Volume 11 — Johnson's New York Reports

<p>THIS was an action of ejectment for a farm in Hillsdale. The cause was tried at the Columbia circuit, before Mr. Justice Yates, when a verdict was taken for the plaintiff, subject to the opinion of the court, on the following case:</p> <p>The proprietor of the manor of Rensselaer, called Claoerack, and legal owner of the premises, executed & perpetual lease of the farm, dated the 21st of January, 1774, to Samuel W. Hallenback, his heirs, executors, administrators, and assigns, forever; yielding and paying therefor unto the lessor 14 1-2 bushels of good winter wheat, to be delivered at Claoerack, &c. on the 1st day of May, and every year thereafter, on the 1st of May, and reserving also one fourth of the moneys arising from the sale or assignment of the premises; and the lessee covenanted to pay the annual rent, &c. so reserved, &c.</p> <p>The lease contained an express proviso and condition, that in . .... , case the rents, &c. should be in arrear and unpaid for 40 days after the time limited for the payment, the lessor, or his servants, or bailiffs, might enter on the premises and distrain, Sec. and if no sufficient distress could be found on the premises, &c.; or in ease the lessee should not perform all and every of the covenants and conditions contained in the lease, and on his part to be performed, that then, or in either of the said cases, it should be thenceforth lawful for the lessor, his heirs, &c. to re-enter into the whole, or any part of the premises, and the same to repossess and enjoy, as his or their former estate, &c. The defendant derived a regular title under the lease, and the premises had been held under it since 1774. In the year 1806, Henry W. Livingston claimed title to a part of the premises in the possession of the defendant, being about 30 acres; and on the 21st of June, 1806, the defendant took an agreement for a lease from Livingston, for 99 years, for a parcel of land, including the 30 acres, and covenanted to pay the rent to Livingston, &c.</p> <p>When the agent of the lessors applied to the defendant for the payment of the rent due under the lease to Hallenback, he declared that he would not pay any rent; that, he did.not hold under any lease from Van Rensselaer, but that he claimed the whole under a warranty deed, and that, as to a part of the farm, Livingston was bound to defend him.</p>

THIS was an action of debt on a bond, dated 3d December,, 1811, with a condition that the defendants should secure certa™ ^anc's (S°M and conveyed by Peter Burgott and wife, by a warranty deed, dated the 30th of September, 1811, to Henry Van Vliet, and conveyed by him, by deed, dated the 3d of De~ cember, 1811, to the plaintiff) in the peaceable and quiet possession of the plaintiff, his heirs and assigns, “ free from all legal encumbrances, either by deed or mortgage, or…

IN ERROR, from the general sessions of the peace of the county of Greene.

THIS was an action on a policy of insurance on the ship Thomas Jefferson, Thomas Dinsmore master, “ at and from New-York to Cadiz and back again.” The policy, dated the 28th of November, 1809, contained the following clause: “ The assurers take no risk in port but sea risk.” The cause was tried at the New-York sittings before Mr. Justice Yates. The master deposed, that he sailed from New-York the 13th of November, 1809, and arrived at Cadiz the 12th of January, 1810.

<p>In an action on a policy of insurance on the cargo of the same ship, and for the same voyage, and •with the same clause, as in the last case; it was held that though the loss was in port, it was not occasioned by sea Tish, but was to be attributed wholly to the act of the French, for there xvas no evidence of the cargo being injured by the stranding; and had it not been for the French force, it might have been removed in safety.</p>

was an action of assumpsit against Samuel Satterlee jun. and Micah Sterling, administrators, and Martha Satterlee, administratrix, &c. of Elisha Satterlee, deceased, intestate, the said Samvel being returned in custody, &c. and the said Micah and Martha not found. The declaration contained three counts; 1.

THIS was an action of assumpsit for money had and received to the use of the plaintiff. Plea, non assumpsit. The * , „ . 7 mi*» i cause was tried at the Albany circuit, m October, 1813, before Mr. Justice Thompson. The plaintiff, in April, 1813, deposited with Joseph Alex ander, as his agent, 500 dollars, to bet on the approaching election of the governor of this state.

THIS was an action of ejectment for 100 acres, part of great lot No. 15. in the Saratoga patent. The cause was tried in September, 1812, at the Saratoga circuit, before Mr. Justice Yates.

<p>THIS was an action of ejectment for land in the town of Neversink, in the county of Sullivan. The cause was tried at Ulster circuit, in November, 1812, before Mr. Justice Van Ness. .</p> <p>. The plaintiff gave m evidence, 1. A patent dated the 25th of June, 1703, to Henry Bcelcman, Joachim Schoonmalcer, and Moses ®epuy, as trustees for the town of Rochester; 2. A patent to the trustees of Marbletown; 3. The records of the town of RoChester, by which it appeared that Jacob Hornbeclc, Andries Dewitt, and Jacobus Van Wagenen, were trustees of Rochester, and AZffls and Ephraim Depuy, freeholders, elected for one year, from the first Tuesday of June, IT67; and a conveyance to them from the trustees of the former year, of all lands within t*ie patent not sold; 4. A conveyance from the said Hornbeclc, Dewilt, and Van Wasrenen, as trustees of Rochester, with the advice and consent of Elias and Ephraim Depuy, to Joachim Schoonmalcer, jun. dated 19th of December, 1768; 5. A deed from Joachim Schoonmalcer, jun. the said grantee, to Lucas EL mendorf, the lessor of the plaintiff, for the same premises and other tracts, dated the 15th of January, 1805. The plaintiff then produced several witnesses to show the bounds of the lands so conveyed, Sec. but it is thought unnecessary to state their testimony.</p> <p>The defendant gave in evidence a partition deed of the proprietors of the Hardenbergh patent, dated the 15th of November, 1749, whereby great lot No. 4. in the said patent was released to Robert Livingston and Gulian Verplanclc; and also a release of the said lot No. 4. to the said Livingston, dated the 12th of December, 1749. He also proved that he was the heir at law of the said Robert Livingston. He further gave in evi* deuce á deed from Jacob Ilornbeck, Andries Dewitt, and Joar chim Schoonmaker, jun. styling themselves trustees of the lands, Sec. of the town of Rochester, and Benjamin Ilornbeck, Hendrick Hornbeck, and Johannes Ousterhoudt, jun. dated the 13th of February, 1778, reciting that doubts had arisen between the trustees of the town of Rochester and the proprietors of the Hardenbergh patent, relative to the true bounds of the town of Rochester, and in order to remove those doubts, &c. the parties of the first part released to the parties of the second part all the lands southwest and northwest of an agreed line then fixed, mutually concluded on, and run, &c. which line, it was admitted, was several miles to the southeast of the premises in question. The defendant also gave in evidence the records of the town of Rochester, by which it appeared that the parties of the first part named in the said deed of settlement, were the trustees and freeholders of the town at the date of the said deed, and that an entry of this settlement was made in the records, and a memorandum that the deed to Joachim Schoonmaker, jun. was void, and that the consideration money had been returned to him.</p> <p>The judge being of opinion that the deed of settlement of the 13th of February, 1778, was a bar to the plaintiff’s recovery, he consented to a nonsuit, with liberty to move the court to set it aside, and for a new trial.</p>

IN ERROR., from the court of common pleas of Sullivan county. Vanduzer brought an action of slander against Andrews in the court below. The declaration stated that the defendant had maliciously, &c. said of the plaintiff, that he, the plaintiff, “ had had connexion with a marc ” Src. meaning thereby that he had been guilty of the crime against nature with a beast.

THIS was an action on an open policy of insurance, dated the 5th Tune, 1809, on the cargo of the schooner Despatch, “ at and from St. Jago de Chiba to New Orleans, and at and from thence to Nerv-York.” The plaintiffs claimed a total loss by barratry of the master.

THIS was an action of covenant, for the breach of the coveaant of seisin in a deed, dated the 3d of January, 1810, exe- , , _ . . •. * T* euted by the defendant to the plaintiff for lands in Broome county. The defendant pleaded, 1. Non est factum; 2. That the defendant was lawfully seised, &c.; 3.

THIS was an action to recover the amount of two promissory notes for 100 dollars, payable in specific articles. The cause was tried at the last Essex circuit before the Chief Justice. ....

IN EE.E.OK, from the court of common picas of Oranq-e , _ ,, , ,, _ . , county. Lovell Drought an action 01 assumpsit m the court í,elow aSainst Evertson, as the endorser of a promissory note, dated 28th November, 1810, made by Robert Barnes, for SI do Ilars and 21 cents, payable to the defendant or order, ninety days after date. The defendant pleaded non assumpsit.

IN ERROR, from the court of common pleas of Orange county. Gidney brought an action of slander against Blake in ^ie court below.

IN ERROR, from the mayor’s court of the city of Netv-Yorlc. an^ ^ Slidell, as assignees of the sheriff brought an action against J. and A. Hallett, in the court below, on a bail-bond, dated 28th September, 1812, taken in a suit in which the writ was returnable the third Monday of October then next. The defondants pleaded compcruit ad diem.

THIS was an action of trespass de bonis asportatis. The defendant pleaded the general issue, with notice of special matter in justification.

THIS was an action of assumpsit on a memorandum or agree.ment, dated the 20th of December, 1810, by which the defendant agreed and promised to pay the plaintiff eight dollars an acre for each and every acre contained in the south equal halt part of lot No. 68. in the fifth township, &c. containing 125 acres, or thereabouts ; the estimated sum amounting to one thousand dollars, of which three hundred dollars were to be paid on or before the 20th of April, 1811, and the…

THIS was an action of replevin, which had been brought before this court, by a writ of error, from the court of common pleas of Orange county, the judgment of which court was reversed and a venire dc novo awarded, returnable at the Orange circuit, (see 10 Johns. Rep. 53.) where it was tried the 14th of September, 1813. The declaration was in replevin for household goods, See.

THIS was an action of ejectment. At the trial of the cause, _ _ 7 . . . . 7 at the Scho harte circuit, m September, IS 12, the plaintiff, in deducing the lessor’s title to the premises, being part of lot No. *n ^le secon(l allotment of Lawyer and Zimmer’s patent, offered in evidence a deed, dated the 31st of December, 1768, from nine of the patentees, named in the patent, (which was dated ttie 24th of December, 1768, granted to Lawyer and thirty-seven other persons,) to…

IN ERROR, on certiorari, from the justices’ court of the city of New-York. Morgan brought an action in the court below against Sullivan and four others, as owners of the schooner Ga-' ronne, for his wages as a seaman and carpenter on board of that vessel, on a voyage from Nciv-York to Charleston, and thence to France, and back to New-York. The plaintiff shipped on board the. Garonne, the 8th of January, 1813, for 35 dollars per month.

A MOTION was made for a mandamus in this cause, directed to I. Peabody, commanding him to manumit and set free Casar, a black man, held by him as a slave. It appeared that Casar was brought into this state, about nine years ago, from Virginia, by one Hallam, as his slave, and the requisite certificate obtained and filed, according to the 4th section of the act passed the 8th of April, 1801.

IN ERROR, on certiorari, from a justice’s court. Loucks brought an action against knell before the justice, lhe summons was returned personally served, on the 28th of October, 1812, and the defendant did not appear.

THIS was an action of assumpsit on a promissory note, for 600 dollars, payable to the plaintiff, or order, on demand, with interesti The defendants pleaded non assumpsit, with notice of a set-off. The cause ivas tried at the Broome circuit, in May, ’ 1813, before Mr. Justice Spencer.

<p>K.„a seaman, shipped on board of avesi-Lwa^mastev,1 Son3 VjJaSimoretoLUbon back, and sailtiLoiToifthe voyage,during sei was capried^into °Jawhiietite\essei was de¿“themaster, Baltimore,t0 and the own-<3TS OÍ tllC V6Sael sentoutw. of1 the °vess¿ home* die ha* ring been releasedwithber cargo, which moíca! 3t(he" vessel return-more in balcommand**? w.; and P~, brought an actorelovcíhis from6 ~Bammore to Jamaica and hack, to the discharge;but that* w not responsicontract made firsi* master? the voyage home, from Jamaica to Baltimore, during which W. acted as master, being a new and distinct voyage, and for which only, under the new contract, he was answerable to the seamen,</p>

in ERROR, on certiorari, from a justice’s court. Low sued ... „ , , Mine before the justice, for 46 numbers of a book, at 25 cents' each, and a book of plates, at two dollars, amounting to 14 dolkirs and 25 cents.

THE commissioners appointed by the court, on the applicaHon of the corporation of the city of New-York, pursuant to the 178th section of the act “to reduce several laws relating particularly to the city of New-York into one act,” passed 9th April, 1813, (2 N.R.L. 408.) made a report of their estimate and assessment of the damage and benefit to the parties interested, &c. in enlarging part of Nassau-strcct, by which, among other things, it appeared, that they assessed the…

WOODWARD, for the defendant, moved to set aside the in? quest taken in this cause, at the sittings, in the city of Neiv-York. rea^ an affidavit stating that previous to the sittings, a copy of an affidavit of merits, and notice of its being filed with the clerk of the sittings, were duly served on the plaintiff’s attorney, w^° had noticed the cause for trial as an inquest.

IN ERROR, on certiorari, from a justice’s court. Downing sued Vanderbilt before the justice, to recover the amount of ® ame paid by him, in consequence of being returned by the defendant below, who was captain of a company of militia, as a delinquent for not appearing at the company parade, to the court-martial, who imposed a fine upon him. There was a trial by jury.

THIS was an action on a policy of insurance, dated the 8th December, 1810, on 74 hogsheads of sugar, at and from St. Croix to New-York, on board the British schooner Success, William Forbes, master.

<p>BURR, for the defendant, moved to set aside the proceedings ■In this cause; but</p>

FOOT, tor the defendant, moved to set aside the default, and 7 all subsequent proceedings in this cause, for irregularity, . , , , , . _ The capias ad, respondendum was returned m January term, ****^, with the defendant’s appearance endorsed thereon, The declaration, which was for a libel, was filed the 21st An-gust, 1813, and the default of the defendant, for not pleading, was entered on the 11th September following, and an interlocutory judgment the 22d October last, on…

<p>THIS was an action of ejectment for a farm in Pamlings, in . _ r the county of Dutchess. i he cause was tried at the Dutchess circuit in September, 1812, before Mr. Justice Yates.</p> <p>At the trial, the plaintiff read in evidence a deed, dated the 7 r e 7 8th December, 1764, from Matthias Marsh and William Marsh to Benjamin Benson, for the premises in question, for the considerationof 112 pounds, with the usual covenants, and warranty; a deed, dated 9th June, 1766, from Benjamin Benson to Keziah Benson, expressed to be for for the consideration of 112 pounds received from Ambrose Benson; also a quitclaim deed from Jnines Morehouse and Keziah, his wife, to Beniamin Benson, for ° 7 the same premises, dated 3d November, 1Í86, for the consideralion of 112 pounds. This deed was not acknowledged by the wife of Morehouse. The execution of the deeds was admitted; foy defendants’ counsel, but not the delivery of the deed from Benjamin Benson to Keziah Benson. Many witnesses were examined, and a great mass of evidence taken at the trial, and detailed in the case,- the whole of which it is not thought necessary to state here: the following are the material facts in the case.</p>

THIS was an action on the case. The declaration contained two counts.

THIS was an action of debt on a bond for 200 pounds, (500 dollars,) dated 14th July, 1794, executed by J. W. Tremper, deceased, in his lifetime, to Margaret Livingston, the testatrix, in her lifetime. The declaration contained but one count, eharging the defendants as heirs and devisees generally, without showing how they were heirs and devisees. The defendants pleaded riens per descent, 8?e, on which the plaintiffs joined issue.

<p>THIS was an action of debt on an arbitration bond. The defendants prayed oyer of the bond, the condition of which recited that whereas certain disputes and controversies had arisen between the parties relative to the hire, use,, and treat-r ment of a certain horse called the Highlander, as well as m other respects, in and about the said horse, as, under a certain agreement, dated the 22d of March, 1812, between the said parties, &c. and it having been mutually agreed to submit all and singular the matters in dispute between the parties, or either of them, of and concerning the said horse, whether under the said agreement, or otherwise, to A., B., Sec. the condition was, if the defendants should abide, Sec. the award of the arbitrators, or any two of them, of and concerning the premises aforesaid, and the reasonable costs of the arbitration, so that, &c. then, &c. The defendants pleaded no award.</p> <p>The plaintiff replied, stating the submission, Sec. and averring that two of the arbitrators made and published their award in writing, Sec. and did award and order that the defendants should pay to the plaintiff the sum of one thousand dollars, and the further sum of 54 dollars and 31 cents, costs of the arbitration, &c. and which was to be in full of all differences expressed in • the condition of the said bond, and averring that the defendants did not pay, &c. wherefore he prayed judgment, Sec.</p> <p>The defendants craved oyer of the award, which was set forth, reciting that divers disputes, variances, &c. have been and were depending between the parties, for the determining whereof the parties had submitted themselves, and became bound each to the other, by their several obligations, dated the 17th of August, 1812, &c. with a condition thereunder written, in all things well and truly to stand to, abide, Sec. the award of, &c. or any of them, Sec. indifferently chosen, Sec. to arbitrate, &c. of and concerning all and all manner of actions, cause and causes of , „ . , actions, promises, accounts, reckonings, sums of money, judgments, executions, quarrels, controversies, trespasses, damages, and demands whatsoever, at any time heretofore had, &c. or de7 J 9 pending by and between the said parties, so as the award, &c. «ag ga¡[¿ obligations and conditions doth more fully appear;” that the arbitrators, having taken upon themselves the burden of the award, &c. and having heard the parties, See. at large, and the witnesses and evidencé concerning the premises, made their award, &c. of and concerning the premises, &c. awarding that the defendants pay to the plaintiff the sum of one thousand dollars, and 54 dollars and 31 cents for the costs of arbitration, on or before the 1st of October then next, and “ that the same be considered in full of and concerning all differences expressed in the above-named bond.” The defendants then demurred specially to. the replication, and assigned as causes of demurrer, that there was a manifest variance between the submission set forth in the condition of the bond declared upon and set forth in the plea, and the submission set forth in the award, See. the submission in the bond, set forth in the declaration and plea, being special, of and concerning one matter only, and the submission set forth in the award of the arbitrators, referred to in the replication, being general of all- matters what- - soever in difference between the parties. The plaintiff joined in demurrer.</p>

TWO of the defendants, Sherman and Yale, were owners of a sloop, called the Washington, employed in carrying and transporting goods, &c. between the cities of Nem-York and Albany; and in the spring of the year 1813, they agreed to sell the one . . , trnrd part of the vessel to Coughtry, the other defendant, who was the master, and for a price stipulated; the conveyance of the one third to be executed on the payment of the money.

THIS was an action on the case against the defendant, as late sheriff of Washington county, for a false return on a test. Ji. fa. against Peter Hilton, at the suit of the plaintiffs. The declaration contained two counts: the first charged a ® false return of nulla bona, after the defendant had seized and levied on sufficient property of Hilton to satisfy the execution.

<p>An action on not lie against oiTanneíectionJ for refusing the vote of a person legally qualified to vote, -without proving malice plied.' redChyS \zvFto judgments^are not answerable for mistakes in law or mere ment,S wiíhont any fraud or malice.</p>

THIS was an action of covenant. The declaration stated that the defendant by his deed, dated 25th April, 1810, granted, bargained, and sold to the plaintiff, all the undivided part of lot No. 120. in Van SchaicFs patent, containing, 120 acres, &c. to have and to hold, See.

THIS was an action of ejectment for lands in the town of Hoosick, in the county of Rensselaer, and was tried before the Chief Justice. The premises in question were claimed by the plaintiff, as part of great lot No. 30. in the Hoosick patent; more particularly as part of great lot (B.) in the subdivision of great lot No. 30.

THIS was an action of assumpsit. The cause was tried at the Jefferson circuit, the 16th of June, 1813, before Mr. Justice Yates.

IN ERROR from, the court of common pléas of Otsego county. Chapman brought an action of trespass de bonis aspor - tatis, against Demick, in the court below, who pleaded not guilty.

<p>Where there b0nd10of °submission to arM. trators, that the award shall tnder tiands and seals3 an a-'yard in writSi^sea?i« bad-</p>

IN ERROR, on certiorari, from a justice’s court. Hewett brought an action against Tower, before- a justice of the peace. for woo¿ sold and delivered. The defendant admitted the delivery of the wood, but set up an agreement that it was to be paid for in whiskey, at his distillery; and that the whiskey had never been demanded by the plaintiff.

<p>assigneeAófha judgment against B. which was a Zertynt¿ePB0¡ atout to out éxeBon, and be a certain i of land, and C. knowing, &c. pulled down and car-lied away certain buildings, tiie friand, ° "waTdeprive'a of the benefit ment,1S&e.Udit A?mightmaintain an action on tne case against c. for removingti7the property of B. and converting it to his own tent to' defeat tbe^ judgment</p>

IN ERROR, from the Albany court of common pleas. The plaintiff in error brought an action against the defendant, in the court below, for a false return, to a writ of certiorari, directed to him, as a justice of the peace, requiring him to certify the proceedings, &c. in a certain cause before him, as a justice, in Which Israel Nix was plaintiff, and the plaintiff in error defendant.

<p>IN ERROR, on certiorari, from a justice’s court. Davis brought an action of assumpsit, before the justice, against Moore, f°r work and labour, &c. Plea, non assumpsit, and a former stat anc* recovery by the defendant against the plaintiff, in which the plaintiff neglected to set off his demand. The plaintiff having proved his cause of action, the defendant produced a certificate of his former' suit and judgment, and contended that the plaintiff ought to have set off his demand in that action. The plaintiff offered to prove that the action against him by the defendant was in trover. This was objected to, but the objection was overruled by the justice. It appeared that the action was trover for a horse, in which the plaintiff did not set off his demand. But the justice decided that the former suit was no bar, as the plaintiff was not bound to set off his demand in that suit: and he gave judgment for the plaintiff for 25 dollars.</p>

IN ERROR, on certiorari, from a justice’s court. Beebee 7 7 u . brought an action against Benedict, before the justice, and dedared for goods sold and delivered, work and labour, money had and received, and also for damages in. not performing a certain contract relative to the possession and improvement of a certain farm. The defendant objected to any evidence as to the contract stated in the plaintiff’s declaration, relative to the farm.

THIS was an action of assumpsit, tried at the last Onondaga circuit, before Mr. Justice Thompson. The declaration contained a count on a promissory note made by the defendant to phhntiff, dated the 18th September, 1804, for thirty dollars, payable in one year from the date, with interest.

IN ERROR, on certiorari, from a justice’s court. Tundenbergh brought an action of trover against Dyer, in the court below. Plea, the general issue. It appeared from the evidence stated in the return, that the parties met on the road, and some conversation took place between them about the exchange of horses. V. agreed to let D. have his horse for the mare in ques-lion, the exchange to be even, and no questions to be asked. D. said his mare was five years old.

<p>in a plea of anStlactionn’of trespass, assáult and battery, and false íroug'ht”1byn» th^ttate^errf ployed as a sol-vice10? tK?" United Suites, ádentofacourt accessarytoai.M‘occurred thority8to^thé President of' state?tocaU litia1 of" states,^ under grass of the 28th February, 1795, ' Cong. 3. sess. 1. c. 91.)</p> <p>e The President of the United States, alone, is made the judge of the happening of such even and he acts upon his responsibility under the constitution.</p> <p>Nor is it necessary to allege what president, by. name, issued his orders to the governor of .th state, to order into the service of the United States a portion of the militia of the státe, nor tí number of militia ordered out.</p> <p>Nov is it necessary lo allege that the officers composing the court martial were in the service < the United States ; nor that the general who ordered the court martial commanded in the am of the United States when he issued the order, or approved the sentence of the court.</p> <p>The militia of the states, ordéredinto the service of the United States, under the act of the 28t February, 1795, are subject to the rules and articles of war of the United States, though made su sequent to that act, which is prospective</p> <p>Whether a militia man ordered into the service of the United States, wider that act, is liable "be arrested, tried and punished, for desertion, &c. after his term of service has expired ? guare.</p> <p>A court martial, under the United States, constituted to try delinquent militia men, sitas judg< and where a party arrested waives all objection to the jurisdiction of the court, by pleading guilt he cannot afterwards allege that the court had no jurisdiction. The party aggrieved by the sejiteyn of the court martial, which has' nó power to Carry the sentence into execution, must apply for i dress to the commanding officer, to whose revision all the* proceedings of the court are subject, ai who is to order the execution of the sentence. - , . .</p> <p>Where the court has jurisdiction of the person of the delinquent and of .the subject matter^ th are not answerable for their sentence, in an action at the suit of the party*</p>

IN ERROR, on certiorari, from a justice’s court. Hopkins sued Smith, before a justice, to recover damages for a deficiency in a quantity of shingles purchased of the defendant. The defendant pleaded in abatement, that the shingles were sold to the plaintiff and one J. H. who gave their joint note in payment for the same, and that if the defendant was responsible at all, it must be to them jointly.

IN ERROR, on certiorari, from a justice’s court. Phinney sued Sessions, before the justice, on a note, or due bill. The defendant pleaded non assumpsit; and, at the trial, offered in evidence his discharge under the act for the benefit of insolvent debtors andftheir creditors, passed April, 3, 1811.

THIS was an action of ejectment tried at the Columbia dr- ^ ■^uit, 3d October, 1812, before Mr. Justice Van Ness. The lessor of the plaintiff deduced a title under the Claverack patent, granted to John Van Rensselaer, including the premises in question.

IN ERROR, on certiorari, from a justice’s court. Brown brought an action of assumpsit against Posson, before the jus^ce> f°r money had and received, money paid, &c. At the trial, Brown offered a justice of the peace (P. I. Hoes) as a witness to prove that there had been a trial in a suit before him, in which a judgment was given for Posson, against Brown, for 16 dollars, damages and 4 dollars and 81 cents, costs. This evidence was objected to, but admitted by the justice.

IN ERROR, on certiorari, from a justice’s court. Mabbett and Tripp sued Crouse before the justice, and declared against him, that he, without any lawful authority, brought into the town of Washington one William Brown, a pauper, having no settle- ..... , ment there, or within this state; that the pauper fell sick, and was supported by them, the plaintiffs, as overseers, &c. under an order of two justices of the peace, until the death of the pauper, at the expense of about…

IN ERROR, on certiorari, from a justice’s court. ' IJearsey an(* his wife sued Streeter, before a justice, in Antwerp, in the county 0f Jefferson; and issue being joined, a venire was issued, at the request of the defendant, to summon a jury.

IN ERROR, on certiorari, from a justice’s court. Hall sued Bissell, before the justice, in an action of debt on a judgment obtained in the state of Connecticut, in 1803. The defendant pleaded the statute of limitations, and the justice overruled r . , , „ the plea, on the ground that it could not be pleaded in bar of an action of debt on a judgment. There was no evidence to take the case out of the statute, and judgment was given by the court below for the plaintiff.

THIS was an action of ejectment. Johannes S. Feeder, being . . ° seised in fee of the premises in question, by his last will, dated the 15th July, 1746, devised the same to his two sons, Myndert and Simon Feeder, as tenants in common, and died seised.

IN ERROR, on certiorari, from a justice’s court. BoZ<?, as , _ , „ ,, ,, elerlc of Rensselaer county, sued Bell, m debt, tor the penalty .of 25 dollars, given by the 13th section of the act of the 2d of April, 1801, (sess. 24. c. 113., sess. 36. c. 13. 1 N. R. L. 384 ) concerning oaths.

IN ERROR, on certiorari, from a justice’s co.urt. Jones sued S. and A. Lohnis, in covenant on a bond, in the penalty of 36 dollars, conditioned for the gaol liberties for Adam Lohnis.

THIS was an action of trespass, tried before Mr. Justice Van Ness, at the Columbia circuit, in 1812. The declaration eontained several counts, for trespass guare clausum fregit, et deboms asportatis. At the trial, the plaintiff’s counsel, pursuant to previous notice for that purpose, called on the defendant to produce two writs of attachment, issued by the defendant, as justice of the peace, against the plaintiff, or that he would offer copies of them in evidence.

<p>In order to maintain an action for the pnceofserwce must & delivery, or of-Whether a pal toLhoHeTthe services of a ara™ of goods,' tute of frauds! dabitatur.</p>

IN ERROR, on certiorari, from a justice’s court. Lawrence sued Gracy for the penalty of 25 dollars, under the statute, passed the 7th April, 1801, (sess.24. c. 164. s. 9. 1 N. R. L. 176.) for retailing spirituous liquors without a license. Upon the trial it appeared that the defendant did, on the 7th April, 1812, being town-meeting day, sell liquor in his waggon house.

THIS was an action of assumpsit, on a promissory note, dated TTuly 31, 1811, made by Hiram Clowes, payable on demand, with interest, to the defendant, or order, and by him endorsed to the plaintiff. The cause xvas tried at the Rensselaer circuit, in 1813, before'the Chief Justice. Clowes, the maker, absconded the 29th of April, 1812.

THIS was an action of debt on a bond, upon the condition, “ that if the defendant (Clossey) shall well and faithfully per-f°rm the duties assigned to, and trusts reposed in him, as first telier ” $.c. to the plaintiffs. __ „ „ _ __ _ Fleas. 1. Non est jactum ; 2. Non aamnijicatus. Replication to the 2d plea, assigning breaches pursuant to the statute, to wit: 1.

1N.ERROR, from the court of common pleas of Herkimer county. Mahon brought an action .of trover against Alexander In the court below. It appeared that the plaintiff below, as sheriff, had seized and taken the goods in .question, by virtue of a fieri facias against the goods, &c. of Jonas Churchill; and before the goods were removed from the possession of Churghill, the defendant below took them as a distress, and sold tbiém for rent.

THIS was an action of assumpsit brought against the defendant, as endorser of a bill of exchange. The cause was tried before the Chief Justice, at the New-York sittings, in November, 1813. The bill of exchange was dated at Baltimore, the 23d July, 1799, drawn by C. F. C. Busche on J. A- and D. IT. Rucker, Esqs. of London, for 120 pounds sterling, at sixty days’ sight, in favour of William Magruder, who endorsed it to the defendant, who endorsed it to the plaintiff.

THIS was an action of covenant. The plaintiff declared on a covenant in a lease, dated the 1st of May, 1803, of premises in Rhincbedc, for the term of 9 years; and assigned as a breach that the defendant did not repair, &c. The defendant pleaded non est factum, with notice of the special matter to be given in evidence, as a defence and a bar to the action. The cause was tried before Mr. Justice Spencer, at the Dutchess circuit, in Nope?nber, 1813.

THIS was an action of ejectment brought to recover the undivided half of the mill seats and mills, situate in lot No. 117. in the Scoharie patent. The cause Avas tried at the Scoharie circuit, in September, 1813, before Mr. Justice Yates; and a verdict Avas taken for the plaintiff, subject to the opinion of the court on a case.

<p>THIS was an action of assumpsit on a promissory Dote, made by Gomparts, Nathan, and Jacobs, partners in trade, &c. Gomparts -pleaded, -separately, his discharge under the “ act for the benefit of insolvent debtors and their creditors,” passed the 3d April, 1811. The plea, after stating the proceedings , , . under the act-, to entitle the defendant to his discharge, set it forth verbatim, dated 6th August, 1811, by which the defendant, ■ Gomparts, was discharged ic from all debts due from him at the time of his said assignment, or contracted for before that time, though payable afterwards,” &c.</p> <p>Nathan, also, in like manner, pleaded his discharge under the same act.</p> <p>Jacobs, the other defendant, pleaded non assumpsit and payment, with notice of set-off.</p> <p>The plaintiff replied to the plea of Gomparts that the plaintiff ought not to be barred, &c. because he the said Gomparts, together with the said Nathan and Jacobs, did assume, Sec,</p> <p>■The same replication was also made to the plea of Nathan.</p> <p>To each of these replications there was a general demurrer and joinder.</p>

FAY, for the defendant, moved that an exoneretur be entered on the bail piece filed in this cause. It appeared that the debt for which the present suit was brought, was contracted in the state of Pennsylvania, where the parties were at that time resident, and that the defendant, on the 27th March, 1812, obtained a discharge under the insolvent laws of that state, from imprisonment, and from all liability of his person, for any debts, before that time contracted.

JOHNSON, for the defendant, moved to set aside the default entered in this cause, and all subsequent proceedings, for irregularity. The tenant, on being served with a copy of the declaration, and notice in this cause in Cortland county, employed an attorney to defend the suit. Tillotson and Vanderheyden, the attorneys of the plaintiff, who resided at Albany, had no joint agent at Utica or New-York, though each of them had a separate agent in both places.

THIS was an action of - replevin. The defendant pleaded two pleas: 1. Non cepit, on which issue was-joined; 2. That ProPeriI! of the goods, &c. was in the. defendant, absque hoc, &c. with a verification.

CAINES moved to set aside the issued in this cause, for irregularity.

F. W. RADCLIFF, for the plaintiff, moved for a writ of procedendo in this cause to the mayor’s court of the city of NenYork. The suit was originally commenced in the mayor’s court, and Henry, one of the defendants, only was taken. The plaintiff issued another writ against Graham and Wilson, to answer together with Henry, on which Graham only was taken. Graham appeared by attorney, and Henry in proper person.

EiUiYIET, for the plaintiffs, movéd, on the usual affidavit, for a commission to take the examination of witnesses residing in Liverpool, in Great Britain.

THIS was an action of ejectment, for land in Water Vliet, tried at the Albany circuit, in October, 1813, before Mr. Justice Thompson.

<p>THIS was an action of assumpsit on a special agreement, tried before Mr. Justice Van Ness, at the Nem-York sittings in 3 . November, 1813, (See S. C. on Demurrer, voL 4. 280.)</p> <p>The plaintiffs recovered a verdict against Noel Blanche, in 1808, on which a fi.fa. was issued and levied on the goods of Blanche, who applied to the plaintiffs for time, and offered to pay the costs and give security for the debt, payable in six months, in chocolate, at a stipulated price, if the plaintiffs would cause the execution to be returned nulla bona, and forbear all further proceedings under the judgment, for six months; and the defendant was then named as the person who was to be security for the performance of the stipulation of Blanche. The attorney of the plaintiffs then drew up the following memorandum, which was signed by Blanche.</p> <p>“ I do hereby agree to deliver Messrs. Bailey Sr Bogert, within six months from the date hereof, fresh and good chocolate, equal in quality to Caldwell’s of Albany, at a discount of five per cent, from the wholesale price at which Caldwell’s chocolate of the same quality may be selling at the time of delivery, and to the amount of 392 dollars and 71 cents, with interest from the 5th of May last; and further, that all the costs, expenses, fees, and poundage on the execution issued by Messrs. Bailey S' Bogert against me, being paid by me, their attorneys shall direct the said execution to be returned nulla bona. Nem-York, 11 th of July, 1808, N. Blanche.” 1</p> <p>Blanche then went with a clerk of the plaintiff’s attorney to the counting-house of the defendant, who signed the following glia.ra.Ilty: •</p> <p>“I do hereby guaranty the performance of the above agreement, and every part thereof, on the part of Noel Blanche, to be performed at the time and to the amount therein mentioned : provided the said Noel Blanche, shall, when the same ought to be performed, be then ?n life, but not otherwise. Nem-York, 11 th July, 1808. Phineas Freeman.”</p> <p>The counsel for the defendant objected to the admission of agTeement and guaranty in evidence, 1. Because they were evidence of an agreement and guaranty different from those set-forth in the declaration; 2. Because they contained no consideration for any promise by the defendant, and no parol evidence of any such consideration was admissible, nor can any parol evidence- be admitted to show a different agreement from the writing produced, nor could the plaintiffs give evidence of any verbal communication between the original parties previous to the written memorandum; or if the plaintiffs could, in any case, give evidence of any agreement not contained in the writing, they must show that the defendant was acquainted with it, and á party to it at the time of signing his guaranty.</p> <p>The judge admitted the evidence, reserving the points raised by the defendant's counsel.</p> <p>It appeared that on the 12th of January, 1809, the plaintiffs informed the defendant that Blanche had not performed his agreement, and required the defendant to perform his guaranty; that Blanche was, and still is, living, and that no proceedings had been had under the judgment, subsequent to the agreement. •</p> <p>Blanche paid the costs of suit on the 26th of July, 1808, and the sheriff shortly after returned the execution nulla bona. There was no evidence of any communications between the plaintiffs and defendant, except what appeared from the execution of the agreement.</p> <p>A verdict was taken for the plaintiffs, subject to the opinion of the court on a case containing the facts above stated. It was agreed that if the court should be of opinion that the evidence was properly admitted, the verdict was to stand ; .that if any evidence had been improperly admitted, without which the plaintiffs could not have been entitled to a verdict, a new trial was to be granted; and if the court should be of opinion that the plaintiffs were not entitled to recover at all, a judgment of nonsuit was to be entered.</p>

THIS was an action of assumpsit on a promissory note made by the defendant, dated October the 28th, 1805, payable to the . • , r *' plaintiff three years after date. At the trial of the cause, the defendant, under a notice annexed to his plea of non assumpsit, gave in evidence a discharge under the insolvent act of the 3d ° , of April, 1811, under the hand and seal of a commissioner, dated the 15th of April, 1812.

<p>JUDGMENTS in each of the above causes were recovered in May term, 1811. The rolls were filed in the office of the clerk of the court, in the city of New-York, and the judgments docketed on the 10th of May, 1811. In the docket of the judgments, the one in favour of Waterman was first entered, and one other judgment was entered between that and the judgment in favour of Halstead. Where several judgment rolls are filed on the same day, the clerk makes no note or memorandum which of them ivas first filed; and all the rolls filed on the same day, are afterwards indiscriminately entered and docketed by him. Waterman, on the same day that his judgment was docketed, issued a fi.fa. to the sheriff of New-York, which was levied on the personal property of Haskin, and part of the money due on the judgment was thereby paid. - In the vacation after May term, Halstead issued a test, fi.fa. to the sheriff of Westchester, who, by virtue of that execution, and of two other executions, issued on judgments entered on a day subsequent to the above judgments, seized a farm of the defendant’s and advertised it for sale, and a few days afterwards Waterman issued a test. fi. fa. to the same sheriff of Westchester for the residue of the money due on his judgment. There having been some mistake of the printer as to the first advertisement, the property was advertised for sale by the sheriff a second time, and was accordingly sold by virtue of the several executions, and the money Retained in the hands of the sheriff. Neither of the advertisements of sale specified the executions, and no levy was made by the sheriff after the first.</p> <p>The question submitted to the consideration of the court was, oh which of the executions, on the above entitled judgments, the sheriff was first to apply the money levied by him on the sale of the property ?</p>

THIS was an action of assumpsit brought by the plaintiffs against the defendant as endorser of a promissory note made by Samuel Kip in favour of the defendant, and by him endorsed to the plaintiffs, and was tried in the city of New-York, on the first day of December, 1813.

THIS was an action of assumpsit, on a promissory note given by the defendant to the plaintiffs, for a premium of insurance.

THIS was an action on a policy of insurance, dated the 24th of May, 1810, on goods laden or to be laden on board of the American ship Atlantic, Jayne master, “ at and from Nem-York to Gottenburgh, and at and from thence to one port in the Baltic, or Black Sea, not south of the river Eyder.” The risk to continue until the goods should be safely landed “at Gottenburgh, and one other port.” The premium was 9 1-2 per cent, to return 31-2 per cent, if the risk ended safely at…

THIS was an action of assumpsit. The cause was tried at the New-York sittings, in June, 1813, before Mr. Justice Fan Ness, when a verdict was taken for the plaintiffs, subject to the opinion of the court, on a case containing the following facts: On the 25th November, 1809, the defendants, who are merchants residing in New-York, addressed a letter to the plaintiffs, a commercial house, at Liverpool, informing them that the defendsnts had engaged to ship on board the brig…

IN ERROR, on certiorari, from the justice’s court of the city of Nerv-Yorlc. Goold sued Icard in the court below for J seamairs wages. It appeared, by the return, that on the 23d of November, 1807, Goold shipped as a seaman on board the ship Gados, of which Icard was owner, and Obed Buncker master, on a voyage from New-York to Marseilles, and back to New-York, at 18 dollars per month, and received one month’s pay in advance.

IN ERROR, on certiorari, from a justice’s court. M-Cutchen brought an action of assumpsit against M‘Gakay, for board and lodging furnished by the plaintiff to Ellen, the wife of the defendant. The plaintiff, who is the father of the defendant’s wife, furnished her with meat, drink, and lodging, in his family, during which time she was in ill health. M‘Gahay was married to Ellen about the year 1801.

THIS was an action of assumpsit for cattle &c. sold -and delivered, and was tried at the Dutchess circuit, in November, 1813, before Mr, Justice Spencer. It was proved at the trial, that in June, 1812, B. Germond, ■one of the defendants, came to the plaintiff, and asked him if he had any cattle to sell, and the plaintiff replying in the affirmative, they went together into the field to look at them.

THIS was an action of trover for two boxes of platillas, tried beibre Mr. Justice Yates at the New-York sittings, in April last, The plaintiff, who is a merchant taylor in the city of New-York, and to whom the property in question belonged, employed a eartman to carry the two boxes of platillas to his shop, but not being able, on account of the size of the boxes, to get them in through the door of his shop or house, he requested ° r x the eartman, who was his nephew, to…

after condemnation, and not to abandon in consequence of THIS was an action upon a policy of insurance, on the brig Resort, dated 1st September, 1809, on a voyage from New-York to Bremen, or a port of discharge In the North Sea or Baltic.

THIS was an action on a policy of insurance on the schooner Phamix, valued at 6,000 dollars, “ at and from Nciv-YorJc to St. Bartholomew, and at and from thence back to New-Y orle, with liberty to touch and trade at Martinique.” The cause was tried before the Chief Justice, at the New-Yorlc sittings, in No-member, 1813.

THESE were two several actions on two policies of insux ranee; one on the cargo, and the other on the ship. , The policy on the cargo was dated the 13th of November, 1810, and effected in the name of John Murray 8r Sons, the plaintiffs, on account of “ themselves, at and from Cagliari to St. Petersburgh or Archangel, with liberty to touch and trade at Bergen, in Norway, upon all kinds of goods and merchandises, laden or to be laden on board the good American ship called the…

THIS was an action on a policy of insurance, on the ship Orbit, * * , valued at 25,000 dollars, subscribed by the defendants for 12,500 dollars, “ at and from Neiv-York to Liverpool, and at and from thence back to a port of discharge in the United States.” The cause was tried at the New-York sittings, in June, 1813, before Mr. Justice Van Ness, when a verdict was taken for the plaintiffs, by consent, for 4,000 dollars, subject to the opinion of the court, on the following…

THIS was an action on a policy of insurance on the cargo of the ship Massasoit, Whitten master, on a voyage from Philadelphia to Lisbon, on rice, flour, and peas. The defendants gave, a relicta, &c. for three thousand, four hundred and nine dollars, subject to the opinion of the court on the following case: The policy, bearing date the 29th of October, 1812, was for 30,000 dollars, which fully covered the property insured, at a premium of 4 1-2 per cent.

<p>h¡, dwifc'* iíu &c.md”rhg her ^°ofWssons" Ic'^to his §ve daughters, wood land, ^ x, two of hie heirs,lu-u-r the riTge “oMiS n^.ho'use^or" alf‘hfs&íándf except what he had before given to his sons and daughters, provided that the said S. and J. should maintain their brother A. and their unmarried sisters, &c. and he then devised, as follows: 411 give and bequeath to Catharine and Sarah. '-ach, the sum cf twelve pounds, out of my personal estate, and the remainder to be equally divided among my eleven children; and if any one or more happens to die without heirs, .then his or theii pa;ts or shares shall be equally divided among the rest of the children} and also the money of my father-in-law, «L be:ongs to my wife;” and then appointed his- execuiors, &c. It was held, that the devise over auplied to both the real and personal estate, and was good by way of executory devine. Th it diet devise ever was in fee, and that though J., the last surviving child, died without issue, the grandchildren of the testator could not take the estate. Though there is no one to take under an executory devise,; he esta'e docs not, therefore, revert to the right heirs of the testator. A deed from A. to B. habendum, to A. f. r lift-, and after his death, to B., his heirs and assigns, for ever, is a valid conveyance un->er the st -.tete oí i^es, as a covenant by the grantor to stand seised to hsa own use, during life, ajad after his death to the use of the grantee and his heks*</p>

THIS was an action on a policy of insurance on cargo, on board of the American brig African, “ at and from Carlsham to St. PetersburghThe plaintiff claimed a total loss, which was averred to have happened, by the perils of the sea, while the vessel was in the due prosecution of her voyage to St. Petersburgh. The cause was tried at the New-York sittings, in November, 1813, before the Chief Justice.

THIS was an action on two policies of insurance, one on the schooner Minerva, and the other on the cargo on board of the same vessel, at and from St. Bartholomews to Havanna.,> In the order for the insurance, the defendants were informed, ^le cargo consisted of soap, wine, &c. and that the schooner would have on board some negroes, bound to the Havanna. policy contained a written warranty, “ free from loss, if not Perm^tte(i t° entry, in consequence of having negroes on…

THIS was an action of ejectment for lands, in the town of Plattckill, in Ulster county, tried before Mr. Justice Van Ness, at the Ulster circuit, in November, 1812. 7 3 e The plaintiff’s counsel, in support of the title of the lessor, r , 1 • . gave m evidence a lease of the premises m question, tor 21 years, from Nathan Miller to Andrew Gee, dated the 1st of March, 1785; a lease from Nathan Miller to Cornelius Gee and James Owen, dated the 1st of April, 1802.

THIS was an action of trespass, tried before the late Chief Jusiicc, at the New-York sittings, on the 2d of December, 1813. ’ 0 The declaration stated, that tne defendant, on tne 6th of _ . , , „ _ , October, with force and arms, &c. at tlie city 01 Nen-xortc, seized, took, and carried away, a certain schooner, or vessel, called the Nancy, &c. belonging to the plaintiffs, of the value of 2,500 dollars, and converted and disposed of the same to his own use, &c. The defendant…

THIS was an action of assumpsit, brought to recover the plaintiff’s share, as informer and seizer of the ship Magistrate, and of the ship Liberty, and their cargoes, and of the schooner Hiram and her cargo. The declaration contained the common money counts, and the plaintiff’s bill of particulars stated the different sums demanded.

A MOTION was made to set aside the report of referees in this cause. The report was made by two only of the three referees appointed by the rule of court. The other referee was duly notified of the Jtjjpe*and place of meeting, but did not attcn(l; and the othertwo referees, in the absence of the Pla*int^^ proceeded, ex parte, in the examination, and reported in favour of the defendant.

THIS was an action of trover. several counts. In The declaration contained some of them9 the trover and conversion t, e - i were laid m the lifetime of the intestate) ana m others) they were laid after his. death, and after letters of administration were granted.

THIS was an action of trespass quare clausum fregit. The jury found a verdict for the plaintiff, for forty dollars, damages,anü n’ie judge, before whom the cause was tried, certified the trespass to have been wilful and malicious. The question was, 'whether the plaintiff was entitled to recover costs, or must pay costs to the defendant.

THIS was an action of trespass for mesas profits* The amount of the recovery being only forty-nine dollars, the defendant claimed a right to recover costs: and Campbell, for the defendant, now applied to have them set off against recovered» '

<p>On motion for a rule to let in a mortgagee to defend in this SUlt,</p>

IN ERROR, on certiorari, from a justice’s court. The sunu ¡¡tons was made returnable before the justice at two o’clock, p„ M, The justice appeared at the place appointed in the summons, at half past four o’clock, P. M^gnd opened his court 5 and the defendant not appearing, made inquiry whether the defendant had been there, and being informed that he had not, the justice adjourned the cause to another day, and proceeded to hear the evidence on the part of the 'plaintiff, for…

THIS was an action of assumpsit. Beside the general counts for goods sold, &c., and the common money counts, the declaralion contained a count for the sale of a horse by the plaintiff to the defendant, for a note made by Daniel S. Deane, for 90 dollars, dated August 2d, 1808, payable six months after date, with interest, which note the defendant represented to the plaintiff as good, and the maker as responsible, when he, the defendant, knew that Deane was not, and that, in…

THIS was an action of assumpsit, tried before the late chief justice, at the Columbia circuit, in October, 1813, The plaintiff demanded of the defendants three hhndred dot Zars, being the amount of the wages of Peter Latham, a black man, as a seaman on board of the vessel of the defendants, and who was the slave of the plaintiff It was proved, that in 1798 Peter lived with the plaintiff.

THIS was an action of ejectment, for lot no. 44. m the , , , „ township ot Junius, in the county of Seneca, tried at the Se~ neca circuit, the 26th May, 1814, before Mr. Justice Piatt. The declaration contained a demise from Justus B. Smith, oa Ist January, 1797, and several demises from other lessors, on the 1st January, 1812.

THE facts in this case, which was argued together with that of Jackson, ex dem. Johnston and others, v. Decker, last report- * ed, are the same, except that the suit, having been commenced before the death of John Lowther Johnston, the demise was laid from him, instead of his heirs; and the issue was joined before the commencement of the war. It was also tried at the Seneca circuit, on the 27th of May, 1814.

THIS was an action of assumpsit. The declaration contained, besides the usual money counts, a special count on the following written agreement: “ Received, Lansingburgh, 2!st of August, 1809, of John Underwood, fifty dollars in cash, and his bond for 150 dollars, which, when paid, is to be in full of three judgments, in my favour, against Samuel Garlick, formerly of New Haven, in the state of Vermont, an absconding; debtor, and Seih Garlick, as trustee to the said Samuel,…

THIS was an action of trespass, tried at the Columbia circuit, before the late Chief Justice, in October, 1813. The premises on which the trespasses were committed were m the to wn of Grainger, and were lands leased by Henry IV. Livingston, now deceased, the father of the plaintiff. Part of the premises were leased to Moses Biosby, on the 1st of October, 1799, for the lives of Biosby and his wife.

IN ERROR, on certiorari, from a justice^ coilrt. Wheedeclared, in the justice’s court, in debt, for that Haywood had. been duly appointed one of the overseers of highways, in afid for the town of Grainger, by the commissioners of highways> a§'reeabty to the act, &c.; and that after being so appointed, he neglected and refused to serve; by reason whereof Í , , , , , J he had incurred the penalty of twelve dollars and fifty cents, The defendant pleaded not guilty.

IN ERROR, on certiorari, from a justice’s court. Hogeboom sued Ray, who was a constable, and the other defendants, who were his sureties, for the escape of one Tracer, on an execution. It appeared that Ray took Tracer on an execution, at the suit of Hogeboom, and delivered him over to another constable to convey to jail; but neglected to deliver over the execution, whereby Tracer was discharged.

<p>THIS was an action of ejectment, tried at the last Cortlandt circuit, before Mr. Justice Spencer.</p> <p>^ *-he plaintiff produced a deed in fee, dated the 12th of February, 1808, from Thomas Burle, for the premises in , ^ r question. The defendant objected to the admission of the deed in evidence, upon the proof thereof before the master in chaneery, “ as it did not appear that the master knew the witness who made proof before him of the identity of the grantor.” But the objection was overruled by the judge, and the deed admit<.prl ‘,eUl</p> <p>July, 1808, the lessor of the plaintiff made some improvement on the lot in question; and one Porter erected a log house ° on the lot, under the lessor, and one Bennet, afterwards, occupied it under the lessor; and when he left it, Morse, against whom this action was brought, entered and took possession °f the house and improvements, and held the same until his death, which was since the cause ivas at issue, and before the trial,</p> <p>There was no evidence that Harrow, the other defendant, was ' in possession, at the commencement of the suit, or at any other time; and the defendant objected, that the plaintiff could not recover without showing him to have been in possession when the suit was commenced.</p> <p>The lessor then gave in evidence, a certified copy of a ru"ie °f the court, of the 14th of May, 1813, by which the de- • fault and ejectment against the casual ejector, and subsequent proceedings, were ordered to be set aside, and Joseph Harrow be admitted a defendant with Morse, the tenant; and that Jomthan Armstrong, and the joint devise in which he was named, should be struck out of the declaration. It appeared that the defendant’s attorney had served the plaintiff’s attorney with a notice of the motion to set aside the default, &c. and to have Harrow made defendant with Morse, and with a copy of the affidavits of Harrow and Morse, on which the motion was founded. Harrow, in his affidavit, stated, that Morse held the premises in question under a lease from him, and that Morse was unable to make him satisfaction for his neglect, in not giving him notice ©f the commencement of the suit: and Morse also swore that he held the premises under a lease from Harrow. The plea and consent rule were also produced, and in which both Harrow and Morse appeared as defendants. Morse, afterwards, died, and his death was suggested on the record. The plaintiff contended that the affidavits showed that Harrow defended as landlord. The defendant objected to the admissibility of the affidavits in evidence; and that it did not appear, by the rule of court, that Harrow was admitted, otherwise than as a joint defendant with Morse. The judge overruled the objection, and, under his direction, the jury found a verdict for the plaintiff.</p> <p>A motion was made to set aside the verdict, and for a new trial, on which the case was submitted to the court without argument.</p>

THIS was an action of ejectment, brought to recover part of lot no. 85. in the Cayuga reservation, and was tried at the Cayuga circuit, in May, 1814, before Mr. Justice Platt. The plaintiff gave in evidence a deed from Gideon Allen, jun. to John Richardson, for the whole lot, subject to a mortgage given by Allen to the people of the state of Nerv-York, for the payment of 1,475 dollars and 62 cents, in the year 1805, with interest, and dated December 20th, 1796.

THIS was an action of assumpsit, tried at the Schenectady dremit, in September, 1813» The plaintiff’s demand consisted of money paid for postages, protests, &c. of a bill of exchange; and also 20 pounds sterling, or 88 dollars and 88 cents damages, paid thereon, with interest.

IN ERROR, on certiorari, from a justice’s court. Hull brought an action against Joseph and John Gary, before the jus tice, for a quantity of tanner’s bark sold and delivered. Plea, the general issue. The defendants below had sold a wagon to Hull and his brother for 45 dollars, to be paid for in bark. Five dollars only were paid on that contract; and when the time had expired, Hull confessed two judgments before a justice for the balance, being 40 dollars.

IN ERROR, on certiorari, from a justice’s court. Wright sued Beekman, by summons; and after joining issue, on the 30th of March, 1812, the trial was adjourned, on application of the defendant below, until the 2d of May, 1812, upon giving security, &.C. The parties appeared again on the 2d of May, and upon proving due diligence in subpoenaing his witnesses, and making oath that a material witness, who had been subpoenaed, did not attend, the defendant moved for a second…

. THE declaration contained two counts, substantially the same, for a breach of covenant, contained in a lease, given by the plaintiff to the defendant, during her natural life, for lot no. IS. in Maiden-lane, In the city of Ncrv-York, at an annual rent of 750 dollars, payable quarterly.

THIS was an action for false imprisonment, and was tried at the Otsego circuit, in 1814, before Mr. Justice Van Ness.

THIS was an action of ejectment, tried at the Orange cir-v 7 ° cuit, in 1813. The lessors of the plaintiff claimed, as heirs * of James Neely, deceased, four fifths of a farm formerly belonging to him.

<p>Where there is a trial of a cause before a justice,without a jury, the plaintilf may elect to become nonsuit, any time before it is finally submitted for the judgment of the court; but not after the-cause is under advisement, though before four days hare elapsed.</p>

l'N ERROR, on certiorari, from a justice’s court. The plaintiff in error, who was the defendant below, by attorney, pleaded a misnomer in abatement, upon which issue was joined, Dunn, the plaintiff below, then requested an adjournment, which L __7 »ii was granted until the 12th day of November, at two o clocic, _ n/r Jr* JAi* About three o’clock, or a little after, of the day to which the cause was adjourned, Mrs. Wilde appeared, with her attorney, and moved for a nonsuit,…

THE plaintiff had obtained a verdict at the Ulster circuit, in November, 1812, in this action, which was for debauching the plaintiff’s daughter; special bail had been put in.

<p>THIS was an action of trespass for the mesne profits of two undivided thirds of one undivided fourth of a farm, in Catskill, in the county of Greene. The cause was tried at the Greene circuit, in September, 1813, before the late Chief Justice. A judgment in ejectment, recovered by James Jackson, on the demise of the plaintiffs in this suit, by default, against John Stiles, for two undivided thirds of one undivided fourth of the above-mentioned premises, an habere facias possessionem issued thereon, and the sheriff’s return thereto, that he had caused'the plaintiff to have possession of his term, within mentioned, yet to come, &c., and a taxed bill of costs in the ejectment suit were produced, and, together with the annual value of the land, proved by the plaintiffs on the trial. One action of ejectment only had been brought on the demise of the plaintiffs, and on the service of the declaration therein, the present defendant appeared, and entered into the consent rule specially, that is, to defend as to three undivided fourth parts of one undivided third part of the premises in question; and on the trial to confess lease, entry, and ouster, &c. On the trial of the ejectment suit, the plaintiff recovered one third of one fourth of the premises, for the mesne profits of which a distinct action had been brought, and had judgment by default for the other two thirds of one fourth; to recover the mesne profits of which the present suit was brought. The defendant • proved that, previously to bringing the action of ejectment, the defendant told Langendyck, one of the plaintiffs, that he was willing to divide with him, and did not dispute his having a certain right in the premises; but what that precise right was, the witness could not recollect.</p> <p>A verdict was taken for the-, plaintiffs, subject to the opinion of the court, whether the present action was maintainable for the mesne profits of that part of the premises which was recovered by default. If it were not, a nonsuit was to be entered ; otherwise judgment was to be rendered for the plaintiffs.</p> <p>The case was submitted to the court without argument.</p>

THIS was an action for money had and received, brought to J recover money collected by the defendant, as attorney for the plaintiffs’ testator, in an action in which their testator was the plaintiff, against one Elijah Beardsley. The cause was tried at the Delaware circuit, in June, 1814, before Mr. Justice Spencer.

IN ERROR, from the court of common pleas of Orange county. This was an action of debt on a recognizance for ”fty dollars, taken before a justice of the peace, upon a plea of Pursuant to the 10th section of the twenty-five dollar act, brought by Brown against Fan Duzen, who was im pleaded with . 1 Reynolds. In the action before the justice, Brown was plaintiff and Reynolds defendant, and Fan Duzen entered into the recognisance as surety for Reynolds.

<p>ín deed’"!? inducement to, and matter of fact, the founda tion of the action, nil depleaded^ be</p> <p>thedeSlshtbe foundation of the action.</p> <p>In debt for an escape from the gaol liberties, nil debet is a good plea.</p> <p>in a popular action, the plaintiff cannot discharge the judgment as to the people’s moiety, without payment. And if, in such action, the defendant, having been taken in execution, is discharged by the plaintiff, withoutsatisfaetion, such discharge is no bar to an action for an c scape.</p>

THIS was an action of debt on a bond, dated December 3, 1811. The bond recited a sale and conveyance of certain lands by the defendant, Peter Burgott, to one Van Vliet, and a sale and conveyance of the same land by Van Vliet to the plaintiff by deed, bearing even date with the bond.

THIS was an action.against an attorney, for negligence, whereby the plaintiffs lost their debt. The declaration contained three counts: 1.

THIS was an action of covenant against the defendant, one Qf the attorneys of this court. v 1 he declaration stated that the defendant; on the 1 st of No* vember, 18113, executed a deed to the plaintiff, which deed was set forth, and in which it was recited, that the defendant, on the 22(1 of October, 1802, conveyed to one Timothy Green twenty ^ots ^and in i’-ie city of New-Yorlc; and that the said Green, ^or securinS' fo°r thousand dollars, part of the purchase money, to be…

<p>forjan"assault and false impvisonment, it is no justification that the plaintiff being engaged in an affray was tatody/untif he beforeajustice^ tiiat°ltheatdl f^dantwasan under a war-</p>

, . THIS was an action of assumpsit. Plea, the general issue It was originally commenced in the mayor’s court of the city °f New-York, in the vacation before February term, 1812, of that court; and was removed into this court by habeas corpus. cause was tried at the New-York sittings, in Aprils 1814, where a verdict was taken for the plaintiff, for 411 dollars and . , 1 7 76 cents, subject to the opinion of the court on the following C8.S6» ,r ^ On the 3d of August, 1807,…

THIS was an action on several promissory notes, for the delivery of gin or whiskey, at certain successive periods. The ° J r defendant pleaded the general issue* and gave notice therewith* that he should give in evidence his discharge under the insolvent act of 1811, setting it forth verbatim. The cause was tried at the Oneida circuit, in June, 1814, before Mr. Justice Vnn Ness y an ivess. It is unnecessary to state the evidence on the part of the plaintiff.

THIS was an action of covenant for the non-payment of rent reserved on a lease, in fee, of certain lands in the city of Hudson, from John Van Rensselaer, deceased, to Jacob Herder, deceased, dated the 18th of December, 1773. The cause was tried before the late Chief Justice, at the Columbia circuit, in October, 1813.

THIS was an action of trespass, de bonis asportatis. The defendant was collector of the customs for the district of Champlain, and the action was brought to recover damages for the seizure of certain dry goods specified in the declaration. The defendant pleaded, 1. Not guilty. 2.

THIS was an indictment for a forcible entry and detainer of a dwelling house, and other premises, in the town of Hamilton, in Madison county. The indictment alleged the complainant, Salisbury, to have been seised in fee, on the 19th of Marc, 1808, and to have so continued, until the defendant, on the 10th of December, 1811, forcibly entered and expelled him.

THIS was an action of dower, unde nihil, Sec. The defend- ’ ’ ant pleaded, * 1. jVe unques seisie. 2. That the demandant’s husband conveyed, in his lifetime, to one Broadhead, and that Broadhead, and the tenants, had made valuable improvements on the premises ; and that the ienants always have been, and still are, ready to set off to the demandant, one third of the tenements, according to their true value at the time of the death of the demandant’s husband.

THIS was an action of ejectment, brought to recover a piece ef land in lot No. 27. in the patent granted to Abraham Van Horne and others, and another piece of six acres adjoining, in lot No. 11. in the same patent, in the town of Minden. The cause was tried at the Montgomery circuit, in September, 1813, before Mr. Justice Yates.

THIS was an action of assumpsit on a special agreement to indemnify, and on the money counts. It was tried at the Chenango circuit, in June, 1814, before Mr. Justice Spencer. ° ’ . . . , The plaintiff had, on the 30th of July, 1812, joined with . . . J the delendants, as their surety, in a promissory note to U. van*. derlyn for 89 dollars and 53 cents, payable in three different instalments.

THIS wae an action of, debt, to recover the penalty given by the 25th section of the act regulating elections, (sess. 36. c. 41.) by which it is eiíacted “ that no officer, or other person, shall call out, dr order, any of the militia of this state to appear or exercise on any day, during any election to be held by virtue of this act, or within ten days previous thereto, except m eases of invasion or insurrection, in pain of forfeiting the sum -of five hundred dollars,” &c.…

THIS was an action of assumpsit, brought to recover da__ x . i _ mages for breach of an agreement for the purchase of land, The agreement was contained in certain terms, or conditions of sale at public auction, which had been subscribed by the defondant, and, subject to which, he had bid for and purchased the land in question.

IN ERROR, on certiorari, from a justice’s court. Van Volkenburgh sued Schermerhorn before the justice, and declared against him in trover, for leather and harness.

<p>An action cantaíneáe to*™omitted? Sby uMofánother ajudgmentwaa plaintiff” but not for the amount due to him.</p>

IN ERROR, on certiorari, from a justice’s court. The certiorari, in this case, stated the title of the cause to be Sha_ _ . „ - , - , draclc Drake ads. Gideon Dubois^ without naming him as guardian. The justice returned that there was no such cause before him as that mentioned in the certiorari ; but he returned the proceedings in a cause entitled as above ; and by which it appeared that C. Drake sued 5'. Drake, for use and occupation of the infant’s land.

IN ERROR, on certiorari, from a justice’s court. Eastenhroolc sued Coughnet, and others, before the justice, and declared uPon a Dote or agreement to pay him a certain sum per month, for his services as a soldier, &c. One of the defendants, 7 7 Coughnet, only was taken. The return was very short, and ° ’ / . , , . , .

IN ERROR, on certiorari, from a justice’s court. Rider brought an action of assumpsit, for money had and received to his use, against Delamater, who pleaded non assumpsit.

THIS was an action of trespass, quare clausum fregit, to which the defendant, besides the general issue, pleaded specially: 1. Freehold in the assignees of Joshua Mersereau, under the insolvent act of 1811, and license from them to cut timber. 2. Freehold in himself. 3. Freehold in Joshua Mersereau, and license from him to cut timber.

THESE were actions of ejectment, tried at the last Cayuga circuit, brought for the recovery of lot No. 2. in the township of Dry den, in the military tract. Verdicts were taken for the plamtiilj by consent, subject to the opinion of the court on the following case: One William Adams, a soldier in the first New. York regiment, in the revolutionary war, was entitled to, and drew, the lot in question.

THIS was an action of assumpsit upon three promissory notes, made by the defendants, who carried on the business of tanning, currying, and shoemaking, under the firm of Samuel Handy 8c Co. payable to the plaintiff, and was tried at the Ontario circuit, in 1814.

IN ERROR from the court of common pleas of Chenango county. This was an action of assumpsit, brought by the plaintiff, an attorney of this court, in the Chenango common pleas, to recover his costs for prosecuting two suits in the supreme court, in which the present defendant was plaintiff, as his attorney. The defendant pleaded non assumpsit, and gave notice of a set-off.

<p>THE defendants, who were now brought up on habeas corpus, were indicted at the general sessions of the peace, in the city of Nem-Yorlc, in August last, for treason against the state. The indictment and proceedings having been removed into this court, by certiorari, Colden moved that the prisoners should be discharged. He read the commitment and indictment, (a) and contended that there was no crime charged against this state; that,the* indictment did not even state any crime cognizable by the laws of the United States. But if the facts stated amounted to treason against the United States, it would not be a crime against this state. It might, perhaps, be said, that this was a case in which the courts of this state have a concurrent jurisdiction with those of the United States. If so, it would follow, either that the United States would be ousted of its jurisdiction, or that the party might be twice tried for the same offence ; for either the courts of this state have a right to try the defendants, in exclusion of the United States, or they must be liable to be twice put in jeopardy for the same offence. It is not denied, that there may be treason against this state, as in case of insurrection or rebellion against the particular laws of this state. The indictment here states, that the subjects of Great Britain became enemies of this state, in consequence of the war declared by the United States, and being enemies, &c. [He was here stopped by the court, who desired to hear the district attorney.]</p>

THIS cause came before this court, on appeal from the court of chancery.

THIS cause came before this court, oh a writ of error, from (he supreme court. For the facts in the case, and the judgment of the court below, see vol. 9. p. 61.

THIS cause was brought before this court on a writ of error from the supreme court. It was an action for a libel, and judgment was given in the court below, on a demurrer to the replication. For a statement of the pleadings, and the judgment of the court below, see vol. 10. p. 259, of these reports, and also the same case, on a demurrer to the plea, vol. 9. p. 314.