Volume 12 — Johnson's New York Reports

<p>THIS cause came before this court on a writ of error from the supreme court. It was one of five causes depending on the same facts and principles, and decided at the same.time, in that court. See Vischer v. Yates, (vol. xi. page 23.) for the „ . ' x J tacts and the judgment of the court below.</p>

DASH brought an action of assumpsit in the supreme court, as first endorsee of a bill of exchange, against Graves, as ibo endorser. The bill was drawn at New-York, the 18th of Jonuary, 1811, on Worrall 8c Williamson, at Liverpool in England, for 7871. 18s. 2d. sterling, payable sixty days after sight, and was duly protested for non-acceptance and non-payment. The cause was tried at the New-York sittings in November, 1813, before the Chief Justice.

THIS cause came before this court on a writ of error from the supreme court. For the facts and judgment of the court below, see S. C. Vol. 10. pp. 177—180.

THIS cause came before this court on a writ, of error from the supreme' court. For the facts in the case, and the judgment of the court below, see vol. 10. p. 304. . \ ■ The following was the form of the record and entry of iuda:- ...

<p>if a person ““eighteen”®6 not‘liabie’ to military duty, voluntarily enters the service, as a soldier, and being tory service, maybe lawful-I’dcserfer^and restfnvUiimWs Bot action6 t0</p>

THIS was an action of ejectment for lot No. T. in the town of Locke, in the county of Onondaga, and was tried before Mr. Justice Thompson, at íhé Cayuga circuit, in Tune, 1813. ' The lessors of the plaintiff gave in evidence the exemplification of a' patent, dated the 13th of June, IT91, to John Day, for the lot in question.

This was an action oS ejectment, for lot - number 26, in the township of Camillas, in the cógnty of Onondaga. The cause was tried before Mr. Justice Platt, at the Onondaga circuit, in June, 1814. The plaintiff gave in evidence letters-patent for the lot in question, dated the 13th September, 1790, to George Houseman, one of the lessors. . - .

THIS was an action of debt, brought by the plaintiff, on a bond, dated the 4th of September, 1843, given to him, as sheriff of Delaware county, by the defendant, for the gaol liberties, granted to Wigram, who was in custody, at the suit of St. John The cause was tried at the Delaware circuit, in June, 1814, before Mr- Justice Spencer. The; plaintiff proved the bond, and the escape of Wigram from the limits of the liberties of the gaol. . .. .. .

IN ERROR from the court of common pleas of Otsego county. Crafts brought an action of assumpsit against Pierce, in the court -below.- The declaration was on the counts, for money ienb money paid, and for money had and received to the use of the plaintiff The defendant pleaded wow assumpsit. • 4 •/ At the trial, in support of his declaration, the plaintiff offered in evidence two notes.

THIS; was an action of ejectment ■ for land in the town of Lumberland, in the county oí Sullivan, tried before Mr. Justice Yates, at the Sullivan circuit, in September, 181.4,. when a verdict was taken for the plaintiff, subject to- the opinion of thé court, on the following case: ' The plaintiff gave in evidence an act of the legislature, entitled “an act to authorize the treasurer of this state to pay to sundry persons the several, sums of money therein mentioned,” passed…

THIS was an action of assumpsit. The declaration contain- * ed3 beside the usual money counts, a special count for work and labour, and services done as agents of the defendants, Sec. The defendants pleaded, in abatement, another action brought by the plaintiffs against the defendants, pending in the court of the United States for the fifth circuit and Virginia district, upon the same promises and undertakings as are set forth,in the declaration in this suit.

THIS was an actioli of assumpsit, tried at the New-York sittings, in April last, before Mr. Justice Yates.

THIS was aa action on a policy of insurance, dated the fifth of December, 1810, upon the freight of the ship Hudson, at and from Riga to New-York. The policy was valued and underwritten for 7,000 dollars. The cause was tried at the last ■■ April sittings in New-York. The abandonment was duly made Ohthe 2Tst -August,'.

THIS was an action of assumpsit, brought to recoverback Part °f the premium paid.by the .plaintiff to the defendants,. on; two policiés.of insurance, on yessel.añd freight, dated the i 2th, August,. 1812. The voyage 'described in the policies was, Wat and from .Malta to St. Petersburgh, Avith liberty to- touch . , , ... . , • , *' . at Cagliari,1 Algiers,: Ttmgiers, and wingo Sound, and to seek, wait for, join and leave convoy at'any time during the voyage»’’.

THIS was a scire facias on a judgment, obtained in 1809» , , , , . ' . by the plaintiff, against the defendants, on a report of referees' in-the.'cause,, for 129 dollars.' and 17 cents» The defendants pleaded plene administravii. ■ At the last Ulster eireuit. a verdict w^s taken for the plaintiff,, subject to the opinion of the court, ?n.the &Ilowingcase r , A ... , '.'../.-y ■ The whole real estate of.

THIS was an .actioij , of debt. for 3,000 dollars, for certain penalties; The'declaration ■contained, -three counts.

<p>THIS was an action of covenant for a breach of the covenant °.f seisin in a'deed. The defendants, by their deed, November, 1807, conveyed to the plaintiff, in fee, a lot of land, in the town of 'Normich, in the county of Chenango.' The ? • . • - . ■ - • deed contained the usual full covenants of seism, power to sell,' 0 x . .. ccc. and warranty. - :</p> <p>' The title of the defendants tó the premises so conveyed, was'' claimed under the will of' their father, who died in July, 1804, soon aftef making ,his will, whicli was dated 21st July, 1804. tw° sons, the defendants, ánd four daughters. ■ The de--" vise to his sons Was as ftillóws.:" «, I give and bequeath ‘unto my ' . ■' ' . • . ' f two sons, 'David aña John, all land'T.máy die possessed of in t'ne town of Stanford, and county aforesaid; likewise all,land I may' die possessed of'.in the town of Norwich, countyof Chenango,' and state aforesaid?, The premises conveyed by the defendants were admitted’ to be part of the land included in this devise. ';</p> <p>The cause was noticed for trial at the Stíto/zess circuit, ¡rí • •, , ... . . f Í 814,' when'á .cape- Was agreed"tin,' containing the facts above stated., ' And it 'was, agreed, that if the court should be of opinion that the plaintiff was entitled to recover, a judgment should be entered, as upon a. verdict, for such sums as thexcourt". should awárd; but that if the court should -be of opiriioti that the plaintiff was not; entitled’to recover, then judgment should be entered for the defendant as upon* a verdict. : ' • -</p> <p>The'cáse Was submitted to'the court, without' argument.' ' ‘ °</p>

THIS was an action on a policy of insurance, on the ship Suffolk, Cartwright,, master,, from Belf ast to Lisbon^. and thence to New-York.

THIS was an action- of trover, for a' quantity of timber,, tried at the Essex circuit, .in June last, before his honour the Ghief Justice. : ^ The plaintiffs produced a-patent to. them for a lot of latid,' comprehending the premises on which ‘the timber was euty dated December 4v 1810, and Which passed the secretary’s office . , :• . ' , . , - • . ' 1 . , , ,. ,• the2Sth oFF)eccmber,l310. . ' . - .

THIS, was an action of/fs-sumpsíí against the drawer of a bill of exchánge.

IN error, on certiorari from the justices’ court of the city of New-York. Orr brought an action of assumpsit against Ogden, in the court below, for wages as a seaman, and also for a breach of the shipping articles, on a voyage from New-Orleans to Lisbon, and back to a port in the United, States. The plaintiff shipped on board the Paragon, at Nem-Orleans, on the 30th of April, 1813, at 35 dollars per month.

THIS was an action djb the pose. The declaration contained six counts.

<p>Parker moved to set aside the writ of inquiry, and all subse- ... quent proceedings, in' this cause.</p>

THIS was ah action tor a Mbel, originally commenced in the mayor’s court, of the city of New-York, where the. defendant was held to bail, according to the coiirse-and practice of that court, in'tjie sum of.5,000 dollars,.

THIS was an action of assumpsit, on an inland bill of exchange, for 500 dollars, against the defendants, as drawers, one of whom only had been taken. The declaration was filed the 23d August, 1814; and special bail put in the 3d of September.

THjS .cause had been referred, by consent'; and the report of the referees, with the account furnished by them as: containing the statement,on which their report was founded,, was submitted to the court, to strike out such-items as they should deem erroneous, and to confirm the report as to the residue, and to modify and amend it as they-should judge proper.

IN ERROR., from the court of common pleas of Dutchess county. Carman, as endorsee, brought an action, in the court below, against Herrick, as endorser of a promissory note, dated the 25th of February, 1811, made by John Ryan to Lawrence Carman Sr Co., or order, for 138 dollars and 38 cents, payable thirty days after date. A demand of payment of Ryan, on the 30th of March, 1811, and refusal, and notice ..* . tt - 7 J thereof to Herrick, was proved.

THIS was an action of assumpsit, brought against the de- . puty sheriff of the county of Sullivan, to recover certain money which had been levied by him under an execution issued by the plaintiff against one Burr.

IN ERROR, on certiorari, from a justice’s cou'rb VanderUp sued J. andvl. M‘Millan, by summons, before ayistice, in an action on the case.

THIS was an action of ejectment for a farm in Flushing, Queens County. The cause was tried at the circuit in Queais, before Mr. Justice Van Ness, the 15th June, 1814; and aver-diet was taken for the plaintiff, subject, to the opinion of the court, on a case, with liberty to either party to turn the same . . , , into a special verdict.

THIS was an action of debt, for the escape of Isaac Rath bun, from the gaol liberties of the county of Jefferson, of Which the defendant was sheriff.

THIS was an action of ejectment for a lot of land in New* v burgh, and was tried at the Orange circuit, in August, 1814= The premises were purchased by the lessors, at a sheriff’s sale, and the deed of the sheriff to them, dated the 1st of January, 1810, was produced, as well as the execution, under which the sale was made.

THIS was an action of trespass, quare clausum fregit, See. -in the town of Spafford, for cutting and carrying away hay and corn, &c. and for cutting and destroying apple trees, Sec. The defendant pleaded the general issue.

THIS was an action of ejectment, tried before Mr. Justice yates, at the Schoharie circuit, in 1813. The declaration contained separate demises to each of the four lessors ■: and at the trial, the plaintiff offered to show a title in each of the lessors to four separate lots in the subdivision of great lot No. 137.

IN ERROR, on certiorari, from a justice’s court. West brought a special action on the case, in the court below, against Palmer, and declared that he, West, about the 1st of October, 1813, - hired a certain mare of one James Latson, and that the mare . „ _ . . 1 . , ,, . ,, strayed from his possession, and came into the possesion or one Newby, and that while m his possession, Palmer claimed and took the said mare, as the property of some other person, and sold her, whereby…

IN ERROR, on certiorari, from a justice’s court, in the conn-' ^ Dutchess* Sarah Husted, the plaintiff below, sued Cook, and declared against him for. work, labour, and services per.-! f°rmed a negro girl, alleged to be her property. The defendant below, pleaded non-assumpsit.

<p>Where A., sigas a writ-lug, hy which win sell to b. atTcertáiT' Is'Tñitre pro-not‘a°conat?act.</p> <p>where the promise oí one consideration of the promise of the other, the promises current and botifparties,” t thirat?hetime.</p> <p>for theC°saíeaof ¡and, there isa ing, which ivas the vendee, the vendee is not bound, but ti,eycontract, bringTnTsitupntiecuSe6 a</p>

THIS was an action of ejectment, for a farm in Marbletown„ J ’ 5 m Ulster county, and was tried at the Ulster circuit, in Novemher, 1812, before Mr. Justice ran Ness. Held: according to the will. Hendrick Bush married one of the testator’s daugh- . e , _ - ters, and he and barret, the son of the testator, were m possession of the premises, being 200 acres of land, until Bush sold them,' in 1764, to James Van Wagenen.

IN ERROR on certiorari. Loretta Howard brought an action of assumpsit in the court below, against Stevens and Hoag, overseers of the poor of the town of Dover, and declared against them, on a promise to pay the plaintiff for the maintenance and support, by the plaintiff, of two bastard children, at the instance and request of the defendants.

THIS was an action of covenant. The declaration contain. ed four counts.

<p>THIS was an action of trespass on the case, tried at the Ulster circuit, in- September, 1813, before Mr, Justice Spencer.</p> <p>The plaintiffs gave in evidence, a deed from the trustees of the town of Rochester to Cornelius Hornbeck, dated 6th January, 1729, which recited the patent oí Rochester, the power of sale given thereby to the trustees, &c. and after a description of the ° J . „ • j i r i premises, the locus in quo and the habendum, it contained the following clause: “ Yielding and paying annually, every year, chief and quit rents, due for the said tract of land and premises, the sum of two shillings, current money, &c. Provided always, that the inhabitants of the said town of Rochester may have allowed sufficient roads and outways over the said tract of land, and to break, cut, and carry away wood and stone from any part of said land which shall not be in fence.”</p> <p>It was admitted that the trees cut by the defendant were on lots No. 10. and No. 11. of the tract of land, granted by the trustees of Rochester to Cornelius Hornbeck, and that the defendant was entitled to those lots by devise or descent. It was proved by a surveyor, that the tract of land originally claimed fey Cornelius Hornbeck, under the deed from the trustees of Rochester, would include about 50,000 acres; and, as since set-tied along the line of a deed to one Louw¡ who also claimed under the trustees of Rochester, about 30,000 acres.</p> <p>The defendant proved that he held his farm under Lorntfs deed. The defendant then gave, in evidence the patent of Rochester, dated the 25th June, 1703. It was admitted that there had been a regular succession of trustees, by election and com veyance, as mentioned in the patent, from that day to the present, and that the trustees for the time being, transferred the property to their successors by deed, reciting the patent, and under the same trusts, Sc. That the defendant, at the time of the alleged trespass, was, and had been for 11 years before, a freeholder and inhabitant within the patent of Rochester; that the wood cut was for the necessary firewood of the defendant and his family, and was used by him as such on his farm. The defendant also proved by the book of minutes, kept by the trustees of Rochester, that all the lands were to be granted, with a re-serration of a right to the freeholders and inhabitants of tie' town of Rochester, to cut and carry away wood on lands not enclosed: and it was admitted that the locus in quo was not enclosed, or in fence.</p> <p>A verdict was .taken, by consent, for the plaintiffs, for fen dollars, subject to the opinion of the court, on a case to be made: and it was agreed, that if the court should be of opinión that the plaintiffs were entitled to recover, the verdict should stand ; but if the court were of opinion that the defendant had made out a justification for cutting necessary firewood, the verdict was to be set aside, and a new trial granted, with costs to abide the event of the suit; or' if the court should be of opinion against the defendant, he should be at-liberty to turn the case into a special verdict.</p>

THIS was an action of ejectment, for a part of the south half of a lot, No. 28. in the town of Pompey, and was tried at the Onondaga circuit, before Mr. Justice Platt, in 1814. The plaintiff gave in evidence an exemplification of a bill - i filed m the court of chancery, by Asa Dan forth, one of the. lessors, in 1804, against* Murray, the father of the defendant, filien Beach and Bussell, and of their answers, and the decree of the court pf chancery in the cause.

IN-ERROR on certiorari. Green commenced a suit by war- ** rant, againt Abel, one of the defendants below, who was brought before the justice on the 21st March, 1813; and Abel, on seeing the plaintiff’s demand, which was a promissory note, acknowledged the same to be correct, to the amount of 16 dollars, and then paid the money to the other defendant, Lovet, who offered himself as security, (in order to obtain a stay of the execution against Abel,) and alleged that he was a…

IN ERROR on certiorari. Fox sued Sellick in the court , , ....... . below, and declared against him, on a promissory note, for 15 dollars and 30 cents, with interest; the defendant pleaded to the jurisdiction of the court, because the accounts between the partiés exceeded 200 dollars, but did not state the nature of ithe account, or claim any balance due him, and expressly fused to set off any account or demand against the plaintiff.

IN ERROR, on a bill of exceptions, from the court of com,inon pleas of the county of Otsego. This was an action of trespass, brought by Hudson against Hoyt. . The declaration contained several counts, both, in trespass de bonis asporiatis, J x and for an assault and battery of the plaintiff. The defendant i r pleaded not guilty.

THIS was an action of assumpsit, tried at théOntário circuit, before Mr. Justice Platt, in June, 1814. The declaration coptained two counts on a special agreement, and the usual money counts.

THIS was an action of ejectment, for land in Newburgh, in Orange county. The cause was tried at the Orange circuit, in August, 1313, before Mr. Justice Yates.

THIS was an action of debt, of a plea that the defendant renc*er t0 t^e plaintiff 1,000 dollars, which he owes to, and unjustly detains from him.

<p>A delay in trial, occasiontícebbcing 'eofAlíofanother wolf a'dleoí tinuaace-</p>

THIS case, involving the examination of long accounts, had been referred by order of the court under the statute. After the hearing before the referees, and after they had made their report, but before it was filed, the plaintiff intermarried with William Garvin; and the marriage was pleaded in abatement pu{s darrein continuance, x And the question as to the validity of this plea was submitted 1 to the court.

IN ERROR, on certiorari, from a justices court. Dobbin sued out of the justice’s court an attachment, under the 23d section of the twenty-five-dollar act, (1. R. L. 398.) against the goods and chattels of Handy; due proof having been given ^at he had absconded. The constable returned that he had attached two five-dollar bank bills of the goods of Handy*. The justice gave judgment for the plaintiff below.

IN ERROR, on certiorari. The plaintiffs below declared generally for goods sold, &c. and on a special contract, by which the defendants engaged to take, at a certain price, all the, herring which might be caught in the plaintiff’s net for the season; and from the evidence it appeared that the fish were to be delivered at the Fly or at the dock at Catskill; that the plaintiffs caught a quantity of fish at the Fly, and the defendants not being there to receive them, they were…

<p>where a right of way is granted, without any designation of the deed, it bebyTsage^forV</p> <p>And beingso noTaftéíwardá ««'grantor'>y</p> <p>edBUandcllaiife rantee has, >r a length of me, used the ew roacV, his-^quiescence j the alteraon will be resumed.</p> <p>The grantee f the right of; 'av must keep lie road in re-</p>

IN ERROR from the court of common pleas of Chenango county. Badger brought an action in the court below asainst m, ./vi , ° Betts.

THIS was an action of assumpsit¡ The declaration contained three counts : In the first count the plantiff stated that the defendants, of the first part, and the plaintiff of the other part, on the 26th of May, 2810, entered into articles of agreement, under the seal of the said corporation, and under the hand and seal of the said plaintiff ¡ and then proceeded to set forth the said articles of agreement; whereby the plaintiff covenanted, on or before the 1st of October,…

THIS vvas an action on the case; against the defendant, as a ° ' common carrier, and was tried at the Alhamí circuit, in April, J *■- Iol4, before Mr. Justice Spencet. The defendant resided'at Utica, and pursued the business of forwarding merchandise and produce from Utica to Schenectady, tinA Albany.

<p>THIS was an action of assault and false imprisonment, Sec. tried before the Chief Justice, at the Albany circuit, in October, 1814. It appeared from the evidence given at the trial, that in the month of August, 1813, the defendant was commander of &e arm7 of the United States, at Burlington, when the plaintiff, a private citizen, was arrested and tried by a court martial. 1 " ■ ' , v The plaintiff came to the deiendant to make some communication relative to foe enemy; and foe defendant said the communication was false, and ordered foe plaintiff to be taken to foe guard house, and said he would have him tried.. The plaintiff wa? confined from Tuesday until Sunday ; and lay on the floor of &e guard house, without any bed, but was allowed to procure his 0Wn'Pr°visions, and the rations of a soldier, and was permitted to speak to others, in foe presence of foe officer, but not to leave foe guard house, The witness stated that the plaintiff was “ a back and forth trader, and of a respectable character.” The defendant declared to foe witness, that he should have been justified to have hanged foe plaintiff immediately at the halberts, but would have him tried by a court martial; that the defendant afterwards declared, foot foe plain tiffwas not in a worse situation than he ought to be, that he could convict him, and that he should convicted, if possible, and hanged; for he was guilty of treason, and had been in company with two British officers, and hae| given information to foe enemy.</p> <p>The witness stated, that two British officers had come into the house where he and the plaintiff were, atAlsburgh, about a mile from the Canada line, at the time the British army were coming to Plattsburgh. Another witness stated that he believed that the communication made by the plaintiff to the defendant was true; that at the time of the court martial, the defendant appeared much prejudiced against the plaintiff, and it was understood that there had been some personal difference between them..</p> <p>It was stated by a witness, that the defendant was a man of liberal education, and that his yearly income was above sixty thousand dollars.</p> <p>The jury found a verdict for the plaintiff for nine thousund dollars damages. .</p> <p>A motion was made to set aside the verdict, and for a new trial, on the ground of excessive damages.</p>

THIS was an action of slander, and was tried at the Ilerldmer Circuit, the 30th of May, 1814, before Mr. Justice Van Ness. The words charged were, “ you (the plaintiff) are a thief; you, (the plaintiff) are a damned , _ , The words proved at the trial to have been spoken by the defendant were : “ You (the plaintiff) are a thief, you stole hoop poles and saw logs from off Delancefs and Judge Myers’ » lana.

THIS was an action of ejectment, brought to recover lot No. 12, in Bairds patent, in the town of Cambridge, and tried before the chief justice, at the Washington circuit, 1814.

THIS was an action of ejectment, and was tried at the Greene circuit, in August, 1814, before Mr. Justice Van Ness. The plaintiff claimed the premises in question, being about an acre of land, situate in the town of Coxsackie, under a . . . . , . , , _ z_ judgment in partition, rendered in the common pleas oí Greene county, in January term, 1812, under the act of 1801, (Sess. 24. c. 176,) between the plaintiff’s lessor, and Wilhelmus and Bichard R. Van Der Bergh.

<p>Where a hnsjarate,dw'ítlig atonanbemgV1" maintenance61, the husband is liable for necessaries fur-suitable w Lis condition in life.</p> <p>Whether thecirmnstance'6 ha^a separate estate of nerate the busvMing1'for her Mdhow far’it 2fect?aQuire!</p>

THIS was an action of ejectment for lands in the town of Saugerties, in the county of Ulster',, and1 was tried before Mr,: Justice Van Ness, at the Ulster circuit, in .September, 1814. The premises in question were within the bounds of the pa-Kingston.

i SLOSSON,. for the plaintiilfe, moved for leave to amend the-bail-piece filed in this, causé, by striking- oüt the words, “ Trespass on the cáse,” and inserting, in their place, the Word debt. The writ and declaration were in debt, and: special bail was put in, in June, 1813. Judgment was obtained in January term, 1-814, on Which a ca.' sa. was issued, and returned nonest inventus.

IN ERROR, from the Court of Common Pleas of Jefferson county. Shaw brought an action of assault and battery, and false imprisonment, against Smith, in the court below. The defendant pleaded not guilty, with notice of special justification, to be given in evidence on the trial.

<p>IN ERROR, on a bill of exceptions, to the court of common , - „ ■ pleas of Orange County.</p> <p>Bearnard, the plaintiff below, brought an action of assumpaSainst Raymond and others, the defendants below, who were in trade, carrying on business under the firm of Raymond Sr Barney, for the non-delivery of twelve barrels of «• ’ J m . whiskey, sold by them to Beárnard. The declaration contained. ^ three Counts.</p> <p>The first count stated, that on the Tth of September, 1813, the. plaintiff at the special instance and request of the defendants, bargained with the defendants for, and the defendants sold to the plaintiff, a large quantity,'to wit, twelve barrels of whiskey, at the rate of twenty-two dollars a barrel, to be delivered to the • J 7 plaintiff at the store of the defendants, within a reasonable time. . . , , and the residue of the money that might be due therefor, to be paid on the delivery of the whiskey; and that in consideration thereof, and that the plaintiff at the like special instance and request, had paid to them one hundred dollars, part °^- consideration money, and had promised to receive the whiskey, and pay the residue of the money due for the same, they, the defendants, undertook to deliver the same:. and that although the plaintiff within a reasonable time to wit, within the time of ten weeks thereafter, at the store of the defendants, did demand the delivery of the whiskey, and was then and there ready and willing to pay the of the money, and offered so to do, and hath always ready to receive and pay for the same; yet, that the defendants, not regarding, &c.</p> <p>liie second count stated the sale of the whiskey, as' in the first count, to be delivered when the plaintiff could coijveniently procure teams for the transportation thereof, which the plaintiff stated to be, when the farmers would be done ploughingt though the plaintiff when the farmers were done ploughing, as soon as he could conveniently procure teams for the transportation of the whiskey, to wit, on the tenth day of November, in the year aforesaid, at the store of the defend- . .1-1 .1 J o J ants, did demand, &c. ■</p> <p>The third count was for money had and received.</p> <p>The defendants pleaded the general issue : and it xvas proved by two witnesses for the plaintiff, at the trial, that at the time the whiskey was sold, to wit, the 7th of September, it was agreed that the plaintiff should call for it, at the store of the defendants, within one month; but that the plaintiff as was stated by one of the witnesses, objecting to the titiie, the defendants consented to. enlarge it to five or six days, to which the plaintiff said that he "would take it away if he could; and that the plaintiff then advanced one hundred dollars in part payment; the other witness "stated, that the agreement was to pay the residue of the money, and take away the whiskey, within one month, or thereabouts. It was further proved, that about three months thereafter, as one witness said, or on the 10th of November, as the other stated, the plaintiff came to the store of the defendants, and demanded the delivery of the whiskey, and tendered the residue of the purchase money ; but that the defendants refused to deliver it, alleging that the plaintiff had violated his contract by not calling in time, and that they had sold the whiskey, and thereupon tendered, and offered to pay, the plaintiff the sum of one hundred dollars.</p> <p>Upon this evidence, the counsel for the defendants contended, that the plaintiff was entitled to recover, neither on the special counts, nor on the count for money had and received ; but the court charged the jury, that, although the contract was not proved as laid, yet the plaintiff was entitled to recover the one hundred dollars, under the money count; and the jury found a verdict accordingly.</p> <p>A bill of exceptions was tendered by the defendants’ counsel,, to the opinion of the court below, which was now submitted to this court without argument.</p>

THIS was an action of assumpsit,’tried before his honour the late Chief Justice, at the sittings in New-York, the 12th of Rfovem- , 1.010 ' Oer, 18 Id. ■ Bowen Sr Robins, partners in trade, in' New-York, for the PurP0Se of. securing certain debts,, on the 4th of March, 1811, a£si£ned to the defendant two policies of insurance, d.ated on. the 1 st of. September, 1810, made by the New-York Insurance • Company, on vessel and cargo.

IN ERROR, on certiorari, from a justice’s court. The defendants in error sued the overseers of the poor of Flushing by a summons, in common form, against-both of them, (viz. Samuel II. Van Wyck and Daniel Bloodgood,) in a plea of debt for 25 dollars. The summons was returned personally served upon both the defendants; and on the return ^ r ■ day they both appeared.

THIS was a special action on the case for negligence in the transportation of goods. The declaration contained two counts.

<p>l(judgment, on demurrer, given acutoror^dministrator, plaintiff, he must pay costs.</p>

IN ERROR, on certiorari, to a justice’s court. Michael Jackson, son of the plaintiff in error, gave his promissory note to Samuel Edson, or order, which was endorsed by Edson to WilHam Rayner, plaintiff below. -r-. , , , _ , , , .

THE defendant was indicted at the General Sessions of the Peace> for the city and county of New-York, under the act (sess. 36. c. 29. 13. 1. R. L. 410.) for obtaining goods by false pretences. ...

IN ERROR, on certiorari, to a justice s court. , , . . Williams brought an action against M-GaJxay, m the court below, for the board and lodging of M‘Gahay’s wife. The cause was tried before a jury.

<p>Where, on mmmmfn<beserved bywpy, the defendant does not appear, the tice may a warrant.</p> <p>In an action of debt on a fiflce’s conrq *arynto “lioiv son,Vr justice^ the°rfud@nent was obtained, was a magis.trate, or that he had not been superseded at the time the judgment was rendered. And if the record of the judgment is proved by the testimony of the justice, not on oath, without any objection being made at the time, it is sufficient.</p>

IN ERROR, on certiorari to a justice’s court, Hoofut sued Woodin before the justice, and declared upon a, promissory note, dated 2d July, 1811,for 19 dollars, 7 5 cents, with interesl;i Upon t6e trial, the defendant, admitted the making of the note, but alleged it was not for a good consideration. The ° . ° justice, in his return, stated, that a part only of the testimony was taken down-in writing and returned.

IN ERROR* on certiorari to a justice’s court. The certiorari, in this case, was brought to reverse a judgment of nonsuit. The return did not set forth what, the evidence before the justice was; but- merely that- after the plaintiff had closed the testimony on his part, and before the defendants had entered upon their defence, the plaintiff was nonsuited.

THIS was an action of traver, tried at the Nciv-York sittings, ^e^°re ^r* ^ust*ce ^'an Ness,, the 5th April last. The plaintiffs produced in evidence the following receipt of (he defendants: “Received in store, Albany, 18th May, 1311, from on board the sloop Diana, John Gager, one box, and one °f dry goods, marked M. Gillót, subject to the order of i 1 . _ „ . Messrs. Caimas & Lord, New-York. B. & J. R. Bleecker.

<p>THIS was an action on a promissory note made by the áefendant, payable to one David Forsaith, sixty days after date, for i,000 dollars, dated May 24th, 1812, and endorsed by For« sa&h to ^e plaintiffs. The defendant pleaded the general issue, with notice of his discharge under the insolvent act, passed J^pril 8d, 1811, and of other special matter. 7 r</p> <p>n -n ♦ o r>7 The defendant wás a paffcner of the house of race <§* Bush9 who were indebted to the plaintiffs in the sum of six thousand dollars, on five promissory notes, drawn by Rice Bush, payable to David Forsaith, and by him endorsed to the plaintiffsi Forsaith had conveyed lands to the plaintiffs, as security for the payment of the notes, but those lands were not sufficient for the. payment of them. The plaintiffs resided at Boston, in Massachusetts.</p> <p>David Forsaith, being a.t New-York in April, 1812, had some conversation with the defendant about his 'obtaining his discharge, in which the defendant stated that Forsaith might have it in his power to prevent his discharge, as he had not made a fair exhibit. On being asked what property he had omitted, he replied, that he did not know what it would amount to, until he had it collected together. Forsaith attended before the recorder, and opposed the defendant’s discharge; and the defendant, to procure Forsaith to withdraw his opposition, agreed to give the plaintiffs a note for 1,000 dollars, on which Forsaith wrote a few lines to the recorder, the purport of which was, to withdraw his opposition. Forsaith consented to endorse the note without receiving any security from the defendant. The note, although dated on the 24th of May, was, in fact, made on the 22d of April, and a memorandum of the day upon which it was executed was endorsed upon it. Forsaith received the note, and delivered it to the plaintiff's immediately on his return to Boston, before it became payable, but did not communicate the manner in which it had been obtained; and at the time of passing the same there was no understanding that he should not be liable as the endorser."</p> <p>The defendant was discharged by the recorder of New-York, on the 1st of May, 1812, under the act.</p>

IN ERROR, from the court of common pleas of Orange County. Wheeler brought - an action of assumpsit against Van Houten, in the court below, and the defendant pleaded the , . . . » i _ i « v - general issue.

d'HIS wás an action of- trespass, and false imprisonment, in which the question presented for the consideration of the court, was, whether the plaintiff was the slave of the defendant ? it does not áppear from the case that any trial had ever been, had, and it was submitted to the court without argument; ' Joseph Concklin, was the owner of a negro slave, named Maria, and her daughter Gloe.

THIS was an action of assumpsit for fees; disbursements, arid services, by the plaintiffs, as attornies for the defendant, administrator of Jacobus Elmendorf, deceased. Plea, non-assumpsit.

THIS .was an action for another bill of costs by the plaintiff, as attorney, in a Second suit against Philip Becker, on the same mote mentioned in the preceding case; in which, at the trial, the maker of the note proved that it had been paid ; and a verdiet was found for the defendant.

THIS Was an action of ejectment brought to recover a paré an unimproved lot of land, situate in the town of Cincinnatusf *n t;^e county of Courtlandt; the cause being at issue, the following case was agreed to by the parties, and submitted to the court, ivithout argument.

'IN ERROR, qn a bill of exceptions to the court tif common pleas of Sullivan county.

ERROR, on certiorari, from the justices’ court in the city of New-York. * e The plaintiff below, (Ifenshaw,) an American citizen, on the 7 16th of bebruary.^ 1813, signed shipping articlés, in the usua!r form, as chief mate of the American brig Criterion, owned by the defendants below, on a voyáge from New-York to a port or Ports in France, and back to a port in the United States.

THIS was an action of debt on a bill obligatory, or sealed note, and was tried before Mr. Justice Yates, at the Orange circuit, in August, 1814.

SKINNER was about to read an affidavit, in support of a motion in this cause, when Walworth objected, that the affi- - davit had been taken before the attorney for the plaintiff, who was a commissioner for taking affidavits, to be read in this court. He cited the rule of the court of K. B., in England, and -3 Term Rep. 403. King v. Wallace. .

IN this case, on á writ of error; the judgment of the court below had been.reversed in part, and affirmed in part, and the only question was as to the costs.

<p>The ssd sectibn ?ei¡ef Tn S¿lsel (i Cl'a °«5. d!recttogCl«i¡8'> he first pa w by the assignees, agSthe a°of tfé ^st0ltontsuitsni1 dit°oUrlhtbefo?r* a?SISnm?nt'</p>

THIS was an action of assumpsit, for goods sold and delivered. The defendant pleaded non assumpsit, with notice of a set-off» The goods were sold to the defendant in May, or June, 1814, tothe amount of 553 dollars and 92 cents».

IN ERROR, on certiorari to a justice's court. This was an action of trover for a noté of about five dollars. , * drawn by one Linsey, payable to Monger, the plaintiff below,dated in the year 181Z. The defendant pleaded not guilty ;■ and, upon the trial, it appeared that a note, of the description set out in the declaration, had been delivered to one- John E„ Canfield, to receive the amount of the drawer, and, when paid, to credit and endorse the amount on a note which John…

IN ERROR, on certiorari to a justice’s court. Monger & Adams, the plaintiffs below, declared against Canfield, in trover, for a note drawn by Benjamin WilHams, payable to the plaintiffs, on which there was due about 18 dollars ; also a count for money had and received, and also ■for goods sold.

IN ERROR, on certiorari to a justice’s court. Vickery, the plaintiff below, brought an action of trespass against JtfiCarty for cutting and taking away some wood.

THIS was an action of assumpsit-. The declaration contained three counts. The first count was for money paid, &c. goods sold, &c. by the plaintiffs’ testator, to the defendants’ testatrix, in their lifetime, respectively, and the promises alleged to have been made by the defendants’ testatrix to the plaintiffs’ testator. The second count was for work and labour, and the promise laid in the same manner as in the first count.

IN the first of these causes, a judgment was obtained on a bond, with a penalty of 750 dollars, conditioned to pay 375 dollars: and in the second, on a bond, with a penalty ior 800 1 3 7 1 ^ dollars, conditioned to pay 400 dollars.

IN ERROR, on certiorari to a justice’s court. The defendant in error, a physician, brought an action in , , 1 v the court below for medicine and attendance furnished a pauper*, . A A agamst the plaintiffs in error, overseers of the poor. An order been given by two justices, to the overseers of the poor, to fu™ish the pauper with necessaries, and, also, with medical aid, ff requisite, to be administered by Dr. Malcom.

THIS was an action of debt, on a single bill. The defendant pleaded, 1. JR on est fccctum; 2. Payment at the day ; 3. Payment after the day. The conclusion of these pleas was to the country, and the defendant added the similiter to each, and - / .. . . ’ these issues the jury round a verdict for the plaintiff. ,. » The defendant moved in arrest of judgment, on the ground that the two last pleas, of solvit ad diem, and solvit post diem, required replications.

THIS was an application for a new trial, on the ground of t rr 7 o newly-discovered evidence. It appeared, from the affidavits vead, that the action was brought to recover the possession of lot No. 71, in the township of Virgil, in the military tract,, so called. The lessors of the plaintiff claimed as heirs at law of Cornelius Brackett, whom, they alleged, was the soldier to whom the letters patent were issued.

THIS was an action of ejectment, brought to recover the . t* i tvt • n i . ° possession ot lot No. 11. m Solon, in the county of Cortlandt. * _ v At the trial, before Mr. Justice Spencer, at the Cortlandt circuit. in 1814, the plaintiff gave in evidence the original patent to John Thomas, dated July 9, 1790; also, a written instrument dated the 5th of September, 1789, without seal, from John Thomas, by which, “ in consideration of a valuable sum received,” &c. he sold,…

^ ERROR, on certiorari to a justice’s court, The defendant below, after issue joined, pleaded puis darrein continuance, that the justice ought not to try the cause, because he had given his opinion in the cause, and verified his plea by affidavit of himself and another person; to this plea there was a demurrer and joinder, and it was agreed between the parties, that, in case the justice should decide in favour of the plaintiffs below, on the demurrer, he should give judgment…

<p>°^.ofda laud was leased j," ^ij/e’/reser! íém, and gram! 1c“foae«ao°u1tabi)f maeno¡%od&c.ftia mises, with com* out of any'part the woodland of A ; and at* terwards rievi* c Vü “u.e tí-Mt,“tiío®s on devitor!1*enter! p^tiuon. “"‘in menL^mw d|andouiéri’¿ So?“ with® ¡8* by^Bumté-’ surrender!6 or E’FTa’ke16666®' p/opersie(°rf ”he neiue"se”t,and Septefi! ro’/tiííní Sse,6by I c hew,' thatvas v^won^nThe ttoPm!¡,”r, the acceptance of new leases did-' not operate as a of the burutot-tbeíe!¿ sees, having aci 'cptc? neB leases jrozn the íSncTórtSagreement, aré-' lease of the old was to he presumed ? end was thereby estopped frdm all claim under the lease to him ; nnd that/ for these reasons, the-right-granted to-B:, to take Mioyczs from the otheriauds of A., was gone.</p>

THIS was an action of assumpsit on a special agreement to carry salt from Salina to Olean, and for money had and receiv_ J . . ed; an inquest was taken by default at the Onondaga circuit, and a verdict for the plaintiffs for 57 dollars and 44 cents, to the opinion of the court on the following case : The plaintiffs produced, and proved a receipt, signed by the defendant, for six barrels of salt, received of the plaintiffs at Salina, to be carried to Olean, at 5 dollars and…

THIS was an action of ejectment, for lands in Chazey, lying within the bounds of lot No. 70., in Dean’s patent. The plaintiff produced the letters patent to Elkanah Dean, and others, issued by the colonial government of the province of Nero-York, dated the 11th of July, 1769, and made put a regular title, under that patent, to lot No. 70.

THIS’ was an action of waste, brought by the plaintiff by hrs guardian.

<p>THIS was an action on a bond for the liberties of the jail of the county of Onondaga, by the plaintiff, assignee, &c. against the defendant, surety on the bond, for one Archelaus Graves. ?.z ^ ^he f°U°wing case was agreed to by the parties, and submitted court without argument.</p> <p>I» August term, 1812, a judgment for 36 dollars and 3 3 cents, of costs in the supreme court, was obtained against Graves, in an action in which he was plaintiff, and the now plaintiff, defendant, In the same term., the then defendant issued a ca. sa. on the judgment, returnable the next October term, to the sheriff of Onon~ daga, on which Graves was arrested on the 2d of September, ° J *■ * 7 and a bond given for the jail liberties, by Graves and the defend? ant, Rust. Graves was not, at the time of his arrest, or during his imprisonment, a freeholder. At the expiration of thirty days from the time of his commitment, Graves departed from the jail liberties, with the knowledge and consent of the deputy sheriff, and never returned. If the court should be of opinion that the plaintiff was not entitled to recover, it was agreed that judgment of nonsuit should be entered.</p>

.THIS was an action of covenant. The declaration stated, that on the 24th of September, 1803, articles of agreement were made and sealed by the parties, by which the defendant cove- ^ 1 v v i 'i i ■. nanted. that the defendant, and one Cyrus Clark, should submit a certain- controversy, between them and the - plaintiff, concerniDg the nondulfilment of an agreement, before that time made, .between the defendant and Cyrus.

THIS was an action for assumpsit, to recover the amount of a check on the hank of Albany:, for 200 dollars. - A few days before, the election of ..governor, .on.the last Tuesday of April, 1813, the plaintiff and defendant deposited with J. Alexander, their respective checks on the bank, for 200 dollars each, dated the 24th of Aprils and payable on the 1st of June then next, to abide the determination of - a wager- On the election; .the terms of which, as stated by the…

I-Ñ ERROR,, bn Certiorari to a justice’s Court, A summons. was. issued in the Court below* at the request of 'Cone, as attorney for Olney, the plaintiff below. The constable wjj0 served the summons informed the justice* at the time of the . . s . v. . return, that the cause would be discontinued, which j,he justice noted upon the back of the summons.

<p>THIS was an action of assumpsit, for money paid, money lent, and money had and received, &c. by the intestate, in his lifetime, as sheriff, &c. The defendant pleaded non assmipsit, with notice of set-off, &c. The cause was tried at the Saratoga circuit, on the 25th of May, 1813. The plaintiff gave in evidence a judgment against one Lajusse, in favour of James Fellows, who assigned it to the plaintiff, who causéela fi.fa. tobe issued thereon, directed to the intestate, then sheriff of the county, who returned the same with the" following endorsement: “ By virtue of the within execution, ihavc received of the defendant, and caused.to be made of his goods and chattels, in all; the sum of fifty-two dollars and three cents ; twenty-three dollars and thirty-seven and a half cents of which I have paid over to Maria Nobles, for five and a half months’ rent due, and costs, demanded by her attorney; six dollars and forty cents of which, has been recovered of me by S. Drake and Samuel Haight, on account of the sale of the property of the defendant ;■ and the residue of the said sum of fifty-two dollars and three cents, deducting therefrom two dollars and forty-nine cents, for my fees, I have caused to be tendered to the plaintiff’’s attorney, and have ready in court,” &c, A verdict was taken for the plaintiff for fifty-two dollars and three cents, "subject to the opinion- of the court on a ease as above stated.</p>

IN ERROR, on certiorari to a justice’s court. After the iury, in the court below, had retired, they sent and J J 1 . ’ ’ J ?-ecIuested *e&ve examine Briggs ^ one of the witnesses.

THIS was an action of assumpsit brought to recover com.pensation for the use of a certain vessel or schooner, called the Gold Hunter, formerly belonging to the plaintiff. The cause ■was tried at the Jefferson circuit, in June,- 1813, before Mr; , - Justice Spencer. . . The defendant was, in the summer and autumn of 1813, a 7 v«, deputy-quarter-master general, in the service of the United States.

THIS was an action of ejectment for a lot of land in West-1 7 • - 7 jnoreland, in Uneida county. * The lessors of the plaintiff were the children and heirs at law * of John Herrick, who died seised of the premises in question ; and by his last will and testament, dated the 17th October, 1811, after devising to his nine children, by name, five sons and four daughters, goods, &c. to the amount of 15 dollars each, devised as follows : “ I give, &c. to my wife, Mary Bates, after…

IN ERROR, on certiorari to a justice’s court. I ms was an action oi trover, brought by Nuncaster, in the court below, against the plaintiff in error, for bank notes, to the amount of 22 dollars.

THIS was an action of assumpsit. The declaration contain-fed three counts.

IN ERROR, on certiorari to a justice’s court. This was an action of covenant, brought by Spickerman & Stever against the defendant below. The defendant prayed oyer, which was refused by the justice, who told him that he had no right to see the covenant until it was produced on the trial. The defendant then pleaded the general issue, and, after . • i i r • a an adiournment, the cause was tried before a mry.

THIS was an action of trover, for a fishing net, tried at the Columbia circuit, in 1814, before Mr. Justice Van Ness. , , . , , On the 6th of July, 1814, and long previous, the net was the «77 ° 1 _ _ property of Garret Claw, against whom a writ of iieri facias i l J ’ o j j issued the 7th of July, 1814, on a-judgment against him, in fa-your of John P. Beeknian.

I'N ERROR, on certiorari to a justice’s court.. This was: an action of trespass, brought ^by the plaintiff m error against the defendant in error, for entering the-plaintiff’s •, ° t i i M x house. The- defendant pleaded not guilty; and, on the trial» r 0 J 7 7 5 ^6 plaintiff proved, that, he being m bed, (whether, in the day time or at night is not stated,) the defendant entered his. house without permission.

THIS was an action- on a promissory mote-, payable to the plaintiff, or bearer, on demand, for 464 dollars and 69 cents,dated the 10th of February,. 1813, and executed by Camp, and one Downing, his partner, against whom process had been issued jointly with Camp, but who was not taken. The cause-was tried before- Mr. Justice Spencer, at the Oneida circuit, in-June-, 1815.

THIS was an action of trespass, for taking and carrying away. a yoke of oxen,, belonging to the plaintiff. Gn tile l2tb/of March,. .I'8í4, Williarri.

THIS was an alternative mandamus to the supervisors of the county of Albany, directing them to audit and allow the relator, a constable of the city of Albany, his account for removing certain paupers from the-city oí Albany to the adjoining towns, or to show cause, &e. The defendants returned, that at their annual meeting at the capítol, in the city of Albany, on the 1st Tuesday of October, 1814, the relator presented them an account for the removal of several paupers from…

IN ERROR, on certiorari to a justice’s court. • A summons was issued, at the suit of Meigs, against Stewart, and returnable at the house of Clark Lawrence, inn-keeper, on 1 , - ,i «7 .«.ii-ir a the 26th ox April, 1813, at nine o’clock m the forenoon.

IN ERROR, on certiorari to a justice’s court, ' After the cause had been adjourned on the application of the u 11 plaintiff in error, thé defendant below: the defendant, at the adjourned day, by his attorney, offered to swear that he still wanted material witnesses, and to give security, but did not 0®cr ■ to prove that he had taken any measures to obtain the witnesses. The justice refused a second adjournment, and the defendant’s attorney withdrew.

THIS xvas an actio'n of ejectment, to recover 25 acres of land „ _ , . 111 ot N°* 24., part of bcnba/s patent, in Oneida county, and a'lso ^ acres of land adjoining, called the Gore. Held: as administrator of his father, uncancelled, and that he was disappointed in not receiving the money instead of the deed.

IK ERROR, on certiorari to a justice’s- court. • Money, the defendant below, was sued by warrant j and, when brought before the justice, he inquired whether the plaintiff had made the oath required upon issuing a warrant, accord-, ing to the statute. The justice - answered, that he had not, but that he was satisfied that the plaintiff was a non-resident, without any oath of that fact; The defendant then moved for a nonsuit for that cause, which was overruled.

<p>THIS was an action of assumpsit, on a promissory note, brought by the plaintiff as endorsee,, against the defendant as endorser, tried at the Jefferson circuit in June last, before Mr. T . ^ Justice operi'Cer,</p> <p>p - - ti ~ 1 he note was lor 255 dollars, drawn by one Johnson, at Off- ' ^ ° densburgh, August 12, 1814, payable to the defendant, or bearer, the 1st day of December (then) next. The defendant endorsed the note in the following words: “I order the contents of the within note to be paid to Daniel Griffin. Nathan Goff.”</p> <p>A witness for the plaintiff testified, that, on the 1st of Decém*. her, 1814, he went to.Champlin, where Johnson, the maker of the note, resided, to demand payment; that the maker was not at-home, and could not be found, and no person was there to pay the note. On the third day thereafter, the witness, went to the house of the defendant, at Ogdensburgh, in'Si. Laurence county, for .the purpose of giving him notice of the nonpayment of the nóte’; but the defendant was riot at home ; and he gave notice to" a person who' was there, who said he was' the clerk of the defendant,, ef the. -non-payment of" -the noté, arid that the plaintiff would look to: the ¡defendant for. payment of it ; and- the clerk promised to inform the defendant, accordingly, as soon as. he returned- home. It appeared that, a short time before the trial,, the defendant being asked -whether he had any defence to the suit, said, “he knew of no defence,” On this evidence, a verdict was taken for the plaintiff, subject to the Opinion of the court, on a. ease containing the above facts, and which was submitted to the court without argument. . ,</p>

IN ERROR, on certiorari to a justice’s court. This was an action of assumpsit, brought by King, the plaintiff below, against Pabodie, the defendant below. The grounc¡ Dfthe plaintiff’s claim was, that he and one Perry were indebted, by their joint promissory note, to Pabodie, for 100 bushels of wheat.

THIS was an action of ejectment, for land, in Peter sburgh, . i . —. _ . Y « t i tried at the Rensselaer circuit, m June last. T The plaintiff gave in evidence a deed, dated 31st January, 1805, from Abraham Ten Broeck to Abel Russell, for the farm, of which the premises in question are part, and that Russell took possession under that deed, and continued in possession until June, 1811.

<p>.After, pie» too late’to take advantage .of a fiance between the detiierwri° and</p> <p>sued against a!¡-7romnuÍe tbu accrued.ac" attorneyvfinding was on a part-against A.^and ciáration gainst of the ’day which the wit was returnable, ¡íxyearaShadepleaded t^tidá. declaration nonassumpsit, and, rouastton“!efhia commencement* AvandB.withia bis years.</p>

A VERDICT was taken for the plaintiff in this cause, at the _ ... i. i . . r , Orange circuit, in 1814, subject to the opinion or the court on a case to be made. No case having been made by the plaintiff, ■ . ‘ , according to the rules and practice of the court, on an affidavit of the above facts, and of a. service of a notice on the plaintiff’s attorney, that the defendant would move for judgment at this term; - Fisk now moved that judgment be entered for the defendant.

IN ERROR, on certiorari to a justice’s court. - This was an action of trespass, brought in the court below by Hees against Shepherd, for damage done by the defendant’s hogs in the plaintiff’s cornfield. The plaintiff proved that the defendant’s hogs repeatedly came into his cornfield, through a partition fence, which divided their farms, and destroyed his corn.

IN ERROR, oil certiorari to- a justice’s court., The defendants below were sued by warrant in trespass, for . 4.. ‘ , , ■ . r - , t cutting timber: the'constable retUrtfea to ¿he warrant', matines 0_', ' ■, p * » e aanae Ms sérvéd agreeable to law; but only brought Bichardg befdre the'^ j'.tísficé,! no reason appearing why the other defendant. was not brought.

ÍN ERROR, on certiorari to a justice’s court. The defendant in error brought an action of assumpsit, in the Court below, against the plaintiffs in error. At the trial, the plaintiff below proved a sale by him to the defendants, of a parcel of boards, for which they agreed to pay him 34 dollars. The justice gave judgment for the plaintiff for 25 dollars, and costs.

THIS was an action of assumpsit, for money had and receiv- £ 7 J e(^’ ^LC-> to Recover hack the consideration money) and interest Pa^ by the plaintiff, for thirty-three lots of land. Plea non as-sump sit.

THIS was an action of assumpsit, for work and labour, tried before Mr. Justice Spencer, at the Jefferson, circuit, in June i . ; JlaSt* The defendant was quarter-master general of the army of the United States, which arrived at French'Mills; in the county of-Franklin, about the 20th of November, 1813.

IN ERROR, on certiorari to a justice’s court. 7 J The plaintiff in error brought an action for goods sold and delivered, in the court below, against the defendant in error. The defendant pleaded the general issue, and gave notice of set-off. It appeared, on the trial, that, in the fall of 1810, the plaintiff agreed to purchase of the defendan two acres of land, at 45 dollars per acre; and, towards payment, to let the defendant have a cow, valued at 16 dollars.

. THIS was an,action Gíéjiectmeniíor lot Hot 93, iff the town»' */.■■■■ ■ ' . # . . , ship of Gcsio, formerly Brutus.^. tided' at the, Cayuga' circuit,., in last, before'Mr. Justice .

IN ERROR, on certiorari to a justice’s court. THE plaintiff in error brought an action of trespass on the case, -in the court below, against the defendant in error, for fraud, in the sale of a horse. The defendant-pleaded not guilty, and the cause was tried by a jury : there was considerable evidence'on bóth sides, as to the fraud, and the jury found a verdict for- the • -ii defendant.

THESE were actions of .assault and battery, .andfalse imprison? tnent, tried at the Onondaga circuit,. in- June .last, before Sir.

<p>*> MUM®()anoved" for' a Pule 'to show/cause why an attaelimení:should not issue .against Mitchill^for á publication in a gazette, of which he was the editor,, reflecting on Bronson, .for bringing a certaiu rsuit, in-which hé was plaintiff, and which was pending in this court. ■ '■ '</p> <p>, The affidavits, on which the motion was founded, were entitled, f‘ In the matter of Isaac Bronson ánd Caldwell Mitchill ;n and Cloirden objected; that the affidavits'not being properly entitled, in the smEpending here, ought' not to be- read*' He cited Folger v. Hoogland, (5 Johns. Rep. 235.,) in which the court said’, that until the nttechin'ent was.granted, the affidavits ought tofbe entitled in the. original or civil suit ; but after the attachment, the proceedings must be in the name of the people. This was the practice of the court -of B. '-in England, as. settled in the case of Wood v. Webb, (3 Term. Rep. 253.,) where the contrary practice l'a-id’ down in The King v. The Sheriff of Middlesex, (3 Term Rep. 133.,)’was explained and overruled.*</p>

IN ERROR, on certiorari to a justice’s court. Thayer sued Vosburgh, in the court below, for butcher’s meat furnished by him to Vosburgh and. his family. It was proved, by several witnesses, that he had been in the daily practice of supplying thpm with meat during the period for which he claimed payment. It was proved, by some of those who had dealt with him, that he kept just and honest accounts.

<p>IN 'ERROR, oñ,certiorari to .a''justice’s court of the-city of ' • _• , ! ‘ ' ' J ■" " Jy.ezo ■ X OVKi ..</p>

<p>"IN ERROR, on certiorari to a justice’s court.:</p>

<p>THESE were actions of ejectment, to recover a farm in the town of Laudlake, in the county of Rensselaer. The evidence . ' J i r . was taken out of court, ana a case settled by consent of the . y ' 'parties* ’ 4 ’</p> <p>- Abraham Frear was the source of the title,’both of the plaintiffs and defendants, and held under a lease in fee, fróm Stephen Van Rensselaer, dated September 22d, 1790. On, the 13th of September, 1800, by an instrument, endorsed on the lease, Abraham Frear, and wife, assigned the premises to James Morrison, in fee, and the point on which the causes turned, was, that this assignment had been obtained by fraud. .The plaintiffs’ lessor claimed through Morrison, under a sale, by virtue of an execution. ■ In 1802, Abraham Frear devised the premises to his son, John Frear; and, afterwards, in 1804, conveyed part of the same to the defendant,1 Ferguson.</p> <p>■ Pownal Hitchcock, the principal witness to prove the fraud, testified, . that he wrote the assignment on the lease, at the request of Samuel Frear,. a son of Abraham Frear, and at Samuel' Frear’s house. After it was written, Samuel Frear called his father out of another room, who appeared reluctant to execute it. The only persons present were Samuel Frear, and his wife, Abraham. Frear., and his wife, and James Morrison. Abraham Frear asked what the writing was; whereupon the witness proposed to read it, but Samuel Frear told him not to do so, for that the old man would not understand it, and he did not wish him to. Abraham Frear. asked Samuel, whether it would not hurt him ; to which he replied, that it was only a bargain or agreement, between him (Samuel) and Morrison, and could not hurt him. .Abraham said to his son, that he did! not like to sign it; and that he was not fit to sign any paper. After some conversation between Abraham and Samuel, the former, with his wife, executed the assignment. '</p> <p>Abraham Frear was an illiterate man, not being able either to Read or write. The execution of the assignment was proved by Hitchcock,, before Leti Rumsey, • a judge of the Common Pleas of Rensselaer county, and also a justice of. the peace.- ■ It appears that, for the purpose of procuring the attendance of Hitch-' .cock before the judge, to prove the execution of the assignment,a fictitious suit had'been instituted' between two' persons, - of the name of Bole and Tanner, in; whichhe was subpoenaed as a witness. Hitchcock testified, that when he appeared before the jus- . -tice, he- informed him that bis'.evidence, "was’, wanted respecting' a bet. -'When Hitcñcocít'was sworn-,. th'e justice- asked: him .if he saw Jlhmham Frtar. and wife, sign the .assignment, and if he Hid. it. voluntarily; .to both of whiclj questions, he answered, yes ;, an.d: when - abbuf to mention the - circumstances attending the ' transaction,, the justice interrupted -Min; and there' the trial before the justice ■ ended; It ,appears that, upon the evidence thus taken before -him, the justice;.' as judge of thevCommon. Pleas, luadehis certificate of proof of the execution ;ó.£ -the 'assighmeht,which was dated the 25th of December, 1813. ; The witness,; 'on. .his cross-- éx'añ'iina:tio.n,..said;,. that' the conversation between Satnucl Freqr and his father,! Was -held in Bictch,.. which'language ' lie did not understand. On being asked how he understood 'that the .did ..man Was reluctant to sign the assignment,.;.he .Said;, that he understood’it by ‘his mdtibhs,-- Samuel;Ffe.ctr .talked in-Butch to the old niah, and pointed to the assignment, and the- old man shook his head, and said naenby which he understood him to mdan, that he did .not like to sign it. The witness said, that he did not -mean tp'sáy that'hé heard .old Mr. -Frear say that-he was -not-fit -to" sign any. paper; find: that at a circuit court held at Troy-, 'several years since,, in an action between Morj-ison and Ferguson, respéc-tirig the preriii-sés, he testified, substantially the "same as- he had now done./ The-trial last mentioned by the ■Witness, was, as appeared from the testimony of Abraham Fan Vtclilm, held in 18-08-,'who also confirmed what the ether witness feaid, that -the' testimony, -of Hitchcock 'was .substantially the ■ same"on this as on- the former-occasion.</p> <p>v There Was apnass-of evidence detailed Ih the cáse,;whieh-tit .is Unnecessary to '-set''for th,. as all the material parts are referred -to, and stated in. -the ópiniomof the court.' ; . ■ , "</p>

THIS was ■an action for a libel published in a newspaper, called the Albany Argus, on the 39th óf August, 1814. The. defendant suffered judgment by default, and the plaintiff’s damages were assessed at six cents. The defendant now moved in arrest of judgment, The declaration stated that the plaintiff was an ensign commanding a company of riflemen, called the Albany Greens, in the regiment of riflemen commanded by Colonel Lockwood.

THIS was an 'action of traver, tried at fire Rensselaer circuit, , ' - . ' ‘ ‘ . m Jime. 1815. before Mr. Justice PlátU Thé declaration ' . I , „ > , ' contained two counts.

TfilS was an --action of ejectment, for part of lot No., 72, in..

<p>a replication n$ de injuria, &c. is gep in the pica cuse,^ and ^ not gal^™t.as</p> <p>bolS,tTa%mtatis, ¿Sn*! &=• to thaSlethe5tgoocis forfeited”11 the and were con-district court, is</p>

<p>THIS was an appeal from the court of chancery. The respondent filed his bill in the court below, against the appellant, and Comfort Sands, and' Amie J. Barbarme, to set aside a conveyance by Comfort Sands, to the appellant, of a ropewalk and premises, in Brooklyn, purchased by the respondent at a sheriff’s sale, on an execution against Comfort Sands, on the ground of fraud. Barbarme was made defendant, as tenant for years, in possession of the premises. The bill was taken, pro confessa, against Comfort Sands, for want of answer; and as to Barbarme, the cause stood on the bill and answer. The first answer of Robert Sands was excepted to, as insufficient, and he put in a second answer, which also being excepted to, he put in a third answer, to which the respondent replied, and the cause being at issue, witnesses were examined on the part of the respondent; but no. witness was produced or examined., on the part of the appellant, in support of his title,</p> <p>The cause was regularly set ’down for a hearing at Augurf term, 1814, when the defendants all made default, .no person appearing in behalf of either of them. . Upon which the following decree was pronounced by the/cbancellor- •;</p> <p>“ This cajüse. coming on to be heard bn the pleadings and proofs therein, o's against the defendant,'Robert 'S.andsi and .on the bill taken,pro confessa, against the defendant) Cóñifprt Sands, and Upon bill arid answer,.ns:between the.-c.oriiplainant and.the defendant, Amie' J. Bartbarine, and the matter,being opened by Mr. Riggs, on behalf of tlie, complainant, (no. person appearing on the part of the defendants,- or either,of therri,) "and- it satisfactorily. appearing to the court, th-at d.ue noticb'of.the hearing had been- given to the .solicitors ..of the defendants .respectively : whereupon, it , is ordered, adjudged,, and decreed1,. and bis honour1 the chancellor., by virtue .of the -ipower and authority of this court, doth- 'accordingly: order, adjudge;- -and decree,, that the'deed of conveyance, frpnf the' ■ defendant-,. Comfort Sands^to-the defendant, Robert Sdnd-s: in the pleadings -mentioned, and. therein; described, as. bearing date the 21st -day of February,in the year of our Lord one thousand eight hundred and.-seven, for certain.real estate and premises,. si-tuate .at ^rao/ch/n,_in,'^'wg’^coiuity, in-this state, having.'beért made to delaya-nd, .defraud the bona Jide creditors of the said Comfort Sands., -is void .as/against ■the . complainant. in- -this- cause,, and, the same is. accordingly set-aside, tis against the complainant, who became ,entitled to the .jireipisés-.it$..theisay$- Meed- described, .as a.puychásjer-ftigredf, ,under: the sale and conveyance, 'made to him by .the-, sheriff of King’s: county,, as in the pleadings .ipentippeaf)-fj?on), -.die-.ti|ne!-;,qi file sale and conveyance by the said sheriff,:{and is .now entitled •thereto,,, and to, the rents, thereof, from, the defendant,.-.Amie /» • Banbarfnej). bearing date the, I,@tb day of Marc¡i,.ia theyeaKO.n.e ..thousand eight hundred and -eleven, and mentioned in his answer Ih this.jG8u§e,.,-.and’ whiph...shallj-bereafter aperaei/and become .payable, under the said lease,, by the ..said -Aníie. J. B.drb'arine, who is to be considered-as a.,tenant, of the complainant,, Patrick tS; Hildrethi during the- residue, of the term for. years,, in- the - said lease contained, at the rent,.there-in[a,nd, ,thereby reserved; ..an.d-.tihe said A.mieArBarbarine :is -to atfo'rn .to '^¿...coippMfiSht, , and pay. h-im the said rent accordingly,, as. Well what, is iti, arrear, . a», .w-háit. shall ¡hereafter accrue upon the . sáid leasp ; but that the covenant-in the go-id leelse contained, on the part of the .defendant, Robert Sands, to pay for all. the tools and implements in the rope walk, on the said premises, as in the said lease contained, is not' obligatory upon the complainant as owner of the said premises by purchase. And it is further ordered,. adjudged, and decreed, that the complainant pay. to the defendant, Amie J. Barbarme, his costs, to be taxed. And it is further ordered, adjudged, and decreed, that the defendants, Robert Sands and Comfort Sands, shall pay to the complainant.jus costs of this suit, to be taxed, including the costs to be paid by the. complainant to Amie J. Barbarme, as before directed ; and that the complainant have execution thereof, according to; law, and the course of the court. " And it appearing to the court, by the answer of the said defendant, Amie J. Barbarme, that the rent of the Said premises, under the said lease, from the said' Robert Sands to him, and payable to- the complainant, as standing in the place of 'the said Robert Sands, the lessor, is 465 dollars 10 cents per annum, payable in quarterly payments, being 116 dollars 27 1-2 cents for each' quarter, and that the said rent, for two yeárs and six months, ending the 1st day of August, in the year one thousand eight hundred and fourteen, is in arrear and unpaid, amounting to .1,162 dollars and 75 cents. It is further ordered, that if the same is not paid within ten days, the complainant have execution for the same against the said Amie J. Barbarme,, according to law; and that the complainant have execution for the said quarterly payments of rent, subsequent to the said 1st day of Augitsi,- as the same shall become payable, unless the said Amie J .Barbarme shall attorn to the complainant, and become his tenant under the said lease.” -</p>

THIS was an appeal from-a decretal order of the court of chancery.

<p>' THIS was- an appeal from an order of the court of chancery, The bill in the -co.urt below,' was filed in 1802, in the name of _ * ' v . r Ezekiel Travis, lor a specific periormance ot an agreement tor the sale, of land,-and for ,an account agriinsi Thomas Waters, the. The bill stated a verbal agreement, and that the defendant took-possession pf the land, under-it,..and made .seve-» Tal payments.; that .the respondent had., since .commenced an action of ejectment -to recover thp possession of the premises, abd had obtained á verdict at law. . The cause having been put at-.issue,..and:.the evidence respecting. the 'payments feeing contochctory,- a feigned issue was awarded by the court or chan-eery, to ascertain the lacis as to certain payments alleged to. have been made; and on -the- trial .of the issue at law, a verdict • ' ... , • , 1 ••• . WáS found for-the pbitóff. ■</p> <p>;Qn the 27th of Qotobér, 18Q8, the court of chancery decreed a conveyance, iri fee„of part of the premises, to. be -executed by the. respondent, and directed, the1 master to takean account of the record -remitted, to the . court of ■:-ehancéry.,/in order, that the quantity of land to be- conveyed, and of. the payments, and to the balance, if any, due to the respondent, on the payment of which* he was to execute llie conveyance ;, arid that the question of cos.ts.be reserved until the coming in of the .master’s-report. 1 The respondent, appealed from that..decree to'this * , - x .. XL ro i . tí court, in- 1812, and the decree was affirmed, with'costs, and the 5 7 ■ ; ' , < e -decree of this court should be carried into execution, (a) •</p> <p>■: Ezekiel Travis j the\ complainant, died, the 13th of August, 1812; and on the'„¿4th of August,-the appellants; who., are his heirs, and, devisees, .and. two of them his executors, filed their ' ‘ ' ’ bill of revivor and supplemental bill, which having been ordered to be taken pro confessa, the court of Chancery, on the 23d of January, 1813, on the hearing of the appellants only, ordered the cause tti stand revived; and the master, as- before directed by the order of October, 1808, was ordered to take an account, and that on the payment of the balance, if any, the'respondent should execute a conveyance; that the appellants might sue out execution for the costs decreed in favour of Ezekiel Travis, by this ctiurt; and that all further directions be reserved until the coming in of the master’s report. The master made his report, which was filed the 17th of May, 1813, and the usual order entered for its confirmation, unless cause shown to the contrary in eight days. -</p> <p>This order having become absolute, the appellants, without having the cause set down for hearing, obtained an order of the chancellor, entered the 3ist of May, ordering the respondent, under the directions of one of the masters of the court, on the payment or tender, by the appellants, of 13 dollars 'and 24 cents, the balance found'due by the report, and the interest thereon, from the 1st of April, to execute and deliver to the appellants a good ami sufficient deed for the parcel of land mentioned in the report, according to the decree of the court of chancery, of the 23d of January, 1813. - This decree being silent as to costs, the cause was set down for a hearing as to the matter of Costs, in September, 1813; and the chancellor, on the 8th oi' October following, decreed the payment of costs' by the respondent, including as well the costs of the original, as of the-present suit, the costs Of defending ¡the ejectment suit at law. and of the feigned issue. ’ '</p> <p>On the. petition of the respondent, the present1 chancellor ordered a rehearing on the subject of costs, and after hearing the Counsel of the parties, on the 6th" of July last, was pleased to order and decree, “ that the decree of the 8th of ■October, 1813, be reversed and annulled, and that the defendant (present respondent) is not, and shall not be, liable to pay to’the complainants the costs in the said decree mentioned, or any part thereof, but that the defendant go quit-thereof, &c.; the complainants being left to bear their own costs, ¡and the costs of the former complainant, whose representative they are;’’ from this decree the complainants below appealed to this court. ‘</p> <p>The ChAmcellor gavé .the reasons -for Hs order.(a)</p>

<p>THIS cause came up from the supreme court on a writ of error. For the facts in the case, and the judgment of the court below., see S. C. ante p. 128-139.</p> <p>case in the supreme court. . 6 Platt, J., assigned the reasons for the "judgment of the court ^ 7 ° v ° DeloW) which were the same as those stated in the report of the</p>

THIS was an appeal from an order of the court of chancery. On the 18th of September, 1812, the respondent, William Lawrence, filed his bill in the court of chancery, for the sale of cer5 > e - • 7 . tain mortgaged premises, situate in Newburgh, in Orange county, which had been mortgaged to him, the 1st oí August, 1810, by the respondent, William W. Sackett, to secure the payment of 3,500 dollars, with interest.

<p>THIS was,an' appeal from the court of chancery. The'respondents filed tlieir bill, in the court below,- 'against the appef-' 1 ’ . •, ° , ' : rr 'anb and the others, above named, stating that Louisa, Ann, one-G^- the respondents, is the- daughter of James Arden, by Eliza •drden, his wife, now deceased. That during her last illness; and in contemplation of approaching' death, the said Eliza requested, her husband,, James Arden,- to-unite,, with'her in-making.a suitable ahd permanent provision for their daughters ; ■ to which request he. acceded, assuring his dying, wife, fhart the contemplated arrangement for such provision should, never be thereafter disturbed by him. In pursuance and execution of . . . ... ‘ .. ^ this arrangement, as. it respected tbe $aid ■ Louisa Ann,, dames Arden and his wife, before the intermarriage of the respondents, by a deed, duly executed, bearing date the 25th of A'ovtmber, 1805, for the consideration of their natural love and affection towards the said Louisa Ann, and for the'further consideration of one dollar,, paid to them by Be Witt Clinton and Richard B. Arden, parties of the second part, bargained, sold, and eon-' veye.d, to the said Be Witt Clinton and Richard B. Arden, their heirs .and assigns for ever,, in joint tenancy, a certain lot of--i , ‘ i i ' i v i • *y-v '• y • • ground, messuage* and dwelling house, in Greefmich*str-eeU m , . , ^ °_r *7 T ° t , , * . . ' the city of At ew -York, to.nave audio hold the same, &c.,,upon thé trust and confidénce.thát the said Louisa Ann should stand ,. , • ‘ ' s, ■ i . • seisec' °f We lot and premises, for and during her natural life; Gn<^ upon the further trust and confidence, that, in case the said Loyisd Ann should die, leaving lawful issue, Wat. then the said trustees should Stand seised of the premises, in trust, for the benefit of such child or children, of the body of the said Louisa 4tfh lawfully to be begotten, in fee simple; and-, for want of such child or children, then in trust for the. benefit of all and every the perspn and pepsons, their heirs and for such child or children, then in trust for the. benefit of all and as would be entitled to the same by the laws of . the state, In case the said James Arden had died intestate, and that deed had never been made. That the deed was, at, or shortly after; its execution, delivered, by the grantors, into the ‘hands of Louisa Ann, the cestuy que trust therein named. That the premises conveyed were worth 25,000 dollars. That after the "execution and delivery of the deed, and before intermarriage of the respondents, the said Eliza Arden died, to wit, on the 4th of August, 1806. That the deed, from the time of its delivery until the death of her mother, and a considerable time afterwards, remained in the possession of the respondent, Louisa Ann; but, some time in the year 1807, and before the intermarriage of the respondents," James Arden requested the respondent, Louisa Ann, to place the deed under his charge, assigning as a reason, that she had no place convenient for 'keeping it, and that it would be more secure in his custody. That she,. Louisa, accordingly, delivered the deed to him, for safe keeping only, and without any intention of relinquishing or impairing her estate or right under the same. That on various occasions, before, as well as after, the delivery of the" deed to him, :he, James Arden, represented and declared that the premises belonged to Louisa Ann, and fully recognised her estate and title thereto, by virtue of the said deed. That, afterwards, and before the intermarriage of the respondents, James Arden intermarried with his present wife, and the respondent, Louisa Ann, being apprehensive respecting the said deed, urged him to have it deposited in the custody of some other person ; and he, accordingly, on the 8th of. January, 1809, deposited it the possession oiJDe Witt Clinton, one, of the trustees, with whom it still remained. On the 11th of December, 1809, the respondents intermarried, and have a child born, and still living. The respondent, Robert Sterry, when the marriage took place, understood and believed that the said Louisa Ann had a beneficial interest in the trust premises, according to' the conveyance. That the said James Arden fraudulently executed a deed of conveyance of the said trust premises, to the appellant, Philip Verplank, a relation, who, knowing the interest of the respondents in the premises, fraudulently accepted such deed, and claimed to hold the premises by virtue thereof; they, the said James Arden and Philip Verplank, thereby intending to defraud the respondents, and,'defeat the said deed in trust for the said Louisa Ann, and the estate -thereby created. . That the pretended deed to Verplanlc was dated the 11th of December, 1809, and. expressed tp.be in consideration of,.a large .sum of money paid by him to the said J'ames Arden ; but that, in fact, the deed was not executed tin that, but on, some subsequent day, and fraudulently-dated anterior to its -actual. delivery ; and that if, in fact,, it was executed on the 11th of December, 1809, it was ;so executed and accepted at an hotir subsequent to, and with full knowledge of the intermarriage of the respóm dents ; and'that the consideration mentioned in the deed to Verplank, «tas never truly paid or ^secured by him to the .said James Arden, from the proper funds of the said Verplanlc. The. bill prayed that the right of the respondents to the premises in question might, be established; by a decree of the court of chancery, and that the defendants below, of such of them as it might concern, might account with the respondents for the- rents and profits'of the premises, and pay over the,same to them, and that they might be let into possession of the premises; and that the same might be decreed to be conveyed to them, or, in some effectual way, secured for their' benefit; and for such furthet and.other relief, &c. ,</p> <p>The defendants below answered, separately,</p> <p>The. appellant, -Verplanlc, in his .answer, stated, that before the,execution of the deed of James Arden, and his wife, to him, he-hqd heard that the said James Arden had made stirne provi-sion for his daughters, out of property situated in Greenwich-street, but who informed -him- he could not recollect, and was .wholly ignorant of the circumstances, attending such -provision, or the manner in which such settlement was made; but that at the time the deed- from the said j. Avien,.to him,, wag-executed, he had no knowledge, or notice, that the premises conyeyed to him had been previously, conveyed to the trustees, on .the trust, as stated in the bill of the,respondents; that he became the purchaser of the premises, of the said J ames Arden,; for thq stim, tif, 16,0.0.0 dollars, and that, on qr about the 11th,of December, 1809, received the deed, 'which was ■set forth verbatim,- in big answer, from - Arden and his present wife ;, that, for, several months prior to.the execution and delivery of the deed to him? for the premises -in question; he was in treaty with Arden fqrfhe purchase thereof, and the terms of purchase were partly agreed qn, qt leást,onq month prior to the said 11th -of December, 18Q9; 'and that at the time of the execution of the said deed to him, he had no knowledge, to the best of his recollection, of the intermarriage of the respondents; that he could not recollect tlm precise day on which the deed to him was executed, but is positive that it was executed between the 11th and 14th days of Decemberj that he actually paid the whole consideration mentioned in the said deed; and has, since the execution thereof, ■received the rents and profits of the premises in question, to his own, exclusive use. That he married the niece of the said James Arelen.; and he insisted that the prior deed, a conveyance in trust, for the said Louisa Ann, was voluntary, and void, by •virtue of the act, entitled, “ an act for the prevention of frauds and he denied all collusion and fraud.</p> <p>James Arden, in his answer, stated, that on the 25th of JV*ovember, 1805, he was seised in fee, of the premises in question ; that he., and his then wife, Eliza, now deceased, being about that time minded to make some provision for their daughter, Louisa Ann, and her children, if she should have any, executed the deed mentioned, about, or shortly after, the time it bears date, in the presence of two witnesses ; and that he believed that he and his wife may have used the formal words'of delivery of the deed s. that, after it was executed, it remained in his possession and power, from thenceforth, until, or about, the 9th of January, 1809/ when his1 daughter, Louisa Ann, having expressed some apprehension that the deed, in case of his death, might be lost or destroyed, he placed the same in the hands of De Witt Clinton, for her benefit, stating to him, at'the time of so depositing the deed, in the presence of his present wife, and his said daughter, Louisa Ann, and her sister, that it was to be understood that the income of the property should come to him during his life, ■ and that if Louisa Ann married without his consent or approbation, that then the said deed should not operate:, or that he made use of words to that effect. That the respondents, afterwards,' intermarMed, but Without his knowledge, consent, or approbation. That the yearly value of the premises was from 1,300 to 1,500 dollars, which he had received since the date of the said deed of trust, until the sale and conveyance of the premises to Verplank* That considering himself, in consequence of the said Louisa Anna's marriage, without his consent, as'the absolute owner of the premises, he did, on or about the 11th of December, 1809, sell and convey the premises to the appellant, Verp(ank. ior the consider ration of 16,000 dollars» That the deed to Verplank was ease*. outed' on some day between "the 11th and 14th' of December j 1809, but on which day he did not recollect; but it was after the intermarriage of the respondents.. "</p> <p>The answer :of DeJV.itt Clinton, was substantially the same as that of .James Arden, in regard to the deposite of the deed of. trust, and the verbal declarations of Ai'den, at the time ; but. though the daughter acquiesced, in her, father’s receiving the rents during his life, yet that she' did: not acquiesce in the decía-' ration, that the deed should not operate, in case she married without his consent. ,</p> <p>Richard D. Arden, the other appellant, also put in his answer ; but knew nothing éf-the transaction relative to the deed,, or its contents, except from a copy shown to him by James Arden.'</p> <p>The material parts of the. evidence contained in the depositions of the witnesses, are sufficiently stafjéd by the judges in delivering their opinions,, ' . . ></p> <p>The cause having been brought to a hearing in the court below,, the chancellor,- on the 3d of October, 1814, decreed, that the deed of conveyance .igemJames Arden, and Eliza bis wife,. to De Witt Clinton A-lid Richard DV Arden, was duly executed and delivered omfhe 25th of December, 1805,. so as to pass the estate and interest in the premises therein described, to the said De Witt Qlinion ánd Richard D. Arden, and to vest the same, in thcni/to the uses, and. upon the trusts therein mentioned; and that the said deed of conveyance was valid and effectual in lajwaccordingly. And.that, as it satisfactorily appeared to the ytfourt; that Robert : Sterry, and Louisa Ann, had intermarried before the execution of the deed of the same premises to. Philip ■Verplank, of the .11th oí December, 1809; and that the said Verplank, at'the timé he accepted the said deed, last mentioned, had notice of the said intermarriage ;.and also had notice of the said deed of conveyance to the said Do Witt Clinton and Richard D. Arden; it was further decreed, that the said deed from the, said James Arden and wife, to the said Philip Verplank, is void, as against the said De Witt Clinton and Richard D„ Ardent AS trustees, &c.; and that the same be set aside accordingly, as against the said parties. And the said Verp'lank was further', ordered to bring the Said deed of conveyance to him-, into court, áñd deposite the same with the:registéi^ tq abide the further order of the court; and that any of the parties, as to that matter, have leave to apply to the court for further directions.</p> <p>It was further decreed, that Sterry and his wife,. in right of the wife, be let into the immediate possession of the premises, and into the perception of the rents and profits thereof, in arrear, and thereafter to accrue, and become payable; or that the said D.e Witt Clinton and Richard D. Arden be let into possession, as trustees, &c.; and in case they, or the survivor of them, should take possession of the premises, they, or the survivor, should' take the rents and profits" in arrear, and thereafter to accrue, in trust for, and pay over the same, from time to time, to the said Robert Sterry, and Louisa Ann, his wife, in right of his wife, during their joint lives, and to the said Louisa Ann, during her life, in case she should survive her said husband ; or that the-said De Witt Clinton and Richard D. Arden, or the survivor of them, should permit the said Robert' Sterry, and Louisa Ann, his wife, in right of the said Louisa Ann, to take the said rents and profits during their joint lives; and the said Louisa Ann to take the same during her life, in case she survived her husband; and that after the death of the said Louisa Ann, the rents and profits should be received and applied according to the uses and trusts, in the deedof trust, before mentioned, limited, and declared and that the trustees, or the survivor of them, and any other person claiming interest therein, under the said deed, be at liberty to apply to the court for its further directions in that behalf. And it was further decreed, that the said De Witt Clinton and Richard D. Arden should, within twenty days after notice of the said decree, -cause the said deed to be acknowledged or proved, and registered according to law, for the greater safety Of the title, See. And further, that the said Robert Sterry, and Louisa Ann, his wife, during their joint lives, and the said Louisa Ann, after the death of her said husband, if she survived him, should be at liberty to use the names of the said trustees, or the survivor of them, and to use the said deed, for the purpose of prosecuting at. law, if necessary, to obtain the possession of the premises, or to recover. the rents and profits^ &c. And further, that the said Philip Verplank account with the said Robert Sterry,- and Louisa Ann, his wife, for the rents and.profits of the premises, from the 11th oí December, 1809, and that it be referred to one of the masters, to take the account accordingly; and that, in taking the account, the master charge the said Philip VerpldnU with the rents of the premises received, which might, without wilful default, have «been received for the saíneand that the-master make just allowances to the said Philip Verplank, for taxes and repairs; and that ’ he report thereon to the court, &.c,; and that the question of costs', and all further directions, be reserved Until the said report come in. ‘. ;•</p> <p>From this decree, as far as his rights were affected by it, the said Philip Verplank entered his appeal to this .court. : ! ;</p> <p>The Chancellor gave the reasons for his decree.(a)-</p>