Volume 12 — Wendell's New York Reports

<p>This was a motion for judgment for the frivolousness of a demurrer to the plaintiff’s declaration, the commencement of which was thus: “ J. T. S., the plaintiff in this suit by. R. L. his attorney, complains of G. M. F. and A. C. D. defendants, in custody, &c. according to the statute, of a plea of trespass on the case on promises, for that whereas,” &c. The defendants demurred and assigned several special causes ; the substance of which is, that the plaintiff has not stated in his declaration that the suit was commenced by filing a declaration and entering a rule to plead according to the statute, but has alleged that the defendants are in custody, &c.</p>

<p>This was an action for a libel, tried at the Albany circuit in September, 1831, before the Hon. James Vanderpoel, one of the circuit judges.</p> <p>The declaration contained several counts. The third count stated, by way of inducement, that it was generally reported, suspected and believed, that a conspiracy had been formed by certain wicked and evil disposed persons, being members of the fraternity of free-masons, to kidnap one William Morgan, and that pursuant to such conspiracy, Morgan had been kidnapped and carried away by such wicked and evil disposed persons, and had been by them murdered; and also that it was reported, suspected and believed, that some of the persons concerned in such kidnapping had escaped from punishment; that the plaintiff was a member of the fraternity of free-masons ; that on the 1st October, 1826, a public meeting was held at Rochester for the purpose of taking measures to detect and bring to justice the persons concerned in kidnapping Morgan, at which meeting divers persons, and among others the plaintiff, were appointed a committee, denominated the Morgan committee, for the purposes above expressed; that in August, 1829, an inquiry and investigation was had by a grand-jury at Rochester, in the county of Monroe, upon a complaint preferred before such jury against Edward Doyle and others for being concerned in kidnapping- Morgan ; and that, upon such complaint, the plaintiff was sworn and examined as a witness of and concerning the subject matter of such complaint. After stating this introductory matter, the plaintiff proceeded in his count to charge that the defendant, well knowing the premises, but contriving, &c. on the 27th October, 1829, wrote and published a libel containing, amongst other things, the false, malicious, defamatory and libellous matter following — that is to say: “ I (¡meaning the defendant) shall prove that while he (meaning the plaintiff) was acting or pretending to act upon a committee appointed by the good people of Monroe county to investigate the masonic outrage, he furnished money to enable at least one of the kidnappers to escape fromjustice. I (meaning the defendant) shall then prove that he (meaning the plaintiff) has deliberately and solemnly sworn that he utterly disapproved of the whole outrage, and that he had no agency in it before or after its commission ; and when he shall have been fully exposed to this community as a perfidious man, a profligate libeller, and a shameless hypocrite, he will be left with a bitter and self-upbraiding spirit, to bewail the folly and falsehood that led him to cut and season the rod with which he was scourged.” The defendant pleaded the general issue, and attached to his plea a notice of speciál matter to be given in evidence. On the trial of the cause, the plaintiff produced a stipulation in writing, entered into by the attorney for the respective parties, as to certain admissions of the respective parties, to be given or offered in evidence, subject to all legal exceptions, and from the stipulation read in evidence the following admissions, to wit: that on the 27th October, 1829, the defendant was one of the editors and publishers of a newspaper, printed in the village of Rochester, called the “ Anti-masonic Enquirer,” and published in that paper an article composed by him, in these words: “ The controversy between Jacob Gould and myself having assumed a judicial character, further newspaper discussion would seem to have heen unnecessary, but as he has thought proper to make a gratuitous attack upon me, I may be permitted to repel it; and if, in doing so, 1 should deal plainly with him, I shall be held acquitted by this whole community when they come to know Jacob Gould as I know him. I do not feel called upon at this particular time to go into a 'discussion of the relative respectability of Mr. Gould and myself, or to inquire whether he or I spend our nights most reputably. But I do promise, if my life is spared long enough to conduct this controversy to a result, to exhibit Gould to the world in an attitude so unequivocally infamous, that every virtuous mind will turn from him with1 horror and disgust. I have instructed my counsel to join issue with Mr. Gould, and to prepare the cause for trial before the next circuit. My only apprehension is, that he will cry, craven and shrink from- the tribunal to which he has appealed. But if he does, he shall go with a mark upon him’, which shall forever attract the eye of contempt and the finger of scorn. For the strict truth of all that I have said about ■ Jacob Gould, l am ready to answer at the bar of public opinion, in a court of justice, and before a still higher tribunal, where (however well falsehood may serve us here) neither of us can hope to conceal the truth. The conversation attributed to Mr.-, I am prepared to prove by impeachable testimony. I learn however that the conversation took place on the 9th of July, and notin June, as was stated in the Enquirer of the 13th inst. Whether Mr.--’s denial is based upon that quibble or not, I am unable to say. I shall prove that Mr. Gould paid $50 towards defraying the expenses of Mrs. Munro and Cron. I shall prove that while he was acting (or pretending to act) upon a committee appointed by the people of Monroe county, to investigate the masonic outrage, he furnished money to enable, at least, one of the kidnappers to escape from justice. I shall then prove that he has deliberately and solemnly sworn that he utterly disapproved of the whole outrage, and that he had no agency in it before or after its commission. All these offences I distinctly charge upon Jacob Gould and am prepared to prove them to the satisfaction of any impartial court and jury. I am acting with a clear and full view of the consequences which must flow from this investigation. I know the issue will fix indelible disgrace upon one of us, and I am ready to abide that issue. Mr.-is Jacob Gould’s successor in the office of grand scribe. His business last summer was to furnish relief to Bruce, Whitney and the family of Col. King. Jacob Gould was appointed grand scribe because he resided at the head quarters of the conspiracy, and was presumed to know how and when the 1 ostensible’ charities of the institution should be dispensed. Moneys were placed at his disposal. The same duties which Mr.-, as the present grand scribe, came west to discharge last summer, devolved upon Jacob Gould when he filled the same office. Those duties he did discharge; and sc he reported to the grand chapter at the session in February, 1828. The inquiry of Mr.- as to the disposition which his predecessor made of the funds was a perfectly natural one. Jacob Gould will deeply lament the ¡nfatuat¡on which prompted him to fasten this quarrel upon me. He knows and confessed that I stated things truly as I heard them. He told me that they came from men who were offended with him, because he refused to pay money for such purposes. But upon reflection, he saw that he must propitiate the fraternity, or exposure and ruin would be inevitable. This could be done in no way so well as by assailing me. There is, however, a point beyond which endurance ceases to be a virtue. Jacob Gould has gone beyond this point, and it is due more to the good and just cause with which I am connected than to myself, to make an example of him; and when he shall have been fully exposed to this community as a perfidious man, a profligate libeller, and a shameless hypocrite, he will be left with a bitter and a self-upbraiding spirit, to bewail the folly and falsehood that led him to cut and season the rod with which he was scourged. Thtjrlow Weed.” He also read an admission that, at a public meeting of the citizens of Monroe county, held on or about the 14th of December, 1826, at Rochester, the plaintiff was present and was appointed a member of the Morgan committee, to detect and bring to justice the persons concerned in the kidnapping of Morgan, The defendant admitted, on the trial, that the papers containing the alleged libel was circulated in the county,of Albany, (where the venue was laid and trial had,) and further, that at the time of the publication, it was generally reported and understood that William Morgan had been kidnapped. The counsel for the plaintiff read'to the jury the entire article published in the Anti-Masonic Enquirer above specified, but previous to reading the same, stated that the plaintiff claimed damages only under the third count of his declaration, and limited his claim for the publication of that portion of the libel which in the above statement is printed in italics ; and then the plaintiff rested his cause.</p> <p>The counsel for the defendant now offered to read the residue of the stipulation and the matters therein contained: which was objected to by the plaintiff’s counsel, on the allegation that the stipulation contained transcripts of various publications by the respective parties, deemed by the plaintiff irrelevant and inadmissible upon this trial. The judge desired the counsel for the defendant to hand him the stipulation, which he declined to do, insisting upon his right to read the same in open court; the judge ruled if the paper was not submitted to his inspection, or its contents stated, that it should not be read, and the counsel persisting in his claims, the judge refused to permit the paper to be read. The counsel for the defendant then offered in evidence a publication by the plaintiff in the Rochester Daily Advertiser, after the 13th and previous to the 27th October, 1829, insisting that the article complained of as libellous, was in answer to, and a comment upon such publication of the plaintiff, which was in these words: “ It is at all times disagreeable to be engaged in news paper controversy, but it is more particularly so when we find ourselves compelled, from the force of circumstances, to enter the list with men wanting principle and wanting bread; men, too, whose days, from their infancy upwards, have been spent in traducing and vilifying the character of their neighbors and benefactors, and whose nights have been occupied in scenes calculated to fill the virtuous mind with horror and disgust. I should not again have troubled the public with any publication of mine, was it not for the continued abuse, at this particular time, of the editors of the Anti-Masonic Enquirer. The statement published in that abusive print, I have already pronounced untrue; and I am now, in addition, authorized by Mr.-, of Albany, to say that the conversation mentioned in the Enquirer, which is said to have taken place at the Eagle Tavern in June last, in relation to myself, so .far as he is concerned, is absolutely false. The statement, also, that I paid fifty dollars, or any other sum, to get Mrs. Munro or any other person from Canada, or the insinuation that I ever paid one cent to aid any one concerned in the abduction of Morgan, to get them clear of punishment, or for any other purpose, is also false. I have commenced a prosecution against the editors of the Enquirer; and here I shall rest( unless some more moral and virtuous person than Thurlow Weed shall see fit to become my accuser. (Signed) Jacob Gould.” The admission of this publication in evidence was objected to by the plaintiff’s counsel, and rejected by the judge. The defendant next, with the avowed object of explaining the subject, occasion and intent of the publication alleged to be libellous, offered in evidence another publication of the plaintiff, which appeared in the Rochester Daily Advertiser, of the I2th October, 1829, in these words: “ To the editors of the Anti-Masonic Enquirer. Gentlemen : In answer to your rumor, of an extraordinary character, published on the 6th instant, I cheerfully explain, so far as regards myself. In February, after the abduction of Morgan, I was elected one of the officers of the grand chapter, and, as is usual, particularly in masonic bodies, there were funds appropriated for charity. During the year I held said office, I received one hundred dollars, and expended it in small sums — not ostensibly, but really for charity; and it is the only money that ever came into my hands from the chapter, or any other masonic body, during that or any other year. October 12,1829. (Signed) Jacob Gould.” Which evidence thus offered was objected to by the plaintiff, and rejected by the judge. The article by the plaintiff, stated to have been published after the 13th day of October, 1829, was placed at the head of the publication of the defendant, alleged to be libellous, by way of text, and the defendant’s publication followed as a comment, and upon the ground that the whole formed but one publication, and with the alleged view of informing the jury of the whole matter, and to explain the publication said to be libellous, the defendant’s counsel offered to read the entire publication complained of, with the article of the plaintiff prefixed, but the plain tiff’s counsel objected, and the judge would not permit it to be done. The defendant read in evidence a stipulation of the plaintiff admitting that one Burrage Smith and one John Whitney kidnapped William Morgan, and carried him away from Canandaigua, in the county of Ontario, to the county of Niagara, in pursuance of a conspiracy in which they were concerned; and proved, that in August, 1829, the plaintiff in this cause was sworn as a witness before a grand jury of Monroe county, on a complaint against Edward Doyle and others» for a conspiracy falsely to imprison and carry away William Morgan to parts unknown ; and, upon that occasion, testified that he was not knowing to the abduction of Morgan until some time after it took place, and that his knowledge then was derived from common rumor, and not from information of any of the persons implicated in the transaction; and, in the course of his testimony, stated that he had no knowledge or participation in the offences committed upon Morgan, that he had uniformly disapproved them, and had counselled against the adoption of any measures whatever in reference to the suppression of Morgan’s book. The defendant offered in evidence a record of conviction of Eli Bruce and three others charged with the abduction of William Morgan, which was objected to and rejected.</p> <p>The defendant proved, by the secretary of the grand royal arch chapter of the state of New-York, that in February, 1827, a resolution was passed by the chapter that the sum of $1000 be placed at the disposal of the trustees, to be by them, in their discretion, applied to charitable purposes. Previous to the passage of this resolution, the Morgan abduction had been discussed, and a resolution had been passed by the grand chapter disapproving of the Morgan outrage, and disclaiming all participation in or knowledge respecting it; but the witness who spoke on this subject could not tell what objects were entertained in the passing of the resolution, appropriating the $1000. Nothing was said as to the object of the appropriation and no remarks were made. One of the officers of the grand chapter, at the time of the appropriation, testified that he had never before known an instance of a general appropriation, the mode of dispensing charity being' to pass upon individual claims, in detail, after reference to a committee ; and another officer of the chapter testified, that previous to this time, he had never known of money being placed in the hands of the trustees for such purposes. The secretary of the grand chapter also produced the book of minutes of the trustees, from which it appeared, that on the same day the appropriation was made by the grand chapter, it was resolved by the trustees that the sum of $300, out of the money appropriated as above, be plaeed in the hands of Jacob Gould, for which he is to account. Gould attended the meetings of the chapter in February, 1827, and was then elected grand scribe; and as such, was one of the trustees ex officio. The treasurer 0f the gran(j chapter at the time, and who continued in office until 1830, proved the payment of $300 to Gould personally, and the payment of $200 subsequently on his drafts, which payments were made out of the appropriation of $1000 ; and the treasurer of the chapter appointed in 1830 produced the treasurer’s book, from which it appeared that the sum of $950 had been paid under the general head charity, and testified that there are vouchers and receipts for all the expenditures of the chapter except the $950. It was proved by the officers of the society that Gould had never accounted for the money paid to him, and that there was no entry whatever respecting the expenditure of the $1000. It was proved, that in 1827, a Mr.'E. of Albany wrote to a Mr. M. at Rochester to obtain a draft from Gould for $100 upon the charity fund of the grand chapter. M. called upon Gould and informed him of the request, and he gave M. a draft for $100, which M. sent to E.; the letter of E. was not shewn to Gould, nor was any thing said as to the object for which the money was wanted. E. was sworn as a witness, and testified, that as an officer of a lodge, he had occasion for some money for charitable purposes, and wrote to M. to obtain a draft from Gould for $100, which he received. The counsel for the defendant then offered to prove by this witness that he paid the $100 to Burrage Smith, one of the kidnappers of Morgan, to enable him to escape from justice; to which testimony the plaintiff’s counsel objected, unless the defendant first proved that the plaintiff had some participation or agency in that appropriation for the purpose alleged, or some knowledge respecting it. The judge decided that the defendant must first prove thai the plaintiff had some agency in, or consented to, or knew o ' the alleged appropriation, or payment of the said $100 by the witness, before the testimony offered could be admitted. The defendant’s counsel insisted, that from the testimony already given, the jury might infer knowledge, on the part of Gould, of the object for which the draft was requested, and to which it was to be applied, but the judge adhered to the decision already made, and the defendant’s counsel excepted. The defendant next offered to prove the truth of the allegations contained in the publication read by the plaintiff; but the plaintiff objecting to such proof, the judge refused to permit the defendant to prove the truth of any matter contained in the publication, other than what related to that part thereof to which the plaintiff confined his claim to damages. • The evidence being closed, the judge charged the jury, who found a verdict for the plaintiff for $400. The defendant having excepted to various decisions made, and obtained a bill of exceptions to be duly signed, moved for a new trial.</p>

This was an action of ejectment, commenced in August term, 1829, tried at the Oswego circuit in June, 1831, before the Hon. Nathan Williams, then one of the circuit judges. The premises claimed were lot No 57, Hannibal, alleged to have been granted to James Fowler, the lessor of the plaintiff for his services as a soldier during the revolutionary war.

<p>This was an action of replevin, tried at the Saratoga circuit in November, 1831, before the Hon. Esek Cowen, one pf the circuit judges.</p> <p>The plaintiff declared for the taking of the mill-irons, or machinery of a saw-mill, being the goods and chattels of the plaintiff. The defendants severally pleaded non cepit, and also put in a number of special pleas, (sometimes all, and sometimes less than all uniting in a plea,) alleging property in the goods and chattels to be, 1. in themselves and one Earl Whit-ford, as tenants in common ; 2. in themselves as tenants in common with Earl Whitford and the plaintiff; 3. in themselves ; 4. in themselves and the plaintiff as tenants in common ; and'5. in Foster Whitford, one of the defendants, each plea traversing the property in the goods, &c. to be in the plaintiff. To which pleas the plaintiff replied, re-affirming the property in the goods, &c. to be in himself. Upon these pleadings the cause was tried, and the following facts appeared. In January, 1831, mill-irons of the value of $131,62 were taken from a saw-mill in the possession of the plaintiff, by three of the defendants, (the others were subsequently shown to be connected with the transaction,) and the damages «consequent upon the taking were shown to be $48. The plaintiff claimed to be the owner of one half of the mill, the title to one fourth was in a son of the plaintiff, who purchased the same for his father, of one John Hart, and the remaining fourth was claimed to be owned by Orson Whitford, one of J m the defendants, who, in April, 1830, let his share of the mill to the plaintiff for one year. On the part of the defendants was produced in evidence a deed of a lot in the Saratoga patent from M. S. Miller to Foster Whitford, bearing date in June, 1821; and it was proved that by virtue thereof Foster Whitford took possession of the mill in question, and that in December, 1825, an agreement under seal was entered into between Foster Whitford and the plaintiff, whereby Whitford covenanted to execute a deed of an undivided half of the mill, with certain privileges thereunto appertaining, on payment of the sum of $40, and that at the time of the execution of the agreement, it was conceded that the whole title of the mill was in Foster Whitford. The defendants also gave in evidence a deed from Foster Whitford of amoiety of the mill to Earl Whit-ford, who, in 1828, conveyed one fourth of the mill to O. Whitford, one of the defendants; also a deed from Foster Whitford to O. Whitford, conveying one eighth of the mill, and a deed from 0. Whitford to Foster Whitford, junior, another of the defendants, conveying one fourth of the mill; which last deed, bearing date in August, 1828, was subsequently shown to have been ante-dated, it not having been executed ' until November, 1831. The plaintiff thereupon exhibited a deed from one James Green to himself, of the premises whereon the saw-mill was situate, bearing date in 1808, and offered to prom that previous to the execution of the last mentioned deed, he (the plaintiff) Foster Whitford (one of the defendants) and John Hart had jointly erected and been in possession of the saw-mill; that it was agreed between them that the plaintiff should obtain a deed of the premises from Green, and on doing so convey to Whitford and Hart each one fourth of the mill, and that on obtaining the deed, he accordingly executed conveyances to Whitford and Hart. The plaintiff further offered to prom that the deed from Miller to Whitford, exhibited on the part of the defendants, did not cover the premises whereon the mill in question was erected, and that the mill and mill scite were not within the bounds of the Sara» i0ga patent, but were within the bounds of the patent of Kayaderoseras : which evidence so offered to be given was objected to by the defendants, on the ground that the plaintiff was estopped by the agreement of December, 1825, from setting up title hostile to that of Foster Whitford ; and the objection was sustained. Before the cause was submitted to the jury, the plaintiff proved, that amongst the property taken from the mill were four saws and a saw-set, not belonging to the mill, but the sole properly of the plaintiff, and that the value of such property was $15,50. The judge charged the jury that they ought to find that the property in the goods, &c. (with the exception of the four saws and saw-set) was not in the plaintiff, to which charge the plaintiff excepted. The jury found, 1. That the defendants took the property; 2. That as to the four saws and saw-set, the property thereof was in the plaintiff, and the value of the same was $15,50, and they assessed the plaintiff’s damages at six cents and his costs at six cents. And as to the residue of the goods, &c. the value of which they assessed at $116,12, that the property of the same was not in the plaintiff. The cause came before the court on a bill of exceptions, on a motion for a new trial.</p>

Error from the superior court of the city of New-York. The Messrs. Wall sued Osborn in trespass for entering upon a lot owned by them, and taking down and carrying off a mill erected thereon. Osborn Was in possession of a lot adjoining that of the plaintiffs, whose mill projected a few inches upon the lot of the defendant.

<p>This was an action of trover, tried at the Washington circuit in November, 1831, before the Hon. Esek Cowen, one of the circuit judges.</p> <p>The plaintiff held a bill of sale of a large quantity of hides and skins in the vat, in a tannery occupied by John L. Shearer and Lewis Shearer, and also of machinery appertaining to the tannery, and of other property, executed to him by the Shearers on the 12th August, 1826, to secure the payment of $1200 due to him: the Shearers to work the hides and skins into leather for' the benefit of the plaintiff. In February, 1827, the plaintiff made an advance to the Shearers of $400 for the purchase of hides, only $200 of which, however, it seems, reached the tannery. At the time of the making of the bill of sale, there was an execution in the hands of a deputy of the sheriff of the county of Washington, in favor of the Bank of Troy, against the two Shearers, Hosea Adams and Lewis Manning for $188,23, with interest from May 5th, 1826, returnable at the August term following. On the 18th November 1826, the plaintiff paid $90 on the execution, which was endorsed. In the beginning of March, 1827, the Property in question was advertised to be sold, but the sale was postponed at the request of the plaintiff, who said he would pay the execution, but wanted time to enable him to obtain an assignment of the judgment. About this time a conspiracy seems to have been formed between John L. Shearer, Hosea Adams and one John M’Gregory, to deprive the plaintiff of his claim upon the property by virtue of the bill of sale. On the 7th of April, 1827, the whole of the property was sold by the deputy under the execution in favor of the Bank of Troy, and purchased by M’Gregory for $118,41, who, upon the suggestion of Hosea Adams, had obtained the money to make the purchase from David Adams, a son of Hosea Adams. On the 18th June, 1827, M’Gregory confessed a judgment in favor of David Adams for $122,44 damages and costs, and David Adams, at the request of M’Gregory, assigned the judgment to Sprague, one of the defendants in this cause, and an execution was forthwith issued by the consent of MiGregory. At the same time a judgment in favor of the Washington and Warren Bank against M’Gregory and Hosea Adams, as endorsers of John L. Shearer, was also assigned to Sprague, the amount due on which was $131,52 for which also an execution issued, and was delivered to the same deputy on the 19th June ; which executions were levied upon the property purchased by M’Gregory under the execution in favor of the Bank of Troy, and which property still continuing in the possession of the Shearers, was sold by virtue of such executions on the 30th June, 1827. M’Gregory himself proved that he urged on the second sale; and he also testified that he had understood that Crary, the plaintiff in this cause, had a bill of sale of the property, but he knew that the execution in favor of the Bank of Troy was an older lien, and he intended to avail himself of that execution and defeat the bill of sale, his object being to secure the debt due to the Washington and Warren Bank. The value of the property sold at the second sale, according to a valuation made at the time, was $771,50. To prove the combination, evidence of acts and declarations of M’Gregory and John L. Shearer, previous to the second levy was received by the judge, though objected to by the defendants. The plaintiff also was permitted to give evidence of the testimony of John L. Shearer upon a former trial of this cause, tending to prove the combination, it being shown that since that trial he had died, notwithstanding that the defendants offered to prove that John L. Shearer was, at the time of his testifying, interested in the event of the cause, and that his interest was on the side of the plaintiff: the judge ruling that inasmuch as John L. Shearer had been produced as a witness upon that trial hy the defendants, they were now estop-ped from objecting to the admissibility of his testimony. The last sale was had under the directions of the defendants in this cause. The judge instructed the jury that, although the plaintiff held his title to the property subject to the lien of the execution in favour of the Bank of Troy, he could not be fraudulently deprived of the right to raise that execution by paying it, nor could his rights be affected by a hurried and fraudulent sale ; and if they believed that such fraud existed, they should find for the plaintiff And he further instructed them, that if they should find that the $400 advanced by the plaintiff subsequent to the bill of sale, or any part thereof, had been invested in hides after the levy under the execution of the Bank of Troy, it would be their duty to find a verdict for the plaintiff for the value of such investment. The jury found a verdict for the plaintiff for $394,50. The defendants having excepted to the several decisions of the judge upon the questions raised and decided against them, and obtained a bill of exceptions to be duly signed, moved for a new tidal.</p> <p>insisted that proof of the declarations of M’Gregory and John L. Shearer ought not to have been received, and that the evidence of the testimony of John L. Shearer on the former trial, after the offer on the part of the defendants to prove that he was interested in the event of the cause was wholly inadmissible. He also insisted that an action of trover could not be maintained ; that the execution in favor of the bank of Troy being for a valid debt and an unsatisfied balance, the title to the property passed by the sale to M’Gregory ; and if there was a conspiracy to defraud the plaintiff in this cause, an action on the case was the appropriate remedy of the plaintiff.</p>

<p>This was an action, of slander, tried at the Stuben circuit in November, 1831, before the Hon. Robert Monell, one of the circuit judges.</p> <p>On the 12th August, 1831, Cook went to Almond village, in the county of Allegany, to attend to a suit, in which he was defendant, depending before H. Cutler, Esq. a justice of the peace of Allegany county, and stopped at an inn kept by one Crandall within a few rods of the office of the justice, and went to the horse shed of the inn to fasten his horse. The line separating the counties of Allegany and Stuben passes between the inn and shed, within a few feet of the shed, which is in the county of Stuben ; and whilst Cook was under the shed, he was arrested by virtue of a warrant issued by A. Livermore, Esq. a justice of the peace of Steuben, at the suit of ‘one Neally, which suit was prosecuted by Bostwick, the defendant in this cause, for his benefit. Cook was taken before Justice Livermore, where a declaration was exhibited against him in an action of assumpsit, to which he pleaded in abatement, that at the time of his arrest he was actually attending a cause, wherein he was a party, at the suit of one G. E. W., before H. Cutler, Esq. and therefore prayed a discharge from the suit, and annexed an affidavit that the plea was substantially true. On the next day Bostwick, in speaking of Cook and of the affidavit made by him verifying the plea, said in the hearing of several persons that the affidavit was not true, that Cook was not attending any suit, but was in the county of Steuben, and that he swore false, that he had perjured himself, and that he would have him indicted. Several witnesses were sworn, who testified that the facts in reference to which the charge of false swearing was made were understood by all present. The defendant moved for a nonsuit, on the ground that what was said by him charged the plaintiff with swearing false in a matter not material, viz. that he had sworn that he was actually attending before Justice Cutler, in the county of Allegany, when in fact he was under a horse-shed in the county of Steuben; and that he had not charged him with swearing false in alleging that he was in attendance as a suitor before Justice Cutler; and that so the words were understood by the by-standers. The judge refused to nonsuit the plaintiff; and the defendant, after calling some witnesses present at the speaking, to prove their understanding of the words, requested the judge to charge the jury — if they should find that the defendant intended only to impute to the plaintiff false swearing in respect to his being under the shed, and not in the presence of the justice, that the defendant did not mean to deny that the plaintiff had come to Almond village to attend to his suit before the justice, and that the words were so explained and understood at the time of the speaking thereof — that then the words were not actionable. The judge, however, did not so charge the jury, but instructed them, that if they should find that the defendant intended to impute to the plaintiff the crime of perjury or false swearing, the plaintiff was entitled to their verdict. The jury found for the plaintiff, with $100 damages. The defendant moved to set aside the verdict.</p> <p>The defendant did not controvert any material fact sworn to by the plaintiff, but simply denied the inference or conclusion of law drawn by the plaintiff, viz. that he was actually attending a cause as a party before a justice in one county, when, at the time, he was in fact in another county. The charge was understood to relate to a subject which would not sustain the imputation of a crime, and the judge ought to have instructed the jury that if was g0 unc[erst;ood, the defendant was entitled to a verdict. He cited, in support of these positions, 1 Johns. Cas. 279; 12 Johns- 239 ; 13 id- 78 ; 20 id- 344; 1 Wendell, 475 ; 4 id. 531; 7 id. 439; 9 Cowen, 530; Cro. Eliz. 416; Cro. Jac. 436.</p>

This was an action of trover, tried at the Madison circuit in September, 1831, before the Hon. Nathan Williams,then one of the circuit judges.

<p>Where a contract under seal is made, purportipg by its terms to be between two firms in their partnership names, and the partnership name of one firm is subscribed to the contract, and that of the other firm is subscribed to a counterpart thereof, an action may be maintained against the member of the firm individually, who subscribed the name of his firm, unless he proves that he had authority from his co-partners to enter into a contract under seal, and subscribe the name of his firm to it.</p> <p>And such action may be brought in the names of all the members of the firm with whom the contract purports to be made, although the counterpart is signed by only one member of the firm, in the name of his firm, and no authority is shown authorizing him to afiix the name of his firm to a contract under seal.</p> <p>Where a cause has been removed by appeal from a justice’s court into a court of common pleas, and the judgment there affirmed, this court, on a writ of error, will not critically scan the pleadings before the justice, for the purpose of reversing the judgment; especially when such pleadings are imperfect and irregular on the part of the defendant. It behooves a party wishing to avail himself of advantages growing out of the pleadings before a justice, to see that the pleadings on his own part be presented in an unexceptionable manner.</p>

<p>All acts in the transaction of business done on Sunday, are as valid as if done on any other day of the week, unless prohibited by common law or statute. The proceedings in a statute foreclosure of a mortgage uve not void, because the day of sale specified in the advertisement happens on a Sunday. It is competent, however, to the mortgagee, after the institution of the proceedings, and before the day of sale, to postpone the sale to a subsequent day, without affecting the regularity of the proceedings.</p> <p>A sale on Sunday, under such proceedings, it seems, is not prohibted by statute.</p> <p>A party admitting the title to land to be in another, and agreeing to purchase, is estopped from setting up title in himself under a deed which he had held for six years previous to such admission; and such estoppel extends to all claiming under him.</p>

This was an action of trespass, tried at the Schoharie circuit in November, 1831, before the Hon. James Yanderpoel, one of the circuit judges. The suit was brought for the taking, about the 22d June, 1831, of two mares, the alleged property of the plaintiff!

Error from the New-York common pleas. Whitehead sued Strang and Manning for false imprisonment, in arresting and holding him to bail in a suit prosecuted in the circuit court of the United States, in which the court had not jurisdiction.

This was an action of ejectment for dower, tried at the Her-kimer circuit, in March; 1832, before the Hon. Nathan Williams, then one of the circuit judges. The plaintiff was the widow of William Davis a Welchman who was a soldier in Burgoyne’s army, which was captured in 1777, at Saratoga.

<p>A legacy by a creditor to the wife of the debtor, is not a satisfaction of the debt due the testator.</p> <p>Jt seems, that the doctrine that a legacy operates as the payment of a debt, applies only where the testator is the debtor and the legatee is the creditor ; and that even then it is not to be deemed a satisfaction of a pre-existing debt, unless it appears to have been the intention of the testator that it should so operate.</p> <p>Wher a legacy is left to the testator’s debtor, and the debt is less in amount than the legacy, the legatee is considered to have so much of the assets in his hands as the debt amounts to, and consequently to be satisfied pro tanto ; and where the debt exceeds the legacy, the executors of the testator are entitled to retain the legacy in part discharge of the debt.</p>

<p>In an action of waste against a tenant for life or years, it is not necessary to recite or refer to the statute giving the action, either in the summons or declaration.</p> <p>But the plaintiff must allege in the declaration a seisin in fee in himself, as well as a demise to the tenant; and the omission to do so is not cured by the verdict.</p>

This was an action of trover, tried at the Montgomery circuit in May, 1831, before the Hon. Eseic Cowen, one of the circuit judges.

Error from the general sessions of Cortland. Hopkins was indicted for receiving stolen goods.

The prisoner was indicted, tried and convicted at the New-York general sessions, for grand larceny, in stealing a packet of bank-bills. Sentence was suspended and the case brought before this court on a bill of exceptions. The principal witness against him was one Wapshot, an accomplice, who proved the larceny, and in doing so, disclosed his own participation in the crime.

This was an action for the breach of the covenant of seisin in a deed of lands, tried at the Columbia circuit in November, 1831, before the Hon. James Vandbrpoel, one of the… Held: and Holt, C. J. says, the case of Abraham v. Twigg is so strong as not to be answered. A devise to a man and his heirs male will pass an estate tail, for the law in favor to the intention of the testator will supply the words of the body. 2 Preston, 535, citing 1 Inst, 27, a. ; 3 Salk. 336.

Demurrer to declaration. The plaintiff, in the first count of his declaration, set forth a judgment obtained by him against one D. R. in February term, 1829, for $133,59 ; that in the same term an execution was issued and delivered to the defendant, as sheriff of the county of Washington, commanding him to make of the goods and chattels of D. R. the sum of $186,71, which execution was returnable in May term) 1829.

Error from the Saratoga common pleas. Gidney sued Earl in a justice’s court in an action of trespass, for digging up and removing the soil from a highway passing through the land of the plaintiff. It was admitted that the plaintiff owned and occupied the land, opposite to which the soil was taken, on both sides of the road, except a burying ground on the south side of the road. The soil was taken from the north side of the road and deposited in the defendant’s garden.

This was an action of replevin, tried at the Albany circuit in September, 1831, before the Hon. James Vanderpoel one of the circuit judges.

Error from the Columbia common pleas. Winslow sued Barber in a justice’s court on a promissory note, dated 6th December, 1828, payable three days after date. The defendant pleaded the general issue, and gave notice of his discharge under the act for giving relief in cases of insolvency, passed April 12th, 1813, granted by a commission, ex officio, oí the county of Albany, on the 5th September, 1829, and exhibited his discharge.

This was an action of ejectment, tried at the Wayne circuit in October, 1831, before the Hon. Daniel Moseley, one of the circuit judges. The plaintiff claimed to recover lot No. 86. Galen, alleged to have been granted to Christian House, a soldier in the revolutionary war. The defendant entered into a special consent rule to confess lease, entry and ouster, in case an actual ouster should be proved, but not otherwise.

Error from the superior court of the city of New-York. Bartine brought an action of assumpsit against Keeler, in September, 1826, and declared against him as the endorser of a promissory note, made by a firm under the name of Seaman & Cooper, for $950, bearing date 19th September, 1814, payable to the defendant or order, 60 days after date.

This was an action of debt on a replevin bond, tried at the Albany circuit in March, 1831, before the Hon. James Van-derpoel, one of the circuit judges.

Demurrer to replication. The plaintiffs declared on a joint bond executed by L. C. Paine, W. W. Cronkhite and E. Freer, bearing date 13th October, 1815, conditioned for the payment to the plaintiffs of $500, in two instalments, in the month of October, 1821.

This was an action of ejectment, tried at the Erie circuit in March, 1832, before the Hon. Addison Gardiner, one of the circuit judges. The parties are owners of adjoining lots in the former village, now city of Buffalo.

This was an action of replevin, tried at the New-York circuit in January, 1832, before the Hon. Ogden Edwards, one of the circuit judges. The suit was brought for three carriages taken by the defendants from the possession of the plaintiffs, by virtue of four executions issued on judgments in favor of Carter against one Fletcher; Labagh was the officer in whose hands the executions had been placed, and Carter aided him in the execution of the process.

Motion in arrest. The action was slander ; the declaration contained three counts, and the plaintiff had a general verdict for $100. In the first count the words were charged to have been spoken to the plaintiff, as thus, “you are a thief,” &c. of which there was no proof.

This was an action of ejectment for dower, tried at the Herkimer circuit in March, 1832, before the Hon. Nathan Williams, then one of the circuit judges. The plaintiff was the widow of Charles Ward, who in 1809 or 1810, died seised of a farm in Herkimer county, which after his death was sold under a judgment against his heirs, and purchased by Caleb T. Ward.

ERROR from the Madison common pleas. Spencer sued Lewis upon a bond in the penal sum of $60, conditioned that Lewis should pay Spencer such taxable costs as one Gardner should recover against one Denny, in a suit depending in the Madison common pleas, in case judgment for costs should be rendered in such suit in favor of Gardner. The plaintiff averred that in October, 1830, judgment for costs to the amount of $42,75 was rendered in favor of Gardner against Denny.

This was an action of assumpsit, tried at the Herkimer circuit in March, 1832, before the Hon. Nathan Williams, then one of the circuit judges. The action was on a promissory note for $350, dated 13th July, 1827, payable to Samuel Rogers or bearer, 12 months afterdate. It had the names of “H. Hamilton,” and of a mercantile firm, viz. “ Sprague, Dann & McKinister” subscribed to it as the makers thereof. The name of the firm was subscribed by David Sprague, one of the partners.

Error from the Schenectady common pleas. Barhydt sued Valk for false imprisonment, in arresting him on a justice’s execution, and committing him to the jail of the county of Schenectady.

This action was tried at the Albany circuit, before the Hon. J ames Vanderpoel, one of the circuit judges. In the first count of the declaration the plaintiff states that a suit commenced against him in the Monroe common pleas, was noticed for trial at the March term 1831 of that court, and that previous to the term, Meech, the defendant was duly subposnaed to attend as a witness on the part of the plaintiff in this cause.

Error from the Herkimer common pleas. Pickert sued Dexter in a justice’s court by summons, returnable on the 9th April, 1831, at eight o’clock A. M. The summons was returned personally served, and at the time of its return the plaintiff appeared, but the defendant did not appear.

Demurrer to declaration. The declaration was entitled, “Of July term, to wit, of the fifth day of September, one thousand eight hundred and thirty three.” The plaintiff then, without stating the defendant to be in custody &c. or that according to the form of the statute he complains &c. proceeds to count on a bill of exchange drawn by the defendant on one A. B. for a certain sum, bearing date 15th January, 1833, and payable to the plaintiff 5 months after date, alleging…

<p>Demurrer to delavation. The plaintiffs declared on a sealed instrument in writing, executed by both plaintiffs and defendants, beginning in these words; “ This indenture, made the 17th day of February, in the year 1830, between Noah Emery and Nathan Martin, of, &c. of the first part and William Hitchcock and Manna Hart, of, &c. of the second part,” reciting that in July, 1829, Emery and Hitchcock had taken a lease of 50 acres of land of certain persons of the names of Nichols and Luce, at a specified rent for the term of 3 years and had agreed to purchase the same upon certain conditions ; that they as partners, had erected on the premises a saw-mill and dwelling house, and made other improvements ; and as such partners, had for some time carried on business had contracted debts, and had debts owing to them; and also, that Hitchcock had become bound as the surety of Emery, for the payment of certain individual debts; and then proceeding as follows: “ Now, therefore, the said Emery doth hereby agree to sell, assign, release and transfer unto the said Hitchcock, all his right and interest in and to the said 50 acres of land, and in and to all property which they, the said Emery and Hitchcock, have heretofore or now hold in partnership, or as tenants in common.” In consideration whereof, Hitchcock agreed to refund to Emery the amount he had advanced in money, labor or goods, to the partnership funds, making certain deductions which were specified. The balance found due against either party, to be paid within 18 months. All debts due to the partnership to belong to Hitchcock, and he to pay all debts owing by the firm; Emery to have the use of the dwelling house, in which his family then resided, until 1st May, 1830, subject to rent, and the partnership is declared to be dissolved. And for the purpose of settling and adjusting the partnership concern and all demands and accounts between them, upon the principles and according to the terms of such agi’eement, they nominate three persons as arbitrators, to “ award, order, adjudge and determine upon the matters aforesaid the award to be made in writing, on or before the sixth day of April, then next, concluding as follows : “ for the due and faithful performance of the aforementioned covenants and agreements, the said parties to this agreement, bind themselves, their heirs, executors and administrators, mutually, each to the other.” The plaintiffs averred that the arbitrators on the 2d April, 1830, made and published their award, and thereby ordered that Hitchcock should pay to Emery $272,80, with interest, according to the principles of the bond; and that the sum of money thus awarded tobe paid, was the balance due to Emery for his advances, &c. after deducting, &c. The plaintiffs then alleged non-payment, &c. and concluded in the usual form, that the defendants had not kept their covenant, &c. The defendants craved oyer of the instrument declared on, and also of the award, which were accordingly set forth; the bond, the same as set forth in the declaration and the award, in these words; “ We, the within named arbitrators, have sat together and heard the demands, allega-tlons and proofs of the parties named within, (the award being Pr°bably endorsed on the submission. Reporter.) and do finally award that the said W. Hitchcock shall pay to the said N. Emery, §272,80, with interest, according to the principles of the within bond,” and then put in a general demurrer to the declaration. The plaintiffs joined in the demurrer. The cause was submitted on written briefs.</p> <p>insisted 1. That the • covenant on the part of the defendants was dependant upon the performance of the covenant on the part of Emery, to sell, assign, release and transfer his interest in the 50 acres and in the partnership property, to Hitchcock; that the declaration contained no averment of such performance, and that it was therefore bad in substance ; 2. That the award was void for uncertainty, it not appearing upon its face that the arbitrators had passed upon all the matters contained in the submission; and 3. That Emery and Martin could not jointly maintain the action; Emery alone having an interest in the subject matter of the suit, ought to have brought the suit in his- own name. In support of the last point, the counsel cited 2 Saund. 116, a. n. 2; 3 Mod. 263; Bull. N. P. 157; 5 Coke, 19; 1 Saund. 153, 4, n. 1 ; 1 Chitty’s PI. 6, 7, 8.</p>

Error from the Broome common pleas. Kneeland sued Sprague and Carey in replevin, for taking a horse. The defendants pleaded separately. Sprague pleaded, 1. Non cepit; 2. That as a constable, he took the horse by virtue of an attachment, issued by a justice of the peace at the suit of L. Dim-mick and C. W. Sanford against the goods, &c. of H. K. Saunders; that the horse was the property of Saunders, traversing the property to be in the plaintiff; 3.

Demurrer to plea. The plaintiff declared in an action of debt, on mutuatus, claiming $2000 from the defendants, under the 25 th section of the act incorporating the village of Rochester, passed 10th April, 1826. The defendants pleaded nil debent and eight other pleas, to which eight last pleas the plaintiff put in one general demurrer, assigning a variety of special causes of demurrer.

This was an action of ejectment, tried at the Herkimer circuit in March, 1832, before the Hon. Nathan Williams, then one of the circuit judges. The suit was brought for the recovery of 127 acres of land, described as being part of a lot known as “ upper lot number forty-seven,” in Jersey field patent, situate in the town of Russia, in the county of Herkimer.

Error from the Washington common pleas. D. R. Cleveland sued A. Cleveland in a justice’s court for trespass, in walking over his lands. The defendant passed from the beaten track of a public highway over a fence into his own lands, and in doing so passed over a strip of land belonging to the plaintiff, of from six to ten feet in width, lying between the road and the fence, allowing the road to be only two rods wide.

Error from the Jefferson common pleas. Noland sued Blade in a justice’s court, and declared on a note destroyed or lost, and for work and labor. The defendant pleaded the general issue, and gave notice of set-off The plaintiff called a witness, and proved by him that the defendant, previous to 4th March, 1832, gave the plaintiff a note for $24,80, payable in three months, for wages due to him for work done for the defendant.

ERuou from the superior court of the city of New-York. Raymond sued Howland in an action on the case for false representations as to the credit of a mercantile house at Matanzas to which the plaintiff was about to make a shipment of goods to be sold on commission, and subsequently made such shipment, which was lost by the insolvency of the consignees. On the trial of the cause, one Wood being called as a witness for the plaintiff, was objected to as interested.

Error from the Erie Gommon pleas. Kerr sued Osborne In a justice’s court. Osborne was a superintendent of the Erie canal, and employed Kerr to get out a quantity of timber to repair a waste-wier, and also to rebuild a bridge. Osborne said he would pay what was right. The timber was got out and the bridge repaired. It was generally known that Osborne was a superintendent. There was some doubt from the evi-<jence whether Kerr had been fully paid.

This is an action of ejectment by a landlord against a tenant for non-payment of rent, and the declaration having been served not on the defendant personally, but by affixing a copy on a post in a conspicuous place on the demised premises, there being no dwelling house or other building on the same, and the premises being vacant and unoccupied, the plaintiff moved for leave to enter a rule that the defendant plead.

The relator, on an affidavit that he was one of the directors of the Cayuga County Bank, and that the cashier of that institution had refused to permit him to inspect and examine he discount hook of the bank, obtained a rule that the cashier submit the book to his inspection, or show cause why a mandamus should not issue. The cashier showed cause; his own affidavit and the affidavits of six of the directors were produced and read.

The plaintiffs, in June, 1830, obtained a verdict against the defendant for #30,51 in an action of assumpsit, the demands exhibited on the trial not being such as entitled the plaintiffs to costs. The defendant supposing that his costs would be a full set-off against the damages, and the plaintiffs being insolvent, suffered the matter to sleep.

The defendants moved to set aside the default entered in this case' for not pleading. The suit was commenced by the filing of a declaration, &c. and a copy was served by the sheriff, who certified, that oh the-day of-, &c. he served a copy of the declaration on J. Wright, one of the defendants.

The defendant served a plea, and the plaintiff neglecting to bring the cause to trial, a motion was made for judgment as in case of nonsuit. It appeared, that after the defendant had retained an attorney to defend the suit, but before service of notice of retainer, the plaintiff had entered a rule for discontinuance, and the plaintiff therefore insisted that the motion should be denied.

The plaintiffs noticed their damages to be assessed by a jury on a writ of inquiry, after a default for not pleading. The jury was summoned and attended, when the defendant gave a cognovit for the sum claimed, which was less than $250. The plaintiffs accepted the cognovit, and taxed their costs at $36. The defendant moved for a re-taxation.

The defendant presented a petition for the removal of this cause into the circuit court of the United States, and also presented a bond in’the penal sum of $1000, conditioned for entering in the circuit court copies of the process against him and for his appearance, and prayed for a rule that no further proceeding be had in this court. The suit was commenced ip this court by the filing and service of a declaration, in which the damages were laid at $14,000.

This was a motion for a mandamus, directing the New-York common pleas to make return to a certiorari, issued to remove a cause into this court, commenced in the common pleas by S. & E. Peltier against the relators. The suit was commenced by the filing and service of .a declaration on the defendants, on the 13th of February, in which suit the plaintiffs demanded a sum exceeding $500.

The defendant in this case moved to set aside a writ of re-plevin, and all proceedings had thereon, on the ground that the affidavit of ownership of property annexed to the writ was not sworn to before a proper officer: it appeared to have been sworn to before the coroner who executed it.

On a certificate of a circuit judge, that the demand of the plaintiffs had been unreasonably resisted, a motion was made that the plaintiffs be allowed costs, which was resisted, on the ground that the certificate did not state the evidence upon which the conclusion of the judge was founded — but

An execution was issued in this cause for the sum of #246, 69. On the 28th May last, goods and chattels, the property of the defendant, were sold by the sheriff of N. York to satisfy the execution in this cause, and another previously issued in favor of other plaintiffs. The property sold for sufficient to satisfy the execution first issued, leaving a balance in the hands of the sheriff of #270.

The question in this case was, whether a plaintiff who has obtained an inquest at the circuit is bound to waive it, on being offered the costs and presented with an excuse verified by affidavit; and if he refuses to do so, whether he is chargeable with costs of motion.

The question here was, whether referees may impose the payment of costs as a condition to granting the postponement of a hearing.

Benham, one of the defendants in this cause, moved to change the venue, the other defendant having suffered a default. It. was objected by the plaintiff that one defendant cannot move to change the venue, unless the other joins in the application ; and 6 Wendell, 508, was cited.

S. W. Burnham, in his proper person, sued out a certiorari removing a cause in which judgment was rendered against him, from a justice’s court to the Steuben C. P., of which court he wa^s not an attorney.

This is a suit against three defendants, one of whom suffered a default in pleading to be entered against him, and the others pleaded to issue.. The cause was tried and a verdict rendered for the plaintiffs, which was subsequently set aside and a new trial granted.

Motion to change the venue on the ground of excitement prevailing in the county where the venue is laid. There had already been two trials in the cause and no verdict, the juries not being able to agree.

In the opinion delivered by the Chief Justice will be found . all the facts necessary to be known, to the due understanding of the question decided.

The defendant had interposed a. plea of title to an action of trespass commenced before a justice. The plaintiff then commenced his suit in the common pleas, and declared specially, describing the locus in quo. The defendant pleaded not guilty and liberum tenementum, and the cause having been removed into this court by certiorari, the plaintiff now moved that the plea of not guilty be stricken out.

The defendant was arrested upon a bailable capias, returnable in May term, and committed to actual custody, for the want of bail. The plaintiff did not declare before the end of the July term, which closed on the second day of August, and the defendant thereupon obtained an order from a circuit judge for the plaintiff to show cause before him, why the defendant should not be discharged from imprisonment and have judgment of discontinuance.

The plaintiff commenced a suit by the filing and service of a declaration on a contract for the clearing of land.

This was an action on the case for a false representation as to the credit of a third person. The plaintiff obtained a verdict, on which he entered judgment in this court.

This was a motion to change the venue from New-York to Westchester.

A motion was made in this case to set aside the capias, on the ground that more than a term intervened between its teste and return. The writ is tested on the seventh day of July, 1834, and is made returnable on the eighth day of July next. The case of Bunn y. Thomas & King, 2 Johns. R. 190, was relied on in support of the motion ; but

Griffin obtained a judgment in the marine court of the city of New-York against one Smith, which was set aside by the marine court, and the plaintiff subsequently refusing to go to trial on the issue joined in the cause, judgment of nonsuit was entered against him.

This suit was prosecuted by A. and B., a law firm, as attorneys for the plaintiff. The declaration was served upon the defendants personally, and not receiving notice of the retainer of an attorney to defend the suit, the plaintiff’s attorneys entered the default of the defendants for not pleading, and perfected judgment.

The defendant confessed a judgment in favor of the plaintiffs in a large sum, for thé purpose of securing and paying his creditors in the order specified in a classification accompanying the confession.

Devoe, one of the defendants in this cause, pleaded that a portion of the plaintiff’s causes of action consisted of a promissory note, which belonged to a banking corporation in the city of New-York. who casually lost the note, which came to the han’ds of the plaintiff without any consideration given by him to the bank; and that he, therefore, was not legally entitled to maintain an action thereon.

This was an action of ejectment, against John Barnes and Hiram Barnes, for the recovery of 175 acres of land.

This is a suit against Robert Bayard and William Bayard, on a promissory note alleged to have been made by William Bayard, the elder, Robert Bayard and William Bayard, under the name and firm of Le Roy, Bayard & Co. Robert Bay-ard, who was alone brought in on process, put in several pleas, upon which issue was joined in October, 1832. The cause was noticed for trial at the December circuit, 1832, but not tried, and in August was again noticed for the last September circuit.

<p>A complainant in chancery, against whom there is a decree for costs cannot be imprisoned on an execution for such costs, where the bill is founded on a contract, and the complainant prays for general relief, as well as a specific performance and the circumstances of the case are such, that upon proof of the contract there might have been a decree against the defendant for damages for the non-performance of the contract.</p> <p>This court, at a special term, has the power to grant a habeas corpus to inquire into the cause of detention of a party, and when such party is brought up, discharge him from custody; the habeas corpus, when thus granted, is granted by the court, and not by one of the justices thereof, acting as a commissioner.</p> <p>Every person having an interest in continuing the imprisonment of the party named in the habeas corpus, is entitled to notice of the time and place of the return of the writ; but it is not necessary to serve with such notice a copy of the petition or other paper upon which the writ was granted.</p>

<p>A party having no interest in the subject matter of proceedings had under the1 l statute authorizing summary proceedings in certain cases, is not entitled to sue out a certiorari.</p>

After a default for not pleading was entered, a notice of appearance was served. Two days after receiving such notice, the plaintiff entered a rule for interlocutory judgment, and had his damages assessed, without giving notice of assessment to the defendant's attorney, who now, on the ground of such omission, moved to set asside the interlocutory judgment and subsequent proceedings for irregularity.

This was an action of ejectment against four defendants, who joined in putting in a plea of not guilty. On the trial, three of the defendants had a verdict in their favor, and the plaintiffs had a verdict against the fourth defendant. The three defendants had a full bill of costs taxed in their favor, the same as if a verdict had been rendered in favor of all the defendants.

The relator presented an account to the board of supervisors of the county of Ulster, to be audited and allowed, for services rendered by him as a constable in subpoenaing witnesses» on process issued by the district attorney of the county, in which the names of several individuals were included in one and the same subpoena.

A report was made in this cause by referees on the eighteenth day of October last, in favor of the plaintiff.

In November, 1832, the plaintiff'in this cause recovered a verdict against the defendant in an action of assumpsit for $175.

In September, 1831, the plaintiff obtained a verdict in this cause for $169,73, the action being trespass. The defendants made a case, on which they moved for a new trial; which application was not disposed of until January, 1834, when the court refused to grant a new trial. In May last the plaintiff filed the circuit roll and pontea, and entered the usual rule for judgment.

On a rule to show, cause, it appeared that Fleming brought an action of assumpsit in the C. P. against J. & A. Colt. The declaration contained the common counts; the defendants pleaded the general issue, and gave notice of set-off. The cause was referred, and on the hearing before the referees, the plaintiff produced a promissory note against the defendants for $350.

<p>A plaintiff may amend his declaration as of course, as well in ejectment as in a personal action.</p>

This was a motion for re-taxation of costs. The action was slander, in which the plaintiff had a'verdict. The declaration contained two counts, amounting, together, to 54 folios. Each count contained a specification of words, laid as spoken in a great variety of forms of expression, with a view to meet the evidence in the case, which 'was the cause of the counts being swoln to so great a number of folios.

The declaration in this case contains three counts: 1. On two promissory notes, dated in 1816; 2. For goods sold; and 3. The common money counts. The defendant put in several pleas, and among others a plea of the statute of limitations, viz. that the several causes of action specified in the declaration did not accrue to the plaintiffs within six years before the commencement of the suit. To which the plaintiffs put in two replications ; 1.

, This suit was commenced by the filing and service of a declaration. The declaration was served on the seventh of October. On the twenty-seventh of the same month the defendant served on the plaintiff’s attorney, J. Cramer 2nd pleas of the general issue and usury, which not having the signature of counsel, were treated as a nullity by the plaintiff’s attorney, who on the thirty-first of October, served a notice of assessment for the fifteenth of November.

In this case, real estate of the defendant was sold by virtue of an execution and bid in by the executors of the plaintiff, the plaintiff having died since the issuing of the execution.

The plaintiff obtained a verdict in & personal action, in November, 1833. The defendant tendered a bill of exceptions, and obtained an order enlarging the time to settle the same for forty days, and then staying all proceedings on the part of the plaintiff upon the verdict, until the further order of this court.

The relator had presented an account to the defendant claiming compensation for his attendance as a judge of the, county courts, at the clerk’s office of the county of Albany, on notice, at various times, to witness the drawing of juries for the courts of common pleas and mayor’s courts. The supervisors refused to allow the account, and were now heard on a rule granted to show cause why a mandamus should not issue.

The defendant in this case compelled the plaintiffs to commence a proceeding in the nature of an action of ejectment against him, for the recovery of certain lands, under the provisions of the'revised statutes, headed, “Proceedings to compel the determination of claims to real property in certain cases.” 2 R. S. 312, &c. The plaintiffs, upon being served with the notice prescribed by the statutes, appeared and declared against the defendant, who put in a plea of the gener.…

<p>An execution was issued in this case for the damages and costs, for which judgment had been recovered. The attorneys for the plaintiff gave notice to the defendant to pay the damages, as well.as costs, to them. After, the execution was issued, and subsequent to the notice, the plaintiff, gave a receipt for the amount of the damages to the defendant, who tendered the costs to the attorneys and paid the sheriff’s fees, and now asked for a rule that the execution be returned satisfied. The motion was opposed by the attorneys, on the ground that they had a demand against their client for costs in other suits to an amount equal to the damages; but they had no assignment of the damages, nor did it appear that their client had assented that they should apply the damages in satisfaction of their demand.</p>

<p>A motion was made in the Albany common pleas to supersede a certiorari, returnable in that court, sued out to remove a judgment rendered in the justice’s court of the city of Albany. The judgment was rendered on the 24th day of June last. On the 14th day of July, an affidavit, setting forth .the testimony and proceeding, in the cause, was made and presented to a commissioner, but a certiorari was not left with him at that time for allowance. On the 23d day of July, a supplemental affidavit, more full in stating the testimony and proceedings than the first, but containing no collateral fact, was presented to the commissioner; but a certiorari was not presented at that time, nor was one presented until the 16th day of August, when it was forthwith allowed; and on the 25th day of August served upon the justices of the court, who rendered the judgment sought to be removed. On these facts, the relator moved the C. P. to supersede the certiorari, and the motion was denied. He now asks for a peremptory mandamus, directing the C. P. to supersede the writ.</p>

<p>The defendant in this case moved to change the venue from Oneida to Cattaraugus, on an affidavit that he had twelve witnesses residing in the latter county. T heplaintiff swore that he had thirteen witnesses residing in Oneida, and stated in addition that the suit was for a malicious prosecution ; that the defendant had maliciously and without cause procured a criminal warrant to be issued by a justice of the peace of the county of Cattaraugus, upon which the plaintiff was arrested in the county of Oneida and carried to Cattarugus, and there discharged without any further proceedings. The defendant insisted that the cause of action, if any, arose in Cattaraugus, and that the action is local.</p>

Williams obtained a judgment on verdict in the justice’s court of the city of Albany, against S. L. Southard, who sued out a certiorari returnable in the mayor’s court of Albany.

An inquisition was taken in this cause upon a writ of inquiry for the assessment of damages. The defendant asked to be let in to defend, which was granted upon the terms that the judgment which had been entered on the inquisition should stand1 as security for such sum as the plaintiff might eventually recover, and on payment of costs. The question was, what costs should be paid by the defendant.

<p>The relator was plaintiff‘in an action prosecuted in the Erie common pleas. The cause was referred, and the C. P. granted judgment as in case of .nonsuit against the plaintiff, for his neglect to bring the cause to a hearing before the referees. It was shown that the C. P., by general rule, had adopted the practice of this court in all cases not specially provided for by the rules of ■ that court. The relator insisted that the C. P. had erred in granting judgment as in case of nonsuit; that the defendant ought to have taken a rule authorizing him to notice the cause for a hearing.</p>

In an action of replevin commenced by writ, the plaintiff declared for a quantity of household furniture. The defendant put in a plea, in which he craved oyer of the writ and set it forth, and as set forth by him, it appeared that the officer was commanded to replévy as well a barouche waggon and harness as household furniture; and then, after setting forth the writ, the defendant pleaded the variance between the writ and declaration in abatement.

A female was indicted and tried for petit larceny, in the general sessions of Monroe, and convicted. She applied for a new trial, on the ground that the verdict against her was produced by the question of her guilt or innocence having been ]eft by the jury to lot or chance, instead of being the result of their deliberations upon the evidence given in the case. The facts were shown by the affidavit of the constable who attend ed the jury.

Costs on appeal from an order of bastardy. An order of filiation was made by two justices, adjudging A. W. Moore to be the reputed father, &c. Moore appealed to the general sessions of Ontario, who after hearing evidence, quashed the order, and awarded costs to be paid to him, which were taxed by three of the judges of the county courts of Ontario, at the sum of #96,15. The taxation was opposed by the counsel for the superintendents of the poor of the county.

This suit was commenced by capias, which was served on Waldron on the sixth,- and on Kimball on the seventh day of January last, by John Vernam, whose term of office as sheriff of the county of Saratoga expired, on the first day of January last. The defendants moved to set aside the arrest.

Judgment of ouster having been rendered against the Utica and Minden Turnpike Company, the attorney general applied for an attachment against four individuals, alleged to have been directors of the corporation at the institution of the proceedings, to enforce the collection of the costs of the proceedings. The application was made under a provision of the revised statutes authorizing such process. 2 R. S. 585, § 50.

This was a motion for costs against an executrix, under the provision of the statute subjecting executors and administrators to costs, where they refuse to refer, &c. 2 R. S. 90, § 41. The affidavit stated that the defendant had refused to arbitrate, &c.

<p>Attorneys! and1counsel-fee prepared for trial, are not taxable where a cause is settled after notice of trial and previous to the circuit.</p> <p>Attorneys’ and counsel-fee, on motion in each cause, are proper items of taxation where a number of causes are embraced in the same notice, although but one set of papers can be charged.</p>

<p>A warrant of attachment was issued in this cause in August, 1830, at the instance of C. Mitchell, to whom Bunch was indebted upwards of $42,000, by judgment obtained in this court in 1822. Trustees for all the creditors of Bunch were duly appointed in June, 1831, who took the oath prescribed by law, caused their appointment to be recorded, and notice ther.eof to be published in the manner prescribed by statute. The trustees caused Bunch to be brought before the officer who had issued the warr.ant of attachment, to be examined relative to his estate,'&cc. and on such examination the officer overruling certain inquiries made by the trustees, they sued out a certiorari removing the proceedings into this court for the purpose of reviewing his decisions. While the certiorari was depending in this court, to wit, on the the 20th November, 1832, an arrangement took place between the attaching creditor and the debtor: Bunch drew a bill of exchange on the firm of Bunch & Co. of Carthagena in Columbia, for $19,988, 2I| cents, {fifty p'er cent, of the principal of the original debt) payable four months after date, at the office of Robert Lenox & Son, in New-York, which was accepted, and delivered to Mitchell; who, in consideration thereof, executed to Bunch a general release of all demands, acknowledged satisfaction of the judgment he held, and signed a consent that the attachment and all proceedings had thereon might be superseded and discharged. In pursuance of which, ¿pplication was made to this court in February, 1833, for a supersedeas to the attachment, which was resisted by the trustees: but the court granted a rule that the attachment and all proceedings had thereon be set aside, on payment to the trustees of all expendí-tures by them incurred, and of all liabilities and responsibilities they were under; and on payment of the commissions to which they were entitled on the amount of the debt paid and satisfied by the debtor to the attaching creditor ; provided that within three months from the entry of the rule, no other creditor of Bunch should cause himself to be made attaching creditor, in pursuance of the provisions of the statute. The bill of exchange received by Mitchell, when it fell due, viz. on the 23d March, 1833, was protested for non-payment. In April following Mitchell endorsed the bill to his agents, Messrs. Robert Lenox & Son, who on the same day put their names upon it, and transmitted it to their correspondents in Carthagena, where it was paid on the 11th May, 1833. In the mean time, no settlement having been made with the trustees in pursuance of the rule of February, 1833, the proceedings brought into this court by certiorari were reviewed by the court, and the decisions of the officer who had issued the warrant of attachment approved and confirmed ; after which the trustees took measures to remove the case into the court for the correction of errors, by obtaining leave to make up a record, but no further proceedings were had for that purpose. No property was seized under the attachment, and no moneys from the estate of the debtor ever came to the hands of the trustees. In January last, the trustees had a bill of their expenditures, responsibilities and commissions taxed by the clerk of this court in the city of New-York, (counsel for the debtor attending the taxation.) The commissions were taxed at 1059,54, (which is 5 per cent, upon tha half of 42,381,66, the principal of the judgment obtained by Mitchell against Bunch,) and the expenditures and responsibilities at $299,38, making a total of$1358, 92. From this taxation the counsel for the debtor appealed to this court.</p> <p>The principal items of the bill as taxed for expenditures, &c. related to the costs of suing out the certiorari, and the subsequent proceedings had thereon. The ^counsel for the debtor insisted that the decision of the judge, who issued the warrant, having been confirmed by this court, it was manifest that the certiorari had been sued out by the trustees in their own wrong, and without just cause, and that the debtor therefore ought not to be subjected to the expense gro wing out of that proceeding. If these charges were proper, he'then objected in detail to an allowance of $60 for counsel fees. The trustees had • charged counsel fees : attending on the examination of the debtor before the judge five successive days, $50; arguing certiorari, $25; and attending to special motions before the court at three different times, $15 ; making a total of $90, from which the clerk requested $30, and- allowed the residue. The counsel insisted that one of the trustees being a counsellor of this court, ought to have attended in person to the case, and ought not to have employed other counsel; and it was also said, that as in the bill of taxable costs, pot less, than seven counsel fees were charged and allowed for as many terms, no additional counsel fees should have been allowed, As to the commissions, it was insisted, that none ought to have been allowed under the provision of the statute, which -is: “ out of the moneys in their hands, the trustees may first deduct all the necessary disbursements made by them in the discharge of their duty, and a commission at a rate of five per cent, on the whole sum which shall come into their hands.” 2 R. S., 46, § 29. Here, not a cent come to the hands of the trustees; no property was seized under the attachment which had been converted into money, nor had the trustees possessed themselves of any moneys, belonging to the debtor, found in the hands of third persons. It was true, a bill of exchange had been paid by a mercantile house in South America ; but for aught appearing, such payment had been made solely as a gratuity to relieve Bunch from his embarrassments.</p> <p>In answer, it was said, that as there was no complaint that the certiorari had been sued out in bad faith, or with the view of creating expense, its result could not affect the claim of the trustees to indemnity: they were not to be subjected to the responsibility of their counsel mistaking tne law. In reference to the charge for counsel fees, it was conceded that the taxing officer had erred, but it was said his error laid in the deduction which he had made. Counsel fees were nescessary disbursements, the amount charged in this case was reasonable, and the whole should have been allowed — and that, al-s though one of the trustees was a counsellor of this court; for if the services were rendered by him, they were rendered as counsel, and not as a trustee. Counsel fees being charged ■ as taxable costs, it was said, did not affect these items, which were for fees actually paid beyond the taxable costs — the fact of payment not being disputed, but only the right itself questioned. In relation to commissions, it was said that the right of the trustees to such allowance depended upon the fact, whether any money had been coerced from the debtor in consequence of the proceedings had against him, and not upon the fact of such money having literally come into the hands of the trustees. It was undeniable that upwards of $19,000 had been received by the creditor of the debtor ; in consideration of which, the creditor executed a release, and signed a consent that the attachment should be superseded. It cannot be, that by a combination between the attaching creditor and the debtor, the trustees can be deprived of their commissions.</p>

This was an action of replevin. The declaration contained but one count, and in it the plaintiff charged the defendant with taking 25,000 feet of white pine boards. The defendant pleaded non cepit.

After a plea in abatement in this cause, the plaintiff served the defendants’ attorney with a cassetur billa, who at the next term filed the same, and entered a rule in in the common rule book for judgment for costs. The plaintiff moved to set aside such judgment.

The defendant moved to vacate a rule entered at a previous special term denying a motion made by him, alleging that the grounds upon which the former motion was denied were now satisfactorily explained.

This cause had been referred, and a report made by the referees of the evidence and proceedings had before them on the hearing. The defendant now asked for a rule that the referees amend their report in a variety of particulars specified in a notice, as to what transpired on the hearing, as to the testimony of several witnesses, and as to admissions made by the plaintiff.

<p>The relators in this case asked for a certorari, removing into this court the proceedings had in the opening of a public square, in rear of the contemplated state buildings about to be erected in Eagle street, in the city of Albany, on the alleged ground that real estate belonging to the relators had improperly been assessed for benefit.</p>

A motion was made in this caseto set aside the declaration, on the ground that it was entitled as of January term, 1835, in a suit commenced by capias, returnable in July term, 1834.

This was a motion to change the venue from New-York to St. Lawrence.

Motion to change the venue from New-York to Delaware. The defendant had eight witnesses residing in and near Delaware. The plaintiff made affidavit that he had nine witnesses residing in and near New-York, and that without the testimony of each and every of them he could not safely proceed to trial, taking into consideration the sustaining of the action, and meeting and resisting the defence, which he believed the defendant intended setting up.

<p>Motion for judgment of non-pros for not filing security for costs. On the ninth of February last the defendant obtained a rule at the special term of this court, that the plaintiff file security for (he defendant’s costs, and that in the mean time all proceedings on the part of the plaintiff be stayed. The rule was duly served on the seventeenth day of February, and on the twenty-eighth of the same month, the plaintiff, on an affidavit that no security for costs had been filed, gave notice of this motion. On the part of the plaintiff it was contended that such practice was not known in this court; that the only mode in which the plaintiff could be put out of court was to ndit-prós him for not declaring, or the like, if the cause was not at issue, or if issue was -joined, to move for judgment as in case ot nonsuit, tor the plaintiff s omission to bring the cause to trial,</p>

Error from the Orleans common pleas. On ihe 22d May 1830, one B. Coveil executed a mortgage of a bureau and other personal property to G. Hard, to secure the payment of $ 17 due to Hard on a judgment, and to indemnify him against loss, in consequence of having, on the day of the date of the mortgage, as the surety of Coveil, signed a note with him to one H. Goodrich, for the sum of $ 17, payable 30 days after date ; the mortgage to be void if Covell paid the $15 on or before…

<p>This was an action of ejectment, tried at the Oneida circuit in April, 1832, before the Hon. Nathan Williams, then one of the circuit judges.</p> <p>The lessor of the plaintiff claimed the premises as a purchaser at a sheriff’s sale, Under an execution against George Or. Klock, on a judgment for #1455,30, in favor of A. Haring, ren^erec* *n *817, The execution was issued in 1827, and the deed executed by the sheriff in 1829. Klock Was the owner of the premises in 1812. The defendant relied, in his defence, upon a deed of the premises in question from Klock to his daughter, the wife of the defendant, in consideration of natural lavé and affection, bearing date 6th January, 1814. The plaintiff proved that in 1808, Klock commenced about 24 actions of ejectment for the recovery of a valuable tract of land, which actions were brought to trial in September, 1814 or 1815; cases were made, and the plaintiff was finally unsuccessful in his suits, and cast in heavy bills of costs. Previous to the trials, the suits had been suspended by a bill in chancery, seeking a discovery. Haring was the attorney of Klock, in 13 or 14 of the suits, and the judgment in his favor was for costs, part of which accrued as early 1812. About the time of the conveyance to the defendant’s wife, Klock gave a deed of the principal part of his homestead farm to his son Peter Klpck and to another son, and other portions of his property he conveyed to other children, but retained a very considerable real estate, was free of debt, independent of his liabilities in consequence of the suits, in which he confidently expected to succeed; and now, at the'time of the trial of this suit, he was still the owner of real estate to a considerable amount. The lot conveyed to the defendant’s wife in 1814 was worth #600. Peter Klock proved that since 1820, the property conveyed to him and his brother had been sold by virtue of an execution under a decree in chancery, and that he and his brother, to prevent litigation, had paid #3500, and taken an assignment of the decree. This testimony, in * reference to the buying in of the decree by Peter Klock, was objected to by the defendant as inadmissible, but the objection was overruled. The judge submitted to the jury the question, whether, under the circumstances of the case, the conveyance to the wife of the defendant should not be deemed fraudulent; and in his comments, strongly .intimated an opinion against .the defendant. The jury found a verdict for the plaintiff. The defendant moves for a new trial.</p>

Demurrer to plea. In January term, 1831, the plaintiff brought his suit as late sheriff of the county of Seneca, against Burrell and three others, and declared on a replevin bond, bearing date in 1821, given upon the occasion of the executing of a plaint in replevin, at the suit of E. Colburn and J. Burrav against A. Knapp and W. Davis, for a quantity of oat timber.

Error from the Jefferson common pleas. Skellinger commenced a suit in a justice's court against Yendes as a .constable, and the others as his sureties, for not returning an execution put into his hands for collection. .The plaintiff obtained 1 judgment, and the defendants appealed to the Jefferson common pleas.

Demurrer to pleas. The plaintiff declared on a bond of indemnity, given by the defendants to save him harmless from any loss he might sustain in consequence of having become special bail for Pinney, in a suit brought by one Johnson against Pinney in the Onondaga common pleas.

<p>Error from the superior court of the city of New-York. Jack sued out a writ de homine replegiando, in which, after alleging that he, a negro man, was in the custody of Mary Martin, and that she claimed him as a slave, or a person who owed her service, and that she detained him on that account, the sheriff was commanded to cause Jack to be replevied, and to summon Mary Marlin to answer, áte. On the return of the writ, a declaration was filed, containing three counts ; in the first, it is alleged that Mary Martin, on the 20th August, 1833, at the city and county of New-York, took Jack, and him still holds ; in the second count, it is alleged that, on, áte. at, áte. the defendant falsely and maliciously took and held the plaintiff for a long space of time, and him still holds, upon the false pretence and allegation that he is her slave, and that she has the right to transport him without the jurisdiction,of the state of New-York, to wit, to New-Orleans ; whereas, on the contrary, it is alleged that the plaintiff is a freeman, to wit, at, áse. The third count is like the second, omitting the words falsely and maliciously.</p> <p>The defendant put in three avowries: In the first, she avows the taking and detaining, because, on the 27th February, 1830, at New Orleans, in the state of Louisiana, Jack was and ever since hath been and still is the slave of the defendant,' and, as such slave, bound to labor for, and owing service to her under the laws of the state of Louisiana for and during his life to wit at, áse. The defendant avers, that during all the time aforesaid, she was and still is an inhabitant of New-Orleans; that on the 5th of April, 1830, Jack escaped from thence and fled to New-York, a fugitive from his service and labor; that on the 7th August, 1833, she presented to the recorder of New-York an affidavit, setting forth her claim to the services of Jack, and his escape and fleeing into the state of New-York, and that he was then in the city of New-York: that the recorder issued a writ of habeas corpus, directed to the sheriff of New-York, commanding Jack to be taken and brought before him on the next day ; that the sheriff accordingly brought him before the recorder, who proceeded to hear the proofs and allegations of the defendant and of Jack touching the matter of such suit, and such proceedings were thereupon had, that afterwards, to wit, on the 23d August, it did appear to the recorder that the defendant was entitled to the services of Jack, and he therefore granted a certificate to the defendant, stating, among other things, that it satisfactorily appeared that Jack owed service to the defendant, a resident of the city of New-Orleans, in the state of Louisiana, but then in the city of New-York, and allowing the defendant, or any agent by her to be appointed, to take Jack through and out of the state of New-York, on the direct route to New-Orleans, . setting forth the age, size and marks distinguishing J ack; that Jack was then delivered by the recorder to the sheriff of New-York, who was appointed by the defendant to receive him for the purpose of his removal to New-Orleans ; wherefore, the defendant says she took Jack and detained him, as it was lawful for her to do, for the causes aforesaid, and this, &c.; wherefore she prays judgment and a return, &c. In the second avowry, she says she took Jack, and detains him, because he was and still is her slave, and this, &c.; wherefore she prays judgment and a return, &c. The third avowry is substantially like the first.</p> <p>To the first avowry, the plaintiff put in three pleas: first, (after protesting that no such certificate was granted by the recorder as stated in the avowry,) that the defendant, at the time when &c. was and still is wholly and entirely a resident of the city and county of New-York, and not of the city of New-Orleans, and this, &c.; wherefore the plaintiff prays judgment and his damages, &c. Second. That the defendant, at the time when &c. wras a citizen of the state of New-York, and could not lawfully hold the plaintiff as a slave, and this, &c wherefore, &c. Third. That heretofore, while the defendant held the plaintiff to service, and claimed that he was her slave by the law of the state of Louisiana, she was a resident of New-Orleans, but that on the 1st March, 1833, she removed from New-Orleans to New-York, and thereby became a resident of the city of New-York and a citizen of the state of New-York, by means whereof theylaintiff became a freeman > and this, &c. wherefore, &c. To the seponda vowry, the plaintiff pleads that at the time when, &c. he was not the slave °f ^le defendant, but was a freeman, concluding to the country with a similiter; and to the third avowry, a like plea as the last, concluding with a verification and prayer of judgment.</p> <p>To the three pleas put in by the plaintiff to the first avowry, the defendant demurred; and as to the plea of the plaintiff to the third avowry, the defendant joined issue.</p> <p>The superior court decided the three pleas to the first avowry to be bad, and gave judgment for the defendant; that the plaintiff take nothing by his writ, but that he and his caution &c. be in mercy, &c. and that the defendant go thereof without day, &c. Whereupon, a writ of error was sued out, removing the record into this court. The cause was brought to a hearing in this court in May term last, and was argued by J. I Roosevelt, jun. & R. SedgewicJe, for the plaintiff in error, and C. O'Connor, for the defendant in error.*</p>

ERROR from the Livingston common pleas. Arnold sued Foot in a justice’s court, and declared against him for placing obstructions and thereby diverting a stream of water from its natural channel, and preventing it from flowing in and upon the plaintiff’s land, 'the defendant pleaded not guilty, and accompanied his plea with a notice that, on the trial of the cause, he would prove that the source of the waters of the stream which he had obstructed was on his own land, and that…

This was a motion to set aside a report of referees. In ,October, 1826, the parties entered into a written contract, by which the plaintiff undertook to construct a section of the canal of the defendants, and the defendants engaged to pay him at the rate of 9 cts. per cubic yard for excavation, 40 cts. per cubic yard for rock, in ledges or fragments measuring one cubic yard, and 11 cts. per cubic yard for embankment.

The plaintiff declared in assumpsit, for the rent of a lot'of land in the town of Little Falls in the county of Herkimer, accrued under a demise made to the defendant on the 1st January, 1823, for the term of two years.

R. Beebe, a creditor of David Son, made complaint in writing before a justice of the jleac'e, (under the provisions of the “ act to abolish imprisonment for debt and to punish fraudulent debtors, Laws of 1831, page 402, § 26,) that Son had disposed of his property with intent to defraud his creditors, specifying 6 chairs, 1 table, 1 bed and bedding, crockery and cooking utensils, as property of which he had been possessed) and which he had put out of his hands into the…

Error froth the New-York common pleas. Gillespie sued the executors of the last will and testament of Richard Mul-heran, in an actiomof assumpsit for board and lodging, provided a servant of the testator, at his request. The deposition of one James Dougherty, the brother of the plaintiff’s wife, was read in evidence by the plaintiff, in support of his claim.

This was an action of assumpsit tried at the Monroe circuit in April, 1832, before the Hon. Addison Gardiner, one of the circuit judges. The plaintiffs declared on a promissory note for $55, given by the defendant, bearing date 20th September, 1831, payable one day after date, to David Williams or bearer, which was transferred by the payee to the plaintiffs. The note was transferred on the 24th October, 1831.

ErRoe from the municipal court of Brooklyn. Jeromus I. Johnson, in behalf of himself and partner, J. R. Johnson, on the 4th February, 1833, made application to the municipal court of the village of Brooklyn, for an attachment against the goods and chattels of F. H. Whitney.

<p>Where orders are given to a factor, to purchase at an extended credit and to forward goods of a particular description, and from the character of tho market for which they are intended, it is important, that they should be delivered forthwith : and the purchase is made and the goods forwarded to a correspondent of the factor, with instructions not to deliver them to the principal until paid for in cash, or approved paper given, payable in ninety days, when the factor had purchased at a credit of six months; and tho goods after arrival and before delivery are consumed ly fire while in the pos. session of the correspondent of the factor, the loss falls upon the factor, and not upon the principal.</p> <p>Whether a purchasing factor or agent has or has not a lien upon goods purchased by him for his principal, until reimbursed his advances, or secured his responsibilities; and whether, where the agent in such case asserts his right of lien and the goods are consumed by fire before coming to the actual pos. session of the principal, the loss falls upon the principal or upon the agent, quere.</p>

Error from the Herkimer common pleas. The turnpike road company sued Hooker in a justice’s court, to recover a penalty of $25, given by the general act relative to turnpike companies, 1 R. L. 234, § 8, the company charging him with digging and tearing up a sluice-way made on the road. The plaintiffs recovered before the justice, and the defendant appealed to the Herkimer common pleas.

<p>In an action by a mechanic or laborer, under the lien law in the city of New-York, to charge the owner of a building for moneys due by the contractor to the mechanic for work done, it is incumbent upon the plaintiff to show, that under the contract between the owner and contractor, there are moneys due from the former to the latter; the onus probandi lying upon the plaintiff and not upon the defendant.</p> <p>The contract between the owner and contractor must be in writing, and the work for which the owner is sought tobe charged must be done inpursuance of such contract; still it is not necessary to the enforcement of the remedy given by the statute that the work should be in literal compliance with the contract, nor will a departure from the prescribed mode in which it was to be done deprive the mechanic or laborer of his remedy, so long as the work is done upon the house mentioned in the contract: thus, where the contract was to build a two story house, and the house in fact built was a three story house, it was held, notwithstanding the variance, that the mechanic or laborer who bestowed work upon the building was entitled to the remedy given by the statute.</p>

<p>An award of arbitrators, that one party pay to the other a certain proportion of a prize drawn in a lottery, after deducting the usual per centage, with the amount then already paid, where nothing appears in the award showing the amount paid, or from which it can be ascertained by calculation, is had for want of certainty, and for not malting a final disposition of the matters submitted.</p> <p>Where such proportion of a prize drawn in a lottery is directed to be paid, and an action is brought upon the award, it is rot necessary to allege in the declaration that the prize was drawn in a lottery authorized by law : if such defence existed, it should have been urged before the arbitrators.</p> <p>Arbitrators, to whom a subject in controversy is submitted to determine the rights of the parties, are authorized to direct the payment of such sum o^ money, growing out of such controversy, as they find due from one to the other.</p> <p>In indebitatus assumpsit, it is not cause of demurrer that the plaintiff in his declaration states the indebtedness of the defendant and his promise to pay, in a sum greater than what from the cause of action set forth in the declaration, he is entitled to recover.</p>

The plaintiff in this case declared that Samuel Seaman, the father of the plaintiff and of the defendants, in his lifetime made and published his last will and testament, whereby he devised and bequeathed to the defendants and others a large amount of property real and personal; that after the death of his father, and before the proving of the will, he, the plaintiff, had become and was greatly dissatisfied with its contents and provisions, and especially in regard to doubts…

Error from the Tompkins common pleas. The overseers of the poor of Ithica sued Blanchard before a justice of the peace, and claimed a penalty of $25, under the act concerning jugglers and the exhibition of shows, 1 R. S. 660, § 1, 2. On the trial before the justice, it appeared that the defendant was one of a company of circus performers, who had an exhibition in the village of Ithaca for gain, without having previously obtained a license, according to the statute.

This was an action of assumpsit, tried at the New-York circuit, in September, 1831, before the Hon. Ogden EdwaRds, one of the circuit judges.

A certioRARI was issued in this case to a justice of the peace of the town of Ithaca, in the county of Tompkins, to bring up the proceedings had before him in reference to the imposition of a.fine upon the President, Directors and Company of the Bank of Ithaca, for their neglect to appear and work upon the highways, either in person or by substitutes, in pursuance of notice served by an overseer of highways.

<p>A purchaser who has entered into a contract, agreeing to pay a specific sum of money as the price of land to be conveyed to him, cannot be relieved from the payment thereof by the tender of a less sum, agreed upon in the contract as stipulated damages, to be paid in case of non-performance of the contract on his part.</p> <p>A plea of tender before suit brought must contain a profert in curia of the money tendered; and must be pleaded in bar of the damages ultra, &c. and not in bar of the action.</p>

This was an action of replevin, tried at the Madison circuit in September, 1831, before the Hon. Nathan Williams, then one of the circuit judges. The plaintiff 'declared for the taking and detaining of a pair of horses, sleigh and harness.

The plaintiff declared in indebitatus assumpsit, for the use and occupation of certain premises, viz. a race-way, water, and water privileges, laying the indebtedness on the first day of May, 1831, and claiming the sum of $200. The declaration also contained a count upon a quantum meruit, for the use and occupation of the same premises. The defendant pleaded non-assumpsit and a specialpha, to which the plaintiff demurred.

<p>This was an action on the case for a false return to an execution, alleged to have been made by the defendant as sheriff of the county of Chenango, tried at the Chenango circuit in October, 1831, before the Hon. Robeht Monell, one of the circuit judges.</p> <p>On the 23d October, 1827, an execution in favor of the plaintiff against one Pliny Nichols, for $479,60, was delivered to a deputy of the defendant of the name of Humphrey, by virtue of which a levy was made on household furniture and other property of Nichols, which, on the 5th February, 1828» was sold by another deputy of the defendant of the name of Glover, by virtue of the execution in favor of the plaintiff, and also of another execution against Nichols, in favor of Elijah Rathbone and Alvah Hunt, whereby the sheriff was directed to levy $765,98, of debt besides costs; which latter execution was delivered to Glover on the 28th February, 1827, under which a levy was made, and an inventory of property taken on the 9th March, 1827. The property sold for $367, 77, out of which sum the deputy paid $77,62 to one Haines, who claimed the same to be due to him as the landlord of the premises occupied by Nichols, as rent, and the residue, to wit, $290,15, was paid to Rathbone and Hunt on account of their execution. The execution of the plaintiff was returnd nulla bona, which was alleged to be a false return, on the ground that the execution of Rathbone and Hunt, by the delay in its enforcement, had lost its priority, and ought to have been treated by sheriff as dormant and fraudulent in reference to the execution of the plaintiff. On the trial of the cause, evidence was given by both parties as to the delay in enforcing the execution of Rathbone and Hunt, and the jury under the charge of the judge, found a verdict for the defendant — thereby finding that the execution was not dormant. The plaintiff moved for a new trial, alleging the verdict to be against the weight of the evidence, and complaining of the admission of incompetent witnesses. Haines, the landlord, was sworn and examined as a witness on the part of the defendant, to prove the rent due to him and the payment thereof by the deputy ; and Hunt, one of the plaintiffs in the execution alleged to be dormant, was examined as a witness in reference to the delay in the enforcement of that execution. Both these witnesses were objected to by the plaintiff as incompetent, but wei'e admitted by the judge. In reference to the interest of Hunt, the following facts appeared. On the 13th May, 1828, Rathbone and Hunt executed an instrument to the sheriff whereby they bound themselves to indemnify him for paying over to them the proceeds of the sale of Nichols’ property. On the 13th December, 1828, the sheriff, on receiving a bond of indemnity from Elijah Rathbone and one Ransom Rathbone in reference to the same matter, released Hunt from all claims and demands whatsoever, and from all liability under the instrument executed by him and Rathbone on the 13th of May, 1828; and on the 17th October, 1831, (the day of the trial of this cause,) Rathbone executed to Hunt an instrument, releasing all right to claim contribution from him, in case Rathbone should be subjected to damage or loss in consequence of the bond of indemnity of 13th December, 1828, executed to the sheriff. Upon these facts being shown, the judge ruled that Hunt was a competent witness, and he was accordingly sworn and gave testimony on the part of the defendant.</p>

This was an action of covenant, tried at the Onondaga cir-circuit in October, 1831, before the Hon. Daniel Moseley, one of the circuit judges.

This was an action of assumpsit, for breach of warrantry in the sale by sample of a quantity of cotton, tried at the Jefferson circuit in July, 1833, before the Hon. Nathan Williams, then one of the circuit judges. In April, 1830, the plaintiffs, residing at Watertown, in Jefferson county, wrote to B. L. Woolley, a broker, residing in the city of New-York, to purchase and forward to them at Water-town 20 bales of prime cotton.

This was an action of ejectment, tried at the Tioga circuit in June, 1835, before the Hon. Robert Monell, one of the circuit judges.

<p>Where a suit is piosecuted by a law firm, as attorneys for the plaintiff, it is enough that the name of the firm prosecuting the suit for the plaintiff issta~ ted in the declaration; both Christian and surnames need not be given.</p>

Ryndeks was indicted at the Cayuga oyer and terminer for forgery.

This was an action of assumpsit, tried at the Greene circuit in October, 1831, before the Hon. James Yanderpoel, one of the circuit judges. The plaintiff sued as the endorsee of a promissory note given by the defendant, dated 16th January, 1828, for $300, payable, with interest, on demand, to Lyntia Harder or order. The note was endorsed in blank by the payee, by writing her name (Lyntia Harder) on the back thereof.

Error from the superior court of the city of New York. Sheldon and others, as endorsees, brought a suit against B. & I, Q,. Aymar, as endorsers of a bill of exchange, bearing date 4th June, 1830, drawn by Y. Cassaigne & Co. ,8t. Pierre, at Martinique, on L’Hotelier Freres, at Bordeaux in France, for 4000 francs, payable at 24 days sight, to the order of B. Aymar & Co., the name of the firm of B. & I. Q. Aymar.

<p>Error from the Herkimer common pleas. Countryman sued Brewster in a justice’s court, and declared for a quantity of oats, spring wheat, corn, and winter grain, growing on premises lately occupied by B. Fairchild, sold by the defendant to the plaintiff, and for the breach of an agreement, whereby the defendant had engaged that if the plaintiff should be put to any costs in consequence of such sale, he would pay all the damages and costs; to which declaration the defendant pleaded the general issue. The cause was tried before the justice, who gave judgment for the plaintiff for $50 damages. The defendant appealed to the Herkimer C. P.; on the trial in which court the following facts appeared: In the spring of 1826 the plaintiff entered into possession of a farm under one Benjamin Fairchild, and put in spring crops on shares. Shortly after which the defendant, as landlord of the premises, threatened to turn the plaintiff out of possession, alleging that Fairchild had forfeited his lease, unless the plaintiff would secure him $160 or $17‘0, which he claimed to be due to him as arrearages of rent: and if the plaintiff would secure him such arrearages, he would sell him all the crops in the ground, and give him a lease of the place at the rent of $38 per annum. An agreement was accordingly entered in- ‘ , , , . . , . , f i • to, which was reduced to writing and signed by the parties. After the execution of the agreement, and on its being read, the plaintiff observed, “I want a written indemnity against all claims upon the grain to which the defendant answered that he would not give him a written indemnity, that he sold him the whole, that it belonged to him, and that he would see him out in it; that if he was sued, he must take the legal steps of the law in defending himself. The defendant called for the production of the written agreement. The plaintiff proved its destruction by the defendant himself. The defendant then offered in evidence what he alleged to be a copy of the agreement, and proved that the plaintiff had requested one Joseph Hunt to make a copy of the agreement; that the paper now produced was in the hand-writing of Hunt; and one witness testified that it was in substance like the original, which he had frequently seen, but he could not say it was a copy, as he had not compared it with the original. Joseph Hunt was not produced as a witness, nor was his absence accounted for; the court refused to receive the alleged cogy in evidence. The plaintiff then proved the recovery of a judgment against him, in favor of one Elias Fairchild, in a justice’s court, for $49 damages and $4,38 cts. costs, in an action of trover for the one half of the hay, grain oats, &c. raised on the farm formerly occupied by Benjamin Fairchild, and that on the trial of that cause, Elias Fairchild claimed to recover under an assignment executed to him by Benjamin Fairchild. It was further proved that Brewster, the now defendant, was examined as a witness on that trial, and testified that Benjamin Fairchild had assigned his lease to him, the witness, and that he had put Countryman into possession of the premises. Countryman appealed from the judgment so rendered against him, and obtained a verdict in the common pleas; but subsequently the appeal and all proceedings had thereon were quashed for a variance between the judgment and appeal bond. The proof of the judgment in favor of Fair-child against Countryman was objected to by Brewster as inadmissible, but the objection was overruled. The judgment in favor of Fairchild was paid by Countryman, who also paid costs and expenses in the appeal suit, to the amount of $52,-i 1 , ri 40. I he common pleas charged the jury, that if they believed that the defendant had agreed to indemnify the plaintiff in reference to the sale of the crops, &c. the plaintiff would be entitled to their verdict for all damages and costs growing out of the transaction incurred by him ; that if they were not satisfied that the defendant had entered into such agreement-then, to entitle the plaintiff to a verdict, it was incumbent upon him not only to prove the damage sustained by him, but also that the defendant, at the time of the sale, was not the owner of the property sold. To " which charge the defendant’s counsel excepted, and prayed the court to instruct the jury that the expressions used by the defendant, “ that he would see the plaintiff out in it,” made at the same time that he refused to give an indemnity, were not in point of law an agreement to indemnify or save harmless; and also that the judgment of Fairchild against the plaintiff had no connection with this suit; that it was illegal on its face, and if the defendant was bound to indemnify the plaintiff, he could not be caljed upon to pay judgments illegally obtained. The jury found a verdict for the plaintiff for $132, on which judgment was entered. The defendant sued out a writ of error.' 0</p>

<p>In an action on a policy of insurance against fire, where the conditions annex. ed to the policy and referred to therein require that the assured, sustaining loss or damage by fire, shall forthwith give notice thereof to the insurer, it seems, that it is necessary to aver that notice was forthwith given, or the declaration will be held bad on demurrer, or the judgment will be arrested after verdict.</p> <p>At all events, an averment of notice on the second of April, of the destruction of insured property by fire on the twenty-third of February previous, is not good. The provision in the condition of a policy that notice shall be forthwith given, it seems, will'be construed as imposing no more than due diligence, under all the circumstances of the case ; but there must be no laches or unneces. sary procrastination or delay in the giving of the notice.</p>

<p>Error from the superior court of the city of New-York. Dunham and Wadsworth brought an action against the American Insurance Company, on three several policies of insurance : one upon the vessel, another upon the freight, and the third upon the cargo of a schooner belonging to them. They proved their ownership of the vessel, and of a portion of the cargo, and that other goods were taken on board on freight. The whole of the cargo consisted of lawful goods, admissible in the ports of Colombia, which were laden at New-York, and shipped for the purpose of being landed and sold at Puerto Cabello. The policies contained the following clause “ It is also agreed that the property be warranted by the assured, free from any charge, damage or loss which may arise in consequence of a seizure or detention for, or on account of any illicit or prohibited trade, or any trade in articles contraband of war.” On the arrival of the vessel at Puerto Cabello, it was discovered by the custom house officers there, that there was on board of the vessel a quantity of tobacco and cigars taken on board by the cook, one of the crew of the vessel, and also another quantity of tobacco and cigars, and other articles of merchandize belonging to the master of the vessel, which had been clandestinely taken on board by the cook and master on their own accounts, without the knowledge or consent of the owners of the vessel or the supercargo, for the purpose of being smuggled into Puerto Cabello. The importation of tobacco and cigars was at the time of the arrival of the vessel absolutely prohibited by the laws of Colombia, and the other articles found in the possession of the master were by the same laws subject to the payment of duties, and required to be entered on the manifest of the vessel, but were not so entered. The vessel and cargo were thereupon seized by the custom house officers as forfeited to the government of Colombia, for^ a violation of the laws of the country prohibiting the importation of tobacco and cigars, and for the intended fraud on the revenue, by reason of the other articles found in the possession of the master not being included in the manifest. Proceedings against the vessel and cargo were instituted in the proper tribunals of Colombia, but through the exertions of the consignees there, the vessel and cargo were finally given up, at a heavy expense incurred ; and to recover the amount of the expenses paid by the plaintiffs, in effecting the liberation of the vessel and cargo, this action was brought. It was admitted by the defendant’s counsel that the conduct of the master and cook in the premises was barrartous, but they insisted that the defendants were protected from liability by virtue of the clause in the policies exempting them from responsibility, in cases of illicit or prohibited trade; and they prayed the court to charge the jury accordingly. The court instructed the jury that the clause referred to did not protect the defendants from liability, and the jury, under the charge of the court found a verdict for the plaintiffs for $1873, twelve cents damages and six cents costs, on which verdict judgment was entered for the plaintiffs. The defendants having excepted to the decision of the court, sued out a writ of error.</p> <p>insisted that by the true construction of the clause in the policies against illicit trade the insurers are not responsible for any loss of that description, whether resulting from the barratry of the master, or otherwise. The warranty is general against any illicit or prohibited trade, and extends as well to trade by the master or mariners as by the owners. Had it been intended to limit the operation of the clause to the owners, it would so have been expressed : but such could not have been its object, as the assurer never was liable for illicit trade by the owner, unless he had either expressly or impliedly assumed the risk of such trade. Richardson v. Marine Ins. Co., 6 Mass. Rep. 102. It must therefore bear upon illicit trade by the master and mariners, or its operation will be confined to the illicit trade of passengers, which it will not be pretended it was the object of the clause to guard against. On the authority of the dicta of counsel, in Bowne v. Shaw, 1 Caines, 488, it will be said that the clause in question was introduced into our policies in consequence of the decision of this court in Seton, Maitland & Co. v. Low, 1 Johns. Cas. 1, in which it was held that articles contraband of war were lawful goods, within the meaning of a policy upon all kinds of lawful goods, and that the clause in question is to be construed in reference to the object of its introduction; but by reference to the cases of Smith v. Delaware Ins. Co., 3 Serg. & Rawle, 74, and Faudel v. Phcenix Ins. Co., 4 Serg. & Rawle, 42, it will be seen that this clause was adopted as early as 1788, nine years before the policy, in the case of Seton and others v. Low, was underwritten. It stands, therefore, upon its terms, and will receive such construction as they require. In Suchley v. Delafield, 2 Caines, 222, the court decided, that under a clause like the one under consideration, the in. surer was liable for a loss by illicit trade barratrously carried on by the master; but the court did not pass upon the question whether the insurer was not protected by the clause exempting him from liability in case of loss by reason of illicit trade ; nor did they pass upon the effect of the conflicting provisions arising from the covenant of the insurer against the barratry of the master, and the warranty of the assured against illicit trade. It is conceded that the case of Suchley v. Delafield was supposed to settle this question against the insurer, but in the subsequent case of Mumford v. The Phcenix Ins. Co., 7 Johns. R. 449, the case of Suchley v. Delafield, was substantially overruled, and the question is now open for the adjudication of the court.</p> <p>relied upon the case of Buckley v. Delafield, as decisive here. He cited also 3 T. R. 277; 2 Binney, 579; 2 Condy’s Marshall, 534: Phil, on Ins. 234, 5; and 13 Johns. R. 451.</p>

This was an action of assunvpsit, tried at the Cayuga circuit in December, 1831, before the Hon. Daniel Moseley, one of the circuit judges.

This was an action of assumpsit, tried at the Chenango circuit in October, 1831, before the Hon. Robert Monell, one of the circuit judges. The plaintiff declared as the bearer of a promissory note, made by the defendants on the 21st April, 1828 for the sum of $200, payable to Seth Powerman, or bearer, on the tenth day of June next after the date of the note.

Motion in arrest of judgment. The plaintiff declared in debt on a justice’s judgment rendered in this state, setting forth that whereas, on the 14th day of December, 1819, in a certain court of the people of the state of New-York, commonly called a justice’s court, (the said court being held at Salem, in the county of Washington, before one David Sill, Esq., one of the justices of the peace of the people of the state of New-York,) he, the plaintiff, by the consideration and…

This was an action of debt on recognizance, tried at the Herkimer circuit in March, 1832, before the Hon. Nathan Williams, then one of the circuit judges.

Information in the nature of a quo warranto. On the eleventh day of January, in the term of January, 1832, the attorney-general filed the information in this case, complaining that on the second, day of the same month of January, the defendant had usurped, without lawful authority, the office of sheriff of the county of Columbia.

Error from the superior court of the city of New-York. Morton and others, assignees of H. B. Gwathmey. an insolvent debtor, declared upon a note bearing date 2d January, 1828, for $2000, given by the defendants, payable to Gwath-mey, with interest from the 26th of the preceding October. On the trial of the cause, the making of the note and the appointment of the plaintiffs as assignees were admitted.

This was an action of trespass on lands, tried at the Madison circuit in March, 1832, before the Hon. Nathan Williams, then one of the circuit judges. The act complained of as a trespass was fully proved. The defendants attempted to justify themselves under a warrant issued by a judge of the Madison common pleas, by virtue of the statute authorizing summary proceedings to obtain the possession of land in certain cases.

This was an action of covenant, tried at the St. Lawrence circuit in February, 1832, before the Hon. Esek Cowen, one of the circuit judges. The suit was brought upon articles of agreement bearing date 29th October, 1804, whereby the plaintiff engaged to convey to the defendant 66 acres of land, situate in the county of St. Lawrence, on the defendant paying to him $206,25 with interest; the money to be paid in four annual instal-ments, the first to be paid on 1st August, 1805.

This was an action of debt on an administrator’s bond, tided at the Erie circuit in March, 1831, before the Hon. Addison Gaedinee, one of the circuit judges.

This was an action of ejectment, tried at the Oswego circuit in June, 1832, before the Hon. Nathan Williams, then one of the circuit judges.

This was an action of replevin, tried at the Cayuga circuit in December, 1831, before the Hon. Daniel Moseley, one of the circuit judges. The plaintiff declared' for two horses.

ERROR from the Ontario Common Pleas. Price sued Power in an action of slander, for charging him with swearing false as a witness, on a trial in a justice’s court, in a cause in which Power was plaintiff and M’Lowth and Osgood defendants. The charge was general, that Price had sworn false upon the above occasion.

Demurrer to pleas. In May term 1831, the plaintiff declared in assumpsit.

■ Error from the Tompkins common pleas Bull commenced a suit in the Tompkins common pleas in the year 1830, and exhibited his declaration against Beebe in assumpsit for work, labor and services, &c. Beebe pleaded the general issue, and secondly, a special plea, that in this court, in the term of May, 1829, he commenced an action of assumpsit against Bull, which subsequently was referred to referees; on the hearing before whom, Bull set off against the demands of Beebe the…

<p>A Iona fide equitable interest in property, of which the legal title is in another, may be insured under the general name of property, or by a description of the thing insured, unless there be a false affirmation or representation, or a concealment after inquiry of the true st ite of the property ; and the applicant for insurance is not bound to state the particular interest he has in the premises to be insured, unless specially inquired of by the assurer-The condition in a policy of insurance, that notice of all previous insurances upon the property insured shall be given or the policy to be void, applies only to previous insurances effected by the assured or his assigns; and not to previous insurances by the former owners of the property.</p> <p>A new trial will be granted where the judge, instead of submitting the question to the jury whether the concealment of the fact of a previous insurance was or was not material to the risk of a subsequent insurance, charged them that knowledge by the assured of a previous insurance and neglect to disclose the fact, was such a concealment of a fact material to the risk as avoided the second policy.</p>

This was an action of assumpsit, tried at the Ononadaga circuit in October, 1832, before the Hon. Daniel Moseley, one of the circuit judges. The plaintiff sued the defendant for costs due to him as his attorney, in the prosecution of two suits against J. Emmons, and for moneys paid in the prosecution of the suits.

This was an action of assumpsit, tried at the New-York circuit in March, 1832, before the Hon. Ogden Edwards, one of the circuit judges. The suit was brought upon a guaranty in these words: “ I do guarantee and agree to become security for the amount of any value in silver or money, not exceeding $400, that Mar-quand and brother may, from time to time, for the ensuing two years, put into the hands of Jno.

This was an action of assumpsit, tried at the Monroe circuit in October, 1832, before the Hon. Addison Gardiner one of the circuit judges. The defendant was sued as the endorser of a promissory note for $1000, bearing date 31st March, 1831, made by Josiah Bissell, junior, payable six months after date at the Bank of New-York.

<p>A parol acknowledgment by a principal, that an agent had authority under seal to enter into a sealed contract obligatory upon his principal is competent evidence of such authority ; but if, at the time of entering into a sealed con, tract the agent had in fact no authority under seal to enter into the contract, the subsequent parol acknowledgment of authority, and ratification of the contract by the piincipal, will not bind the principal.</p>

<p>Error from the Herkimer common pleas. Osborn sued Etheridge in an action of replevin for the taking and detaining of a quantity of hemlock boards, &c. The defendant avowed the taking, as and for a distress for rent of certain premises occupied by the plaintiff under a lease from the defendant, averring that $75, the rent of the premises for one year, due on the 1st April, 1829, remained unpaid, and that for that cause he took the boards, áre. The plaintiff pleaded to the avowry, 1. non tenuit, 2. riens in arrere, and 3. that by the lease under which he held the premises, bearing date 27th September* 1825, the defendant covenanted to construct a raceway of specified dimensions, to conduct water from the West Canada Creek through the lot of which the demised premises were a part, so as to contain a given quantity of water, which the plaintiff was to have the privilege of using in the working of a saw-mill; the raceway to be constructed in the summer of 1826. The plaintiff averred that the defendant did not, in the year 1826, construct the raceway of the prescribed dimen-s*ons> and that in consequence thereof he had not been able to enjoy the premises; and that for the year ending 1st April, 1829, the same had been wholly useless to him. 4. Another plea, the same in substance as the third, with the addition of an averment that the whole use and benefit of the demised premises to the plaintiff depended upon the enjoyment of the raceway. The defendant replied to the third plea, that he performed all and singular the covenants on his part undertaken ; and to the fourth plea he put in a similar replication, traversing that the whole use and benefit of the demised premises depended upon the enjoyment of the raceway.</p> <p>On these pleadings the parties went to trial. It was admitted that the plaintiff was in possession of, and held the demised premises, during the year ending 1st April, 1829, and that the rent of that year had not been paid. It was agreed that the question how much the rent should be reduced by reason that the saw-mill of the plaintiff did not run during all the summer of 1828, should be submitted to the jury on the evidence taken in the cause, and that the court should order such verdict on the issues as to them should seem proper, with liberty to either party to turn the case into a special verdict or bill of exceptions. The bill of exceptions states that the jury, after making such deductions for the cause aforesaid, brought in a verdict for the defendant for $68. The defendant insisted before the common pleas, that the issues arising upon the special pleas were immaterial issues, amounting to no more than the plea of riens in arrere, and that he, the defendant, was entitled to recover the whole amount of the rent avowed for; and if not the whole of such rent, yet he was entitled to the sum found by the jury. The common pleas decided that, according to the true construction of the lease, and under the pleadings in the cause, the defendant was not entitled to recover either of such amounts, and that notwithstanding the verdict, the plaintiff was entitled to judgment for six cents damages and six cents costs; to which decision the defendant excepted. A verdict was accordingly entered upon the record, by which the jury find the issues upon the two first pleas of non-tenuil and riens in arrere for the plaintiff; upon the third plea, that the defendant did not perform his covenants, and upon the fourth, that he did not perform, and that all and singular the use and benefit of the demised premises depended upon the enjoyment of the raceway. Upon which verdict a judgment for the plaintiff for 6 cents damages and 6 cents costs, together with costs of increase was entered. The defendant sued out a writ of error.</p>

<p>This was an action of ejectment, tried at the Steuben circuit in January, 1830, before the Hon. Samuel Nelson, then one of the circuit judges.</p> <p>The plaintiffs claimed the premises in question as the heirs at law of their father, John M’Fail, late of Cohocton in the county of Steuben, where the premises are situate. The defendant is in possession under title derived from an administrator’s sale, by virtue of a surrogate’s order. The rights of the parties depend upon the validity of that sale.</p> <p>The surrogate of the county produced the records of his office, from which it appeared that on the 18th June, 1817, letters of administration were granted to John Slack and Samuel D. Wells. He also produced the following papers, found in his office: 1. An inventory of the estate of the intestate, filed 1st December, 1817. 2. An account of sales, in which it was stated that on 22d January, 1818, all the personal property of the intestate was sold at public vendue; this paper has no signature to it. 3. and 4. Two papers purporting to be lists of debts against the estate, also without signature. 5. A petition from the administrators, bearing date 12th February, 1818, addressed to the surrogate of the county, stating that they found the personal estate to be insufficient to meet the demands against the estate, praying the aid of the surrogate in the premises. 6. A paper purporting to be the minutes of a surrogate’s court, held on the 8th April, 1818, in the hand-writing of the then surrogate, in which it was stated that at such court all the real estate of John M’Fail was ordered to be sold at public sale. 7. An order of sale bearing date 8th April, 1818, by which the administrators were directed to sell all the real estate of the intestate, and that one John Bennet join in the conveyances; this order was marked as recorded on the day of its date, but in fact was not recorded until November, 1828. 8. Three bonds, executed by Mehi-tabel M’Fail, the widow of the intestate, with surety, to Thomas, Benjamin and Daniel, three of the minor children of the intestate; in which bonds it was stated that Mehitabel M’Fail had been appointed by the surrogate" guardian of the infants r and the condition of each bond was, that she should in. all things well and faithfully take care of the goods, chattels,, lands and tenements of the minor, and render an- account, &c. The defendants then read in evidence a deed from the administrators and Bennet to Reuben Clawson, bearing date 19tb November, 1818, reciting the surrogate’s order and the sale of the premises, and conveying all the real estate of the intestate to the grantee, and a deed from Clawson of the same premises, bearing date 1st January, 1819, to Stephen Crawford, the husband of one and father of the other defendants.</p> <p>The plaintiffs proved that besides the three children of the intestate for whom their mother had been appointed guardian, as appeared by the bonds produced by the surrogate, William, another son of the intestate, was a minor on the eighth day of April, 1818, and that in respect to him, it did not appear that a guardian had been appointed. On the part of the defendants, it was then proved by the surrogate that he received his appointment as surrogate in 1827; that he found some of the papers belonging to the office at the dwellings of two of his predecessors, and some in the clerk’s office of the county, and that many of the proceedings in the office were imperfect,; that he had diligently searched his office, and could find no other papers relating to the sale of the premises in question than those produced by him. Slack, one of the administrators, testified that he presented to the surrogate the petition for the sale of the real estate of the intestate, and at the same time presented the account of debts and sales of the personal property; that the surrogate made an order for all persons interested, to show cause why the real estate should not be sold; that he, the witness, took the order to a printer in Steuben county, to have it published in a newspaper, and paid to the surrogate the printer’s fees for having it published in the state paper; that the order was published in a newspaper printed in Steuben, and a notice of the same affixed in the town in which the premises were situate, but he did not observe that the order was published in the state paper, nor did he ever see any proof of its publication in that paper; that on the day appointed for showing cause, he attended before the surrogate, who then made the order of sale. He also proved that the widow of the intestate was appointed guardian for three of the children of the intestate, and that he paid the fees for the appointment; and that but one appointment of guardian was made during the administration. The evidence of this witness was objected to by the plaintiffs as inadmissible, as well on the ground that he ought not to be permitted to drove the regularity of his proceedings, as that parol proof of the proceedings had in the case, was not competent evidence. The objection, however, was overruled and the evidence received.</p> <p>The counsel for the plaintiffs insisted that the evidence adduced on the part of the defendants was not sufficient to bar a recovery ; that the defendants were bound to show a strict compliance with the requisitions of the statute regulating sales under surrogate’s orders ; that they had failed in showing the publication of the order to show cause in the state paper, and had also failed in showing an appointment of guardian for the infant heirs, in reference to the proceeding had to obtain a sale: the appointment being that of a general guardian, and not of a guardian ad litem; that as to William, one of the heirs, there was no pretence of a guardian having been appointed for him for any purpose, and that consequently, as to him, the proceedings were wholly void. The judge instructed the jury that, under the circumstances of the case, they were warranted to presume that all nescessary proceedings had been duly had before the surrogate, that the order to show cause had been published in the state paper, and that guardians for the infant heirs had been properly appointed; and if they should so find, the defendants would be entitled to their verdict. The jury accordingly found a verdict for the defendants, which the plaintiffs now moved to set aside.</p>

This was an action of ejectment, tried at the Ontario circuit in December, 1832, before the Hon. Daniel Moseley one of the circuit judges. The plaintiffs claimed the premises in question as the heirs at law of Oliver Chapin, who they insisted became seised of the same by virtue of a purchase at sheriff’s sale, under an execution against one Oliver Giles Adams, by virtue of a judgment docketed on the 4th September, 1816.

<p>Demurrer to plea. The plaintiff declared on a scire facias quare excutionem non. The defendant pleaded that she had not, before the issuing of the scire facias, rendered and settled the accounts of her administration, wherefore she prayed judgment if the plaintiff ought to .have execution. To this plea the plaintiff demurred.</p> <p>The plea of the defendant is no answer to the declaration, for admitting that the plaintiff cannot sue out an execution, until after the administratrix has accounted, still he is entitled to judgment that he have his execution. Should he, after such judgment, issue execution without the previous order of the surrogate, the court will set aside the process; but without the judgment of this court, he cannot' regularly sue out execution upon the judgment which is sought to be revived, even after the administratrix has accounted to the surrogate.</p> <p>There is no necessity for a judgment of revival, the surrogate being expressly authorized to direct the issuing of the execution. 2 R. S. 116, § 20.</p>

This was an action of trespass, brought by the bank of Os-wego against the president and trustees of the village of Os-wego, for the taking of $332 from the counter of the bank by the collector of the village, under a warrant issued by the defendants for the collection of a village tax, the sum taken being the amount assessed to the plaintiffs. The tax was voted at the annual village meeting in May, 1831, but the assessment was not completed until February, 1832.

This was an action for a libel, tried at the Saratoga circuit in November, 1831, before the Hon. Esek Cowen, one of the circuit judges.

The prisoner was indicted at the Erie oyer and terminer for stealing within this state a number of bank bills, purporting to have been issued by the Bank of Upper Canada, and by the Hancock Bank, in the state of Massachusetts.

This was an action of assumpsit, tried at the New-York circuit in January, 1832, before the Hon. Ogden Edwards, one of the circuit judges. The suit was brought to recover the difference between the first and second sales of a brig, at auction. She was struck off to the defendant, at the first sale, at $3150 j the terms of sale were, approved endorsed notes at six months.

Error from the Otsego common pleas. Clarke sued Quackenboss in a justice’s court, and declared against him in covenant, as the assignee of a lease of certain premises demised by the plaintiff to one James Washington, on the 3d August» 1827, for the term of 31 years, subject to an annual rent of $20. He averred that the premises came to the defendant by assignment, and that three years rent became due, and remained unpaid on the 4th February, 1831.

This was an action of ejectment for dower tried at the Scho-harie circuit in November, 1831, before the Hon. James Yanderpoel, one of the circuit judges. The suit was broght to recover the dower of Sally, the wife of Jacob J. Shaver, in certain lands, whereof her former husband, Heth Peek, died seized. After proving marriage, seizin and death of former husband, and the service of the declaration on the defendant while at work on the premises, the plaintiffs rested.

Error from the Oswego common pleas. Lane sued Harvey in a justice’s court, and declared on a receipt for property entrusted by him to the defendant, to be returned when called for. He averred that he had demanded the property, and that the defendant had refused to deliver it. The defendant pleaded the general issue, and gave notice of various matters that he would prove on the trial of the cause.

Error from the superior court of the city ofNew-York. The declaration of the Messrs. Jenkins against Boorman and Johnston in the court below contained three counts, besides the money counts.

This was an action of ejectment, tried at the Washington circuit in November, 1831, before the Hon. Esek Cowen, one of the circuit judges. The plaintiff claimed to recover about two acres of land in possession of the defendant, under an award made by arbitrators, to whom the parties had submittted the settlement of the line dividing their farms; the plaintiff alleging that the division fences between their farms were not on the true line.

Eititoit from the Onondaga common pleas. Dascomb sued Seymour, a constable, and his bail, in a justice’s court, for the amount of an execution in favor of Dascomb, against one M’Kimby, alleged to have been collected by Seymour; and for not returning the execution. The defendants pleaded the general issue, and gave notice of special matter which they would prove on the trial. The justice rendered judgment against the defendants, who appealed to the Onondaga common pleas.

This was an action on the case for a false return, tried at the New-York circuit in January, 1832, before the Hon. Ogden Edwards, one of the circuit judges.

Demurrer to plea. The plaintiff, as late sheriff of Madi. son county, declared on a replevin bond executed by Stevens as the plaintiff, and the others as his sureties, in a replevin suit commenced against R. Tone and B. Q. Wright, for a mare alleged to have been taken by them from the possession of Stevens. The bond was in the usual form, to prosecute the suit with effect, and to return the property if return should be adjudged.

Case of arbitration and award. A submission was entered into between these parties, to abide by the decision of two arbitrators, selected to make order in reference to a controversy respecting a lot of land in the possession of the plaintiff! claimed by the defendants.

This was an action of assumpsit, tried at the Oneida circuit in October, 1830, before the Hon. Nathan Williams, then one of the circuit judges. The plaintiffs declared on a bill of exchange, bearing date 28th October, 1829, drawn by Horace Putnam on the defendant, for $620, payable to the order of Charles Stokes, 60 days after date ; which bill was transferred by the payee to Jay Hathaway, and by him to the plaintiffs.

Wiiit of right. This was a writ of right prosecuted by the demandant for the recovery of an equal undivided fourth part of certain premises, part of lot No. 32, in the Springfield patent, situate… Held: before the deed from Schuyler to Gould ; and in the latter he conveyed after he obtained the deed from Schuyler. The deed from Gould to potter is dated December 24th, 1790, and that from Gould to Cooper, under which the tenant, in this case claims, is dated June 11th, 1796.