Volume 14 — Wendell's New York Reports

Error from the Ontario general sessions. The defendants were indicted at the Ontario general sessions in May, 1834, for a conspiracy.

<p>Where, by the terms of the charter of a joint stock company, stockholders', are liable in their individual capacities for the payment of all debts contracted by the company to the nominal amount of stock held by them respectively, a party who subscribes for a certain number of shares of the stock is liable for the debts of the company to the nominal amount of the stock subscribed by him, although he has not paid in any part of his subscription, or done any act whatever as a stockholder of the company.</p> <p>The Ifarlacm canal company were not confined in their purchases of land to, the mere thread of the canal; and whether lawful or not to divide the ex* cess of lands purchased by them among the stockholders, a stockholder* when sued by a creditor, cannot allege that or any other illegality in the acts- of the company in bar of a recovery against himself. Such illegal acts do not per se work a forfeiture.</p>

Error from the superior court of the city of New-York. Creery sued Holly in the court below to recover the balance of the value of a quantity of wrought iron, ordered by the defendant to be shipped from Baltimore to New-York.

Error from the superior court of the city of New-York. Andrew brought an action of replevin against Dieterich for a quantity of carpeting. The defendant pleaded non cepit and non detinet, and gave notice of special matter. On the trial of the cause, it was proved that one John Simmons purchased of the plaintiff carpeting to furnish a house in the city of New-York, for which carpeting he was to pay cash.

<p>The doctrine of the common law, that certain words in the conveyance of real estate of themselves import and make a covenant in law, as dedi, concessi, demisi, &c. is abrogated by the revised statutes, by which it is enacted that no covenant shall be implied in any conveyance of real estate, whether such conveyance contain special covenants or not; and it was accordingly held in this case, which was an action by a tenant against his landlord for an ouster, and in which the plaintiff had declared on an implied covenant for quiet enjoyment, that he was not entitled to sustain his action.</p> <p>But had there been an express covenant, the court held that the tenant not having paid any purchase money on obtaining his lease, would have been entitled to recover only nominal damages, although he had expended a large sum of money in improvements for the beneficial use of the premises during the term; that the remedy of the party was by an action on the case— although in this case the court intimate an opinion that from the peculiar provisions of the lease the plaintiff was remediless,</p>

<p>Oysters planted by an individual in a bed, clearly designated and marked out in a bay or arm of the sea, which is a common fishery to all the inhabitants of the town in which the bay is situated, are the property of him who planted them, and for any interference with them by another, trespass lies.</p> <p>It seems, that if a bed thus planted, interfered with the exercise of the common right of fishing, or if the oysters were undistinguished from others in the public waters, the interest of the owner in them would be subservient to the enjoyment of the public use.</p>

<p>An- attachment against an administrator for not accounting, may be issued by a surrogate to a county different from that of which he is surrogate, and it may there be executed.</p> <p>Notice of the suing out of a habeas corpus, to relieve a party from imprison, ment, must be given to the party interested in continuing the imprisonment, although the latter do not reside in the county where the former is imprisoned, or where the proceeding is had for a habeas corpus ; it must be given without reference to residence.</p>

<p>The act of incorporating the Mohawk and Hudson Rail Road Company, authorizes the company, hy their agents, surveyors and engineers, to enter up. on the lands of individuals, for the purpose of making examinations and surveys so as to determine the most advantageous route for the proper line or course whereon to construct their rail road or ways, previous to acquiring title to the lands required, or the assessment and payment of damages.</p> <p>So they may enter in like manner previous to acquiring the title to the lands, or having the damages appraised and paying the same for the construction and maintenance of their rail road or ways, and the accommodations requisite and appertaining to them. The purchase of the land, or the payment of the appraised damages is a condition precedent to the vesting of the fee simple of the land required for the road, &c. in the corporation; hut not to their right to enter upon for the purpose of making surveys, or to their right to take possession of and use it for the construction and maintenance of their road.</p> <p>It has never been deemed necessary that the compensation, which the consti. tution requires to he made for private property taken for public use, should ho actually paid before entering upon or talcing possession of the property. If legal provision for compensation is made, the spirit of the constitution is complied with, and the property which is required for public use may lawfully bo entered upon and possession thereof taken.</p> <p>It seems also that a law would not be deemed unconstitutior .1 which authorized private property to be taken for public use, although it entirely omitted to provide the mode of making compensation; and that the officers of government or other individuals designated in the act, who should take possession of property under such circumstances, would not be trespassers ; that the owners would have a just claim for compensation, which it was to be presumed would be acknowledged by the legislature and paid.</p> <p>Acts of the legislature authorizing rail road companies to enter upon, take possession of, and use the lands of individvals for the construction and maintenance of their roads, against the will and without the consent of the-owners of the lands, are valid and constitutional.</p> <p>The assessment and payment of damages being a condition subsequent to the entry, not only for the purpose of surveying but of malting and constructing the road, it was held, that it was not necessary for the defendants in their plea to allude to such assessment and payment.</p> <p>It was further held, if, notwithstanding tiiat the original entry was lawful, the defendants have been guilty of such delay, in taking the measures prescribed by the act to obtain title to the land and to ascertain and pay the plaintiff’s damages, as to deprive them of the benefit of such entry and render them trespassers ob initio, it was incumbent upon the plaintiff to have replied the facts nccessa-y to present that question. Whether an unreasonable delay in paying the plaintiff’s damages would render the defendants trespasses ab initio, the court doubted ; but that the plaintiff would have an ample remedy in such a ease, in some form of action, they had no question.</p>

<p>A bridge, built by a corporate body, or by individuals, over a public highway, for their exclusive benefit, must be kept in repair by the parties building it, and if any injury happens to others in consequence of its being out of repair, an action lies.</p> <p>If, however, such bridge is useful to the public, and is generally used, the individuals building it are not bound to keep it in repair, unless the necessity for the bridge was originally created by the parties building it.</p> <p>The stockholders of an incorporated company are not individually responsible for damages occasioned by a bridge being out of repair, built by the company, although by the terms of the act of incorporation an action is given against them for any demand against the corporation—the act contemplating liability only for demands arising ex contractu.</p>

<p>In this case, a motion was made on behalf of the defendant for a new trial, on the ground of surprise. The action was assumpsit to recover the value of a quantity of lumber sold. The defendant had sued out a commission to Pennsylvania, under which the testimony of one Matthews had been taken, which commission had been returned with the testimony of Matthews annexed. On the trial of the cause, the plaintiff, after calling two witnesses to prove the sale of the timber, and admissions of indebtedness by defendant, rested. The defendant then offered in evidence the deposition of Matthews taken under the commission ; the plaintiff objected, alleging that Matthews was then in court, and that the defendant in such case was not entitled to read the deposition. The judge overruled the objection, and the deposition was read. The plaintiff then called Matthews, and he appearing, the plaintiff asked that he be sworn as a witness. The defendant objected that the plaintiff had no right to avail himself of a viva voce examination of Matthews on the trial; that having neglected to unite in the commission, he must now be content with the deposition taken under the commission. The objection was overruled, and Matthews testified in the cause. The plaintiff had a verdict. The defendant, on an affidavit that Matthews’ testimony on the trial was material different from his deposition under the commission, that he was consequently taken toy surprise, and that on a new trial he would be able fully to establish his defence by other witnesses, moved for a new trial. The Court being of opinion that the testimony of Matthews as given on the trial was not materially different from that given by him under the commission, and no affidavits being produced of the persons whose testimony the defendant hoped to procure on a second trial, the motion for a new trial was denied. See 17 John. R. 345.</p>

This was an action of covenant, tried at the New-York circuit in May, 1833, before the Hon. Ogden Edwards, one of the circuit judges. The suit was brought for the recovery of rent due upon a lease of certain premises, executed by the plaintiff to one Dillon, on the 16th December, 1835, for the term of twelve years subject to an annual rent.

This case came before the court on a return made by the mayor’s court of the city of Albany, to a rule to shew cause why a mandamus should not issue, directing that court to vacate a rule granting costs to the defendant, upon a report of referees in favor of the plaintiff for $23,87, and to enter á rule granting costs to the plaintiff.

<p>Where an appeal from an order of removal of a pauper was entered in a court of general sessions previous to the repeal of the “ act for the relief and settlement of the poor,” it was held, that the appeal might be prosecuted and completed under the repealed statute, by virtue of the saving clause in the general repealing act.</p> <p>That an attachment may be issued under that act against the overseers of the poor of a town, for the costs and expenses of an appeal, and that a dis. charge by the sessions of overseers arrested on such process, will be presumed to have been ordered, on the ground that the overseers had not monies in their hands belonging to the town not specially appropriated to other objects.</p> <p>That the repeal of the act did not deprive the sessions of jurisdiction of causes depending before them, the power of the superintendants of the poor to decide such disputes being prospective.</p> <p>And that the award or determination of the sessions as to the payment of the costs and expenses, is within the meaning of the act “ a judgment render, ed” authorizing the supervisors to cause the amount thereof to be levied.</p> <p>And it seems that adjudications of superintendents of the poor, and of justices of the peace, which are to be enforced in like manner, would also for this purpose he considered judgments.</p>

Error from the superior court of the city of New-York. Morris sued Waddell in the court below, to recover a proportion of an allowance made to the latter, as marshal of the southern district of New-York, as a custody fee upon certain jewels alleged to belong to, and claimed in behalf of the Princess of Orange, which had been seized by Morris, while marshal of the same district, and which remained in his possession from 23d July, 1831, until the 16th or 17th November of the…

<p>Whore, to a plea to the statute of limitations that the defendants did not promise within six years before the commencement of the suit, the plaintiffs replied that they did promise within six years, and on the trial of the cause proved the suing out of a capias before the accruing of the statute, but failed to produce the writ of testatum capias, (or an authenticated copy thereof,) whereon the defendants were arrested, a verdict passed for the defendants—such verdict was approved by the court, but on a motion for a new trial, and on production of a certified copy of the testatum capias, the verdict was set aside on payment of the costs of the trial and of all subsequent proceedings, on the ground that without such relief the plaintiffs would lose their debt.</p> <p>The court approved the form of pleading, adopted m this case, as preferable to replying the suing out of the capias and the continuance thereof, &c.</p> <p>If however the defendant, instead of pleading as in this case that the cause of action did not accrue within six years before the commencement of the suit, had pleaded that it did not accrue within six years before the exhibiting of the plaintiff’s bill, and the bill or declaration was not in fact filed until more than six years after the accruing of the cause of action, then the plaintiff would have been bound to reply specially the suing out of the first process within the six years, and by proper continuances connect it with the process on which the defendant was arrested.</p>

Error from the superior court of the city of New-Yórk. The corporation of the city of New-York, commenced a suit in a justice’s court against Stokes and Gilbert, to recover a penalty office dollars for a violation of an ordinance of the corporation, requiring anthracite or hard coal to be sold by weight, and that the same be Weighed by weigh-masters, not exceeding six in number, appointed by the common council, and imposing the above penalty upon any vender of coal who…

This was an action of debt, tried in September, 1833, before the Hon. Ogden Edwards, one of the circuit judges.

Error from the superior court of the city of New-YorL The suit in the court below was on a bill of exchange, for $I6I,T4g9„, drawn on Allen, by the plaintiffs, payable to their own order three months after date, accepted by the defendant, and bearing date 10th July, 1828. The plaintiffs also declared as the endorsers of a promissory note for $300, bearing date 3d April, 1828, payable to the order of C. F, Leggett, six months after date.

Error from the Oswego common pleas. Eliza Pooler, now the wife of Henry D. Rose, brought an action of assault, battery and false imprisonment against Bakeman, and in the declaration charged the defendant with the attempt to ravish.

<p>It is not competentin a criminal case to give evidence of the lad character of the prisoner, when no evidence in support of his character has been ad- duced by him: so held in this case, where, on the trial of an indictment for having counterfeit bank bills with the intent to pass them, the confes. sion of the prisoner that he had been a convict in a state prison was given in evidence on the part of the prosecution.</p> <p>It is matter ofdiscretion with the court before whom a trial is had, whether they will or will not compel counsel to disclose what they expect to prove by a witness, before he is examined. Where the case is one of delicacy and importance, and the evidence is nicely balanced, and the scale is liable -to be'affected by slight circumstances, courts are vigilant in preventing any extraneous or irrelevant matter from being brought before the jury. In such cases counsel will be required to state the substance of what they expect to prove, in order that, if irrelevant or improper, the evidence may not be given: when the lines of the case are more broadly marked, less caution is necessary, as the rights of the parties may be sufficiently protected by the court deciding upon the competency or relevancy of the evidence as it falls from the witness.</p> <p>In this case thecourt of oyer and terminer were asked to direct the district attorney to state what‘he expected to prove by a witness who was about to relate a conversation with the prisoner; which request was overruled, and the witness stated the prisoner’s confession that he had been the in- mate of a state prison. This court was of opinion that this was precisely one of those cases in which the request of the prisoner’s counsel should have been granted.</p> <p>An exception will notlie to the charge of a judge to a jury, on the ground of the comments of the judge upon the evidence.</p>

Error from the superior court of the city of New-York. The plaintiffs in error declared in the court below in ássumpsit for goods sold and delivered, on an account stated and on the common money counts. The defendants pleaded the general issue with notice of spepial matter. On, the trial an account current rendered by the defendants was produced, acknowledging a balance due to the plaintiffs on the 11th July, 1829, of ¿1627,44, and the plaintiffs rested.

Error from the Yates common pleas. Roberts sued Champlin in an action of slander. The plaintiff alleged that he had been sworn and testified as a witness in a suit before a justice of the peace, in which Champlin was the plaintiff and one Burtch was defendant, and that in a coversation respecting the plaintiff and the testimony given by him in that suit, the defendant charged the plaintiff with having sworn false and perjured himself.

Error from the superior court of the city of New-York. Pinckney sued Westervelt, sheriff of New-York, in a justice’s court, to recover the amount of rent claimed by him to be due from one Kirby, under a lease of certain premises—the sheriff having levied upon property upon the demised premises by virtue of an execution, and sold the same after notice from Pinckney, the landlord of the premises.

This was an action on the case for s. false representation, by means of which one Peter B. Cook was enabled to obtain credit, and the plaintiffs were induced to sell goods to him. The suit was tried at the Cayuga circuit in April, 1834, before the Hon. Daniel Moseley, one of the circuit judges.

Error from the Suffolk common pleas. M. Rogers sued D. Rogers in a justice’s court in an action of trespass for wasting ashes belonging to the plaintiff, deposited by him in the highway within 100 feet of the defendant’s house. The ashes were deposited in the evening; the next day the defendant complained that he had been insulted, and went to work and threw five or six bushels of the ashes into his own lot; for the doing of which the suit was brought.

<p>This was an action of assumpsit, tried at the Kings circuit in October, 1833, before the Hon. Ogden Edwards, one of the circuit judges.</p> <p>The suit was brought upon a note given by the defendants to J. Denison for $1080, dated 4th January, 1832, payable in ninety days, endorsed to the plaintiff. The origin of the note was as follows: About the first of July, 1830, ah accommodation loan of $2000 was obtained from the Bank of Albany by the firm of Denison Williams Sf Co., consisting of Denison Williams, one Smith and one Young; the note was drawn in the name of the firm and endorsed by Joseph Denison, and by Peter Gansevoort the plaintiff in this cause. On 30th Séptember, 18301 the sum of $200 was paid and a new note given for $1800, drawn by Denison Williams alone, and endorsed as before by Joseph Denison and Peter Gansevoort, and thus from time to time partial payments were made, and new notes given, by the same maker and same endorsers until the 6th October, 1831, when a note was given for $1215, to which sum the loan of $2000 had been reduced. "When this note was about falling due, Denison called on Gansevoort to endorse the note now in suit, who objected to doing so, saying that he did not expect to be obliged to endorse the note again. Denison importuned him, stating that the note was drawn by the firm of Denison Williams <Sf Co., which firm consisted of Denison Williams and Parmenus Johnson, the latter of whom was a man of property, worth $40,000. Whereupon Gansevoort endorsed the note, which, when it became due. not being paid was protested and and subsequently taken up by Gansevoort and this suit brought thereon. It appeared in evidence that in September, 1831, Williams &, Johnson formed a partnership to carry on in the city of New-York and in Brooklyn the business of dealers in fur and manufacturers of caps; which partnership was dissolved about the tenth day of January, 1832; previous however to which dissolution the note in question was given, the name of the firm subscribed to the note being affixed by Denison Williams. Upon these facts being shown on the part of Johnson, who alone defended the suit, a mass of testimony was introduced by the plaintiff, from which he contended that the assent of Johnson to the giving of the note by Williams in the partnership name might be implied by the jury. The cause was submitted to the jury, who found a verdict for the plaintiff for the amount of the note and interest. The defendant •moved for a new trial.</p>

<p>Where, on the purchase of goods, the purchaser gives his draft, accepted by a mercantile firm, which acceptance is procured for the express purpose, the vendor is not entitled to maintain an action upon the acceptance against all the members of the firm, unless he shows their knowledge of, or consent to the giving of the acceptance.</p>

<p>Where goods are bought and a note in the name of a firm as endorsers id given in payment, the partners not privy to the transaction are not bound; the partner using the name of the firm not having authority in such case to bind his copartners.</p> <p>The endorsement in such case is not within the course of the partnership business; the endorsers are mere sureties, and the party taking the paper is chargeable with notice that the endorsement was not made on account of a partnership transaction.</p> <p>The case is not varied by the facts that the goods were parted with in the usual course of trade, and on the credit of the endorsement.</p> <p>The party holding the paper is not entitled to have a jury pass upon the question of fraud or no fraud in the transaction; it is not a quéstion of fraud, but of contract, viz: has the partner not concurring in the transaction agreed to pay the note ?</p> <p>Where it is sought to charge a partner of a firm with the payment of a note endorsed in the name of the firm by a copartner in a matter not relating to the partnership business, on the ground of subsequent assent, the evidence must be strong and satisfactory ; slight and inconclusive circumstances will not be sufficient.</p> <p>A new trial will not be granted where the plaintiff has been nonsuited, although there was some evidence to establish the case, if the court on a motion for a new trial are satisfied, that the evidence, as well that adduced as that offered and rejected, was not sufficient to warrant a verdict in favor of the plaintiff.</p>

Error from the Yates common pleas. Squier sued Gould in a justice’s court, and declared against him in an action on the case, for that the defendant placed in the highway, opposite to and adjoining the premises of the plaintiff, sand, lime, and other materials for building, so as to interrupt a free passage to the plaintiff’s store, and so that the dust and dirt from the materials blew into the plaintiff’s store and greatly incommoded and injured the plaintiff and damaged…

A suit was commenced before a justice in the name of Barney as plaintiff, against Culver. The plaintiff declared on a joint and several promissory note for 22 dollars and 50 cents, given to him by Culver and one C. Cook. The defendant pleaded the general issue and various other pleas in bar. The cause was adjourned for trial, and on the day appointed the defendant put in a plea puis darrien that one Andrew II.

The plaintiffs in this case declared in debt on a bond bearing date 15th February, 1826, in the penal sum of $5000, conditioned that Gerrit Gates should faithfully execute the duties of the office of treasurer of the Reformed Protestant Dutch Church in the city of Albany; and should, whenever thereunto reqUjre(]! render a true and just account of all his receipts, expenditures and transactions in such office; that he would keep a separate account in the Bank of Albany, as…

<p>In summary proceedings under the statute, against tenants for the non-payment of rent, the fact that satisfaction of the rent cannot be obtained by dis. tress may be shown by affidavit; it is not necessary to resort to an actual distress for the purpose.</p> <p>The affidavit should name the person of whom the rent is demanded; but though defective in this particular, if stated that the demand was made upon the land, it is sufficient to give jurisdiction to the officer, and the defect cannot be objected collaterally; the remedy, if any, is by certiorari.</p> <p>A demand of rent may be made of the tenant in possession, and it seems that the notice requiring payment or a surrender of the premises may be served upon him, although he be not the lessee or assignee.</p> <p>Tt is not necessary that there should be both a demand of rent and a notice requiring payment or a surrender.</p>

This was an action of ejectment, tried at the Kings circuit, brought by the plaintiffs, seven in number, the children of John J. Johnson, to recover a portion of certain premises conveyed by their father to Theodoras Polhemus and Gilbert Van Mater by a deed in trust, bearing date 23d August, 1819.

The plaintiff declared upon two judgments rendered in hia favor against the defendants by a justice of the county of Oneida.

A case agreed upon by the parties, setting forth the following facts, was brought on to argument. The plaintiff commenced his suit in January, 1833, and declared in debt upon a judgment rendered in this court in the term of August, 1805, in favor of his testator against the defendant for Si,652,80 of debt, and $13,68 costs. The defendant pleaded 1. Nil debet; 2. Nultiel record; and 3. Payment.

Error from the Yates common pleas. Weaver sued Townsend in an action on the ease for a malicious prosecution, in causing him to be arrested on a warrant issued by a justice on a charge of felony, from which arrest he was discharged by the justice after an examination of the complainant.

Error from the New-York common pleas. Johnson sued Miln in an action of covenant on a charter party, entered into under seal, whereby the plaintiff let to the defendant a brig to freight for a voyage from New-York to Liverpool. The brig was described in the charter party as “ of the burthen of 264 tons, or thereabouts.” The defendant covenanted to pay for the charter or freight of the vessel £450 sterling, with five per cent, primage thereon.

Error from the Onondaga common pleas. Bailey sued Adams in an action of trover for a wagon, in which the defendant pleaded the general issue. The plaintiff proved that he bought the wagon of one Collier and paid him $65 for it. The wagon at the time of the purchase was at the shop of a wagon-maker, one Aaron Drake, where it had been taken by Collier for the purpose of having a box made and painted.

This was an action on the case tried at the Seneca circuit in November, 1833, before the Hon. Daniel Moseley, one of the circuit judges. The parties are owners of mills on the Seneca river, the defendants’ mill being situate below that of the plaintiff. The suit was brought to recover damages for the flowing of the wheels of the 'plaintiff’s mill, by means of a dam erected by the defendants.

Error from the Oneida common pleas. Potter sued Griffin for work, labor and services rendered by him. Potter is a negro; he was born 8th May, 1806, of a mother who was at the time of his birth a slave, and by the act for the gradual abolition of slavery in this state, passed 29th March, 1799, he owed service to the proprietor of his mother until he arrived to the age of twenty-eight years.

This was an action of assumpsit, tried at the Tompkins circuit in December, 1832. The suit was brought to recover the price of the transportation of a quantity of merchandize from Albany to Ithaca. On the 19th November, 1831, the plaintiff received at Albany, on board a canal boat of which he was owner and master, a quantity of goods belonging to the plaintiffs, which he agreed in writing to deliver in good order at Ithaca, the plaintiffs paying him for the freight.

Demurrer to declaration. The plaintiff declared in covenant, selling forth an agreement under seal, bearing date 4th May, 1832, whereby the defendant covenanted diligently and faithfully to labor for and serve the plaintiff, in the business of tanning and currying at a certain tannery lately occupied by the defendant and then owned by the plaintiff, to continue in the service of the plaintiff for the term of three years, and during such term to board himself.

Error from the Cayuga common pleas. O’Hara sued Eddy & Hathaway in a justice’s court. The suit was commenced by .summons, which was personally served upon Eddy, and by copy upon Hathaway. On the return day of the summons, Eddy alone appeared to defend. The plaintiff declared on a promissory note for $12,62f, purporting to have been made by the defendants and payable to the plaintiff.

Error from the Seneca common pleas. Laraway sued De Mott & Ingersoll in a justice's court, to recover freight due to him as a common carrier. It was conceded that the amount was #39; but the defendants interposed as a defence the neglect of the plaintiff to deliver a hogshead of molasses, which he had received for transportation.

This was an action of ejectment, tried at the Oneida circuit in April, 1834, before the Hon. Esek Coweh, then one of the circuit judges. The suit was brought for the recovery of a quarter of an acre of land.

Error from the Madison common pleas. Near commenced a suit by attachment against the defendants. On the return day of the process, the defendants appeared and objected that the amount of the debt sworn to by the applicant was not stated in the attachment, 2 R. S. 230, § 30, and prayed that the suit abate.

Error from the Onondaga common pleas. Smallman sued Curtis in a justice’s court. The suit was commenced 6th January, 1834. On the trial, the plaintiff produced a due bill given by one S. Gilson, whereby Gilson acknowledged to be due to Curtis or bearer the sum of $22,64, with use since June 24, 1833, with an endorsement on the back thereof, signed by Curtis, in these words: “ I warrant this note good. June 27, 1833.” The defendant admitted his signature. The plaintiff rested.

<p>The widow of a mortgagor is entitled to dower in the equity of redemption j but her title is subject to the mortgage, and may be defeated by a foreclosure. The title she acquires by a marriage subsequent to the mortgage does not affect the security, or any of the remedies under it.</p> <p>After forfeiture, the mortgagee or his heirs having obtained possession of the mortgaged premises, may, until the mortgage is satisfied, defend themselves in the possession under the mortgage, against a claim for dower,</p> <p>In an action of ejectment for dower, the admissions of the husband whilst living are as competent evidence in bar of the title of his widow, as they would be in bar of the title of his heir or grantee.</p>

Error by certiorari from this court to a justice of the peace. Luce commenced a suit by attachment, under the “ act to abolish imprisonment for debt and to punish fraudulent debtors.” Session Laws, 1831,p. 404, §34, 35. The attachment was served.

Error from the Montgomery common pleas. Geortner sued Machín in a justice’s court, and declared against him in trespass quare clausumfregit for entering upon his premises, and cutting, damaging and destroying timber and bushes, standing and growing thereon. The defendant pleaded the general issue, and gave notice that he would prove that he enterec} as a surveyor, to ascertain the boundaries of land sold for non-payment of quit-rent.

This was an action of assumpsit, tried at the Steuben circuit in November, 1833, before the Hon. Robert Monell, one of the circuit judges.

Motion to Set aside report of referees. This was an action of assumpsit for work and labor and materials found in repairing a canal boat. Wyman, the defendant, sold the boat to one Rector, who employed the plaintiffs (boat builders) to repair the same. According to the plaintiffs’ witnesses, a. few days after the repairs had been commenced, Wyman told the plaintiffs that he wanted the boat done as soon as possible, and he would be responsible for the pay.

Error from the Dutchess common pleas. Foot sued Northrop for deceit in the sale of a horse, and declared on a warranty. The defendant pleaded non. cul. and the statute of limitations. To the latter plea there was a replication. The sale took place in the state of Connecticut on a Sunday.

Error from the Ontario common pleas. Tracy sued Wet-more and four others in a justice’s court, in an action of trespass for throwing down 100 rods of his fence, whereby cattle were let into his premises, and his wheat was destroyed. The defendants pleaded, 1. non cul., and 2. that the fence was a public nuisance, obstructing a public highway, and that the defendants removed it as a public nuisance, doing no unnecessary damage.

<p>Error from the Warren common pleas. The plaintiffs sued Pattison in a justice’s court, and declared against him for work, labor and services, in transporting a quantity of flour, boards and plank, from Glen’s Falls in Warren county to the city of Troy. The defendant pleaded the general issue, and gave notice that on trial of the cause he would prove that the plaintiffs had agreed to transport for him a large quantity of lumber at a certain price, and had failed to perform, whereby he had sustained damage to the amount of $50. The justice rendered judgment in favor of the defendant for $36,74. The plaintiffs appealed to the Warren common pleas, and on the trial of the cause exhibited an account against the defendant, consisting of various items, viz. for the transportation of flour and lumber, and for the use of a landing place, amounting together to the sum of $76,67$ on which account the defendant was credited with two payments of cash, one of $30 and the other of $18,87, leaving a balance due the plaintiffs of $27,20. ' The plaintiffs proved that the defendant admitted the correctness of the items of the account, and also admitted that the item of $18,87 was erroneously placed to his credit, as he had not paid it. On the part of the defendant it was proved, by one Edmund P. Richards, that he was the owner of two canal boats, and had contracted with the defendant, in the autumn of 1831, to carry his lumber to market, for which he was to receive $15 per 1000 pieces for boards, $20 for plank, and $30 for siding; that on 29th October, 1831, he sold his boats to the plaintiffs, who assumed to perform the contracts he had made with the defendant and with others, to take their lumber to market, before the closing of the canal. After the sale of the boats, the plaintiffs admitted they had renewed the contracts of the witness with the defendant and others. It was then proved that at least 3000 pieces of lumber, belonging to the defendant, laid over and were not carried to market by the plaintiffs in the autumn of 1831, and that in the spring of 1832 the price of lumber was at least Tf¥ per piece less than it was in the autumn of 1831. The evidence as to the depreciation of price was objected to by the plaintiffs, but received by the court. As to the right of the plaintiffs to charge for the use of the landing place, there was a contrariety of evidence. The presiding judge charged the jury that the contract (in case they should find that there was a contract between the parties) was entire, and that to entitle the plaintiffs to sustain their action, they were bound to show a full performance on their part; that if they had not shown a full peformance, the jury were authorized to set off the $30 which had been paid by the defendant, with the interest thereof, against any claim of the plaintiffs which they should consider to have been proved, and to certify the balance in favor of the defendant, who was entitled to set off his demand, and the $30 and interest, against any other claim of the plaintiffs not growing out of the contract. The plaintiffs excepted to the charge. The jury found a verdict in favor of the defendant for $34,94, on which judgment was entered. The plaintiffs sued out a writ of error.</p>

Demurrer to pleas. The plaintiff, in January, 1835, declared on a judgment obtained by him against the defendants, in the Chautauque common pleas, in June, 1834, for $109,71. The defendant pleaded, 1. Payment; 2.

George Lorillard, of the city of New-York, died in September, 1832, a bachelor, possessed of a large real and personal property, worth about three-millions of dollars ; most of which was in real estate in the city of New-York, and the annual income of which at the time of his death was from eighty to one hundred thou- sand dollars. His mother was living at the time of his death, but she survived him but a few days.

Error from the supreme court. This was an action on a policy of insurance made by the American Insurance Compan7 on ^le May, 1824,… Held: and upon a motion for a new trial adhered to the opinion, that this circumstance made no difference,and that the defendants were exonerated, because when they signed their own policy, there were others in force—a decision directly at variance with the supposition of the learned counsel, that the period to which the clauses refer is…

Error from the supreme court. Mary Martin claiming that Jack, a negro man, was her slave in the state of Louisiana, and that he had fled from her service to the city of New-York, made application to the recorder of the city of New-York for a habeas corpus, on which Jack was brought before the recorder, who, after hearing the proofs and allegations of the parties, granted a certificate authorizing the slave to be taken back to Louisiana.

Motion to quash an appeal In May, 1829, Seth Jenkins filed a bill in chancery for the partition of certain lands lying on the south side of a certain creek called AbrahanHs creek, on which was erected a factory, claiming to be the owner of one-fourth of the premises, and stating that another fourth was owned by John F. Jenkins, and the two remaining fourths by James Wild.

Error from the supreme court. ' Charles Haynes was indicted at the general sessions of the city of New-Y ork, under the statute, fax obtaining goodsby false pretences from Messrs. Cochrao, Addoms & Co. a mercantile firm in the city of New-York, on the 9th November, 1883. The representations alleged to have been made by him, by means whereof he obtained the goods, were, 1. That he had then no note protested for nonpayment; 2.

Error from the supreme court. J. A. Morton and J. Low, jun., assignees of H. B. Gwathmey, an insolvent debtor, brought an action in the superior court of the city of New-York, against E.N. Rogers and two others, and declared on a' promissory note, bearing date 2d January, 1828, payable the first day of October, then next, for $2000, with interest from 26th October, 1827.

Gregory and Selman filed a bill in chancery against Dodge and Green, for an account in relation to certain mercantile transactions had between them. The complainants resided at Marblehead, in the state of Massachusetts ; the defendants in the city of New-York.

Error from the supreme court. Garnsey and the other lessors of the plaintiff brought an action of ejectment against Corbin to recover a lot of land, part of a large tract of 15,-360 acres, granted by letters patent in 1787 to M. Treat and W. Morris, and produced in evidence a deed covering the premises in question, bearing date 12th September, 1792, purporting to have been executed to Marie Jeane IF Autremont and others, by Charles Felix Bue Be Bouloigne, as the attorney in…

Jane Elizabeth Johnson filed a bill against her husband, Enos Ward Johnson, in the court of chancery, before the vice chancellor of the first circuit, praying for a divorce a vinculo matrimonii.

Error from the supreme court. Brooks declared against IX & J. Jackson as the acceptors of several bills of exchange bearing date 1st April, 1818, payable 12 months after date.

In April, 1830, the appellant filed his bill for an account against the respondents, as trustees under a voluntary assignment made by him on the 20th January, 1798, for the benefit of his creditors ; the balance, if any, to be paid to him.

Error from the supreme court. Bates sued Tymason for breach of the covenants of seisin and quiet enjoyment, contained in a deed of 128 acres of land,executed by Tymason to one-Calvin May, on the 30th May, 1812; Bates being the assignee of the covenants, in consequence of sundry mesne conveyances of the same premises, which are described in the deed as follows: “ All that certain piece or parcel of land, situate, lying and being in the town of Cherry Valley, in the county of…