defendant delivered about 118 bushels of wheat, for which the plain- ' tiff gave him receipts. In August, 1828, the plaintiff demanded the residue of the wheat, which was not delivered. The price of wheat in harvest time of 1828, in the vicinity of the plaintiff’s mill, was ten shillings and sixpence per bushel.</p> <p>The defendant produced in evidence the record of a judgment in his favor against the plaintiff and one Ichabod Baldwin. In the declaration in that suit was set forth a contract between the now defendant on the one part and the now plaintiff and Ichabod Baldwin on the other, by which Hunt, the now plaintiff, sold to Lawrence and Baldwin a certain quantity of wheat, i-ye and corn then belonging to Hunt, to wit, all the crop of wheat, rye and corn that Hunt then had to spare, at the price of five shillings and sixpence per bushel for the wheat, and three shillings and sixpence per bushel for the rye and com; the whole to be paid for on the 1st December, 1828, with interest on the rye and corn from the 1st July, and on the wheat from the 1st October; the grain to be delivered in a reasonable time. It was then averred that on the 29th October, 1828, Hunt delivered 100 bushels of wheat, 500 bushels of rye and 500 bushels of com, and was ready and offered to deliver the remainder of the wheat, &c. but that Lawrence and Baldwin refused to receive the same, and to pay for the grain already delivered. The defendant proved that on the trial of the cause in his favor, he proved the delivery of a quantity of rye and com, and also of a quantity of wheat, the delivery of the wheat being proved by the production of the receipts now shewn on. the part of the plaintiff*in the present action. It however appeared that upon that trial it was objected that Hunt could not recover for the wheat, because it was delivered under a contract made with Lawrence alone, upon which Lawrence and Baldwin could not be charged as joint contractors, and also that he was not entitled to recover for the wheat, because he had failed in performing his part of the contract in relation thereto. Hunt had a verdict, for what amount does not appear from the case. To the admission of this record as evidence, the plaintiff objected, first, as the record of a suit between different parties, and second, that from the record it did not appear that the plaintiff recovered for the wheat claimed by him; and though he obtained a verdict, such verdict might have been only for the rye and corn delivered. The objection however was overruled and the evidence admitted, and the jury, under the charge of the judge, found a verdict for the defendant. The plaintiff moves for a new trial.</p>

This was an action of assumpsit, tried at the Schenectady circuit in February, 1831, before the Hon. James Vanderfoee, one of the circuit judges. The action was against the maker of a promissory note, transferred by the payee to the plaintiff before maturity, in payment of a precedent debt. On the trial, the defendant set up a defence, as against the payee. The plaintiff received the note in good faith, and without notice of any existing defence.

Demurrer to declaration. The declaration in this case was in covenant on a written instrument, commencing thus: “A contract or articles of agreement made and concluded this 14th day of December, 1821, between James Hillbouse, commissioner of the school fund of the state of Connecticut, for and in behalf of said state, to and for the use and benefit of said school fund of the first part, and Joshua Field of Clarkson,&c. of the second part.” It was signed “Joshua Field, L. S.…

This was an action against the defendant as the endorser of a promissory note for $800, made by W. A. M’Clelland and transferred by him to the plaintiffs. Previous to the transfer, the note was shewn hy M’Clelland to an attorney; jt then read thus : “ Six months after date, I promise to pay to the order of Philip Brotherson eight for value received, at the Mohawk Bank—Schenectady, May 1, 1829— and had the signature of M’Clelland as maker and of the defendant as endorser.

This was an action of assumpsit, tried at the Madison circuit in September, 1830, before the Hon. Nathan Williams, one of the circuit judges. The suit was brought to recover the moiety of the costs of the defence of an action against the defendant as a deputy sheriff, for selling certain property by virtue of an execution in favor of the plaintiff.

<p>Demurrer to declaration. The suit was brought to recover a penalty given by the statute to prevent horse racing. The plaintiff sued as well for himself as for the overseers of the poor of the town of Sullivan, in the county of Madison. The first count charged the defendants with permitting a horse oWnesí by them to ran a race, upon which race a bet was depending. It was averred that the horse of the defendants was worth $85, whereby an action accrued, &c. The second count charged the running of a race between two horses; that the defendants furnished and produced one of them, and bet or staked him against the horse furnished and produced by the other party to the race; concluding with an averment of value as in the first count, whereby an action had accrued, &c. The day of the offence laid in each count was the 29th August, 1829, and the suit was commenced in July, 1830. The defendants put in a general demurrer.</p> <p>insisted that the statute giving an action for offences of this kind to common informers having been repealed previous to the commencement of this suit, and the statute on this subject in existence at the bringing of the suit giving the action only to the overseers of the poor of the town where the offence was committed, the suit should have been brought in the names of the overseers, and not in the name of a common informer.</p>

Error from the Erie common pleas. Webster was sued before a justice for a violation of an ordinance of the corporation of the village of Buffalo as to the sale of meats.

This was an action for false imprisonment, tried at the Madison circuit in September, 1830, before the Hon. Nathan Williams, one of the circuit judges.

This was an action of ejectment, commenced in May, 1830, tried at the Franklin circuit in February, 1831, before the Hon. Esek Cowen, one of the circuit judges. The plaintiff being the owner of township No. jive in Ma-comb’s purchase, known by the name of Bangor, containing 13,568 acres, on the 4th May, 1804, sold the south-eastern quarter of the township to one William Cooper.

This was an action of trespass de bonis asportatis, tried at the Erie circuit in March, 1831, before the Hon. Addison Gardiner, one of the circuit judges. The plaintiff lent a pair of horses to Evan Rice and Stephen Goss, to enable them to retail a load of fish. The horses were lent at Buffalo, and the borrowers had permission from the plaintiff to proceed east as far as Clarence, in the county of Erie, but were requested not to go any further.

This was an action of assumpsit, tried at the Herkimer circuit in March, 1831, before the Hon. Nathan Williams, one of the circuit judges. The plaintiff sued as the second endorsee of a promissory note, for $350, made by the defendant, bearing date 10th February, 1828, payable in 90 days to the order of Sprague and Dann, endorsed by them to William Small, and by Small transferred to the plaintiff.

This was an action of assumpsit tried at- tho Montgomery circuit, in May, 1831, before the Hon. Esek Cowen, one of the circuit judges. The defendant was the endorser of a promissory note for $276, dated 15th November, 1828, payable 5 months after date, given for the balance of a previous note of $332, held by the plaintiffs against one G. Petrie, the maker of the note .in question.

This was an action for a libel tried at the Greene circuit, in October 1830, before the Hon. James Vanderpoel, one of the circuit judges.

The commissioners of highways of the town of Bush- ° . wick, in the county of Kings, in August, 1830, laid out a road extending southeastwardly from the eastwardly termination of South Second street, in the village of Willianisburgk, which termination is the boundary of the village, and which village is situate in the town of Bushwick.

Error from the Orange common pleas. Morrison sued Elder in an action of assault and battery. The defendant pleaded the general issue, and gave notice of special matter. On the trial, the following facts appeared : The plaintiff on the premises of one Milburn, offered for sale two horses at public auction, in pursuance of a previous notice.

This was an action of assumpsit, tried at the New-York circuit in January, 1832, before the Hon. Ogden Edwards, one of the circuit judges.

Covenant against encumbrances. The plaintiff declared in covenant for that the defendants, on the 5th March, 1824, for and in consideration of $250, by deed granted and conveyed to him in fee, half an acre and 16 rods of land, in the village of Bloomingburgh, in the county of Sullivan, and covenanted for the quiet enjoyment of the premises, and that the same were free from encumbrances ; and that be the plaintiff immediately entered into possession of the premises and…

Demurrer, to declaration. The action in this case is assumpsit ; the declaration contains three counts and the third count is demurred to.

This was an action of assumpsit, tried at the Ontario circuit, before the Hon. Daniel Moseley, one of the circuit judges. The suit was against the defendant alone, on a joint and several note signed by Allen Cummings and the defendant, dated 27th January, 1826, whereby the signers promised to pay the plaintiffs $51,80 in drawing ore from Ontario to Manchester. The plaintiffs having proved the note, rested.

Isaac Palmer was charged before a justice of the peace of Steuben county with having feloniously stolen 5 bunches of shingles, the property of one R. O. Jennings. He was tried before a court of special sessions, convicted and sentenced to pay a fine of $6 and to be imprisoned 30 days.

In 1809, the legislature of this state passed an act entitled, “An act to authorize Jonas C. Baldwin to erect a dam across the Seneca River,” Laws of JV*. F. vol. 5, Webster's ed. 453, by which Baldwin, his heirs or assigns were authorized to erect and maintain a dam across the Seneca river, at the head of the rapids called MeHarry's rift, of a height not exceeding seven and a half feet, on condition of erecting and maintaining a canal for the passage of boats.

Action on covenants of warranty and quiet enjoyment. Held: that notwithstanding the acknowledgment of the receipt of the consideration money expressed in a deed, it was competent for the party executing it to shew that the consideration was not in fact paid. The same principle is recognize in Bowen v. Bell, 20 Johns. R. 338.

Taxation of banks. The plaintiffs declared against the defendants in trespass cle bonis asportatis for taking coin to the •amount of $127,20. The defendants by plea justified the taking as the proportion of a village tax assessed upon the plaintiffs.

Error from the Onondaga common pleas. Taylor sued Schroepel in the Onondaga common pleas, in an action of trover, for two horses and other property deposited with the defendant by a constable, who had taken the same by virtue of two attachments against the plaintiff.

This was an action of covenant, tried at the Seneca circuit, in June, 1831, before the Hon. Daniel Moseley, one of the circuit judges. The action was for the breach of the covenant of warranty, contained in a deed bearing date in 1810, executed by the defendant to one Vanderbelt, who subsequently conveyed to the plaintiff.

This was an action of assumpsit, tried at the Orange circuit in September, 1831, before the Hon. Charles H. Rugóles, one of the circuit judges.

Error from the Madison common pleas. Brace and 20 others as plaintiffs, commenced a suit before a justice of the peace, against Benson, by summons. In the summons one of the plaintiffs was named Joseph 8. Keeler.

Demurrer to declaration. The plaintiff declared in debt on a bond in the penal sum of.f5000, executed by the defendant to the plaintiff, bearing date the ninth day of April, 1827, conditioned to indemnify and save harmless the plaintiff “ against all claims either in his own right or in the right of , any other person or persons claiming under or from said Clark; also against any and every claim or claims which Loring Delano or any other person or persons claiming under him…

Error from the superior court of the city of New-York. Kneeland sued N. Rogers and two others for the breach of a guaranty given under the following circumstances: Kneeland, as the factor or agent of a mercantile firm transacting business in Alabama under the name and style of L. Morgan The promise of the defendants below was, for the want of consideration a nudum pactum.

Error from the Tioga common pleas. Dean and two others, commissioners of highways of the town of Candor, in March, 1829, sued Gridiey, an overseer of highways, in a justice’s court, and claimed of him a penalty of ten dollars for not causing the ■loose stones lying in the beaten track of the highways to be removed therefrom, charging him with having been duly elected an overseer of highways for the year 1828, for the thirtieth district of the town of Candor.

Error from the Madison common pleas. In 1830 Benson sued Brown and 23 others in a justice’s court, and declared in writing for work done and performed at their request, and attached to his declaration an account, which he called a bill of particulars, headed thus : “ Nathan Brown and others, of the Pilot Line Boats, To Harry Benson, Dr.” giving the items of his demand, consisting of blacksmith work done at various times between the 12th April and 27t.h October, in the year…

Error from the Delaware common pleas. Crooker sued Bragg for taking away a dam erected by Crooker in the Susquebannah river, for (he purpose of turning a portion of the stream towards his mills.

This was an action of trover tried at the New-York circuit in March, 1830, before the Hon. Ogden Edwards, one of the circuit judges. The declaration was for a quantity of powder equal to 465 quarter casks of 25 lbs. each. The defendant pleaded the general issue.

This was an action of assumpsit, tried at the Madison circuit in September, 1830, before the Hon. Nathan Williams, one of the circuit judges. The first count in the declaration was on a bill of exchange for $158,36, bearing date 35th May, 1836, charged to have been drawn by one Henry F. West, by the name and description of II. F. West, agent, he, the said West, then and there being the agent and servant of the defendant in that behalf, according to the custom of merchants.

Statute of limitations. The plaintiff declared in assumpsit for monies had and received, paid, laid out and expended, lent and advanced, and on an account stated, laying the day in each count on 1st January, 1828, in the life-time of the intestate, and stating the promises to the intestate. The defendant pleaded, 1. Non assumpsit; 2.

Demurrer to return to an alternative mandamus. The justices of the superior court of the city of New-York having ordered a new trial in a cause on the ground of newly discovered testimony, the party who had obtained the verdict applied to this court for a mandamus, directing the court below to vacate the rule granted by them ; an alternative mandamus was awarc]ec] an¿ served, to which a return was made by the court below, in which was set forth the affidavits on which the…

Embezzlement of goods by servant. The defendant was indicted at the Ontario general sessions for embezzling a packet of bank bills, entrusted to him as a stage driver by his employers, to be carried from the village of Lyons to the village of Geneva, and to be deposited in the bank at the latter place. The employment of the defendant as a stage driver, the delivery of the bills to him and his absconding with the money, were proved.

This was an action of trespass quare clausum fregit, and for an assault, battery and false imprisonment, tried at the Warren circuit in December, 1830, before the Hon. Esek Cowen, one of the circuit judges. The plaintiff proved that the defendants, with great violence, burst open his door in the night time, that he kept them at bay until morning, when they entered and took and carried him away.

This was an action of assumpsit, tried at the Albany circuit in March, 1831, before the Hon. James Vanderpoel, one of the circuit judges. The plaintiffs declared as the endorsees of a check drawn by John Le Breton, on the Mechanics and Farmers Bank in Albany, for $86,18, bearing date the 14th January, 1830, payable to the order of the defendants, and by them endorsed to the plaintiffs.

This was an action of assumpsit, tried at the Washington circuit in November, 1830, before the Hon. Esek Cowen, one of the circuit judges. The action was founded on a note in writing, dated 27th October, 1821, by which the defendant promised to pay the plaintiff $200—one half of the sum in two years and the residue in three years from date, the payment to be made in sawing.

This was an action of assumpsit, tried at the Genesee circuit in April, 1831. The plaintiffs proved a note made by the defendants for $138,60, dated 27th June, 1828, payable 90 days after date to the President, Directors and Company of the Utica Bank, at their branch bank in Canandaigua; it was signed James Ganson, Jlzor Curtis and Jared Rathbm as surety.

Error from the Washington common pleas. This was an action of replevin brought by the plaintiffs for a quantity of boards taken by one Eldridge, a deputy of the defendant, sheriff of the county of Washington, by virtue of an execution against one Vaughan.

This action was tried at the Livingston circuit in October, 1830, before the Hon. Addison Gardiner, one of the circuit judges.

Error from the Washington common pleas. This was a suit by the plaintiff as late sheriff of the county of Washington, on a replevin bond, in the penal sum of $50, taken by him on making deliverance… Held: that in an action on a bond under the fourth section, it was not necessary to aver the issuing of a writ of retorno and a return of elongata thereon.

Declaration on replevin bond. The plaintiff declared as the assignee of a replevin bond, alleged to have been executed on the first day of June, 18S0.

This was an action of replevin, tried at the Duchess circuit in November, 1830, before the Hon. James Emott, one of the circuit judges. In 1829, the defendant, as a deputy sheriff by virtue of an execution against one John Mastín, levied upon a horse, waggon, harness and a number of cattle, on a farm in the possession of the defendant in the execution.

This was an action on the case for the seduction of the plaintiff’s daughter, tried at the Warren circuit in June, 1831, before the Hon. Esek. Cowen, one of the circuit judges. The daughter of the plaintiff lived with the defendant as his house-keeper for one year from October, 1829. In July, 1830, the defendant had sexual intercourse with her and she became pregnant.

Error from the New-York common pleas. Crawford sued Willmarth in an action of debt, as the endorsee of a promisory note made by Willmarth, payable to the order of the Harlcem Canal Company. The note, before its maturity, was endorsed by the payees to the plaintiff, in consideration of a debt owing to him by the payees.

<p>Error from the Saratoga common pleas. Wheeler sued Anthony in trespass, for talcing and selling a cow. Anthony justified as collector of a school district; he produced a tax list, made out by the trustees of the district, in which, in the column of names of the taxable inhabitants of the district, was an entry in these words: “ The widow and heirs of Zopher S. Wheeler, desceasedand opposite to such entry there was an amount of real property set down at $2000, and an amount of tax at $14. The defendant also produced a warrant commanding him to levy the sum of $14, of “ the widow and heirs of Zopher S. Wheeler, deceased,” and also to levy the taxes assessed upon the other inhabitants of the district, and proved that the widow and heirs resided in the district, and owned and occupied a farm therein, lately owned by him ; that the plaintiff was one of his children and heirs at law, and lived with the widow and the other heirs on the farm. This evidence was objected to by the plaintiff as inadmissible, as not shewing that there was any tax assessed against the plaintiff by name, and because his name did not appear in the warrant. The objection was overruled, and the court instructed the jury that the designation of “ the widow and heirs of Zopher S. Wheeler, deceased,” was a sufficient naming of the plaintiff to authorize the defendant to levy the tax of $14 upon the property of the. widow and heirs Irving on the farm. The jury found for the defendant, and a judgment was entered accordingly. The plaintiff having excepted to the decisions of the court, sued out a writ of error.</p>

This was an action of replevin, tried at the Washington circuit in November, 1830, before the Hon. Esek Cowen, one of the circuit judges. The plaintiff sued out a plaint in replevin, for certain articles of personal property levied upon by a deputy sheriff of the county of Washington, by virtue of an execution in favor of the defendant against one Rowan.

<p>This was an action of assumpsit, tried at the Livingston circuit in February, 1831, before the Hon. Addison Gardiner, one of the circuit judges.</p> <p>The plaintiffs and E. Mumford, one of the defendants, were tenants in common of a grist-mill, the plaintiffs owning one moiety and E. Mumford the other moiety. On the 25th November, 1824, the plaintiffs executed to E. & W. Mumford a lease of the moiety of the mill owned by the plaintiffs, for the term of nine months, at. a rent of $375. The defendants continued in possession of the whole mill until the 16th September, 1826. The plaintiffs then entered into the occupation of one half of the mill, and brought this action, claiming to recover of the defendants for the use and occupation of the mill, from the expiration of the lease until the entry by the plaintiffs, a compensation graduated by the amount of rent specified in the lease for the term therein mentioned, i. e. at the rate of $500 per year. There was some slight testimony of an unwillingness on the part of E. Mumford to yield to the plaintiffs the possession of their moiety of the mill. The judge charged the jury that the liability of the defendants depended upon the fact whether they did or did not hold the exclusive possession of the mill after the expiration of the lease that .the continuance, of E. Mumford in possession of the premises, subsequent to ..the expiration of the lease, was the possession of the plaintiffs, unjesg jjg had intimated that he should hold possession against the plaintiffs, and that even in such case the plaintiffs were entitled to recover ; and instructed the jury that if the possession of the defendants was exclusive, or if they, the jury, believed that E. Mumford did not, after the expiration of the lease, occupy as tenant in common with the plaintiffs, they must find for the plaintiffs, who in such case would be entitled to recover $701,68, the amount of their demand, estimating the compensation for the use and occupation of the mill at the rate of $500 per year, and including in that sum the interest. The jury found a verdict accordingly for $701,68, and the defendants now move for a new trial.</p>

This was an action of assumpsit, tried at the Orleans circuit in August, 1831, before the Hon. Addison Gardiner, one of the circuit judges. Sturges sued Allis & Lee in the Orleans common pleas, in which court the plaintiff was nonsuited, and the defendants had judgment for costs; on which they issued an execution, and the plaintiff paid the sum of $237,87 to the sheriff.

Error from Schenectady common pleas. Van Wormer sued Van Voast, sheriff of Schenectady, in a justice’s court, for the escape of one John Sitterly from the limits of the jail, he being in execution at the suit of Van Wormer on a justice’s judgment for about $16. The justice rendered judgment in favor of the plaintiff. The defendant sued out a certiorari to the Schenectady common pleas.

This was an action for false imprisonment, tried at the Sara-toga circuit in May, 1831, before the Hon. Esek Cowen, one of the circuit judges. The false imprisonment was alleged to consist in the arrest of the plaintiff on a justice’s warrant, which it was insisted by the plaintiff had been illegally issued, on the ground of the want of jurisdiction in the justice.

Mandamus in relation to a loan office mortgage. In 1786, an act of the legislature of this state was passed, authorizing the emission of bills of credit to the amount of £200,000, which sum was apportioned among the several counties of the state, and paid over to officers in each county, designated loan officers, to be loaned out to the citizens of the several counties, and secured by mortgages on real estate; and it was provided by statute that if any deficiency should…

Error from the Oneida common pleas. Borden sued Hinman in a justice’s court for a false return of non est inventus, upon a ca. sa., made by a deputy of Hinman, sheriff of Oneida, in a suit against one Harris, for whom Borden was special bail. On the trial before the justice, the defendant had a verdict and obtained judgment for costs. The plaintiff sued out a certiorari.

Error from the Sullivan common pleas. Case sued Sloan and two others in a justice’s court, on the instrument in writing required to be given by a constable on his election. Sloan was a constable; the other defendants were his sureties.

Motion in arrest of judgment. The plaintiffs obtained a verdict in an action of covenant on a lease, executed by them jointly to the defendants, for four quarters rent due and accruing immediately preceding 1st May, 1831.

Demurrer to declaration. The plaintiff in his third count declared that the defendants made a certain agreement with him in the words following: (setting forth the agreement in hcec verba:) “ We, the subscribers, do agree to pay J. C. Kemble the cost or amount of publishing a work of 300 pages of original matter, written by Derick Newcomb, of Pittstown, and do bind ourselves to be responsible to said Kemble for 1000 copies of the said work, if the said Newcomb should fail in…

Motion to set aside an inquisition taken on a writ of inquiry of damages, after a default, in an action of trespass quare domum fregit, and for false imprisonment. The plaintiff proved the breaking into his house in the night time, his arrest, and that he was carried to a camp-meeting, where he was tried for keeping an unlicenced huckster’s shop within the prohibited limits of a camp-meeting, and fined $15, which he was compelled to pay, to obtain his discharge.

This was an action of ejectment, tried at the Jefferson circuit in June, 1831, before the Hon. Nathan Williams, one of the circuit judges. The plaintiff claimed to recover an equal undivided ninth part of a farm, whereof his father died seised.

This was an action of assumpsit, tried at the Columbia circuit, in April, 1831, before the Hon. Charles H. Ruggles, one of the circuit judges. On the 3d June, 1820, the plaintiff sold to the defendant the services of a negro called Tobe, to end on the 1st June, 1825. The consideration of the sale was $200, of which $50 was paid down, and the residue secured by a note, payable on demand, on which this action was brought. The declaration also contained the common counts.

Statute of limitations. The plaintiff declared on a special agreement, whereby the defendant, on the 6th January, 1816, promised to pay to the plaintiff and account to him for all such monies, &c. as he should receive of one Montgomery, on account of a certain contract between the plaintiff and Montgomery, delivered by the plaintiff to the defendant, when the latter should be thereto afterwards requested.

Error from the Otsego common pleas. Conkling sued Bates and three others in a justice’s court, and declared in trover for a quantity of cherry boards and scantling; the defendants pleaded the general issue, and justified under a judgment and execution against one Henry Randall. Before the justice, a verdict was rendered against Bates and two other defendants, and the fourth defendant (one Windsor) was acquitted.

Mandamus case. The relator purchased a term of years in a portion of two lots in the city of New-York, on a sale for taxes, and obtained from the corporation of the city a certificate of sale, bearing date 23d September, 1829-.

<p>Error from the mayor’s court of Hudson. Collins sued Butts in assumpsit for work, labor and services in the finishing of four bales of flannels, which he had delivered to the defendant and for which he claimed to recover $125,69. It was proved that the defendant had delivered 98 pieces in the whole to the plaintiff to finish, and the defendant claimed to set off against the demand of the plaintiff 62 of the pieces, alleging that the plaintiff had refused to return that quantity. The plaintiff resisted the set off, on the ground that the defendant was not the owner of the 62 pieces of flannel, and proved that the flannels were manufactured out of yarn and materials which were in a woollen factoiy formerly belonging to one Underhill, who failed in business in August, 1829, and which yarn and materials, with the exception of 100 weight of wool, belonged to Underhill before his failure. After Underhill’s failure, the defendant contracted with the workman conducting the factory to manufacture the 62 pieces of flannels. The yarn and materials were afterwards levied upon by the sheriff of Columbia, by virtue of an execution against Underhill, and the defendant became the receiptor for the property levied upon, but not for the yarn, which was not found until the 12th September, when all parties interested in the property deeming it the best course to be pursued to have the stock worked up into flannels, the defendant, as the receiptor, agreed to take the responsibility of having them worked up and applied on the execution. The yam and materials were accordingly worked into the 62 pieces of flannels and taken to the plaintiff to finish, the contract for the finishing being made with the defendant individually, and not with him as the agent of Underhill. Subsequently the sheriff went with the defendant and demanded the flannels of the plaintiff and broke open a door to find them, but did not succeed. The sheriff testified that in the attempt to retake the flannels under the execution, he acted by the directions of the defendant, whose object in endeavoring to retake the flannels was to save himself as receiptor and his expenses in manufacturing them ; that the agreement as to the working up the yarn and unfinished materials was, that the defendant was to attend to it as overseer and furnish such things as were necessary; to be paid the expenses of manufacturing out of the avails, and the residue to be applied on the execution. The plaintiff proved that the four bales of flannels finished and delivered to the defendant were equal in quantity to the flannels owned by the defendant and to the stock furnished by him, and that the remainder of the 98 pieces of flannel were made out of the materials levied on by the sheriff; this testimony, after being given, was objected to, and the recorder decided that it was irrelevant and should be excluded, to which decision the plaintiff excepted. The recorder charged the jury that they must decide whether the defendant, in contracting with the plaintiflj acted in his own right or as the agent of another, and as the defendant did not disclose his agency, the plaintiff was responsible to him, unless be established the agency of the defendant by incontrovertible proof; that the claim of the defendant to a set off rested on an express promise of the plaintiff to finish the flannels and deliver them to him ; and as they were not delivered, the defendant had a right in his own name to recover their value, which being capable of ascertainment, by mere calculation, was a proper subject of set off. He further charged, that the plaintiff might waive his lien for the finishing of the goods, and as the goods had not been delivered on demand made, and the plaintiff had denied the defendant’s right to them, and claimed to keep them in his own right, he could not be permitted to protect himself unv>3!£ the pretence that he retained them as having a lien, if the jury were satisfied that he kept them for any reason other than to secure payment for the work bestowed upon them; to which charge the plaintiff also excepted. The jury found for the defendant, and judgment was entered accordingly. The plaintiff sued out a writ of error,</p>

This was an action of assumpsit, tried at the Rensselaer circuit in November, 1830, before the Hon. James Vanderpoel, one of the circuit judges. The suit was against the defendant as the endorser of a note for $247, dated 18th June, 1827, drawn by Lodowickus L. Viele, payable to the defendant at the Bank of Albany, on the first day of September, 1827.

Error from the Genesee common pleas. Whitney sued Sutton in a justice’s court, and declared on a warranty in the exchange of horses, viz. that the horse which the defendant gave the plaintiff in exchange for a horse received from him was sound, except the scratches, and that he was kind in harness, and alleging a breach of the warranty. The defendant pleaded the general issue. The cause was heard before a jury.

This was an action of ejectment, tried at the Seneca circuit, before the Hon. Daniel Mosely, one of the circuit judges. Held: cannot be considered as the possession of a tenant in common. In 1818, the whole of the premises were conveyed in fee to Snyder, and he, in 1824, conveyed with warranty to Van Riper; these conveyances were in exclusion of the right of the plaintiff and adverse to it. 13 Johns. R. 406. 2 R. S. 306, § 25. 9 Cowett, 555.

Error on certiorari to a justice’s court. Bigelow sued out an attachment against Tallman. The plaintiff, in the affidavit accompanying his application for process, stated that he believed that Tallman had departed from the county with intent to avoid his creditors, or to avoid the service of any process, and from reports and information, he believed that he kept out of the county to avoid paying his debts.

Error from the Columbia common pleas. The Columbia Turnpike Company sued Haywood in the justices’ court of the city of Hudson, claiming from him a penalty of $25, for forcibly or fraudulently passing a toll-gate of the company without paying the legal toll.

This was an action of assumpsit, tried at the Saratoga circuit in June, 1831, before the Hon. Esek Cowen, one of the circuit judges.

Demurrer to pleas. The declaration was on a recognizance, entered into by the defendant on the 6th December, 1830, before a justice of the peace, conditioned that one James Anderson should personally appear at the then next court of general sessions of the peace, to be holden in the county of Monroe, to answer what would then and there be objected against him by James Lewis on behalf of the people.

This was an action of assumpsit, tried at the Herkimer circuit in March, 1830, before the Hon. Nathan Williams, one of the circuit judges.

This was an action of ejectment, tried at the Seneca circuit in December, 1831, before the Hon. Daniel Moseley, one of the circuit judges. The lessor of the plaintiff claimed to recover an undivided third of a village lot, called lot No. 19, in or near the village of Waterloo. The lot is part of a tract of 100 acres conveyed to the father of the lessor by the surveyor general of the state, by deed bearing date in 1804.

The judges of the Oneida common pleas having, in pursuance of the provisions of the revised statutes, 1 i?. S. 452, § 3, &c, expelled Newell Smith, a practising physician and surgeon of the county of Oneida, from the County Medical Society, and declared him forever thereafter incapable of practising physic and surgery within this state, a certiorari was sued out to bring up the proceedings to this court.

This was an action of assumpsit, tried at the Tompkins circuit in June, 1830, before the Hon. Nathan Williams, one of the circuit judges. The declaration contained three special counts, and also the common money counts.

<p>A recognisance taken before two justices of the peace, for the appearance of a party indicted in a court of general sessions of a misdemeanor, is good and valid.</p> <p>¿Ifter indictment, any one justice of the peace has power to admit to bail a party indicted in the court of general sessions of an offence triablein that court; and before indictment, he may let to bail a person charged with an offence under the degree of grand larceny.</p> <p>So also two justices may, before indictment, let to bail prisoners arrested and in jail, charged on suspicion of felony.</p> <p>The statute requiring recognizances to be signed, only requires the signature of the cognizor.</p> <p>It need not be positively averred in a suit on the recognizance, that the recognizance was filed in, or made a record of the court, in which it was returnable ; it is sufficient on general demurrer, that the declaration refer to it as a record of the court.</p> <p>An averment that ¡he principal although called did not appear, is equivalent to an averment that his default for not appearing was entered of record, and supersedes the necessity of an allegation that the bail did not produce the principal.</p>

<p>Where a creditor signed a composition deed and released his debtor from all demands, and subsequently brought an action against him for breach of covenant in discharging a judgment which he had previous to the composition assigned to his creditor, and it appeared that the cause of ao' tion accrued previous to the release, it was held, that the release was a bar to the action, although the sum set opposite the name of the creditor in the composition deed was for a demand wholly distinct and different from that for which the suit was brought.</p> <p>A creditor who signs and inserts an amount as due to him in a composition deed, cannot subsequently maintain an action against his debtor for a demand existing at the time of the composition but not then taken into account, although the deed of assignment specifies that the property conveyed by the debtor is to be divided among the creditors in proportion to their several demands.</p> <p>Whether the plaintiffin this case would have been entitled to sustain his action, had it been averred that at the time of signing the composition deed he was ignorant of the fraud committed by his debtor, qnere.</p>

Ejectment for dower and costs of suit. The plaintiff, before admeasurement of dower, brought an action of ejectment, pursuant to the revised statutes, to recover dower in lands of which her husband was seised during the marriage, but which he had aliened as long since as 1792, at which time the lot out of which dower was sought was in a state of nature, uncultivated and unimproved, and its value did not exceed $200.

<p>Error from the New-York common pleas. Rossiter sued Candler and Hart, and declared against them for that whereas the defendants, on, &c. at, &c. were indebted to the plaintiff in the sum of $500, being so much money paid, laid out and expended by the plaintiff for the use of the defendants : for that whereas the plaintiff by means of one E. C., his agent, did purchase from the defendants a certain quantity of fish, for the purpose of shipping the same in the schooner Flos, to the port of Vera Cruz, in South America, there to be disposed of for the benefit and advantage of the plaintiff; andwhereas the defendants did, at the time of the purchase of the fish, put up, prepare and put on board the said schooner a quantity of fish equal to that purchased by the plaintiff, in common with the fish shipped by the plaintiff and for the express purpose, and with the express and actual intention of dividing the money arising from the whole of the said fish, when sold, for the mutual benefit and advantage of the plaintiff and defendants, of profit and of loss, share and share alike ; that is to say, if the whole of the fish should be sold at a profit, that such profit should be equally divided between the plaintiff and the defendants; and if the whole of the fish shipped on board the schooner Flos should be disposed of and sold at a loss, that then the plaintiff and the defendants should sustain and pay the loss, by sales or otherwise incurred—the said plaintiff thereof the one half, and the said defendants the other; and whereas the fish so shipped at the common risk and for the mutual benefit and advantage of the plaintiff and the defendants, as aforesaid, was so damaged at sea or otherwise, as that after the arrival of the schooner at Vera Cruz, it was there sold at a loss, the whole of which the plaintiff individually sustained and paid, without having received any part thereof from the defendants ; whereby the plaintiff hath sustained damage to the amount of $500. There was a second count- in the declaration, substantially like the above. The defendants pleaded non assumpsit. The cause was tried and the plaintiff obtained a general verdict for $154 68, on which judgment was entered. The defendants sued out a writ of error.</p> <p>insisted that the declaration was bad, in not alleging a promise by the defendants. Goulds Treatise on Pl. 73, § 42, 44, 75. Lawes on Pl. 88, 9. 3 Mass. Rep. 160. And jf a promise could be inferred, the declaration was still defective in not setting forth a consideration to support it. 1 Saund. 264, n. 1. 3 T. R. 653. 7 Johns. R.. 88. 4 Barn, fy Cresw. 345. He further insisted that should it be conceded that a valid agreement existed to unite in a shipment at common risk, the action could not be sustained ; for then a partnership was shewn, and a suit at law could not be sustained until after a settlement of the accounts of the adventure, and a promise by the defendants to pay the balance. Nor could the plaintiff sue for contribution, as he did not aver that he had discharged a joint liability. The errors relied on are not cured by the verdict. 2 Sound. 137, b. 2. Dougl. 679. 1 T. R. 141.</p> <p>The declaration is informal, but it is sufficient after verdict. The plaintiff declares for money paid, laid out and expended for the use of the defendants, and states the agreement between him and the defendants, under which the liability accrued. The allegation of a promise would have been mere matter of form, and the omission could have been taken advantage of only by demurrer ; for there is no rale better settled than that where there is a defect, imperfection or omission in a pleading, and that whether in substance or inform, which would have been a fatal objection on demurrer, yet if the issue necessarily requires proof of the facts defectively or imperfectly stated or omitted, without which the judge would not have directed, or the jury would not have given a verdict, the defect is cured by the verdict. 2 Archbold's Pl. 264, and cases there collected. This is not the case of a defective title, as would he the omission to state a demand and refusal of the acceptor in an action against the endorser of a bill of exchange ; here the agreement is stated, the liability is charged, and a promise need not be alleged ; it is enough if the evidence justified the jury in finding a promise. After verdict, it is too late to object that the subject matter of the suit was a partnership transaction, 18 Johns. R. 245 ; besides, it was a single adventure, and not a partnership concern, and an action at law may be sustained in such case, either to recover a balance or to enforce contribution. 5 Wendell, 274. 8 Taunt. 443. 2 Bos. & Pul. 270. 1 East, 20. 12 Mass. R. 34, 76, 539. 13 East, 7. 1 Powell on Cont. 328.</p>

This was an action of assumpsit, tried at the New-York circuit in November, 1831, before the Hon. Ogden Edwards, one of the circuit judges. The suit was on a promissory note for $435, given by the defendants, dated 22d December, 1827, payable to Daniel Mitchell, or bearer, four months after date, and transferred by the payee by endorsement to Jethro Mitchell, the plaintiff in this cause.

<p>An adjournment of a cause in a justice’s court must be regularly made, or the cause is out of court. An adjournment by agreement of parlies, in the absence of the justice is not enough, although subsequently entered by him on his docket; if the defendant does not appear at such specified time, and judgment is rendered against him, it will be reversed.</p>

<p>Where a surely, an accommodation endorser, pays part of a judgment obtained against him and gives his note for the balance, which is accepted by the plaintiff in satisfaction of the judgment and in full of his claim, the cause of action of such surety against his principal to recover as for money paid is perfect, and the statute of limitations begins to run; so that, under the circumstances of a given case, a plea of actio non accrcvit will bar a recovery by the surety against the principal, although, counting from the time of the actual payment of the note thus given for the balance, the statute would be no bar.</p>

<p>Where an endorser, on being called on for the payment of a note, avowed himself legally exonerated from its payment, but declared that he did not wish to take advantage of such exoneration, and promised to pay the note, it was held, that the promise was valid, without further proof of the endorser’s knowledge that he had not been regularly charged.</p> <p>It seems, that in such a case the endorser will be allowed to shew that no demand had in fact been made of the maker., and that consequently the promise was made under a misapprehension of facts; but where, as in this case, sufficient time had elapsed for the demand, and the avowal of exoneration was distinctly made, including in it as well an admission of a demand as a want of notice, the defendant will be held to strict proof.</p> <p>Where a note was payable after ten days notice, and notice was given, and before the expiration of the ten days the endorser of the note promised to pay it, telling the holder to give himself no uneasiness about it, as he would see him paid, it was held, that the endorser was estopped from alleging want of demand and notice of non-payment.</p>

Declaration on recognizance and demurrer thereto. The declaration stated that at the Onondaga oyer and terminer held in March, 1832, an indictment for perjury was found against Enoch.

This was an action of assumpsit, tried at the New-York circuit in October, 1831, before the Hon. Ogden Edwards, one of the circuit judges. The action was on a promissory note for $407. The plaintiff had sold to the defendant 50 barrels of refined whale oil, 25 barrels of summer oil, and three boxes of sperm candles, amounting, together, to the sum of $1221,95, for which he took three promissory notes of the defendant, of $407 each.

Error from the Saratoga common pleas. This was an action for false imprisonment. Steeves, a constable, arrested Arnold on a justice’s warrant, at the suit of Frost. The warrant was issued the 26th December, 1827, by A. Goodrich, Esq. a justice of Ballston Spa. The constable took the defendant before Justice Goodrich, and the warrant was returned.

Demurrer to declaration. The declaration in this case ■contains several counts; to three of which the defendant has demurred generally, and assigning special causes of demurrer.

<p>A justice at the trial has a right to nonsuit the plaintiff, if in his judgment he fails upon bis own showing to make out his case, either on the ground of the incompetency or the insufficiency of his evidence; and a judgment of nonsuit in such a case is no bar to another action for the same cause.</p> <p>But if the cause be submitted to the justice after hearing proof, and he takes time to make up his judgment, it is not then in the power of the justice to nonsuit the plaintiff; his determination is equivalent to the verdict of a jury and a judgment thereon; and though he may call his judgment a judgment of nonsuit, and enter it accordingly', it will be deemed in law a judgment for the defendant, and will be a bar to a subsequent action.</p>

Error from the Rensselaer common pleas. Kinney sued Green in a justice’s court, by warrant, on affidavit that Green was about to depart from the county with intent not to return thereto.

Error from the Yates common pleas. Boomer sued Laine in a justice’s court, and declared against him in covenant on a bond, in the penal sum of $100, executed by one Way, and by Laine as the surety of Way, on the adjournment of a cause depending before a justice of the peace in favor of Boomer against Way, conditioned that Way should render himself in execution, or, in default thereof, that he or his surety would pay such judgment as should be rendered in favor of Boomer.

<p>This was an action of ejectment for dower, tried at the Onondaga circuit in March, 1831, before the Hon. Daniel Moseley, one of the circuit judges.</p> <p>The plaintiff, as the widow of P. W. Yates, claimed dower in 158 acres of land, part of 200 acres aliened by her husband in his lifetime, after his marriage with the plaintiff, to one Skeel, for the consideration of $700. The deed to Skeel was executed in 1807 ; the husband of the plaintiff died in 1826, and this suit was commenced in May, 1830. The plaintiff having rested, the defendant moved that she be nonsuited, insisting that by the enactments of the revised statutes in relation to dower and the remedy for the recovery thereof, a widow is to be considered as a tenant in common with the heir or alienee, and that the plaintiff not having shewn an actual ouster, or any act on the part of the defendant amounting to a total denial of her right as a co-tenant, was not entitled to recover. The judge denied the motion, reserving the question for the decision of this court. The defendant then, with the assent of the plaintiff’s counsel, proved that in 1826 an agent of the plaintiff called on the defendant in respect to her dower, and proposed that the defendant should pay her a gross sum in lieu of dower, specifying $250 as the sum to be paid; the defendant refused to pay that sum, but offered the agent that the plaintiff might take her dower in the land, or that he would pay her annually the interest of the one third of the purchase money, for which her husband sold to SIceeL The agent declined to take the land, and told the defendant that he would have to pay costs, that a suit could be brought The defendant did not offer to have the plaintiff’s dower admeasured. The judge charged the jury to find a verdict for the plaintiff, subject to the opinion of this court on a case to be made containing the above facts; and the jury, instead of doing so, found a verdict for the defendant. A case was then made, and the parties entered into a written stipulation, that if this court should be of opinion that the plaintiff ought to have been non-suited, judgment of nonsuit should be entered ; if the verdict for the defendant was correctly found, judgment for the defendant should be entered as upon a special verdict; but if the plaintiff was entitled to recover, then judgment should be entered as upon a special verdict for the plaintiff—her dower to be admeasured, &c.</p> <p>conceded that at common law the widow was not a tenant in common with the heir or alienee ; that she had no vested interest or estate in the lands of her deceased husband until dower was assigned to her; that she could neither sell or enter, her right existing only in action ; and having no right to enter, she could not maintain ejectment; but he insisted that the revised statutes have conferred on the widow a vested interest in the lands before assignment of dower and a right of entry, and that consequently, without proving an actual ouster, or acts amounting to a denial of her right, the widow cannot maintain ejectment. He cited 1 R. S. 740, § 1, and 2 R. S. 303, § 3,10, 22. He contended that, under a similar statute in Connecticut, it had been held that a widow in possession previous to assignment of dower, should be considered as a tenant in common. 5 Conn. R. 462. The counsel also insisted that the plaintiff was not entitled to judgment, the suit having been prosecuted in bad faith, for the purpose of extorting a sum of money in gross, instead of obtaining a third of the land, which was offered and refused before suit brought; and that if this action was maintained, tenants holding lands subject to dower would always be at the mercy of the demandant, as far as the costs of an ejectment was concerned.</p> <p>The revised statutes have not changed the law as to the rights of widows entitled to dower; the right to dower is now as it was at common law—a right in action, and not a right in possession. The only object and effect of the statutes is to change the remedy from a writ of dower to an action of ejectment, and to prescribe the forms of proceeding. In the case cited from the Connecticut Reports, the widow was in the actual possession of the land, and the question whether she was entitled to be considered as a tenant in common, from the mere fact of her having a right of action, was not considered. The offer to the agent of the plaintiff that she might take her dower in the land cannot be considered as a tender, and would not prevent the widow from recovering damages, 2 Sellon’s Pr. 209 ; nor would the facts support a plea of tout temps prist at common law, for on such plea the demandant may take a judgipent of course. 1 Cowen, 181. 2 Johns. R. 484. As to the question of costs, a plea of tender, depriving a party of costs, is limited by statute to personal actions, and the court will not extend the statute by construction to real actions. Had the defendant- been disposed to save costs, he might have suffered a default, or procured the dower to be admeasured.</p>

<p>Demurrer to replication. The plaintiff declared on a promissory note for $166,79, made by the defendant, who pleaded the general issue. The cause was noticed for trial at a circuit court to be held in April, 1831, when the defendant interposed a plea oí puis darrein continuance, that since the commencement of the suit, (which was on the first day of October, 1830,) and since the last continuance, to wit, on the 23d December, 1830, issue was joined in a cause commenced by the defendant (Potter) against the plaintiff, (Lightbody,) before a-justice of the pea.ee in an action on contract, for a sum less than $50; that upon so joining the issue, Lightbody pleaded the general issue and gave notice that on the trial of the cause, he would set off against any demand of Potter in that cause, the promissory note declared on in this cause; that on the next day the parties proceeded to trial before the said justice and a jury, on the issue thus joined, and Light-body claimed to be allowed for the said note, and gave evidence in support of his claim, and the promissory note was submitted to and passed upon by the jury, who, after hearing the proofs and allegations of the parties, found a verdict in favor of Potter for $40 damages, upon which the justice rendered judgment, with costs of suit, wherefore Potter prayed if Lightbody ought^/wi/ter to have or maintain hia action. To this plea the plaintiff replied that he appealed from the judgment thus rendered, to the common pleas of Oneida, and tdliter processumfuit that in the said court of common pleas, on, &c. at, &c. “ it was, amongst other things, considered by the said court that the said Almon Potter take nothing by his said declaration or suit, but that he be in mercy, &c. and that the said defendant (Lightbody) do go thereof without day, &c.” and this, &c. wherefore, &c. The defendant demurred to the replication.</p> <p>The right of action in this court was destroyed by the plaintiff voluntarily withdrawing his demand, availing himself of it as a set off in the suit commenced by the defendant before the justice, and submitting it to a jury, whose decision upon the rights of the parties is conclusive, subject only to an appeal. Such appeal was made, and for aught alleged in the plea puis darrien to the contrary, the defendant in that suit, the plaintiff here, obtained a verdict and judgment for all that he was entitled unto. The plaintiff here should not be allowed to say that only judgment of nonsuit was entered ; if such was the fact, he should have pleaded it, and not having done so, the presumption is that such was not the fact; a pleading is to be construed most strictly against the pleader.</p> <p>In the suit before the justice, and consequently in the common pleas, Lightbody, on establishing his set off, was entitled to demand that so much theieof as was sufficient to satisfy Potter’s demand should be set off against such demand, and judgment for costs be rendered in hie favor, or, if he did not require such set off, he was entitled to ask that judgment of discontinuance with costs should be entered in his favor, 2 R. S. 235, § 53; and such judgment of discontinuance, no doubt, was entered in this case, and such is the fair import of the plea. Had a verdict been rendered in favor of Lightbody and judgment been entered thereon, the defendant here should have rejoined the facts instead of putting in a demurrer to the replication.</p>

<p>The defendant put in a demurrer to the plaintiff’s declaralion, but having omitted to obtain the signature of counsel to it, the plaintiff treated it as a nullity, entered the defendant’s default for not pleading, and noticed the cause for assessment; ¡on receiving which notice, the defendant’s attorney discovering his error, filed an affidavit of merits, tendered the costs of the default and a new demurrer signed by counsel, which the plaintiff’s attorney refused to receive, as not being an issuable plea, within the meaning of the rule as to opening defaults.</p> <p>now moved to set aside the default with costs, insisting that the demurrer was an issuable plea; he cited Graham’s Pr. 143, and 1 Chitíy’s PI. 505.</p>

This is an action of ejectment. In October, 1833, the plaintiff stipulated to bring his cause to trial in March, 1833. In December, 1833, the plaintiff died, having by his last will and testament devised all his real estate to trustees. A motion was now made to substitute the trustees as plaintiffs in the action.

The relators applied to the Lewis common pleas to set aside two judgments in favor of J. W. and C. L. Martin, against Walter Martin, junior, entered on confession, by virtue of two bonds and warrants of attorney, on the fifth day of February, 1833. The condition of each bond exceeded $500.

This was a motion for a mandamus, directing the superior Juno 6. court of the city of New-York to permit satisfaction to be entered upon a judgment obtained in that court against the relator on a replevin bond executed by him to prosecute with effect a gujt jn replevin, commenced by him in a court in the state of Jfeib Jersey, and to return the steam-boat Sandusky, ^er aPPare^ “Ic- in case return should be adjudged.

<p>Groceries cannot be licensed in this state (except in the city of New-York) to sell strong and spirituous liquors, to be drank in the buildings in which such groceries are kept; none but tavern keepers may sell liquors to be drank in their houses.</p> <p>The revised statutes, limiting to tavern keepers the sale of liquors to be drank in the house of the seller, repeal all former statutes conferring power upon ■commissioners of excise or trustees of villages to grant licences to grocers to sell strong and spirituous liquors to be drank in their houses; such commissioners and trustees are deprived of the power of granting licences to grocers for the above purpose, notwithstanding the saving clause, § 27—it requiring the corporations of cities and the trustees of villages to exercise their powers in the manner prescribed in the statutes, and such manner amounting to a total prohibition.</p> <p>The prohibition extends as well to trustees of villages who were authorized to grant licences to petty grocers, as to all others.</p>

A motion was made in this case to substitute certain ladies as defendants, instead of the defendant on whom a declaration in ejectment was served, and that tliey_have leave to defend. The property sought to be recovered was heretofore claimed by an incorporated society for the relief of indigent women and children, whose incorporation expired in 1830, at which time the ladies now asked to be admitted to defend were the managers of the society.

This cause was heard before referees, who reported the amount due to the plaintiff to be eighteen dollars and twenty ■cents. The plaintiff supposing himself entitled to costs of suit, notwithstanding that the report was for a sum less than $50, applied for a rule that he be-permitted to tax his costs against the defendant on the following statement of what transpired on the hearing before the referees.

<p>A plaintiffis not bound to accept a relicta and cognovit with a condition an-' nexed that judgment shall not be entered thereon, until the term after the circuit at which the cause is noticed to be tried.</p>

The defendant moved to set aside an inquisition taken before the sheriff on a writ of inquiry for the assessment of damages, on the ground of short notice. The notice was given on the ninth for the twenty-third day of April, and the defendant insisted that it should have been given fourteen days before the •day on which the writ was executed. 2 R. S. 410, § 7, 357, § 3.

The defendant’s default for not pleading having been duly entered on the 17th June, and on the 21st June notice of executing a writ of inquiry having been served, the defendant, on the 22d June, filed an affidavit of merits, offered to pay the costs of the default, and tendered a plea of the general issue to the plaintiff’s attorney, who refused to receive it, unless the defendant would accept short notice of trial for the circuit in the county where the venue was laid, to…

<p>Only one fee of $1,25 to counsel for perusing and amending plea is taxable, although several special pleas, presenting distinct matters of defence, be interposed.</p>

This was a motion for costs to the defendants, in an action on the case for overflowing the lands of the plaintiff, in which the plaintiff obtained a verdict for $50.

The plaintiff in this case having recovered in an action of ejectment, made and filed a suggestion of his claim for mesne profits, according to the provisions of the revised statutes, 2 R. 8. S10, § 44. The defendant appeared and pleaded non-assumpsit to such suggestion ; the cause was tried, and the plaintiff had a verdict for only six cents. The question is, which of the parties is entitled to costs 1

a motion was made in this case for a foreign or struck jury, on the ground that the venue was necessarily laid in the county of Kings, that a majority of the jurors would most probably come from the village of Brooklyn, that the suit grew out of a long agitated controversy between the public officers of that village and the plaintiff relative to a contemplated improvement in the opening of a street, and that the plaintiff believed that there would not be a fair and impartial…

The defendant moved to change the venue. The declaration was served on the eighth day of August. On the seventeenth of the same month the defendant made an affidavit to found this motion.

»pHE qUestion submitted was, within what time must a sheriff serve and return a declaration delivered to him to be served, in a suit commenced by declaration.

The defendant moved to set aside the capias, on the ground that it had been used previous to its delivery to the sheriff who served it; on its face it was apparent that it had been directed to the sheriff of another county.

<p>Records of judgment, delivered to the clerk to be filed before the hour of nine o’clock in the morning, will be considered as filed at the hour of nine. No preference can be gained by taking a record to the clerk’s office before that hour.</p>

Leaycraft obtained a judgment in the New-York common pleas against Melvin, on a report of referees.

The defendant moved for judgment as in case of nonsuit, for the omission of the plaintiff to try his cause at a circuit holden in .the last week of June. The defendant offered no excuse for delaying the application until this time. The plaintiff insisted, that having waited until after a general term, the defendant was bound to excuse his default; and that, at all events, he should have made his motion at one of the two last special terms.

The relator was arrested on a warrant issued under the fifth section of the act to abolish imprisonment for debt and to punish fraudulent debtors, Laws of 1831, p. 896, and brought before the commissioner. The warrant was sued out upon the application of one J. Sayre, a judgment creditor of the relator.

<p>An officer before whom a debtor is brought, under the act to punish fraudu-» lent debtors, must commit such debtor, notwithstanding the debtor makes and delivers an inventory of his estate for the purpose of assigning his property, if the judge is satisfied that the proceedings on the part of the debtor are not just and fair.</p>

H. 6. Wisner asked for a mandamus directing the supervisors of the county of Orange to examine into the principles on which an assessment of damages had been made in the laying out of a private road, the supervisors having refused to act in the matter.

In 1829 the general sessions of Orange county quashed an order of removal of a pauper sent from Blooming Grove to Minisink. Blooming Grove sued out a certiorari removing the proceedings into this court, to which a return was made in 1829. In May, 1832, this court affirmed the order of the sessions quashing the order of removal, but made no order as to costs.

This was a motion to vacate or modify an award of arbitrators made on the ninth day of August last. The award was against Smith, who gave notice of a motion to vacate or modify, to be made at the last general term, i. e. the October term. Cutler obtained a rule for costs for appearing to oppose, the court refusing to hear the motion at the general term, it being non-enumeraled business.

A suit was commenced in the Oneida common pleas by the relator against one White, by the filing of a declaration» White’s domicil was in the county of Oneida, but he was engaged at the time in the building of a house in the county of Madison, where a copy of the declaration was served upon him. Upon this service a default was entered, judgment obtained, and execution issued.

On the seventh day of August last a rule was entered setting aside an inquest on payment of costs. On the twenty-seventh day of the same month, an offer to pay the costs when they should be didy taxed was made by the defendant. The costs not being paid within the twenty days after the entry of the rule setting aside the inquest, the plaintiff issued an execution, which was now moved to be set aside for irregularity.

• On a motion by the defendant to set aside a default and to be let in to plead, the plaintiff read an affidavit on the strength of which he prayed that the defendant, if let in to plead, should be restricted from pleading the statute of limitations.

This was an action of assumpsit; one of the defendants suffered a default in not pleading; the two others pleaded to issue; the plaintiffs had a verdict, 'which was subsequently set aside and a new trial ordered. Since when, no proceedings being had, the defendants who pleaded moved for judgment as in case of nonsuit.

The relators commenced a suit by the filing and service of a declaration against one Farmer, took judgment by default, and issued an execution.

A motion was made to vacate so much of the rule granting a peremptory mandamus in this case as awarded costs to the relator, on the ground that the peremptory mandamus was granted, not upon the coming in of a return to the alternative writ or the appearance of the party interested in the matter, but simply upon proof of the neglect of the judges to yield obedience thereto. It was contended that costs could not properly be awarded in such a case.

A motion for judgment as in case of nonsuit was resisted on the ground that at the last circuit, when the cause was noticed for trial, the parties settled the suit. The counsel for the defendant asked that the motion might be continued over until the next special term, to give the defendant the opportunity to explain or controvert the answer of the plaintiff to the motion now made.

<p>A defendant upon whom a declaration is served out of the county in which the suit is commenced, waives the irregularity by obtaining a rule against the plain tiff to file security for costs.</p>

W. Burhans, and J. L. Burhans as executor of J. Burhans, entered into an agreement in writing to refer the claims of W. Burhans upon the estate of J. Burhans to three disinterested persons, which was approved by the surrogate, and a rule was entered in this court referring the matter in controversy to the persons thus selected, in pursuance of the provisions of the revised statutes, 2 R S. 88, § 36.

The defendant was arrested on a capias ad respondendum in an action of assumpsit, and gave bail to the sheriff He now applies to set aside the arrest, and that the bail bond be delivered up on the ground that he was a resident of this state at the time of the arrest, and had been for at least one month previous thereto. The motion was attempted to be resisted, on the ground that the debt respecting which the suit was brought was fiaudulently contracted.

At a previous term, the plaintiff obtained a rule setting aside a default entered by the defendant for the neglect of the plaintiff to declare, with costs to be paid by the defendant.

The defendant pleaded his discharge as an insolvent debt- or, to which the plaintiff put in a general replication that the discharge was obtained by fraud, and accompanied the replication with a notice of the facts which he would insist upon in support thereof. The replication not being signed by counsel, the ^defendant’s attorney disregarded it, and entered the plaintiff’s default as for want of a replication, which was now moved to be set aside.

The plaintiff declared on a submission to arbitration and an award in pursuance thereof; he alleged that the submission was of all matters in difference between the parties, and also all matters in difference between the late firms of S. Payne & Co., Jl. Payne Co., and S. & A. Payne, of which films respectively Samuel Payne, the defendant in this suit, was a member.

The plaintiff, at the last October term, obtained a rule against the defendant for costs for attending to oppose a motion, and presented a bill, the items whereof were according to the rate established.for this court, for taxation.

The plaintiff having commenced a suit in this court against the defendant, obtained a warrant against him under the provisions of the act to abolish imprisonment and punish fraudu* lent debtors, Laws of 1831, p. 396, § 3, 4, 5, whereon the defendant was arrested and brought before a commissioner, who, after receiving the defendant’s affidavit and examining him on oath, dismissed the complaint and directed the defendant to be discharged from custody.

<p>!f a defendant arrested on a warrant under the act to punish fraudulent debtors, does not, when brought before the officer, controvert the facts and circumstances on which the warrant issued, and verify his allegations by his own affidavit, or by proof, it is the duty of the officer to commit him.</p> <p>The complainant is not bound to produce proof to substantiate his charges until after the same have been controverted by the defendant’s affidavit, or by proof.</p> <p>Where the officer improperly discharges the complaint, the remedy is by certiorari, and not by mandamus.</p>

This is a question in the nature of a quo warranto, to determine whether certain individuals, appointed superintendents of ike poor of the county of Monroe in October last, were legally appointed.

The common pleas of Jefferson set off a note against a judgment rendered in favor of the relator against one WheeIock. The judgment was an affirmance of a justice’s judgment, removed into the common pleas by certiorari. During the pendency of the suit in the common pleas, the relator made the note in question, and at the same time gave a written stipulation to Wheelocb, the payee of the note, that it should apply on the judgment, if the suit terminated in his favor.

Pardow sued out a writ of error, returnable in this court, to reverse a judgment rendered in the superior court of the city of New-York against him, in favor of Barnett; filed the writ of error with a bond with sureties, according to the requirements of the statute, and gave notice of the filing of the same and of the names, &c. of the sureties.

The defendant, after an order to shew cause, obtained a peremptory order for a bill of particulars, and served it on the plaintiff’s attorney, and on the same day served a notice of a motion for judgment of non-pross. On the next day after the service of the peremptory order, the plaintiff’s attorney served a bill of particulars.

The defendant paid the damages and coéts recovered in this ease to the plaintiff, and subsequently the attornies for the plaintiff issued an execution for the costs. The defendant moved to set aside the execution; which motion was resisted by proof4 that previous to such payment the defendant was advised by a counsellor of this court that the plaintiff was not authorized to receive the costs.

The defendant was held to bail on a capias in an action for the seduction of the plaintiff’s daughter. Having obtained a copy of the writ, and no order to hold to bail being endorsed on it, he moved to have the bail-bond delivered up to be can-celled.

This was a motion to supersede a writ of error, for the cause that the sureties of the plaintiff in error, in their affidavit of justification, did not state that they were each of them worth double the amount of the penalty of the bond filed upon the suing out of the writ of error; the affidavit stated that they were each worth the sum specified in the penalty.

<p>If a defendant is out-numberd in witnesses on a motion to change the venue, he cannot rene to his motion by alleging a greater number of witnesses than originally stated by him; if he does, he will be subjected to costs.</p>

This was a motion for judgment as in case of nonsuit for not bringing the cause to trial at an adjourned circuit in the city of New-York. It was objected that the plaintiff was not bound to notice his cause at an adjourned circuit; that it is optional with him, and not compulsory, to notice his cause for such circuit. The language of the statute is, “ causes may be noticed and tried thereat in like manner as at a stated circuit.” 2 R. S. 202, §11.

A rule was asked for in this case that the attorney for the plaintiffs, who reside in England, pay $100 of the defendant’s costs. 2 R. S. 620, § 7. The motion was opposed on the ground that the attorney was retained by a citizen of this state, by whose direction the suit was prosecuted, and as the defendant could proceed against him to enforce the payment of the costs, it was argued that the attorney ought not to be held liable.

The defendants, having succeeded in their defence, asked for a rule for costs against a party who was the real plaintiff in the cause, although the suit was prosecuted in the name of another.

The defendant put in a demurrer to one of the counts of the plaintiff’s declaration, which the court at the last general term pronounced to be frivolous, and gave judgment for the plaintiff refusing leave to the-defendant to plead anew. On suggestion of counsel, however, permission was given to make a special application to the court for leave to plead anew, on notice to the opposite party.

<p>The defendants asked for a rule staying proceedings in this suit, which is an action on a judgment against the testator of defendants, until the determination of a writ of error sued out by them to reverse stich judgment, the défendants alleging the judgment to be entered on a verdict rendered since the death of their testator. The plaintiffs conceded the fact to be so, but showed that the trial was had after the death of the testator, in pursuance of a stipulation given during his lifetime, on an application in his behalf at a previous circuit, to put off the trial of the cause for the want of a witness, and that this court, upon application, had refused to relieve from the stipulation.</p>

The judgment in this case was on assessment of damages by the clerk, for an amount less than $250, and the plaintiffs had their costs taxed on a bill of items, i. e. charging retaining fee $2,50, drawing declaration $1,50, and so forth, particularizing all the proceedings in the suit, besides the disbursements—such as postages, &c. The defendant insisted that the costs, exclusive of the fees of officers and other actual disburse- ments, should have been taxed at the gross…

This is an action of ejectment, which was noticed for trial at the last circuit in Washington county, at which a motion was made in behalf of the defendant to put off the trial of the cause, on account of his inability (he having been attacked with the palsy) to attend to the defence of the cause.

This is an action of replevin, which was commenced by writ, complaining that the defendant had taken and did unjustly detain a horse. The plaintiff declared for the taking of a horse.

On the6th day of August, 1833, the plaintiff commenced a suit against the defendants who were partners in trade by the filing of a declaration, and on the 9th of the same month a copy of the declaration was served on Haynes one of the de- fendants, proof of service made, his appearance entered, and a cognovit obtained from him for upwards of $2000: the cog- the cogttovit being signed in the partnership name, viz. “Merriam & Haynes,’5 on which judgment was entered.

<p>A return having been made to an alternative mandamus issued in this case, the relator now moved for a peremptory mandamus.</p> <p>It was objected preliminarily that the relator had been ruled to plead or demur, and that such proceeding having been taken against him, he could not now demur by parol, as he was now virtually doing by applying for a peremptory mandamus at a special term.</p> <p>But the objection was overruled by Mr. Justice Suther-= land, who remarked that the practice of the court was to allow a party to ask for a peremptory mandamus at a special term, if he chose to do so; that the opposite party lost nothing by such proceeding, as in case the decision was against him,- he was permitted to make up a formal record as of a judgment on demurrer for the purpose of review, (although the relator by moving at a special term lost that right,) and having the right to make up a record, he could perceive no objection to hearing the motion upon due notice, notwithstanding that the relator was under a rule to plead or demur.</p> <p>‘it was then moved that a peremptory mandamus issue on ¿he following facts; a certiorari had been issued to a justice of She peace to send up to the common pleas of Cayuga the proceedings ‘had before him in a certain cause in which he had rendered judgment in favor of the relator against J. Wood and J. Jakway; at the term at which the certiorari was returnable the justice made his return, and the cause was brought on to argument. At the opening of the argument by the plaintiffs in error, a preliminary objection to proceeding to the argument was made by the defendant in error, on the ground that the plaintiffs in error at the time -of the allowance of the writ of certiorari -did not present to the officer allowing the same san affidavit, setting forth the substance of the testimony and proceedings had before the justice who tried the same, pursuant to the statute. The counsel for the plaintiffs in error was then permitted to make and read an affidavit, supplement ¿ary to an affidavit which had in fact been presented at the time of the allowance of the certiorari, and upon hearing which the court overruled the objection, and directed the plaintiff’s counsel to proceed to the argument of the cause. EJpon this state of facts the alternative mandamus had been issued, commanding the common pleas of Cayuga to quash the certiorari or to shew cause, and the same facts now appearing from the return, the relator insisted that a peremptory mandamus ought to issue. The question was discussed on its merits, which however not being passed upon by the court in the decision which was made, it is deemed unimportant to state.</p>

This suit was commenced by declaration, served on the sixth day of January last.

The defendant, charged with having obtained goods by false pretences, was arrested as a fugitive from justice in the state of Massachusetts, by virtue of a precept of the governor of that state, upon the requisition of the governor of this state; he was brought into this state and delivered to the sheriff of Oneida county on the 5th April last. On the 17th of the same month he was tried and acquitted.

<p>Error from the Albany common pleas. Stephen Van Rensselaer, jun. sued Jacob I. Radcliff, in an action of trespass for entering a certain close in the town of Guilderland, called the black swamp, describing it by metes and bounds, and cutting and carrying away timber. The defendant pleaded the general issue, and accompanied the same with notice of special matter. On the trial the plaintiff produced in evidence a lease from Stephen Van Rensselaer, proprietor of the manor of Rensselaerwyck to him, bearing date 1st November, 1819, demising all the unappropriated lands in the towns of Rensselaerville, Bern, Guilderland and Bethlehem, in the county of Albany, not theretofore granted or conveyed to any other person or persons, and proved the cutting of 300 or 400 rails in the locus in quo by the defendant in February or March, 1830, and the value of the same. The defendant then produced in evidence a lease in fee from Stephen Van Rensselaer, lord and proprietor of the manor of Rensselaerwyck, to Jacob Truax, bearing date 4th September, 1769, granting a farm situate in the said manor, (particularly describing it), and which it was conceded on the trial, is in the now town of Guilderland, “ containing 181 acres, together with free liberty for out-drift of cattle, and cutting and carrying away of timber for building, fencing and fuel in the unappropriated lands of the said manor, for the tese of the said hereby released lands only,” saving and reserving all mines and streams of water, and as much land out of the described premises as the grantor or his heirs might at any time appropriate, by the erection of mills, mill-dams, and of buildings for the working of mines, and by digging for ore, &c.; which grant was subject to the condition of the payment of an an- t nual rent of 30 bushels of wheat, besides certain services, &c. The following facts were also shewn : On the 15th December, 1769, Jacob Truax conveyed 98 acres of the farm granted to him, to his son Andrew Truax, and 83 acres, the residue of the farm, to his son John Truax, each deed containing these words: “ together with the rights, members and appurtenances thereof, and all houses, edifices, profits, advantages, emoluments, and hereditaments to the same belonging or appertaining.” On the 24th June, 1815, Andrew Truax conveyed his 98 acres to John Tayler, “ together with free liberty of out-drift of cattle, and cutting and carrying away of timber for building, fencing, and fuel for the use of the said premises, in the unappropriated lands of the manor of Rensselaerwyck,-agreeably to the lease from Stephen Van Rensselaer to Jacob Truax, bearing date 4th September, 1769, together with all and singular the appurtenances, privileges and advantges unto the said premises belonging or appertaining.” John Truax, by will, bearing date 19th September, 1795, devised all the real estate whereof he should die seised, to his wife Annatie, who, on the 2d July, 1802, conveyed the 83 acres granted to her husband, to Jeremiah Van Rensselaer, from whom, by sundry mesne conveyances, this portion of the farm came to John Tayler on the 8th July, 1818, it being granted to him with “ all the privileges and advantages to the same belonging and appertaining.” John Tayler, by bis last will and testament, bearing date 10th March, 1827, devised all his real estate to Margaret, the wife of Charles D. Cooper; and on the 1st April, 1829, Charles D. Cooper and Margaret his wife demised the farm originally granted to Jacob Truax, to Robert Hirst, for the term of one year, under whom, and by whose authority, and by the licence of Charles D. Cooper, the defendant cut the rails in question, which were used in making and repairing the fences on the said, farm, and were necessary for that purpose. It was proved that shortly after the purchase by John Tayler of the farm originally leased to Jacob Truax, the landlord Stephen Van Rensselaer knew of his pinchase and accepted him as his tenant of that farm; that from 1815 to 1829, (the tune of his death) John Tayler paid the rents of the farm, and performed the services required by the original lease, and that since his death, the rents have been paid by Charles D. Cooper. It was also proved, that the locus in quo was not enclosed by a substantial fence or enclosure, but only by a possession fence which was not sufficient to turn cattle or teams. The testimony on the part of the defendant being closed, the plaintiff produced in evidence a lease in fee from Stephen Van Rensselaer, proprietor of the manor of Rensselaerwyck, to John Truax, of 58g acres of land situate in the now town of Guilderland, bearing date in September, 1791, and reserving an annual rent of six bushels of winter wheat; and proved that John Tayler, previous to his death, cla&nsd 6» he <;be mor of-íhe aeres, was antered on the books of the landlord as the tenant of the same, and paid the rent thereof.</p> <p>The evidence being closed, the defendant insisted that he was entitled to a verdict; to which the plaintiff objected, for the following reasons : 1. That neither the conveyances from Jacob Truax to his sons, Andrew and John, nor any of the subsequent conveyances by which John Tayler derived title, contained an express grant of the right of common, and that such right could not pass except by express words; 2. That the right of common granted by the original lease, was for the farm thereby conveyed as an entirety only, and that such right was not susceptible of being assigned to different lessees at the same time; 3. That by the terms of the grant of the right of common to Jacob Truax, the right to make future appropriations was reserved to the lord of the manor, and the lease to ike plaintiff was an appropriation within the meaning of the grant;</p> <p>4. That John Tayler having become the owner of the farm leased to John Truax in 1791, which was part of the lands of the manor unappropriated in 1769, the whole right of common as to him and those claiming under him, was extinguished; and</p> <p>5. That there being no covenants in the original lease of 1769 on the part of the grantor, neither he nor his heirs or assigns were bound to retain a sufficiency of common. The court overruled these several objections and gave their opinion to the juiy that the defendant was entitled to a verdict ; to which opinion and direction the plaintiff excepted. The jury found for the defendant, and judgment was entered in his favor. The plaintiff sued out a writ of error,</p> <p>The right of common of estovers granted by the lease to Jacob Truax in 1769, was a right appurtenant, which could not be apportioned, and which became extinguished by the conveyance of the farm in separate parcels to the sons of the lessee. To show the distinction between common appendant and common appurtenant, the counsel cited 2 Inst. 85 a.; 4 Co. 37; Co. Litt. 121,122; Musgrove v. Cave, Willes’ R. 322; Wild’s case, 8 Co. 78; that common of estovers cannot be apportioned or enlarged, he cited Co. Litt. 164, c.; Cruise Dig. tit. 23, § 37; Finch’s L. book 2, ch. 9, p. 158; Co. Litt. 147, 148 a.; 2 Fitzh. N. B. 180, h.; Luttrell’s case, 4 Co. 86 ; 5 Petersdorff, 586,610, § 4; 11 Johns. R. 15; Willes, 230; 11 Johns. R. 495; 16 id. 15; 16 id. 30; and that severance of an entirety, such as common of estovers is, by act of the parties and sometimes by operation of law works an extinguishment of the whole, he cited Knight v. Buck, 1 And. 175, in 11 Viner, tit. Extinguishment, pl. 4; Bruerton’s case, 6 Co. 1; 3 Leon. 13, Anon.; Wiseman v. Wallinger, Godbolt, p. 95, pl. 107; Viner, tit. Apportionment, c. pl. 7, 8; 3 Cruise, tit. 28, ch. 3, § 13 to 17, 28; and Plowden, 381. The counsel remarked that in the case of Livingston v. Ten Broeck, 16 Johns. R. 15, Chief Justice Spencer advanced the position that common appurtenant can be apportioned, but on looking into the cases referred to by the chief justice, he said it would be found that they related to common of pasture, and not to common of estovers. The counsel also insisted that the terms of the grant of 1769, secured to the lord of the manor the right to make future appropriations, and that the lease to the plaintiff was an appropriation within the meaning of the grant; in support of which position he cited 3 Kent’s Comm. 323 to 326; Glover v. Lane, 3 T. R. 445; and Arlett v. Ellis, 7 Bam. & Cres. 364. He also insisted that John Tayler, under whom the defendant claimed, having purchased the farm leased to John Truaxin 1791, which he contended was a part of the lands of the manor unappropriated in 1769, the whole right of common as to John Tayler and those claiming under him, was extinguished; in support of which position, he cited Tyrringham’s case, 4. Co. 36; 16 Johns. R. 26; Cruise Dig. tit. 23, § 75 to 83; and Wild’s case, 8 Co. 78.</p> <p>conceded that common of estovers is of the species of commons denominated appurtenant, but insisted that it may be apportioned; he cited Livingston v. Ten Broeck, 16 Johns. R. 15; Co. Litt. 122, b.; Cro. Car. 482; 8 Co. 156; Hobart, 235; 5 Viner, 17, pl. 19; 2 Black. Comm. 33; that here the right of common of estovers was created by express grant, and that all the subsequent conveyances contain apt words to pass the right, the word appurtenances being found in each grant, under which common of estovers will' pass, Jacob’s L. D. ;• Touchstone, tit. Grant & Common, 229, 231; that the acceptance of John Tayler, as the tenant of the premises originally granted to Jacob Truax in 1769, and receiving rent from him for the same, from 1815 to 1829, was a waiver of any rights before then forfeited, and a confirmation pf the grant originally made, 2 T. R. 431; Cro. Eliz. 230; Woodfall’s Landlord & Tenant, 151,152; that the right of common of estovers was not extinguished by the severance of the premises into two parcels, by the conveyance thereof to the two sons of the orignal lessee, but merely suspended, and that on the union of the two parcels in John Tayler, the acceptance of him as the tenant of the whole premises was equivalent to a renewal of the original lease, revesting in the tenant of the whole farm the enjoyment of the common of estovers, as an entirety and appurtenant to the whole farm; that John Tayler having in 1818 become the owner of the whole farm, was entitled to common of estovers in the unappropriated lands of the manor, and the lord of the manor had no right by statute or at common law to enclose or appropriate the wastes of the manor, Comyn’s Dig. tit. Common, 2 T. R. 391; and should it be conceded, that he might enclose the waste land, leaving enough for the commons granted to his tenants, he could not, as was attempted in this case, convey away all the unappropriated lands of the manor, and that not by transfer for a valuable consideration, or by lease to tenants for the purposes of husbandry, but to a son for the manifest purpose of depriving the tenants of the manor of their rights of common. He further insisted that nothing is to be inferred against the defendant from the evidence adduced by the plaintiff that John Tayler, previous to his death, was the owner of the 58 j- acres granted to John Truax in 1791, there being no proof that those lands were unappropriated in 1769 ; if they were improved lands, the right of common of Tayler was not extinguished by the purchase, for the improvement was the act of the lord, and by it the lands were severed from the waste lands of the manor. 2 Inst. 87. He also contended that the plaintiff was not entitled to recover, not having shewn himself in the actual possession of the locus in quo.</p> <p>said that the right of common claimed in this case, was common appurtenant and not common appendant; that though in common parlance there would seem to be no distinction, and the old books recognized none between those two species of common, they had inaccurately omitted to do so, as was clearly shewn by Chief Justice Willes, in Bennett v. Reeve, Willes’ R. 232. Common appendant is a right annexed to the possession of arable land, and includes common of pasture, but not common of estovers. Common appurtenant is created by grant or prescription, and may be annexed to any kind of land, whether arable or not. The first is favored because of common right; the latter not, because against common right. 4 Co. 36 b., 37. 8 Co. 78. This, then, is a case of common appurtenant and common appurtenant of estovers, which is always granted as an entirety, and must be so of necessity. Co. Litt. 164, b. Estovers are so entire that they cannot be divided even among parceners. Finch’s L. book 2, ch. 9, p. 158. A thing granted as an entirety, which can only be enjoyed as such, cannot be apportioned by act of the parties, though it may by operation of law. If estovers could be apportioned, they might be apportioned to an indefinite extent, and be ruinous to the landlord, but the law is settled that common of estovers cannot be enlarged, not even by the erection of an additional chimney in the dwelling house of the tenant. Fitzh. N. B. 180. In Watts v. Coffin, 11 Johns. R. 495, the question presented in this case might have been agitated, but it was neither disputed by counsel nor decided by the court; in Springstein v. Schermerhorn, 12 Johns. R. 357, the question did arise, but the case was decided on a different point; in Livingston v. Ten Broeck, 16 Johns. R. 14, the question whether common appurtenant may be apportioned was discussed and an opinion was pronounced by Chief Justice Spencer in the affirmative, but the decision of the case did not turn upon the application of the principle thus sanctioned. In the opinion delivered, common appurtenant and common in gross were spoken of as synonymous, which is clearly wrong; the latter existing where there is a grant of common without lands, and the former always being annexed to lands. The learned chief justice also said, that common appurtenant can be apportioned, and cited the cases now relied on by the counsel for the defendant; but they do not support him; they prove that common of pasture may be apportioned, but not common of estovers. 1 Saund. 342, n. 2. Common of pasture may be apportioned, because the landlord does not thereby sustain any injury: as many cattle as are levant and couchant, i. e. supported on the farm through the winter, are commonable, and whether belonging to one person or to twenty, is a matter of indifference to the landlord. Not so as to common of estovers; they are an entirety, and must be enjoyed as such. There is not a dictum to the contrary. What is said in Livingston v. Ten Broeck, that common appurtenant can be apportioned, is true as to every species of common except common of estovers, but that is an exception ; that common of estovers are an entirety and must be enjoyed as such, was adjudged in the same term in which Livingston v. Ten Broeck was decided, viz. in the - case of Layman v. Abeel, 16 Johns. R. 30. When, therefore, the entirety of the right of common of estovers was severed, by the conveyance of one portion of the farm to one son of the grantee, and another portion to another son, the whole became extinguished, as neither of them could enjoy the right as an entirety. When a party does what he ought not to do— makes a severance of an entirety—he forfeits his right, and though such forfeiture operates beneficially to the landlord, it is upon the principle that common appurtenant being against common right is not to be favored.</p> <p>If a right of common of estovers existed in John Tayler, by the acquisition of the several parcels of the farm conveyed to the sons of the original grantee, it was extinguished by his becoming the owner of the 581 acres granted to John Truax in 1791, the premises so granted being part of the lands of the manor unappropriated in 1769, when the original lease was granted. By the unity of title in one and the same person of land entitled to common, and of part of the land out of which common is to be taken, the right of common is extinguished. Tyrringham’s case, 4 Co. 36, recognised in Livingston v. Ten Broeck, 16 Johns. R. 26, 27. It is not material at what time John Tayler acquired title to the different portions of the land; if at the time of the trespass the unity of title existed in those who claim under him, the right to estovers was gone.</p> <p>The right of the landlord to make appropriations of the lands in his manor unappropriated at the time of any specific grant made by him, does not depend upon the English statutes of Merton and Westminster 2, but upon the terms of the grant. These statutes form no part of the common law, and were never in force here; besides, they relate only to common of pasture and not to common of estovers. A grant giving common of estovers should be so construed as to give the right of estovers in lands, which should from time to time remain unappropriated; not in all the lands of a manor which were unappropriated at the time of the grant, for such latter construction would be unreasonable and against public policy. 3 Kents Com. 322. If the lease to the plaintiff was not an approvement within the meaning of the old law, it was an appropriation, a taking of the land by the landlord or a giving of it to another; and such appropriation is not to be tested by the rules which determined the validity of an approvement or improvement, as whether the land was enclosed for the purpose of actual occupancy or not; but the only enquiry is, whether the landlord has appropriated to his own use, or to the use of another, lands which were before unappropriated.</p> <p>If the defendant, or those under whom he claims, were not entitled to estovers, the right of the plaintiff to maintain the action cannot be questioned by the defendant. Having the title, the law casts the possession upon the plaintiff, and he may maintain the action against a wrongdoer without showing an actual possession in himself. 7 Barn, & Cres. 364.</p>

<p>This was an action of trespass'for entering upon a lot of the plaintiff, and cutting and carrying away pine logs, tried at the Oneida circuit in April, 1831, before the Hon. Nathan Williams, one of the circuit judges.</p> <p>The suit was brought against eight defendants, who separately put in a plea of not guilty. The plaintiff proved the cutting and carrying away of about 150 saw-logs; that a road was made to his lot for the purpose of taking timber from it; that all the defendants, about the same period of time, were engaged in committing trespasses upon the lot; that there was a shanty erected on it, in which the defendants slept and eat their meals, near to which the logs were cut, and that they quit the premises at the same time. On the part of the defendants, it was proved that although they all got logs from the plaintiff’s lot, it was not a joint concern, inasmuch as A. and B. worked together, and C. and D. by themselves, and E. on his own account, and that the proportions of the spoils varied, some having taken more than the others. The judge charged the jury that to entitle the plaintiff to a verdict against all the defendants as joint trespassers, the jury must be satisfied that the defendants acted in concert; that those who aided and assisted in committing the trespass or assented thereto having an interest therein, were as guilty as the others; that it was not material if some had a greater interest in the avails of the trespass than others, for the reason that those who con=> federate to do an unlawful act are deemed in law guilty of the whole, although their share in the profits may be small; but if the jury were satisfied that any of the defendants were acting separately and for themselves, without any concert with the others, they ought to be acquitted, and those only found guilty who acted jointly in the committing of the trespass. The jury found all the defendants guilty, and assessed the damages at $¡19S. The following question arose on the trial as to the evidence of the plaintiff’s right to the property, who deduced a regular title by sundry mesne conveyances from Thomas Matchin, the original patentee, of a tract of which the locus in quo is a part. To prove the patent to Matchin, the plaintiff produced an exemplification of letters patent from the state to Matchin for a tract of land called the Woodhull township, in which the premises in question are situated, bearing date 13th June, 1788, signed, “Robert Harpur, Dep. Sec’y,” and certified by him to be a true copy of letters patent, as of record in that office, with the seal of office thereunto affixed, impressed on the paper. This was objected to as evidence, 1. Because there was no wax or adhesive substance for a seal; 2. Because it was not signed by the governor or one of the commissioners of the land office; and 3. That by the terms of the letters patent, the lands thereby granted were granted on condition that there should be an actual settler on every 600 acres, which condition had not been complied with. The objection was overruled and the exemplification read in evidence ; to which decision, as well as to the charge of the judge to the jury, the defendants excepted, and now moved for a new trial.</p>

<p>This is a case of certiorari, to review the proceedings of the trustees of the village of Williamsburgh in the opening of a street. The village was incorporated by an act of the legislature, passed the 14th April, 1827. Laws of 1827, p. 270. By the 19 th section, of which it was made the duty of the trustees of the village to cause, as soon as conveniently might be, a survey of the village to be made, together with a map thereof exhibiting the streets, roads and alleys to he permanently laid out, and also the gradations and regulations which woidd be required in such streets, and accompanied by such remarks and explanations as the nature of the subject might require: to be kept by the clerk of the corporation. The trustees caused a survey of the'village and map to be mades which map they certify to be in strict conformity to the requirements of the statute, except that it does not exhibit the gradations and regulations which will be required in the streets of the village; it being wholly impracticable to do so, by reason of the peculiar surface of the ground. On the map is laid down a street called First street, of the width of 60 feet, extending from Grand street southerly to the boundary line of the village, a distance of about 1700 feet. In November, 1827, the first election of village officers took place, and at a regular meeting of the board of trustees, all being present, five in number, on the 3d March, 1828, a petition in due form was presented for opening, pitching and regulating First street. The trustees resolved to grant the prayer of the petition, two of the trustees voting in favor of the resolution ; the three others being interested in the opening of the street, did not vote, but entered their approbation of., the measure on the minutes of the board. Sundry proceedings were then had in reference to the opening of the street, but nothing effectual was done until after the next annual election in November, 1828, at which a new set of trustees were elected. In December, 1828, the new trustees directed that a jury should be summoned to ascertain the value of the land taken for opening First street, and to estimate the damages of the owners of the land taken for the opening of the street, and in pursuance of such resolution, a warrant was issued by two justices of the county of Kings, directing the sheriff of Kings to summon twelve freeholders to appraise the value of the land and damages, Sic. who met with the justices, and on the 28th of January, 1829, made and signed an inquisition, by which they appraised the value of the land to be taken for the purpose of opening the street as follows : for the first 100 feet, from Grand street, $10 per foot, running measure; and for the land from the termination of the 100 feet to a certain point further south, $7 per foot, &c.; and appraised the damages of the owners of land. This inquisition was returned, and on the 3d February, 1829, at a meeting of the board of trustees approved, the trustees causing it to be put upon their files. On the 13th April following, the trustees resolved that conformably to the resolution of the board of trustees of the 3d of March, 1828, and the petition of a majority of the persons interested in the opening of First street, the clerk of the village should give notice that all buildings, fences and other obstructions were required to be moved, and the street opened in twenty days after the first day of May then next, preparatory to regulating the same. Some further ineffectual proceedings were then had previous to the 11th November, 1829, when trustees were elected for the then ensuing year. On the 17th December, 1829, the trustees being advised that due notice of the proceedings had not been given to Coles, the plaintiff in error, and to two other persons, directed such notice to be given. Notice was accordingly given, and the parties failing to appear, the trustees, on the 19th December, resolved that the necessary steps should be taken to summon a jury, who assembled on the 24th December, and an inquisition was found, by which the land owned by Coles to be taken for the purpose of opening the street, was appraised at fifteen cents the square foot On the 7th January, 1830, the trustees considering previous assessments which had been made under the direction of the trustees defective, issued a new warrant directing $12,500 to be assessed. On the 24th March, the assessments were presented for confirmation at a meeting of the board of trustees; there were but four trustees present at the meeting, only two of whom voted to confirm the assessment; the other two did not vote, being interested, but they caused their approbation of the vote of confirmation to be entered on the minutes of the board; and on the 17th April a warrant issued to collect the assessments, which was signed by four of the trustees, two of whom were interested in the opening of the street. On the 7th June, 1830, a certiorari was allowed by a commissioner. The trustees, in their return to the certiorari made on the 25th April, 1831, state that on the 5th June, 1829, the trustees of the village for the time being entered into a contract with an individual to graduate, regulate, form and finish First street from Grand street to the Brooklyn line, for which they agreed to pay the sum of $1500; and that at the time of the making of the return, the whole of the street was completed agreeable to the profile thereof and the plan of the village.</p>

Error from the Herkimer common pleas. Underwood declared in the common pleas that he sued out a summons against Harris and two others, returnable before a justice of the peace on the 21st May, 1829; that be declared in the justice’s court in an action of trespass quare clausum fregit, &c.; that the defendants pleaded title, and with a surety entered into a recognizance in the sum of $100, conditioned that if the plaintiff before the next court of common pleas of the county…

Error from the Jefferson common pleas. Ingalls sued Sprague before a justice, and declared against him in trespass “for turning out to be sold on execution the property of the plaintiff contrary to law, to wit, one seine, to his damage $50.” The defendant pleaded .the general issue, the cause was tried, and the plaintiff had a verdict.

This was an action of assumpsit, tried at the Rensselaer circuit in 1831, before the Hon. James Vanderpoel, one of the circuit judges. The plaintiffs declared on a promissory note for $325, bearing date 20th October, 1821; the declaration containing also the money counts.