Volume 13 — Wendell's New York Reports

This was an action of slander, tided at the Chenango circuit, in May, 1832, before the Hon. Robert Monell, one of the circuit judges. Held: and conform to all the by-laws, rules and regulations of this or any other chapter of which I may hereafter become a member.

Error, from the Washington common pleas. M’Nish, tire intestate, sued Coon on an instrument in writing, dated 2d December, 1823, whereby Coon promised to pay M’Nish $63,-70 in sawing to be done at the mill near the house of Daniel Coon; tobeperfonned duringtheterm specified in a lease made by D. R to A. M’Nish, date 6th November, 1816, and which lease expires on the 6th November, 1825.

Error from the Jefferson common pleas. Brewster sued Colwell and two others, trustees of a school district, in a justice’s court, and claimed to recover an account for wood furnished the school. The defendants set off a due-bill given by the plaintiff, payable to O. & C. Colwell or bearer, transferred by the payees to the defendants in tiffs suit.

Summary proceedings under the act to obtain possession of land sold by virtue of an execution.

<p>In an action on a recognizance of bail entered into in a cotirt of commoii pleas, sued in this Court, the fact that the defendant is a resident inhabitant of the county in which the court, in which the original action was prosecuted is held, cannot be pleaded in abatement or in baf; the reme-’ dy of the defendant is by motion.</p> <p>Demurrer to plea. The plaintiff declares in this court on a recognizance of bail, taken in the superior court of the city of New-York. The defendant pleads, that at the time of the accruing of the action, and of the institution of the suit, he was a resident inhabitant of the city of New- York, and has so continued to be. To which plea the plaintiff demurs.</p>

This was an action of debt, tried at the Ontario circuit in December, 1832, before the Hon. Daniel Moseley, one of the circuit judges. The declaration was against the defendants, as the representatives of James Cronlc, late sheriff of the county of Niagara.

Error from the New York common pleas. Lee sued Ward for work, labor and services, and for monies had and received to the plaintiffs use. The plaintiff proved, that as the attorney of one Little, he prosecuted an action of trespass, in the superior court of the city of New York, against one Coit and others, which was compromised on the fifth day of January, 1832, by the defendants agreeing to pay $100 in full of the damages and costs of such suit.

ERRORfrom the Monroe commonpleas. Loder sued Phelps in an action of assault and battery and false imprisonment, The declaration contained two counts: in the first the plaintiff charges that the defendant assaulted him, laid hold of him, pulled and dragged him about, and struck him a great many violent blows, and obliged him to go a great distance, to wit, fifteen miles, to a certain place, describing it, and there imprisoned him, without any reasonable excuse or probable…

<p>A witness is entitled to reasonable time for travel, availing himself of the ordinary modes of conveyance ; he catinot limit his travelling tó thirty miles per day; nor can he be required to travel on Sunday.</p> <p>In an action against a witness for the penalty given by statute for non-attendance, the venue is locals and must be laid ill the county in which the sabpeena is served.</p>

Error from the superior court of the city of New York. Smith sued Watson in the marine court of the city of New York, to recover the costs of certain suits prosecuted by him, as the attorney of Watson, for the recovery of a demand assigned to Watson by one W. A. Blackney, and also to recover the cost of the defence of one of the suits which Smith had been obliged to advance. The suits in which the costs accrued, were prosecuted in the name of Blackney.

<p>A contract, made as well for the sail of real as ofpersonal property, which is entire, founded upon one and the same consideration, and is not reduced to writing, is void, as well in respect to the personal as the real property, the subject of the contract.</p>

<p>Error from the New York general sessions. Green was indicted on the ninth of September, 1834, for grand larcency, and on the same day was arranged and tried. The jury retired, and after being absent about half an hour, returned into court, and stated that they had not agreed. The counsel for the prisoner, on being asked to consent to their discharge, refused to do so; whereupon the court discharged the jury. On the eleventh of September the same grand jury who had found the first bill of indictment against the prisoner, found another against him for the same offence, whereon he was arranged. He now pleaded the above facts in bar of the further prosecution, &c. To which plea the district attorney of New York demurred. The demurrer was argued before the sessions, who adjudged the plea bad, and ordered the prisoner to answer. He standing mute, a plea of not guilty was entered for him, whereupon he was tried, convicted of petit larceny, and sentenced to the penitentiary. He sued out a writ of error.</p>

<p>Error from the superior court of the city of New York. Williams sued Nichols and Perry in the marine court of the city of New York, and declared against them, for that he had shipped 100 dozen brooms on board a schooner belonging to the defendants, to be carried from New York to Richmond, at the freight of ~¡ per dozen, and that the defendants had not delivered the brooms to the plaintiff or his consignee, or returned the same. The declaration also contained a second count, setting forth a promise of the defendants to carry the brooms safely to Richmond, and there deliver them to one Captain Avery, and charging negligence and want of care in the stowage and carriage of the brooms, whereby they were spoiled and rendered of no value, and that they did not deliver them in good order to the consignee. The defendants pleaded the general issue. On the trial of the cause, it was proved that the brooms were put on board the schooner of the defendants, of which one H. C. Avery was master; that the master undertook to put the brooms in the hold of the vessel, and gave a receipt for them in these words: “Rec’d New York, 24th Sept. 1831, on board the schooner Francis 100 doz. brooms freight per dozen, consigned to Capt. Avery.” The brooms were not put in the hold of the vessel, but were deposited in carriages on deck, and were safely carried to Richmond, with the exception of 6 or 8 brooms, the handles of which were broken, and were there sold by Capt. Avery. The value of the brooms shipped by the plaintiff wasproved tobe fromeight to nine shillings per dozen. The plaintiffs proved that the brooms were put on board the schooner/or sale and returns, that such was the usual course of trade between the ports of New York and Richmond, and that the receipt given in this case was in the customary form used when goods were shipped for sale and returns. It was further proved that it was the usage of trade between New York and Richmond, for the masters of vessels to taire goods on consignment for sale and returns, and that a commission of 2 \ per cent was allowed the consignee for selling. On the part of the defendants it was proved that according to the usage of the southern trade, the master of the vessel receives a commission for his trouble, and the owners of the vessel receive the freight; and in thisparticular case it was proved that the plaintiff had acknowledged that he had agreed to pay the master commissions. The court charged the jury that the defendants were answerable as common carriersfor goodsladenon board their vessel, unless lost by inevitable accident or public enemies ; that the master of the vessel was their agent; that if it was the usage of the trade for masters of vessels to receive goods for sale and returns, the ship owners were liable, in case of loss; that it was unimportant whether the brooms in this case were consigned to the master or not, and that if the brooms were injured in consequence of improper stowage, the defendants were liable. The jury found a verdict for the plaintiff for $ 100, which sum and the costs of suit themarinecourtrenderedjudgment. The defendants removed the record into the superior court of the city by certiorari, where the judgment was reversed. Whereupon the plaintiff sued out a writ of error.</p>

Error from the Schenectady common pleas. Faulkner had in his possession a quantity of leather, belonging to one Van Slyck, who had left the same with him, and requested him to take care of it. It was stolen from the possession of Faulkner, and sold by the the thief to Brown. Faulkner demanded the leather of Brown, and on his refusal to deliver it up, brought an action of trover against him in a justice’s court.

' Error from the superior court of the city of New York. Mason sued Nickerson in an assistant justice’s court, in the city of New York, claiming half pilotage upon a vessel navigated by Nickerson, on her passage through Hurl-gate, near the city of New York. The vessel is of about 120 tons, and about 8 feet water. The plaintiff tendered his services as a pilot, which were declined by the defendant.

Error from the Rensselaer common pleas. Miller sued Fitch before a justice, and declared against him in debt, for that whereas the defendant, on, &c. at, &c. after having been legally and duly elected a trustee of a school district (to wit,district No. 5, in the town, &c.) and accepted of the same, did neglect the duties and requirements of his office, and utterly refused to act and perform, contrary to the form of the statute, whereby, and by force of the statute, to wit,…

Error from the Rensselaer common pleas. Phelps sued Barton, sheriff of the county of Rensselaer, in ajutice’s court, for the escape of one Van Dyck from the jail of the county, Tan Dyck having been arrested on a ca. sa. sued out by Phelps, on a judgment for costs rendered by the Rensselaer common pleas, on reversing a justice’s judgment in favor of Tan Dyck against Phelps. The judgment in favor of Tan Dyck was in an action of assumpsit on contract.

<p>Error from the superior court of the city of New York. Bulkley sued Delacroix, and declared against him in covenant on an instrument in writing, bearing date 16th February, 1825, whereby (after reciting that it had been agreed between Delacroix and Bulkley, that Delacroix should alter and improve certain premises known as No. 112, Broadway, in the city of New York, in the manner afterwards particularly described in the instrument, and that Delacroix should lease to Bulkley the first story of that part of the premises which, after the alteration and improvement, would be south of the hall, in the instrument afterwards described, for and during the term afterwards mentioned, attherentof $865 per annum, and that Bulkley had agreed to take such lease when the premises should be so altered and improved) Delacroix covenanted and agreed that he would, on or before the 15th day of May then next, alter and improve a certain two story house situate in Broadway, known as No. 112, containing in front on Broadway about 37^- feet, by making a hall not more than 7 feet wide in the clear, to run through the middle of the house from front to rear, by raising the front of the house so that it should present in front the appearance of a full three story house, by making the first story of the south part of the house, so to be divided, into a store of not less' than 15 feet front and rear, and to extend from the front to the rear of the house, &c. (particularly describing the comtemplated alterations and improvements,) and by lowering the cellar under the front half of the store as far as practicable without injuring the foundation of the house, flooring the same, and making suitable steps to descend into it from the street. By the same instrument, Delacroix demised to Bulkley all the said store sotobebuilt andimproved, together with the cellar,to extend back about 22 feet, with the privilege of the hall and yard for egress and regress. Habendum the premises to Bulkley from the day that the store and cellar should be altered and improved in the manner before mentioned, until the 1st May, 1832, reserving an annual rent of $865, in quarter yearly payments, which Bulkley on his part covenanted and agreed to pay. After setting forth the instrument, the plaintiff alleged, by way of breach, that the defendant did not, on or before the 15th May, 1825, or at any time afterwards, a Iter and imprové the said two story house and premises in themanner mentioned in the indenture, and that he did not demise to him, the plaintiff, the stare, cellar andprivilegementionedand described in the indenture for the term therein specified, and so, &c. The defendant pleaded non est factum, and subjoined a notice of special matter to be given in evidence, &c. On the trial of the cause, the plaintiff produced and proved the instrument declared on, and proved that if the store and cellar had been fitted up in the manner specified in the instrument, the rent thereof would have been worth at least $1400 per annum. The plaintiff having rested, the defendant offered to prove (under the notice attached to his plea) that after the execution of the instrument declared on, and when he, the defendant, was about to make the alteration therein mentioned,it was found impossible to do so with safety, owing to the age and condition of the building, and that this was known and admitted at the time by the plaintiff; that he, the defendant, was consequently obliged to change his plan; and thereupon caused the old building to be entirely taken down, and a new building, now called the National Hotel, to be erected on the premises ; that the plaintiff stood by and advised the change, or assented thereto j that the plaintiff spoke of the store south of the entry in the new building, as the store which he was to have, when finished, in lieu of that which was to have been fitted up under the indenture or agreement, if the plan therein mentioned had been carried into effect, and gave directions dr made suggestions, while the building was going up, as to the manner of fitting up the said store; that when the new building was finished, in November, 1826, he, the defendant, offered to give the plaintiff a lease of the store south of the entry for seven years, at a rent of $700 per annum, and that the plaintiff refused to take such lease. The evidence thus offered was objected to as incompetent, and excluded by Mr. Justice Oakley, who presided at the trial. The jury fomid a verdict for' the plaintiff, with $3,600 damages, on which judgment was rendered. The defendant having excepted to the decision of the judge excluding the testimony offered, sued out a writ of error,</p>

ERROR'from tfie Albany mayor’s court. Van Valkenburgh sued Evertson in the justice’s court of the city of Albany, and claimed to recover the difference in the value of a quantity of oil sold to him by the defendant as sperm oil.

Demurrer to pleas. The plaintiff declared in trespass: the declaration contained five counts. In the first, the defendants were charged with breaking and entering three closes, situate, See.; treading down the grass, <fcc.; ploughing and tearing up the soil, Sec.; prostrating fences, and carrying away the materials composing the same; breaking open certain barns, and taldng and carrying away wagons, carts, Sec. and converting and disposing thereof to their own use.

<p>Where a plaintiff, in an action on a fire policy, for the purpose of showing the value of the property lost,introduced in evidence accounts of stock in trade, purporting to have been taken in several consecutive years,and the insurers offered to prove by persons of skill in hand-writing that the accounts of stock appeared to have been made atone and atthe same time, it was held that such evidence was improper,and was accordingly rejected.</p> <p>So it was held that it was not competent for the insurers to prove the amount of stock of the largest dealer in the trade in which the assured belonged, in the city where he resided, for the purpose of raising the presumption of fraud in the account of loss furnished by the assured.</p>

Error from the Erie common pleas. Northrup and Huntley sued Jackson in a justice’s court, and declared for a balance due from the defendant, and for work done by the plaintiffs—claiming, in the whole, the sum of $17,76. A person claimed to appear as the attorney of the defendant, but failing to satify the justice that he had been authorized by the defendant to appear, the justice would not permit him to answer in the cause.

Elijah S. Herrick was indicted at the Yates general session, for obtaining, by false pretences, the signature of one Nathan N. Herrick to a promissory note, given by the two Herricks tooneBurch,forthesum of $85.

This was an action on a policy of insurance against fire, tried at the Ulster circuit in October, 1832, before the Hon. Charles H. Tuggles, one of the circuit judges. The plaintiff was insured $4000 on his stock of merchandise contained “ in the stone building with shingle roof, occupied by himself and others, situated at, &c. more particularly described inapplicationandsurvey furnished by himself, filed No. 928, in this office,” i. e. the office of the defendants.

'Demurrer. The plaintiff declared on a note made by the defendants, bearing date 8th March, 1831, whereby the defendants promised, one year after date, to pay to the plaintiff $50 in a horse, neat stock, or first rate pine lumber, to be delivered in Cortland village, at the market price, at the appraisal of two persons of the names of Bartlett and Rowley, with use; and alleged non-performance.

Error from the supreme court. Lightbody sued the Ontario Bank, to recover the difference between the nominal amount of a bank bill received by him from the bank, on his check, and the amount realized by him on the same.

Error from the supreme court. Kneeland sued N. Rogers and two others, his partners,in the superior court of the city ofNew York, on a guaranty given under the following circumstances: Kneeland, as the factor or agent of a mercantile firm transacting business in Alabama under the name and style of L. Morgan Sons, having sold at the city of New York 124 bales of cotton, belonging to that firm,to one James Andrews, Andrews, in January term, 1822, commenced a suit against…

<p>Error from the supreme court. Dikeman and Martin obtained an alternative mandamus from the supreme court, directed to the president and trastees of the village of Brooklyn, requiring them to cause a report, which had been made by certain commissioners of estimate and asessment in reference to the opening of a street in Brooklyn, to he filed in the office of the clerk of the county of Bangs, or to show cause. On the coming in of the return to the alternative mandamus, the relators, instead of pleading thereto or putting in a demurrer, applied by motionfoic&peremptory mandamus, which was denied by the court. See 1 Wendell, 318. Upon the judgment of the court denying the peremptory mandamus, the relator sued out this writ of error. The court having sustained an objection taken by the counsel for the defendants, that the relators were not entitled in this case to bring a writ of error, the merits of the case are not stated. The cause was argued here by</p>

Error from the supreme court. The defendants were sued as the endorsers of a check drawn in their favor by J. Le Breton, on the Mechanics’ and Farmers’ Bank of Albany. The check bore date on the 14th January, 1830; and several days previous to its date, the defendants transferred it to one J. Myers, who, on the day of its date, deposited it in the Mohawk Bank at Schenectady, by which bank it was received, and entered to the credit of Myers as cash.

<p>Where the agent of a defendant in an execution became the receiptor to the sheriff of the property of his principal,levied upon by virtue of such execution, and agreed with the sheriff and the plaintiff in the execution, that he would cause such property,consisting of yarn and other materi - als found in a factory,to be manufactured into flannels,and would furnish such materials as should be necessary for that purpose, the avails to be applied on the execution after satisfying his advances—and the agent accordingly made the necessary advances, caused the materials to be manufactured into flannels,and put them into the hands of a manufacturer to to be dressed,it was held,, in an action by the manufacturer against the agent for work done, that the agent was not entitled to set off value the value of such flannels, although the maufacturer,after the flannels were dressed, had refused to surrender them to him.</p> <p>A receiptor,it seems,may maintain trespass for goods taken from his actual possession by a wrongdoer; but whether he can bring trover or replevin —quere.</p> <p>It seems, though under the statute of set-off of1804 unliquidated damages could not be setoffinan action of assumpsit in courts of record, that by the act of 1813, on the subject of set-offs, such demands were the subject of set-off; put that by the revised statutes, the law is restored as it was in 1801, and that now unliquidated damages cannot be set-off.</p>

Error from the supreme court. Enoch was convicted of murder at the Suffolk oyer and terminer in June, 1834, and sentenced to be executed on the 3lst July following. His execution was respited by the governor until the 14th of November, and in the mean time a writ of error was sued out, removing the record into the supreme court.

Error from the supreme court. In December, 1828, Richard Varick commenced an action of ejectment in the superior court of the city of… Held: that the mortgage, at the time of the assignment, was not a valid and subsisting encumbrance ; that Medcef Eden the younger, at the time qf the assignment, had a mere naked possibility of interest, and not a right in esse in the premises, which possibility was not the subject of release; and that those claiming under Medcef Eden,jr.…

A decree having been made for the sale of two lots of land,upon the foreclosure of a mortgage executed by one Aaron A. Moore, and the premises being advertised to be sold on the eighth day of April, 1833, the sale was postponed by the chancellor until the further order of the court, upon the application of B. Knower and M. Whipple, two judgment creditors of Moore,who asked for particular directions to the master in reference to such sale.

Henriquez filed a bill in chancery against Hone, in which the following facts were set forth: On the eighth day of May, 1832, John Moffat made a voluntary assignment of his property to E. Hall and C. Swan, in trust for the payment of such of his creditors as would, on receiving a rateable proportion of the proceeds of his property, execute to him a full release and discharge of their respective debts—annexing nconditiontheit unless all his creditors accepted the assignment…

' The declaration in this case is in slander for charging the plaintiff, & female, with being a prostitute.

Error from the Tompkins common pleas. Spencer sued M’Gowen and Shepard, in an action of trespass, for the taking of a horse, which had been delivered to him on the third day of November,1830, as the plaintiff in a writ of replevin issued against one Carter.

This was an action of assumpsit, tried at the Dutchess circuit in November, 1830, before the Hon. Charles H. Ruggles, one of the circuit judges. The declaration contained the common counts only for goods and chattels, and hay sold and delivered by the plaintiff to the defendant.

This was an action on the case,tried at the Albany circuit in September 1233, before the Hon. James VANDERPOEL,one of the circuit judges. The suit was brought for the obstruction of lights in the dwelling house of the plaintiff.

Error from the Onondaga common pleas. Haywood sued Hopkins before a justice of the peace of the county of Onondaga, for not returning an execution which had been put into his hands as a constable of Cayuga county, to be executed. The suit was commenced against Hopkins by summons, which was personally served, and he not appearing at the return day, the plaintiff proceeded ex parte and obtained judgment for the amount of the execution.

Error from the superior court of the city of New-York. The Mohawk Insurance Company declared against Wenman as the administrator of Thomas Carter, deceased, on two promissory notes, given by Carter, bearing date, one on the 1st August, 1825, for $3318, and the other on the 19th September, 1825, for $1300; both payable on demand, with interest. The suit was commenced on the 26th Septémber, 1833.

<p>In an action against a town or county officer, on the contract of his predecessor, it is not necessary to aver a promise or engagement on the part of the defendant in the suit; it is enough to set forth the contract on which the suit is brought.</p> <p>Where such contract is for the maintenance of a bastard child, and the suit is against a successor in office an order of a justice authorizing the expenditure of money for the support of the child must be shown; but a judgment will not be arrested for the want of the averment of the existence of such an order, as the court will presume that such order was produced on the trial.</p> <p>In a suit against the officers who entered into the contract, a plaintiff would not be bound to show the existence of such order.</p> <p>A husband cannot maintain a suit in his own name, to recover a demand which accrued to his wife before marriage under a contract made with her : the wife must be joined in the action.</p> <p>So also, it seems, where a husband performs the stipulations of a contract entered into by his wife before marriage, which if performed by her whilst sole would have given her a right of action, that the action for the recovery of a demand thus arising must be brought in the joint names of husband and wife.</p>

Error from the Jefferson common pleas. Moulthrop sued Rogers in a justice’s court, and the issue joined between them was tried by a jury. After the proofs was closed, a constable was sworn to take charge of the jury, who were left in the office of the justice to deliberate upon their verdict. After remaining together some time, they requested the justice to come to the office and give them some instructions upon the law of the case.

Motion to set aside a report of referees. The plaintiff, a house carpenter, contracted to build a house for the defendant, upon the plan of a certain house agreed upon between the parties as a pattern, for the sum of $3400. In the progress of the work, a variety of variations from the pattern house were made, and when the house was finished, the defendant had paid to the plaintiff about $4400 on account.

Error from the Oneida common pleas. Moseley sued Cook in a justice’s court, for a breach of warranty in the sale of a horse. The evidence was, that at the time of the sale, something was said about the horse being lame, when Moseley asked Cook if the mare was lame, who answered that she was not lame, and that he would not be afraid to warrant that she was sound every way, as far as he knew.

Error from the Genesee common pleas. Hughes sued Stickney in a justice’s court. Issue was joined between them, and the cause tried by a jury. No evidence was given on the part of the defendant.

Error from the Monroe common pleas. Stone sued Case and Keeler in a justice’s court, and declared orally , in substance, as follows: “ The plaintiff declares against the defendants in this suit in assumpsit, for that in consideration of a certain piece or peices of wheat the defendants agreed and promised to pay the plaintiff a certain sum of money, to wit, twenty dollars.

Error from the Onondaga common pleas. Cook sued Thomas Ferral in a justice’s court.

The plaintiffs commenced an action of replevin in the common pleas of New York, which was removed into this court by certiorari. The action was for the taking from on board a ship called the Robert Fulton, two chain cables, one hemp cable, and sundry other articles.

<p>The declaration in this case isin trespass, assault,battery and false imprisonment. In October term,1826,the defendant put in a plea of not guilty. The cause was then continued by vice comes non misit breve until October term, 1827, when is entered on the record a stipulation bearing date 15th September,1827,by which the parties agree to refer the matters in issue to three persons,(who are named,) to report thereon to this court with all convenient speed,and that either party have a right to make a case on the usual term. Itis also suggested on the record,that on the filing of such stipulation, it was ordered by the court that the matters be referred, See., according to the terms °f such stipulation, and then the cause is continued by regular continuances from term to term,until January term, 1832,when the defendant put in aplea oí puis darrein continuance, that on the loth September, 1827, by the above stipulation, the cause was referred to the three persons named in the same to report thereon, and that either party might have the right to make a case on the usual terms; and the defendant averred that by such stipulation the cause was referred to the individuals named, wherefore he prayed judgment if the plaintiff ought further to have or maintain his action, &c. To which plea the plaintiff demurred, assigning for causes of demurrer that it does not appear at what time or place the plea is pleaded ; that the plea does not set forth the agreement therein mentioned with sufficient certainty by its tenor, and that it does not set forth what proceedings were had before the persons named ha the plea as referees.</p>

Error from the Onondaga common pleas. Parker sued Waldron in a justice’s court, and declared against him iti trespass, for taking and carrying away a pair of devices and a pair of whiffletrees.

<p>In an action for breach of a covenant ofseisinfhe plaintiff is entitled to recover if he shows an eviction by due process of law from any portion of the premises embraced within Ike courses and distances actually run, and the monuments actually establishedm a survey made previous to the execution of the deed in reference to the premises conveyed ; although the land from which the plaintiff is evicted is not comprised within theboundsof the tract of which in the deed it is alleged to be part or parcel.</p> <p>Parol evidence of the acts and declarations of the covenantor is admissible to show the courses and distances actually run and the monuments actually established in such previous survej', for the purpose of proving that the land from which the plaintiff is evicted is embraced within the description of the premises as set forth in the deed.</p>

Error from the Jefferson common pleas. Drummond contracted to work with the Messrs. Burrells, at the business of wagon making for two years, for which he was to receive $100&emdash;or $50 a year. He worked about six months, and then quit the employment of the Messrs. Burrells, who commenced a suit against him in a justice’s court, claiming damages for the non-performance of his contract, and also claiming to recover about $10 advances made to him while in their employment.

<p>In the laying out of a road by commissioners of highways} it is sufficient in the survey of such road to run a single /me, which will be intended as the centre of the road, and a specification of the quantity ‘of land which the road will take from each proprietor over whose grounds it passes, will ascertain its width.</p>

<p>False Pretences. The defendant was indicted at the Albany mayor’s court, for obtaining by false ■pretences the signature of the president of a religious corporation to a bond and promissory note. He was tried at the Albany general sessions and convicted, but sentence was suspended, and the indictment and a bill of exceptions taken on his part at the trial was brought into this court by certiorari pursuant to the statute. The indictment contained two counts : in the first, the defendant was charged for that, on the 8th day of July, 1881, at, <fcc. with intent to cheat and defraud the minister, elders and deacons of the Reformed Protestant Dutch Church in the city of Albany, he did, by color of a certain false writing, obtain the signadture of John Ludlow, as the president of the consistory of the said church, to a certain written instrument, and which written instrument was the said false writing, and is in the words, letters and figures following, that is to say : “ Know all men,” &c. setting forth in hcec verba a bond from the above corporation in Julia Ann Waldron, in the penal sum of $4000, conditioned for the payment of $2000, on the 8th day of July, 1835—(Signed,) “ John Ludlow, Pres’t of Consistory,” with the seal of the corporation annexed. The attestation clause in the bond was set forth to be in these words : “ In witness whereof, the president of the consistory of the said church hath, pursuant to a resolution of the said consistory, hereunto set his hand, and caused the common seal to be affixed, this eighth day of July, one thousand eight hundred and thirty-one and then proceeding as follows : which said written instrument, the said defendant, on, <fcc. at, &,c. presented to the said Ludlow for his signature, and obtained it; and the said John Ludlow, then and there believing the said above mentioned written instrument so presented to him by the defendant to be true, and that the malting of it and its presentation to him had been authorized by the consistory of the said church, and being deceived thereby, was induced by reason thereof to give his signature to the said above mentioned written instrument. By means of which said false writing the defendant did then and there, to wit, on, <fcc. at, See. unlawfully, knowingly and designedly obtain the said John Ludlow’s signature, as president of the consistory of the said church, whereas, in truth and in fact the defendant knew the said instrument to be a false writing, and that the issuing thereof was not authorized by a resolution of the consistory; and that he, the defendant, had no warrant or authority whatever for the malting of the instrument or obtaining the signature of Ludlow thereto, to the damage, &c. The second count charged that the defendant, on the 25th February, 1833, with intent to cheat and defraud one John Ludlow, (the minister of the said church and president of its consistory,) did by color of certain false writing, obtain the signature of the said John Ludlow to a certain written instrument, as the endorser upon it, and which written instrument was the said false writing, and is, with the said endorsement thereon, in the words, letters and figures following, that is to say: $1500. Sixty days after date, I promise to pay to the order of John Ludlow (at the Bank of Albany) fifteen hundred dollars, value received. Albany, 25 February, 1833. Gerrit Gates, Tr. R. P. D. Church.” That Ludlow, believing the said instrument so presented to him to be true, and that the making of it and its presentation to him had been authorized by the consistory of the church, and being deceived thereby, was induced by reason thereof to give his signature thereto as the endorser upon it; by means whereof, the defendant did then and there unlawfully, knowingly and designedly, obtain the signature of the said John Ludlow to the said instrument as the endorser upon it: whereas, in truth and in fact the defendant well knew the said instrument was a false writing, and the issuing of it and/m(thedefendant’s)signaiMre thereto as treasurer of the said church, were not authorized by a resolution of the consistory of the said church, or otherwise ; and whereas, also, truth and in fact, he, the defendant, had no right or authority whatever to make said instrument and sign the same with his name and-the additions thereto as follows, “ Gerrit Gates, Tr. R. P. D. Church, ” nor was he in any way or manner authorized to obtain the signature of the said Ludlow as aforesaid to the said instrument, to the great damage and deception of the said John Ludlow, with intention to defraud the said John Ludlow, to the evil example, &c. The defendant pleaded not guilty. Before the jury were empannelled, the counsel for the defendant moved the court that the district attorney be directed to elect upon which count of the indictment he would proceed; and that in default of his so doing, that the indictment be quashed. The court refused to give such direction, and the counsel excepted. A jury were then sworn, and John Ludlow, a witness on the part of the prosecution, testified that he was the president of the Reformed Protestant Dutch Church of the city of Albany; and on being shown the bond set forth in the first count of the indictment, said that the signature thereto was in his proper handwriting, that the bond was presented to him under circumstances that induced him to believe that it was authorized by the consistory of the church, and he therefore signed it. The body of the bond was in the hand-writing of the defendant. In answer to an inquiry of the district attorney, he said that the circumstances that induced him to sign the bond were, that he never signed such a bond, which was not authorized by a resolution of the 'consistory, or by a sufficient number of the consistory to authorize him to do so. This evidence was objected to by the defendant’s counsel as inadmissible, but the obejction was overruled. The witness in like manner proved his signature to the note set forth in the indictment, and added that the church were engaged in making repairs, and had several notes running in the bank ; that it was the practice of the consistory, when a new note was given, to pass a resolution authorizing it; but that no resolution was passed or was considered necessaiy when a note to renew a former note was given: in such case, the treasurer drew and executed the note, and he (the witness) endorsed it without any resolution or direction. The notes given to renew others, whilst the repairs were going on, were brought to him and he endorsed them. The note in question was brought to him under cover, and he endorsed it as a renewal note, and never knew it to be an original note until long afterwards. He further testified that the defendant was treasurer of the church, and that the letters or initials, “ Tr. R. P. D. Church,” added to the defendant’s signature to the note and other papers, designated them as church notes or papers. The defendant did not always personally present the notes for endorsement; they were sometimes presented by his nephew. It was always understood between him and the defendant, that the defendant did not ask him to endorse a note for him individually— he, the witness, would not have endorsed any such note for the defendant; it was always understood that the notes and bonds he signed for the defendant were church papers, and authorized by the consistory. On his cross-examination, he stated that he had no distinct recollection of what transpired at the time he affixed his name to the bond in question ; he knows he signed it, because his name is affixed to, it. . He had no recollection of what was said by the defendant at the time, but he was perfectly sure that he never executed such a bond without the representation of the defendant that it was upon a resolution of the consistory, or that a sufficient number of the individual members of the consistory had authorized it. As to the note, he testified that he could not say that the defendant said any thing about it when it was presented. He could only say, it came under cover as a church note, and that the defendant usually said, here is a church note, and witness signed it. Witness troubled himself as little as possible about the fiscal concerns of the church, relying entirely on the defendant as the agent appointed for that purpose. To an inquiry of the defendant’s counsel, whether he signed the bond and endorsed the note in question from the bare fact of their being presented to him for that purpose, he answered that he did not; that, in such cases, the defendant always assured him that the papers presented for his signature were authorized, either by resolution or by individual members of the consistory ; and that such assurance was given, independent of the papers. There must have been something more than the mere presenting of the papers to induce him to sign them. It was his impression, that in all cases when bonds were presented to him for signature, the seal of the corporation was affixed. The district attorney offered to prove by this witness an admission made to him by the defendant that he had no authority to malee the note in question. The testimony was objected to as a privileged communication made by a church member to his pastor. The witness stated that the communication made by the defendant was not made to him as a clergyman. The objection was overruled, and the fact proved. The witness also proved that he had been sued in his individual capacity upon the note in question, which evidence was also received after objection. On the part of the prosecution, proof was adduced of the state of the defendant’s accounts with the church, for the purpose of showing him in default at the date of the bond, and down to the time when he ceased to be treasurer; which evidence was .objected to, but received by the court. When the public prosecutor rested the cause, the defendant, by his counsel, insisted that he ought not to be put upon his defence, for that the evidence which had been adduced was wholly insufficient to authorize a conviction. The court refused to discharge the defendant, when, after several witnesses had been called and examined on the part of the defendant, the case was submitted to the jury, who found a verdict of guilty.</p> <p>The cause was argued in this court by</p>

Error from the St. Lawrence oyer and terminer. The defendant was tried on an indictment for selling spirituous liquors andpermittingthesametobe drank in his grocery store, without having obtained a license as a tavern keeper.

Error from the Herkimer common pleas. Osborn sued Etheridge in a justice’s court, and presented as his demand a bill of costs accrued in the defence of summary proceedings instituted by Etheridge as landlord against him as tenant, under the statute authorizing such proceedings by landlords against tenants for the non-payment of rent.

Error from the Monroe general sessions. The defendant was indicted in March, 1834, for having, in October previous thereto, at the town of Parma, in the county of Monroe, sold strong or spirituous liquors of a quanity less than five gallons and permitted the same to be drank in his house, without having a license as a tavern keeper.

This was an action on the case, tried at the Monroe circuit in October, 1831, before the Hon. Addison Gardiner, one of the circuit judges. The jury found a special verdict, setting forth the following facts; In 1811, Charles Carroll, Nathaniel Rochester and William Fitzhugh became the owners of about 100 acres of land, lying adjacent to the great falls on the Genesee river, and now included within the bounds of the city of Rochester.

<p>A juror who, after he is sworn in chief and has taken his seat, is discovered to be incompetent to serve, may, in the exercise of a sound discretion, be set aside by the court at any time btforc evidence is given ; and this may be done even in a capital case, and as well for cause existing before as after the juror was sworn.</p> <p>A person whose opinions are such as to preclude him from finding a defendant guilty of an offence punishable with death, is an incompetent juror on the trial of an indictment for an offence subjecting to that punishment; it is not the opinions on this subject of the religious denomination to which he belongs which exclude him, but his own opinions ; and therefore, if he entertains them, though he does not belong to a religious denomination, he is incompetent to serve as a jury.</p>

<p>The proprietors of islands, separated by a stream in which the tide does not ebb and flow, own respectively to the centre of the stream, unless the languageofthegrantsunder which the islands are held is such as clearly and unequivocally to show, that the intent of the parties was, that the grants should not extend beyond the water’s edge.</p> <p>Where the stream is navigable for either boats or rafts, the public have a right to use it for those purposes, and the rights of the adjoiningproprietors are subject to the public easement; but the state cannot divert the water of the stream, or interfere with it in any other manner which will render it less useful to the proprietors of the adjacent shores.</p> <p>If, in the improvement of a navigable-river by the state by the erection of a dam,a water-fall in a tributary stream not navigable, belonging to an individual, is overflowed and destroyed: such individual, within the meaning and spirit both of the constitution and the canallaws, is entitled to compensation for the injury sustained, equally as if his property had been taken for public use.</p> <p>Grants by the legislature of islands, in rivers and streams where the tide does not ebb and fioxo, although made during a long series of years, will not justify that the principle of the common law has not been adopted here, that grants of land bounded upon rivers or streams where the tide does not ebb or flow,carry the exclusiverights of the grantees to the middle of the stream ; or having been adopted, that it has ever been legally abrogated or exploded.</p>

<p>Where aparfy, against whom a judgment is rendered before a justice, sues out a certiorari^ to which a return is made, and subsequently a second return purporting to be an amended return is made, but setting forth all the proceedings before the justice, and the party suing out the certiorari finally succeeds on a writ of error, he is notentitled in the taxation of costs to an allowance for more than one return.</p>

This was an action of assumpsit, tried at the Cayuga circuit in April, 1833, before the Hon. Daniel Moseley, one of the circuit judges. The defendant, John P. Hulbert, was sued on a joint and several note,given by his father John W. Hulbert, andby himself as surety, for §200, dated 28th December, 1828, payable to the plaintiff in thirty days.

This was an action of assumpsit, tried at the Cayuga circuit in April, 1833, before the Hon. Daniel Moseley, one of the circuit judges. The suit was brought on a joint and several note for $200 given to the plaintiff, bearing date 26th January, 1829, payable on demand, signed by John W. Hulbert as principal, and by John P. Hulbert the defendant, and Lewis Warren, as sureties.

Error from the general sessions of Oneida. The defendant was indicted for an assault and battery. The indictment contained three counts: the two first, substantially alike, charged a common assault and battery committed on the body of one Thomas Hull; and the third count charged the assault and battery to have been committed upon Hull, then and there beingoneof theconstables of the county of Oneida, and in the due execution ofthe duties ofh is office.

Error from the Oswego common pleas. Huntly sued Cross before a justice on a note for $15. Cross proved that the consideration of the note was the sale of a patent right to make, vend and use “ Parker’s improved washing machine,” for the term of 14 years, within a certain town. The letters patent grant to Parker the exclusive right of making, constructing, using and vending “ a new and useful improve-, ment in the washing machine,” which he alleged he had invented.

This was an action on the case, tried at the Seneca circuit, in June, 1831, before the Hon. Daniel Moseley, one of the circuit judges.

This action was tried at the Albany circuit, in March, 1832, before the Hon. James Vanderpoel, one of-the circuit judges. The plaintiffs sued out a warrant, under the act to extend the provisions of the law relative to proceedings for the collection of demands against ships and vessels, passed 26th April 1831. See Session Laws of 1831, p. 421.

This was an action brought for the recovery ofpenalties created by statute, for trespassing on lands belonging to the state, and cutting and carrying away timber growing thereon, tried at the Cayaga circuit in April, 1833, before the Hon. Daniel Moseley, one of the circuit judges.

The defendant was convicted, by a court of speeded sessions, of the offence of secreting his property with the intent to defraud Ids creditors, on a prosecution commenced under the 26 § of the “ act to abolish imprisonment for debt and to punish fraudulent debtors.” Statutes, ses. of 1831, p. 396.

This was an action of assumpsit, tried at the Livingston circuit in September, 1832, before the Hon. Addison Gardner, one of the circuit judges. The declaration was for money paid. The plaintiff on the trial produced a promissory note for $700, payable to “ The President, Directors and Company of the Livingston County Bank,” signed as follows: “ Levi Hovey. Cambell Harris, as surety. D. H. Bissell, surety. Zachariah Spencer, surety. Asahel Warner, surety for the abovenames.

Error from the Rensselaer common pleas. Wright sued Civill in a justice’s court, and declared in assumpsit. The defendant, pleaded, as the return states, “ the general issue, gave notice of set-op, and claimed a. balance offifty dollars.'' On the trial, after the plaintiff had adduced testimony on his part and rested his cause, the defendant, offered to prove work done by him for the plaintiff.

Certiorari (o a justice of the peace. A judgment was rendered, by a justice of the peace of Sullivan county, in favor of Gillespie and others, administrators, &c. of S. J. Barkley, deceased, against Comfort, for $60.,”, besides $2,,™ costs.

This was an action of ejectment for doiocr, tried at the Washington circuit in .Tune, 1833, before the Hon. Eseic Cowen, one of the circuit judges. The plaintiff, Mary Bradshaw, proved her marriage with Thomas Bradshaw, in the year 1813, and that her husband died in possession of the farm in which she claimed dower, and which at- the time of the commencement of this suit was possessed by the defendant.

Error from the St. Lawrence common pleas. Page sued Boynton in an action of replevin, for the talcing of a quantity of saddlery and saddlery stock. Held: because on Sunday process cannot be served, and unless a party is incapacitated from transferring his property on that day, an undue advantage is obtained over creditors. Here, but for the intervention of Sunday, the creditor would have seized upon the goods previous to the transfer.

Three of the judges of the county of Orange laid out a road in the town of Warwick, on an appeal from a decision of the commissioners of highways of that town, refusing to lay out a road according to a petition presented to them. The commissioners obtained a certiorari, requiring the judges to make return to this court of their proceedings.

This was an action of ejectment, tried at the Suffolk circuit in May, 1831, before the Hon. Ogden Edwards, one of the circuit judges. The plaintiff claimed the premises in question under the last will and testament of his grand-father William Nicoll, bearing date 19th August, 1778, and who died seized and possessed of the same in March, 1780. The clause of the will under which the plaintiff claims is in these words: “ Item.

Action on sheriff’s bond. This was an action of debt on the official bond of Asa Colvard, late sheriff of Albany&emdash;the defendants being sued as his sureties. The bond declared on is stated to have been executed on the 29th December, 1829, conditioned for the faithful discharge of the duties of the office of sheriff of the city and county of Albany, to which office Colvard was elected in the preceding month of November.

The plaintiffs, the children of Daniel Woodin, deceased, presented a claim to the defendant, as executor of the last will of Hannah Woodin,their grand-mother,for a proportion or distributive share of the personal property whereof their grandfather Peter Woodin died possessed, and which, on his decease, went into the possession of their grand-mother.

This was an action of eject met, i, tried at the Genesee circuit in March, 1834, before the Hon. Addison Gardiner, one of the circuit judges.

This was an action of assumpsit for the board and lodging ofAlexander Wright, the,intestate, and for work, labor andservices rendered for him. The intestate was the father of plaintiff’s wife; he died in 1830, an aged man,' worth considerable property. About' 15 years previous to his death, his wife died.

This was an action of ejectment, tried at the Washington circuit in November, 1832, before the Hon. Esek Cowen, one of the circuit judges. The plaintiffs claimed the premises in question as the heirs at law of their father, Samuel Rea, who, nineteen years previous to the trial, died, seised and possessed of the same.

This was an action for a libel, tried at the Allegany circuit, before the Hon. Addison Gardiner, one of the circuit judges. The plaintiff was admitted a member of Allegany County MedicalSociety,in¥ehxnoxy,lS^l,onthepxoánetionofa.diploma,issued by the Royal CollegeofSurgeonsoffhecity ofEdinburgh, stating that he was qualified to practice surgery.

Error from the Washington common pleas. Phillips sued Sherwood in the common pleas, in an action of replevin, for the taking of a quantity of peas, oats and fire-wood.

This was an action of ejectment, tried at the Washington circuit in June, 1832, before the Hon. Esek Cowen, one of the circuit judges.

Error from the mayor’s court of the city of Troy. Eddy brought an action of assumpsit against Smith, and claimed to recover, upon the following state of facts. Smith held a mortgagee pon certain lots in the city of Troy, executed to him by one Shears, bearing date 8th May, 1827, conditioned for the payment of $250, and on the 28th June, 1828, recovered a judgment against Shears, on another account, for the sum of $88,mo, which was a lien upon the mortgaged - premises.

This was an action of debt, tried at the Onondaga circuit in March, 1833, before the Hon. 'Daniel Moseley, one of the circuit judges. The action was on a bond given by Luther as under sheriff, and by the other defendants as his sureties to the plaintiff, as sheriff of the county of Onondaga, conditioned for the faithful discharge by Luther of the duties of the office of under sheriff and to save harmless and indemnify the plaintiff.

Error from the Saratoga common pleas. Chestney commenced his suit in the common pleas against J. C. Halsey and H. Trowbridge, and declared against them as executors, &c. of William, l lay wood, deceased, in an action of assumpsit, laying the indebtedness by the testator—in one count charging they>ro?m'.se by him during his lifetime,and in other counts by the defendants.

Motion to set aside an inquisition. The plaintiff sued out a writ of replevin, returnable in July term, 1830, in which he complained that the defendants had taken and unjustly detamed certain goods and chattels, to wit, about four ° 7 , r tonsof iron ore, commonlycalledbogore; wherefore the sheriff of Schenectady was commanded to cause the same goods and chattels to be replevied and delivered to the plaintiff without delay.

<p>An action docs not lie against a sheriff for the escape of a prisoner in execution, arrested by his predecessor, and to whom a bond was given for the liberties, although the prisoner go at large off the liberties subsequent to the new sheriff taking charge of the jail of the county, if such prisoner has not been assigned by the old sheriff to the ncio sheriff.</p> <p>The'revised statutes, in giving the action for an escape against the sheriff having charge of the jail, have not changed the law as to the person against whom the action is to brought; but it is amended in one respect: formerly it was at the election of the old sheriff to assign his prisoners to the new sheriff; now it is made his duty to do so.</p> <p>Until assignment,however, now, as formerly,the prisoners are considered in the custody of the old sheriff</p> <p>Whether the new sheriff would be liable for the escape of a prisoner in close confinement, happening after he takes charge of the jail, and previous to assignment—qaere.</p>

• . ‘ • This was an action of assumpsit, tried at the Cayuga cjrcilif; jn December, 1832, before the Hon. Daniel Moseley, one of the circuit judges. The plaintiff declared on a note given to him by the defendant, for $400 with use, dated 11th June, 1828. The declaration also contained the common money counts.

Error from the Montgomery common pleas. On the 20th May, 1833, Wemple commenced a suit in a justice’s court against Johnson, and on the 29th May declared in debt on a justice’s judgment, rendered in his favor against the defendant on the 10th May, 1833, for $25 damages, and $2,63 costs.

This was an action on the case for fraud in the sale of sheep, tried at the Madison circuit in March, 1833, before the Hon. Nathan Williams, then one of the circuit judges. In September, 1831, one Stevens, an agent of the defendants, sold to the plaintiff a flock of sheep, consisting of 500 ewes and 7 bucks, which were mixed by the plaintiff with a flock which he before owned of 548 sheep.

This was an action of ejectment, tried at the Saratoga circuit in May, 1832, before the Hon. Esek Cowen, one of the circuit judges. The plaintiffs produced in evidence a lease in fee, of the premises in question, bearing date 9th March, 1812, from Gideon Putnam to their father, John Ritchie, and proved that the premises were held and occupied by a tenant of their father in the years 1812 and 1813 ; that their father died in 1812, and that they were his heirs at law.

Error from the Schenectady common pleas.. M’Curtie declared in the common pleas, in an action of debt on a bond executed to him by. Stevens, on the 15th April, 1826, conditioned that Stevens should, on or before the 9th March, 1829, execute to him a quit-claim deed of about 2-1- acres of land; and that until the 9th March, 1829, he, M’Curtie, should be allowed to occupy and possess the land, free of rent.

This was an action of ejectment, tried at the Saratoga circuit in May, 1833, before the Hon. Esek Cowen, one of the circuit judges. The plaintiff claimed to recover for the breach of certain covenants contained in a lease of the premises in question, executed by him to one Anson Waring, 24th October, 1817; under which lease the defendant held the premises.

<p>In ejectment, long acquiescence by a plaintiff in an erroneous location, will authorize ajury to find that the plaintiff bad agreed to a location different from that given by his deed ; and whether the plaintiff knew his rights or not, such location or acquiescence will conclude him.</p> <p>The declarations as well as the acts of parties are competent evidence upon the question of location.</p> <p>Where a deed is acknowledged. by the gran tor,before an acknowledging officer, the identity of the grantor may be proved by any third person, and need not be by the subscribing witness; and in such case the residence of the witness need not be stated :n the certificate; it is only necessary</p> <p>to be stated where the execution of the deed is proved by the subscribing witness.</p> <p>It seems, however, it would be well in all cases to state the residence of witnesses examined as well where the deed is acknowledged by the grantor and his identity proved, as where the execution is proved by a subscribing witness.</p> <p>Where on the trial of action of ejectment, the defendant introduces a deed to show title in himself, but omits to prove that the deed covers premises in question, and no objection is taken to the defect of denee until the summing up of counsel, it is in the discretion of the circuit judge whether he will permit the plaintiff to insist upon such defect, especially if he is satisfied that it was taken for granted in the progress of the trial that the deed covered the premises.</p>

Error from the Oswego common pleas. W. and J. White sued Case before a justice, on a note for $10, made by Case payable to bearer, and on a guaranty given by Case on a note for $30 drawn by one Hanford, bearing date 1st March, 1831, payable to bearer six months afterdate. 'The guaranty was in these words: “ Value received ; I hereby guarantee the collection of the within note;” which was endorsed on the $30 note, and signed by Case.

The demandant brought a writ of right for recovery of certain premises situate in the county of Oneida, and counted that she was seized in her demense as of fee within 25 years by taking the esplees, &c. The defendants put in two pleas : in the first they join the mise, by putting themselves upon the grand assize to determine which has the better right; arid then tender two dollars to the use of the people, that it may be inquired by the grand assize whether the demandant…

<p>This was an action of assumpsit, tried at the Albany circuit in September, 1833, before the Hon. James Vanderpoel, one of the circuit judges.</p> <p>The plaintiffs claimed to recover on three checks drawn by one Thomas Hurst, on the Mechanics’ and Farmer’s Bank in the city of Albany, endorsed by the defendant, and negotiated by Hurst to the plaintiffs. One check was for $100, and bore date on the 4th August, 1832; the second, for a like sum, bore date on the 10th August, 1832 ; and the third, for $50, bore date on the 11th August, 1832—each of them payable to bearer. The checks were endorsed by the defendant for the accommodation of Hurst, who obtained money upon them from the plaintiff’s who at the time were brokers. The checks were made, endorsed and negotiated previous to their dates; in other words, were post-dated. On the seventeenth of August, 1832, they were presented at the bank, payment refused, and notice given to the defendant. At tho time of presentment, Hurst had no funds in the bank; nor had he funds there during the month of August, except a few cents. All the parties resided in the city of Albany. The declaration contained only the money counts, but copies of the checks had been served with the declaration. The judge ruled that the plaintiffs had not used due diligence in presenting the checks. Whereupon the plaintiffs submitted to a nonsuit, with leave to move for a new trial,</p> <p>for the plaintiffs. There was no pretence that the defendant had sustained any injury, in consequence of the non-presentment of the checks at the earliest possible moment, and it is only where prejudice accrues from delay in making the presentment that the endorser is discharged. In the absence of proof, the presumption is, there was no injury. Considering the making and negotiation of these checks as strictly commercial transactions, the presentment of them for payment was made within a reasonable time. But they were not commercial transactions; the checks were made by the drawer and endorsed by the defendant, as securities for the payment of money to be loaned by the plaintiffs; and as such, they must be deemed to have been presented within reasonable time. Knowing the object of the securities, the endorser was liable as a guarantor.</p> <p>for defendant. Where the parties all reside in the same place, a check must be presented on the day it is received, or, at farthest, on the next day. The maker, in an action against him, is bound to show injury arising from delay in presentment, but the endorser is not; he may insist upon a strict presentment. The defendant cannot under the pleadings in this case, be held liable as a guarantor ; and if he could, the plaintiffs have failed to give him such notice as would charge him.</p>

' This was an action of ejectment for dower, tried at the Montgomery circuit in may, 1833, before Hon. Esek Cow-en, one of the circuit judges. The plaintiff was the widow of Henry Matthews, who, by his last will and testament, gave to her a house and lot in the village of Johnstown, and two cows, one horse and six sheep, together with other property.

This was an action of assumpsit, tried at the Rensselaer circuit in September, 1833, before the Hon. James Vanderpoel, one of the circuit judges. The plaintiffs read in evidence a note, given by the defendants, for $4000, bearing date 2d July, 1829, payable to K. Rawson 60 days after date, signed as follows : “ Margaret Topping, administratrix, John Holme, administrator to the estate of John Topping, deceased.

This was an action of replevin, tried at the Albany circuit in September, 1833, before the Hon. James Yanderpoel, one of the circuit judges. The suit was for the recovery of a quantity of groceries of the value of about $200, sold on tho fourteenth of November, 1832, by the plaintiff, to one Ray Jenkins, a retail grocer, on a credit of 90 days, for which Jenkins gave his note on the next day.

Error from the Madison common pleas, Maynard, by S'. Thomas his next friend, sued out a writ of error to reverse a judgment as in ease of nonsuit, rendered in the Madison common pleas against him, by which costs were awarded against him in favor of Downer.

These were actions of ejectment, tried at the Montgomery circuit before the Hon. Eseic Cowen, one of the circuit judges—the first cause in May, 1833, the second… Held: the plaintiff produced a deed of the premises in question from Cornelius C. Van Alstyne (who entered into possession of the premises devised to him) to lost Spraker, bearing date 9th September, 1813, who, on the 12th April, 1824, by deed conveyed the premises to the defendant; both were deeds with warranty.

This was an action of covenant, tried at the Oswego circuit in July, 1831, before the Hon. Nathan Williams, then one of the circuit judges.

Error from the Saratoga Common Pleas. The question presented by the bill of exceptions in this case is, whether an administrator can maintain an action for the penalty given by statute, against an officer who, having made a distress for rent, neglects to file the affidavit of the landlord and the warrant of distress, in the town clerk’s office, within ten days after sale of the property destrained. 2 R. S. 501, § 8, 9.

Error from the Monroe general sessions. The defendant was indicted for compounding a larceny alleged to have been committed by one Jane Hart, in stealing goods and chattels, the property of the defendant Buckland. The indictment contains three counts: in the first it is charged that the defendant compounded the offence,arid received $25 asa reward for the same, and for desisting from the prosecution of the offender, and that he accordingly did desist, «fee.

Demurrer to declaration. This is an action of debt on a bastardy bond. The warrant for the arrest of Tilton, the. putative father, was issued in Onondaga.

<p>The rule of damages in a proceeding under the statute against ships and vessels, for injuries done to other vessels through negligence or wilful misconduct, is the actual damage to the vesselinjurcd, and not contingent damages sustained by the owner—such as the loss of earnings, &c.</p> <p>And where, in such a case, three witnesses for the plaintiff concurred in estimating the damage at $1000, and one at $1500; and two witnesses for the defendant set the damage at only $300, and one valued the whole vessel at less than $1000, and the jury found for $1548, the verdict was set aside as excessive and a new trial granted.</p> <p>Whether the omission to have a light in the rigging of a vessel, lying at anchor in the night time on the Hudson, will deprive the owner of the right to recover damages, in case his vessel is run afoul of, through the negligence or wilful misconduct of persons navigating other vessels, quere*</p>

<p>Any defence available against the payee,'may be set up against the holder of a negotiable note, unless the holder received the same in the usual course of trade, i. e. paid money or property, or incurred liability upon the credit of the note .</p> <p>A partial failure of the consideration of a note may be given in evidence to reduce the amount of the recovery; notice, however, of such defence must be given. A total failure or want of consideration may be given in evidence under the general issue.</p>

Error from the Albany mayor’s court. Harbeck sued Sylvester and Cammeyer on a guaranty, endorsed on a lease executed by G. A. Lansing to W. Johnson, bearing date 28th January, 1828, demising certain premises in the city of Albany for the term of three years from the 1st May, 1828, with leave to the lessee to extend the term to five years, subject to an annual rent of $250, payable quarterly.

Error from the superior court of the city of New-York. Burke brought his action against the company, the proprietors of a line of steam-boats and of a rail-road and carriages between New-York and Philadelphia, for damage done to the wardrobe, music and musical instruments of his minor son, master Burke, a stage player, by the wardrobe, &c. falling into the water at Bordentown, whilst the agents of the company were in the act of passing the baggage from a steam-boat of the…

Error from the Monroe common pleas. Keeler and two other persons brought in a suit against Chicester in a justice’s court, and declared against him in trespass for taking and carrying away a cutter or one horse sleigh. On the trial, it appeared that Chicester, as a deputy sheriff, by virtue of an execution against one Henry Lyon, on the 9th day of March, 1832, levied on the cutter and left it in the possession of Lyon.

Error from the Monroe common pleas. J. and S. P. Gould declared in the court below against Sally Ray, executrix, for the plaintiffs in error. The replication that the judgment was voluntarily confessed after the commencement of tips suit, was a perfect answer to the plea of the defendant, Pinney v. Johnson’s Administrators, 8 Wendell, 500 • and not being denied by the rejoinder, the fact was admitted. 8 Cowen, 653.

This was an action of assumpsit, tried at the Albany circuit, in March, 1832, before the Hon. James Yanderpoel, one of the circuit judges. The plaintiff sued as the endorsee of a note given by the defendants to one Edward Squire for $650, jj, dated 12th May, 1828, payable two years after date, with interest after one year.

Error from the Washington common pleas. Lockwood sued Stevens in a justice’s court, and declared in assumpsit for goodssold and delivered, specifying one barrel of soap and 108 fowls.

The suit was dismissed for want of jurisdiction in the court, on the ground that Whitehead was a citizen of a terrionJi ai)(^ not a s'ta>’e °f the union.

In this case a verdict was rendered for the plaintiff, subject to the opinion of the circuit judge, before whom the cause was tried ; if he should determine that the plaintiff was entitled to recover, the verdict to stand, otherwise a verdict tobe entered for the defendant—the right of appeal being reserved to each of the parties.

Writ of inquiry executed at the circuit. This was an action for an assault and battery. The defendant having suffered a default, the plaintiff obtained a rule to have a writ of inquiry executed at the circuit in the county where the venue was laid.

This was a motion for an attachment against several individuals, members of the common council of Brooklyn, and officers acting by their authority, for contempt of this court, as alleged, in proceeding to open a street in that city after the service of a certiorari, which, it was contended on the part of the plaintiff in that writ, operated per se as a stay of the proceedings under which the corporation claimed the right to open the street.

<p>A plea palpably frivolous will be stricken out on motion,at a special term.</p> <p>A motion was made in this case at a special term to strike out a plea as frivolous. It was palpably frivolous ; but it was objected that a motion to strike it out could not be made at a special term; and that, even at a general term, the plaintiff could not have asked for judgment on account of the frivoloush ess of the plea upon a demurrer to it, unless such plea had been adjudged by the court, in some previous case, to be bad.</p>